Volume 147 — Pennsylvania State Reports

Appeal, No. 258, Oct. T., 1891, by defendant from judgment of G. P. No. 2, Allegheny Go., April T., 1890, No. 131, on verdict for plaintiff. On Jan. 18, 1890, viewers were appointed to assess damages for the appropriation by the Pittsburgh, Virginia & Charleston Railway Company, of certain lands belonging to V. K. McElheny and others.

Appeal, No. 278, Oct. T. 1891, by defendants from judgment of C. P. No. 2, Allegheny Co., July T, 1890, No. 852, on verdict for plaintiff. Trespass by Mary McMinn against the Pittsburgh, Mc-Keesport & Youghiogheny Railroad Company, to recover damages for the flooding of certain premises owned by the plaintiff, in consequence of negligence in the construction, maintenance and operation of the Pittsburgh, McKeesport & Youghiogheny railroad.

<p>Municipalities — Personal liability of officers or citizens.</p> <p>While a city, exercising an authority conferred by a statute afterwards adjudged unconstitutional, will be bound to compensate a person injured by such exorcise, yet a municipal officer representing the city therein, and acting in obedience to an order regularly given to him in accordance with such statute, incurs no personal responsibility.</p> <p> Liability for act under unconstitutional statute. </p> <p>The same rule applies to a citizen who acts as the mere representative of a municipal officer, in the performance of a duty which apparently .and by color of law rests upon him as a citizen, and which would necessarily be performed by the officer without personal liability, if the citizen refused to obey the law and the officer’s mandate.</p> <p> Landlord not liable to tenant for act under unconstitutional statute. </p> <p>Proceeding according to the provisions of a statute, a city laid out a street, and gave a peremptory notice to the owner of a building, part o£ which was within the lines of the street, that he must remove it, or the city would do so at his expense. The building was occupied by a tenant, who remained in it with knowledge of the laying out of the street. By cutting away from the building, in obedience to the order of the city, so much of it as encroached upon the street, the owner did not render himself liable in damages to the tenant for interference with the latter’s possession of the premises, although the statute under which the city acted was afterwards adjudged unconstitutional.</p>

Appeal, No. 128, Oct. T., 1891, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1888, No. 23, on verdict for defendant. Samuel Kilgore, upon a judgment obtained by him against W. P. Graham on April 15, 1887, for $3,081.63, issued an execution under which a levy was made upon a stock of goods in a hat and fur store^in possession of the execution defendant at 425 Wood street, Pittsburgh.

<p>Bill of review — -Attempt to review decision of Supreme Gourt.</p> <p>On a bill by the purchaser praying for specific performance of a contract to convey lands, the court below sustained a demurrer and dismissed the bill. On appeal, the Supreme Court reversed the decree, reinstated the bill, and ordered that a decree be entered for the plaintiff, on the demurrer. A decree having been entered for the plaintiff by the court below as directed, a petition and bill of review, subsequently filed by the defendant, that was merely the equivalent of an application to review the decision of the Supreme Court, was properly dismissed: See Felty v. Calhoon, 139 Pa. 378.</p>

Appeal, No. 292, Oct. T., 1891, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., No. 652, on verdict for defendant. Trespass by James W. Riddle against W. L. Mellon and others, to recover damages for an entry made by the defendants upon the plaintiff’s farm, for the purpose of drilling for oil. The defendant’s plea was not guilty.

<p>Appeal, No. 293, Oct. T., 1891, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1891, No. 1048, for defendants on demurrer.</p> <p>Trespass by Samuel T. Ewing and Eva Ewing, his wife, in right of said wife, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. The plaintiffs filed the following statement of claim:</p> <p>“ Samuel T. Ewing and Eva Ewing, his wife, who sue in the right of said Eva, .... complain of the Pittsburgh, Cincinnati &' St. Louis Railway Company, now styled the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, defendant in this action, for that the said defendant, being a corporation, and owning and operating a line of railway and trains of cars, moved and propelled by locomotives and steam power, in the counties of Washington and Allegheny, in the state of Pennsylvania, heretofore, to wit, on the eighth day of August, 1890, to wit at the town of Midway, in the county of Washington aforesaid, carelessly and negligently, and in consequence of the gross carelessness and negligence of the officers, agents and servants of the defendant company, ran a train of cars of defendant company against and upon another car of said company, on the same track of said railway, and thereby produced a collision between the said train and car, and the said cars of the defendant company were broken, overturned and thrown from the track, and fell upon the lot of ground and premises of the plaintiffs, and against and upon the dwelling-house of plaintiffs, and thereby and by reason thereof, greatly endangered the life of the said Eva Ewing, then being in said dwelling-house, and subjected her to great fright, alarm, fear and! nervous excitement and distress, whereby she then and there became sick and disabled, and continued to be sick and disabled from attending to her usual work and duties, and suffered and continues to suffer great mental and physical pain and anguish, and is thereby permanently weakened and disabled, and that she was and is thereby otherwise injured and1 damnified, wherefore she claims damages in the sum of five thousand dollars, and demands judgment therefor.”</p> <p>The defendant company, on April 9, 1891, demurred to the statement of claim, on the ground that it was insufficient in law and disclosed no cause of action against the defendant; and, further, that the damages alleged to have been suffered by the plaintiff were too remote and not such as to constitute any cause of action.</p> <p>After argument, the court entered the following judgment : [Sept. 14, 1891, on argument list and demurrer sustained.] (2) Plaintiffs appealed.</p> <p>Errors assigned were (1) the entry of judgment for the defendant on the demurrer; (2) the judgment as set out upon the record in brackets.</p> <p>The statement of claim exhibits an injury to the plaintiff resulting from an act of negligence on the part of the defendant, without any other cause intervening: Oil Creek Ry. Co. v. Keighron, 74 Pa. 316; Bishop’s Non-contract Law, §§ 457, 445,1108 ; Beach on Cont. Negl. 7, 42-45 ; 2 Wood’s Railway Law, 1261; Pittsburgh v. Grier, 22 Pa. 54 ; Johnson v. Railroad Co., 70 Pa. 359; Pollock on Torts, *387 et seq.; Bigelow on Torts, 311, 316.</p> <p>Damages are recoverable for an injury to health resulting from fright caused by negligence: Balt. & O. R. Co. v. Bambrey, 2'Mona. 109; Schneider v. Penna. Co., 2 Cent. R. 74; Scott Tp. v. Montgomery, 95 Pa. 444; Cracker v. Railroad Co., 36 Wis. 657; Fitzpatrick v. Railroad Co., 12 Upper Can. Q. B. 645; Barbee v. Reese, 60 Miss. 906; Brown v. Railroad Co., 54 Wis. 342 (41 Am. Rep. 41) ; Stewart v. Ripon City, 38 Wis. 591; Oliver v. La Yalle, 36 Wis. 592. And the fact that the plaintiff may have been peculiarly susceptible to fright, will not relieve the defendant: Baltimore City R. Co. v. Kemp, 61 Md. 74; Jeffersonville R. Co. v. Riley, 39 Ind. 568; Houston R. Co. v. Leslie, 57 Tex. 83; Allison v. Railway Co., 42 la. 274.</p> <p>The collision averred in the statement of claim was no legal injury to Mrs. Ewing, and sine injuria non oritur actio: Broom Leg. Max. 200; Tr. & H. Pr. §1572; Addison on Torts, § 1338; Fox v. Borkey, 126 Pa. 164. Moreover, the damages alleged were too remote, being the result, not of the collision, but of fright: Pittsb. S. Ry. Co. v. Taylor, 104 Pa. 306 ; West Mahanoy Tp. v. Watson, 112 Pa. 574; S. C. 116 Pa. 344; Huxley v. Berg, 1 Stark. N. P. 79; Victorian Ry. Corn’rs v. Coultas, L. R. 13 Ap. 222; Mayne on Damages, 74; note by Wood ; Wyman v. Leavitt, 71 Me. 227 (36 Am. Rep. 303); Indianapolis Ry. Co. v. Stables, 62 111. 313; Canning v. Williamstown, 1 Cush. 451; Johnson v. Wells, 6 Nev. 224 ; Lynch v. Knight, 9 H. L. Cas. *577; Fox v. Borkey, 126 Pa. 164.</p>

<p>Affidavit of defence — Mechanics' lien — Bill of particulars.</p> <p>The particulars appended to a mechanics’ lien, filed by a material-man, contained items without dates or prices; the dates of other items were not consecutive, and the prices given were confusing. The affidavit of defence averred that the defendant was unable to ascertain from the bill the propriety or reasonableness of the charges; Held that the court below was right in discharging a rule for judgment.</p> <p> Affidavit of defence law. </p> <p>Only in a clear case will the Supreme Court reverse an order refusing judgment for want of a sufficient affidavit of defence, inasmuch as the result of the order is simply to send the case before a jury, where the rights of the parties can properly be disposed of.</p>

Appeal, No. 298, Oct. T., 1891, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1889, No. 285, on verdict for plaintiff. Trespass by E. R. Ayers and H. E. Dewey, trading as E. R. Ayers & Co., against Alexander AD. McCandless, for seizing and selling, under a writ of execution against H. Bauer & Bro., directed to the defendant as sheriff of Allegheny county, certain lumber alleged to be the property of the plaintiffs. Issue.

<p>Will — Devise—Death without issue.</p> <p>Under a devise to children and grandchildren, by name, in equal shares per stirpes, the share of each child to go “in case of his death” to other persons, and “in case of the death without issue” of any of the grandchildren, his share to be divided among the. other grandchildren, the devisees, having survived the testator, took an absolute estate in fee simple. .</p>

<p>Incorporation of boroughs — Manufacturing plants — Act of April 3, 1851.</p> <p>In the incorporation of a borough, under the Act of April 3, 1851, P. L. 320, tracts of 44, 28 and 26 acres on which are located plants of manufacturing corporations, situated between the residence portion of the village and a river, and entirely cut off by the former from the township to which they belonged, are properly included within the corporate limits.</p> <p>Exclusion of farm lands — Act of April 1, 1863.</p> <p>Under the Act of April 1, 1868, P. L. 200, authorizing the exclusion from the limits of a proposed borough of lands, used solely for farming “ and not properly belonging to the town or village,” it must appear, in order that land so used may be excluded, that it does not properly belong to and constitute a part of the village or town.</p> <p>Description of boundaries — Rivers—Act of April 1, 1834.</p> <p>When a navigable river is one of the boundaries of a proposed borough, a description of the line along the river as extending “ thence by low water line, and down said river. . . . feet,” is a sufficient compliance with § 2, Act of April 1, 1834, P. L. 163, requiring that the petition exhibit the courses and distances in words at length.”'</p>

<p>Appeal, No. 302, Oct. T., 1891, by W. G. Park, from decree of O. C. Allegheny Co., June T., 1891, No. 74, dismissing exceptions to adjudication.</p> <p>On June 12, 1891, the second supplemental account of William G. Park and others, executors of the will of Richard C. Gray, deceased, exhibiting a balance of cash on hand, $793,723.87, was confirmed absolutely. Subsequently, upon an audit for the purpose of making distribution, the auditing judge, Hawkins, P. J., found in substance the following facts:</p> <p>Richard C. Gray died on May 28, 1888, leaving a will duly signed by him but without subscribing witnesses, dated February 2, 1888. Oue day before his death, he informed W. G. Park and David Park that he had made a will which had not been “ probated,” and that he wished them to see that all its provisions were carried out. By his will, he bequeathed his estate, real and personal, to his executors, in trust for the purposes thereinafter mentioned. Then followed pecuniary bequests to relatives and friends, among the former being the individuals named in the residuary clause; pecuniary legacies to charitable institutions, among them one of $20,000 to the Allegheny General Hospital; and a residuary clause in these words:</p> <p>“ The payment of bequests shall be in the following, order: first to relatives, then the charitable; after they are all paid the balance shall go into the residuum which shall be divided pro rata between William G. Park, David E. Park, Richard G. Park, Margaret B. Park, Eleanor G. Park, and the Allegheny General Hospital.”</p> <p>Upon the assumption that the charitable bequests were void, under § 11, Act of April 26,1855, P. L. 332, the five individuals named in the residuary clause, claimed that the whole residuary estate should be given to them in exclusion of the testator’s next of kin.</p> <p>On July 3, 1891, the following adjudication was filed, Hawkins, P. J.:</p> <p>1. In Abbott’s Law Dictionary, the word “ attest ” is said to signify in a certain technical way by a formal subscription, that one has witnessed the execution of a written instrument. As applied to deeds, this has been adjudged to be the ordinarjr use of the word; the principal end of which seems to be to preserve evidence of the instrument being executed in the presence of the witnesses required: Anderson’s Dictionary. So, the attestation of records must necessarily be by the signature of the clerk; and there is no good reason why this use should not be applied to wills. An “ attesting witness ” is said by Bouvier to be “ one who, upon being required by the parties to an instrument, signs his name to it, to prove it and for the purpose of identification.” This being the ordinary use of the word, and there being nothing in the Act of 1855 inconsistent with it, it must be followed.</p> <p>But, assuming that subscribing witnesses were not contemplated, still the purpose of the statute has not been satisfied. That purpose was to prescribe an exclusive mode in which valid charitable gifts could be made. By the express terms of the statute, these could only be made by “ deed or will attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor.” The’wording and the manifest purpose of the statute make the execution and attestation precede the limitation of time. It was as essential to the protection of the testator from death-bed imposition, and was made as essential by the terms of the statute to the validity of the gift that the fact of attestation should, be “ at least one calendar month before the decease of testator,” as that he should attach his signature to his will.</p> <p>2. So far, the statute is remedial; the following provision in reference to distribution is simply declaratory: Void legacies, under the statute, fall to the “ residuary legatee or devisee, next of kin, or heirs, according to law.” According to what law? Necessarily to existing law; for this statute does not provide how, when, nor under what circumstances, “ the residuary legatee or devisee, or next of kin, or heirs,” shall take. As to this its terms are general and referential. The law relating to the execution of wills was amended in respect of charitable bequests ; but no change was attempted in relation to the laws of distribution. The rights of the parties claimant in the distribution of the residue, must be ascertained, not by reference to the Act of 1855, for that was passed to amend the law relating to wills; but by reference to the law of distribution.</p> <p>It has been seen that the legacies to charities in this will are void under the statute; and it is clear that the special pecuniaiy legacies fall into and form part of the residue: Woolmer’s Est., 3 Wh. 480. But, it is insisted, on the one hand, that because the bequests to the Allegheny General Hospital were void ab initio, there is no analogy to the case of lapsed legacies, and the will must consequently be read as though the hospital had not been mentioned, and the Parks were the sole residuary legatees ; and, on the other hand, that the next of kin are entitled to the residuary share ineffectually bequeathed to the hospital.</p> <p>It was said in Woolmer’s Estate, supra, that if a residue is given in distinct shares, a share failing will not accrue to the remaining shares but belong to the next of kin as undisposed of. This principle was applied to the case of a lapsed legacy, in Craighead v. Given, 10 S. & R. 351, the reason given being that the residuary legatees took as tenants in common, in distinct shares, and there consequently could be no survivorship as between them as in joint tenancy. The reasons of this rule are tersely given in the court’s analysis of Bagwell v. Dry, 1 P. Wms. 700: “The Lord Chancellor was of the opinion that, the testator having devised the residuum in four parts, and one of the residuary legatees having died in his lifetime, the devise of the fourth became void, and was so much of the testator’s estate undisposed of by the will. It could not go to the survivors, because each of them had but a fourth part devised to him in common, and the death of the fourth residuary legatee could not avail them, as it would have done had they all been joint legatees, for then the share of the legatee dying in the life of the testator would have gone over to the survivors; but the residue being devised in common, it was the same as if a fourth part had been devised to each of the four which could not be increaséd by the death of any one of them.” The Supreme Court does not seem to have passed upon the effect of a bequest of a portion of a residue void under the statute ; but the question arose in this court in the estate of Matthew Henderson, deceased, No. 18 December Term 1868, and Mr. J. W. Over, auditor, and, upon exception to his report, Sterrett, Mellon and Stowe, JJ., held, after elaborate argument by able counsel, that the void legacy was distributable under the intestate laws to the next of kin.</p> <p>In Patterson v. Swallow, 44 Pa. 487, it was said that the old distinction between lapsed and void legacies and devises, so far as regards the operation of residuary clauses, had been taken away in Pennsylvania by our statute of wills of 1833 ; and there is no good reason why there should be any distinction between lapsed and void dispositions of the residue itself. In either event, the testator intends a bounty; and, as his will speaks only from his death, the failure of each is referable to that common date.</p> <p>There can be no doubt, in this instance, that Capt. Gray intended the Allegheny General Hospital should have a share of his residuary estate; he gives to it by name a distinct and severable share, not jointly, but in common with the Parks ; there was no gift over, and there could consequently be no survivorship : Craighead v. Given, supra. It was suggested in argument that no presumption of an intent to die intestate as to any part of the estate, is to be made, when testator’s words, as found in the will, can be so construed as to dispose of the whole of it. The answer to this is, that the intestacy here does not arise from the words of the will, but from failure to comply with the statutory requirement in reference to attestation; or, as the court said in Reed’s Ap., 82 Pa. 428, it arose from the law of the land. So, it was suggested that because the law presumes Capt. Gray knew the necessity of attestation, he never contemplated the hospital should take any part of the residuary estate, but that the Parks should take the whole. This attributes to Capt. Gray a vain and useless act. The will speaks for itself. The more reasonable presumptions are, that he intended what he wrote, and being unlearned in the law was ignorant of the necessity of attestation : Comly’s Est., 136 Pa. 156. He gave the Parks, not the whole, but pro rata shares of the residue in common with the hospital; and the failure of the bequest to the hospital could not, as already shown, operate to increase their shares as residuary legatees so limited. The share intended for the hospital having become ineffectual, is therefore distributable under the intestate laws to the next of kin ; and there remains the question of the proportion in which they shall take.</p> <p>3. What was meant by the expression “ shall be divided pro rata between? ” The answer is, Distribution in proportion to the legacies previously given; and for these reasons : The Supreme Court of California said in a similar case : “The reference to the first by the last clause is plainly manifest from his (testator’s) mentioning the same persons in both as beneficiaries. The pro-rata distribution is to be in accordance with some rate previously indicated. The sums mentioned in the first clause, of themselves furnish a rate or proportion, and it becomes unnecessary to indicate any other. To indicate any other in accordance with his wish, would have merely led to a repetition of what had been manifested by the expressions of the first and leading clause of the paper he was drawing. It is scarcely to be supposed that the ratio or proportion would be indicated in the clause in which it is mentioned. This is not usually the mode in which a division pro rata is directed. In the instances above referred to, whether in statutes, judicial opinions, or in the text of law-writers, the pro-rata distribution is spoken of in relation to something outside of the clause, ordering or referring to such distribution, and not in the clause itself. The same is true of the ratio or proportion of distribution : ” Rosenberg v. Frank, 58 Cal. 387. These reasons apply with the same force here; and an additional reason is furnished in the facts that this is the only instance in which testator used the expression “ pro fata; ” whilst elsewhere, he uses apt words to indicate equal distribution. The change in phraseology implied a change of intention. ...</p> <p>—Thereupon the auditing judge reported distribution by which, after awarding payment of all the pecuniary legacies, except those bequeathed to charities, the remainder of the fund was distributed, as residuary estate, to and among the five individuals named as residuary legatees and the testator’s next of kin, each of the former being awarded five twenty-sevenths, and the next of kin two twenty-sevenths thereof.*</p> <p>The five individual legatees filed exceptions to the decree, specifying inter alia, that the court erred :</p> <p>• 1. In not holding that under the will of said Richard C. Gray, deceased, the share of the estate which would have gone to the Allegheny General Hospital, went to and vested in the said Parks as residuary legatees and devisees. [1]</p> <p>2. In not holding that, if in any event the next of kin of said Richard C. Gray, deceased, were entitled to any share of the said estate, they could only claim it as standing in the shoes of the Allegheny General Hospital, and could take only that portion of the said estate which the said Allegheny General Hospital could take; and that the said Allegheny General Hospital could take only if the charitable bequests and devises had held good, and therefore persons claiming under it could not take any portion of the charitable legacies given in said will amounting to ninety-five thousand dollars. [2]</p> <p>3. In not awarding and distributing the entire residuary estate to the residuary legatees named in the will of the decedent. [3]</p> <p>—The exceptions were overruled and the distribution confirmed. Exceptants appealed.</p> <p>Errors assigned were (1-3) the overruling of appellants’ exceptions.</p> <p>cited: Boards of Missions’ Ap., 91 Pa. 513; Little’s Ap., 81 Pa. 190; Potter’s Dwarris, 68, 144, 145; Lynch v. Lynch, 132 Pa. 427; Manners v. Library Co., 93 Pa. 174; Price v. Maxwell, 28 Pa. 23 ; Miller v. Porter, 53 Pa. 292; Patterson v. Swallow, 44 Pa. 487; distinguishing Reed’s Ap., 82 Pa. 428 ; and Everman v. Everman, 15 W. N. 417, as cases of lapsed, not void residuaiy shares.</p> <p>cited: Everman v. Everman, 15 W. N. 417 ; Sohier v. Inches, 12 Gray, 385; Massey’s Ap., 88 Pa. 470; Patterson v. Swallow, 44 Pa. 487 ; Reed’s Ap., 82 Pa. 428. '</p>

<p>Appeals Nos. 304, 305, Oct. T., 1891, by G. I. Whitney, assignee, and F. P. Sproul, guardian, from decree, O. C. Allegheny Co., April T., 1890, No. 75, dismissing exceptions to adjudication.</p> <p>On April 7, 1890, the third account of Mark W. Marshall, Thomas M. Marshall and Matilda Marshall, trustees under the will of James Marshall, deceased, exhibiting a cash balance of $36,865.65, made up in part of royalties received under oil leases made by the accountants of lands belonging to the estate of the testator, was confirmed nisi. The account having been audited, Hawkins, P. J., on July 10, 1891, filed the following adjudication:</p> <p>James Marshall died in September, 1869, leaving a will dated May 23, 1867, by which he appointed his wife Matilda, his son, James, his son-in-law, Mark W. Watson, and his brother, Thomas M. Marshall, executors and trustees, and made the following, among other provisions. The first paragraph of the will made the appointment of the executors and trustees. The second and third paragraphs were as follows :</p> <p>“ 2. I bequeath to my executors the sum of six thousand dollars for the use and benefit of my niece, Jane P. Rainbow, to be paid to her at their discretion, or by investing it for her benefit.</p> <p>“ 3. I devise and bequeath to my wife Matilda, the house we now occupy as a home, during her life, and four thousand dollars per year, together with furniture, and the necessary appendages for her support and that of her minor child Anna Frances ; this is to be in lieu of my wife’s dower.</p> <p>“4. I bequeath to my executors all the balance of my estate, real, personal and mixed, to have and to hold the same in trust for the use and benefit of my children, viz., Harriet Watson, James, Julia and Anna Frances, making them all equal at twenty-one years of age, share and share alike ; and should any of them die without lawful issue, their interest shall be equally distributed to the survivors or the heirs of my deceased children, by investing it for their benefit, or paying to them the proceeds; as I wish them, the executors, to be invested with full power to give or withhold as they think best' for the interest of any and all of my children; and for the purpose of carrying out this, my purpose, I hereby authorize my executors to purchase and sell real estate at public or private sale, as they deem for the best interests of my children, and to hold it in trust for them, or give it to them as they regard their best interest.”</p> <p>The body of the will, except the clause “ to the heirs of my deceased children,” was in testator’s handwriting. Harriet Watson was of age when the will was made; James Marshall, Jr., attained his majority before his father died; Julia, October 18, 1869, and Anna Frances, August 8, 1886.</p> <p>The executors and trustees qualified. James Marshall, Jr., at once assumed the duties of acting executor and trustee, and so continued until April 16, 1883, when he became insolvent and made a voluntary assignment largely indebted, through devastavit, to the estate; and thereupon his co-trustees assumed the duties and have continued in their performance since. James Marshall, Jr., was discharged as executor and trustee.</p> <p>Since the death of Mr. Marshall, numerous sales and conveyances have been made under the power contained in his will; and among these was a sale made by the surviving trustees in 1889, in which the continued existence of their power was questioned, and was affirmed by this and the Supreme Court: Marshall’s Est., 188 Pa. 260. In 1884, the surviving trustees made certain so-called oil leases of land which theretofore had not been developed, and from which these trustees have received in bonus and royalty $218,381.92.</p> <p>Unequal amounts have been paid the cestuis que trust in distribution, Anna Frances having received less than any of the others.</p> <p>The questions presented are: 1. What is the duration of the trust under this will? 2. Shall the proceeds of the oil leases be treated as corpus or income ? 3. What were the relative lights of the cestuis que trust, before and after attaining majority, in respect of the income of the trust estate ?</p> <p>DECISION.</p> <p>1. That this will created a valid, active trust seems clear. There are sufficient words used; a definite subject and ascertained subjects: Cruwys v. Colman, 9 Ves. 322 ; and it is not inconsistent with public policy: Earp’s Ap., 75 Pa. 119 ; Wilkinson v. Buist, 124 Pa. 253; Lewis on Perpetuities, 585. This much is conceded. . ’</p> <p>2. The main controversy between the parties turns on the duration of the trust. .</p> <p>The dominant intent apparent on the face of the will is to create a trust for the “ use and benefit ” of all testator’s children in the residuary estate, during their lives, with discretionary power in the trustees to “ give or withhold ” from any such “ children ” a share in the corpus, and' thus end the trust sooner. The operative word used in cheating, must obviously be the chief guide in ascertaining the purpose and scope of the trust, and give color to the interpretation of the following provision relating to it.</p> <p>These words are: “ I bequeath to my executors all the balance of my estate, real, personal and mixed, to have and to hold the same in trust for the use and benefit of my children, viz., Harriet Watson, James, Julia and Frances.” As “children ” are the only objects mentioned here, the presumption is that the trust was raised for their “ use and benefit ” alone, and that its duration was intended to be limited by their lives. The following portion of the paragraph relating to the trust, gave the trustees discretionary power to end the trust in respect of any of such “ children ” and vest in them a share in the corpus in the meantime; but it did not change or modify it in any other respect.</p> <p>It was suggested at the argument that this construction leaves out of consideration the clause “ making them all equal at twenty-one years of age,” which follows that creating the trust. But it does not. That clause is at best ambiguous. If the paragraph relating to the trust had ended here, this clause would have been more difficult of construction than when read in connection with the following clauses. What in that case would have been the scope and duration of the trust ? As Mrs. Watson had passed her twenty-first year when the will was made, and James Marshall, Jr., when it became operative by the death of his father, would the trust have been active as to them? Why should the name of Mrs. Watson have been inserted at all amongst the cestuis que trust, if the trust was not intended to be operative as to her ? If active as to her, what was its intended duration? “ Making them all equal at twenty-one years of age,” does not necessarily mean that the trust shall end when the youngest child, shall attain twenty-one years of age. It cannot be made to mean this without the insertion of additional words; but does the context require this ? It is a settled principle of construction that words can be supplied only in cases where it is necessary to give effect to the most unquestionable purpose of the testator: Varner’s Ap., 87 Pa. 422.</p> <p>Nor does this clause necessarily refer to corpus. Bead in connection with the forpgoing and following clauses, it may be made to harmonize without inserting additional words by treating it as relating to the equalization of income, or the exercise of the discretionary power which was vested in the trustees to “ give or withhold” shares in the corpus of the trust to or from the cestuis que trust. In no other ways can it be made consistent or harmonious with them. If inconsistent, it must yield to the clauses expressing the testator’s general and final intent to create a trust for “ children” during life, with discretionary power in the trustees to end it sooner and vest a share in the corpus in any of such “children.” As these “children” are still living, and the trustees have not seen fit to exercise their discretionary power to end the trust, it follows that the trust continues. The decision in Marshall’s Est., 138 Pa. 260, arising out of this same will, leads to the same conclusion; for if, as was there held, the power of sale vested in these trustees be still in existence, the power “ to give or. withhold” the corpus of the trust is still in existence. The trustees were invested with the power of sale for the express “ purpose of carrying out” the trust or to withhold.</p> <p>2. Leaving out of view the clause “ making them all equal at twenty-one years of age,” there is nothing to show that testator intended to discriminate as between the children, in respect of the income of his residuary estate. As already suggested, that clause is ambiguous; but there is nothing in it absolutely inconsistent with the theory of equality as between all of the children. “ Making them all equal at twenty-one years of age” may, and probably did mean that income accumulated during minority should be paid over at majority. It could not have been legally accumulated beyond that period; ‘ and that construction must be adopted which makes the will operate, if possible, in accordance with the civil as well as natural law.</p> <p>3. The proceeds of the oil leases are clearly part of the corpus, and personalty. The trustees had no power to make these leases, except by virtue of the authority' given them in the will to sell real estate: Stoughton’s Ap., 88 Pa. 198. And the exercise of this authority necessarily worked a conversion.* The will expressly vested in them discretionary power to hold such “ proceeds” in trust for the “ children,” or give it to them, as they regard their best interest.</p> <p>And now, to wit, July 10,1891, this matter came on to be heard, upon account of executors and trustees and testimony taken, and was argued by counsel, and upon consideration thereof it is adjudged and decreed: (1) [That by his last will, James Marshall vested in Mrs. Matilda Marshall, Thos. M. Marshall, M. W. Watson and James Marshall, Jr., his residuary estate in trust for the use and benefit of his children Harriet Watson, Julia (now Mrs. Talbot), James and Anna Frances, during life, with discretionary power in said trustees to give or withhold to or from any of said children a share in "the corpus of said residue in the meantime.] [1] (2) That, under said trust, said children are entitled to the residue in equal shares, the accumulated income of those in minority to be paid on their attaining majority, and those having attained majority, as it accrues. (3) That the proceeds of oil leases made by said trustees by virtue of the will, shall be treated as part of the corpus of the residue, and personalty.</p> <p>Exceptions were filed to the decree by George I. Whitney, assignee of James Marshall, Jr., and by Frank P. Sproul, guardian ad litem of Julia and Amy Watson, minor children of Harriet, Watson, and Richard Talbot, minor child of Julia Talbot, and attorney of other children of Mrs. Watson, aud “trustee for the contingent interests, not in esse, under the provisions of the will of James Marshall, deceased.” The exceptions were dismissed. Exceptants appealed.</p> <p>Errors assigned, by George I. Whitney, assignee, the appellant in No. 304, (1) in making that part of the decree embraced in brackets; (2) in substantially holding that the equalization provided for in the will refers only to the income of the estate; (3) in not holding that under the will of testator, each of his children took a vested interest in fee in the lands of the decedent; (4) in not holding that the trust created by the will terminated when the youngest child attained the age of twenty-one years.</p> <p>Errors assigned, by Frank P. Sproul, guardian, etc., appellant in No. 305, (1) in making that part of the decree embraced in brackets ¿ (2) in not holding that each of the testator’s children “ took an estate for life, with a vested remainder in fee to the children of said children, with a limitation over to the surviving children of the decedent, James Marshall, on the death of either child without lawful issue.”</p> <p>cited: Horwitz v. Norris, 60 Pa. 261; Letchworth’s Ap., 30 Pa. 175; Coggins’ Ap., 124 Pa. 29; King v. Frick, 135 Pa. 575; Mickley’s Ap., 92 Pa. 514 ; Bland v. Williams, 3 Myl. & K. 411; Cooper v. Cooper, 7 Jur. N. S. 178; Kerlin v. Bull, 1 Dali. 189; McClure’s Ap., 72 Pa. 414; Reed’s Ap., 118 Pa. 215; Hunt’s Ap., 105 Pa. 141; Edwards’s Ap., 47 Pa. 144; Sheridan v. Sheridan, 136 Pa. 14; Page’s Eat., 75 Pa. 87; Perot’s Ap., 102 Pa. 256.</p> <p>cited: Horwitz v. Norris, 60 Pa. 261; Wigram on Wills, XI; Hitchcock v. Hitchcock, 35 Pa. 393; Fox’s Ap., 99 Pa. 382; Gimblett v. Purton, L. R. 12 Eq. 427; Hill v. Chapman, 1 Yes. 405.</p>

<p>Will — Trusts.</p> <p>A will provided: “ My daughter Gertie shall receive the income of my property known as the Seaton House, as long as she lives, .... my executors to allow my daughter twenty-five dollars per month until she reaches the age of twenty-one years. . . . All moneys left to be deposited on interest, and my daughter Gertie to receive the benefit of it when she becomes of age: ” Held that the will created a trust for the daughter, to continue until her majority, and under it the executors were entitled to the possession and rents of the Seaton House.</p> <p>Illegitimates — Testamentary guardian.</p> <p>Although the daughter was illegitimate, it was immaterial whether the effect of the will was to constitute the executors trustees or testamentary guardians, the testator having power to do either as to property given by his will.</p>

Appeals, Nos. 314, 320, Oct. T., 1891, by John F. Scott, et al., from decree of O. C. Allegheny Co., Sept. T., 1890, No. 276, sustaining appeal from register.

<p>Husband and wife — Agreement to live separate.</p> <p>An agreement between husband and wife to live separate and apai't, if based upon a good consideration and reasonable in its terms, will be as valid and binding upon the wife as upon the husband: Hutton v. Hutton, 3 Pa. 100; Dillinger’s Ap., 35 Pa. 357; Iiitner’s Ap., 54 Pa. 110; Speidel’s Ap., 107 Pa. 18; Commonwealth v. Richards, 131 Pa. 209, cited. ’</p> <p>' Release of interest in husband's estate.</p> <p>A wife who, by such an agreement fully performed in good faith during the lifetime of her husband, released him “from all duties, liabilities and obligations of every kind whatsoever, which otherwise she might or could claim under or by virtue of the marriage relation,” is barred from claiming any share of his estate under the intestate laws.</p>

Appeal, No. 96, Oct. T., 1891, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1889, No. 770, on verdict for defendant. Held: the plaintiff bank being represented at many of them by its president Mr. Cook, or by its cashier Mr. Mc-Candless.

Appeal No. 317, Oct. T., 1891, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1891, No. 5, for plaintiff on case stated.

Appeal No. 323, Oct. T., 1891, by M. Qualters, from decree of O. C. Allegheny Co., June T., 1891, No. 26, dismissing exceptions to adjudication. On June 30,1891, the account of Martin Qualters, administrator of the estate of his wife, Ann Qualters, deceased, was •called for audit.

<p>Appeal, No. 54, Oct. T., 1890, by plaintiff, from judgment of O. P. No. 1, Allegheny Co., June T., 1889, No. 152, on verdict for plaintiff.</p> <p>On May 18, 1889, an appeal was entered by the Jefferson Gas Company from the report of viewers appointed to determine the damages caused to the land of Mary Davis, by the laying of said company’s pipe line thereon, for the transportation of natural gas. Subsequently, an issue was formed wherein the said Mary Davis was plaintiff and the gas company defendant.</p> <p>At the trial on February 12, 1890, F. O. Wolf was called and examined as a witness for the plaintiff:</p> <p>“ Q. Do you know the depth about which this pipe line is laid in the ground ? ” Objected to.</p> <p>Plaintiff’s counsel: “ The purpose is to show the effect on the land through which it runs.”</p> <p>By the Court: “ I will not let it go in, if the purpose is to show its approximation to the • coal vein, to show the danger, when the mine is opened, of the gas escaping and getting into the coal mine; and I exclude it all.”</p> <p>Plaintiff’s counsel then proposed to prove the “ character of the soil through which defendant’s line runs, the depth of the line below the surface of the ground, the proximity of defendant’s line to the surface of the underlying coal, the danger of the surface falling in when the coal is removed, the probable breaking of defendant’s pipes, the danger of gas escaping into plaintiff’s mine ; and that, for the purpose of showing the general depreciation in the market value of the plaintiff’s property.” Objected to as incompetent and irrevelant.</p> <p>By the Court: “ You can show all excepting the danger to the coal from the escaping gas.” Exception. [4]</p> <p>It was then shown that the depth of the pipe line from the surface was about three feet, the average distance from the pipe line to the surface of the underlying coal was about thirty to thirty-five feet, some places more, some places less, and where the coal efopped out, it was nothing; that if the coal should be taken out, it would have the effect of making the ground slip more, because it was a hill-side. Other testimony made it appear that the plaintiff’s farm contained about eight acres, and was underlaid with coal, all but about five acres having been mined out. Both surface and coal were owned by the plaintiff. The gas company had appropriated a strip of the surface seven hundred and ten feet long and ten feet wide. Testimony was offered and admitted showing the quantity of coal necessary to be left unmined, to afford proper support to the defendant’s appropriation.</p> <p>At the close of the testimony, the court, Stowe, P. J., having read the points presented, charged the jury in part as follows :</p> <p>Answering these points is a good deal like what Judge McClure called shooting on the wing; but I will answer them so they will go on the record, and whether they are right is a matter for serious consideration. My ideas as to the principles governing the case are very distinct, and I will explain them in a general charge, and then answer the points. . . .</p> <p>In this case, the great question is the amount of damages done. This pipe line runs across the property of the plaintiff. Of course, it does him damage, because it takes a certain amount of his property, a strip of some seven hundred and ten feet in length, by ten feet in width. . . . While the use may not be and is not exclusive, yet it is such an interference with right of the owner of the property that it substantially takes away from him the value of it; and the first question is how much is that land worth ?</p> <p>It is not worth very much in this case, because it is on a hill-side. It cannot be cultivated; has not been, at least, and the probabilities are, it cannot be. However, that is for the jury. But, whatever the value of that property is, taking it as the company did take it, the plaintiff should have damages for. That has been put down and is uncontroverted on the other side, at the rate of fifty cents a rod. It is a very small figure, but if that is all it is worth, the plaintiff is entitled to no more so far as that is concerned; and that is all the damage I can see is done, except the apprehension of the land sliding, being cut by this pipe line and thus causing slips.</p> <p>There is no evidence that there have been any slips. There was one slip, but it is very evident, according to the testimony, it was not occasioned by the cutting of the hill-side; and the fact is, so far as the ground above the pipe line is concerned, that the pipe line being put there, passing out at each end like a twelve inch iron chain or cable run through the ground, would rather have a tendency, it strikes me, to support the hill-side, and it would operate as a barrier to that extent. Of course, the tendency to slip might be increased if water should get in and soften the ground; the hill would naturally slide away. Whatever effect this may have on the value of the balance of the land, so far as it would indicate or cause a tendency to slip, is to be considered by the jury. If you consider it worth while to think that the danger involves or affects the market value of the ground, to that extent you have a right and ought to give damages. It is for you to consider, however, whether there is any evidence tending to justify any such conclusion. If there has been none yet, this ground, every year it stands there, will become more and more solid. It has been a peculiarty soft year; and if there has not been any slip up to this time, there may not ever be, and yet there may be. That is a matter not of law, but a matter for the consideration of the jury. Whatever bearing it may have on the value of the property is to be considered, and if the jury think it affects the value of the property, they ought to allow damages to that extent.</p> <p>[Now, we come to the great point in controversy in this case ; and that is, the effect the pipe line has on the coal, because that is where the damage is. There is no damage done to this coal particularly, except where it crops out, wherever the line cuts through the crop of the coal. If that would be of any value at all to the extent that it is cut in, three or four feet, I presume the out-croppage three or four feet deep along the edge would not amount to very much. For that the plaintiff ought to have damages. But, when you get farther in, where the pipe line itself would not interfere with the working of this coal, another matter is presented; and there we take the broad ground that, except where the pipe line itself actually takes, or substantially interferes with the taking of this coal, no damage has been done at all to the plaintiff. This pipe line being built there, does not affect his right to mine the coal. He has a right to go and take it out whenever he pleases ; and, as I apprehend, he is not bound to do more than give the other party notice that he is going to remove the support, and if they choose to support it, they can do it, and any damage incidental or consequent to the possibility of this pipe line exploding, or the possibility that it may break down hereafter, or any other consequence separate from the direct prevention from taking this coal, by putting it in such shape it cannot be taken out with the pipe line there, is no standard of damage in this case. The coal is there just as it was before, and the right of the plaintiff to take it out, I apprehend, remains unprejudiced, unaffected. Consequently, if in this case we pay him for the use of his coal or for his coal, we are simply paying him for something the defendant can never use and take away, and which the plaintiff can take away when he pleases. In other words, it is making the defendant pay for property belonging to the plaintiff, which, the plaintiff to-morrow can go and dig out.]</p> <p>If there is any other matter about this pipe line which makes it more expensive to mine the coal, it is a subject for damages; but it cannot possibly be any more than to build a house on the top of the ground, or a fence on the top of the ground. [It could not affect the use of the coal. The coal is there, and can be dug out to-day, just as well as if the pipe line were never put there, except where it crops out; therefore, any damage, or evidence tending to show damage arising to the plaintiff from that cause, cannot be considered in this case, and the jury should disregard it, if there is any before them. I have tried to exclude it, but a great deal has gotten in, as always will in cases of this kind, and the jury can only disregard it when they come to consider the case.] . . .</p> <p>The plaintiff requests the court to charge:</p> <p>3. That the easement of the defendant company, obtained under the right of eminent domain, carries with it the right of support for its lines ; and the owner of the land has no right to remove coal or other minerals under said lines, to their injury or detriment. Answer: Refused. [2]</p> <p>4. That the right of the plaintiff to use the ground appropriated by defendant company, which in this case is a strip ten feet in width and seven hundred and ten feet in length, is subordinate to the superior right of the Jefferson Gas Co.; and this superior right to use the ground so appropriated, extends to all the minerals underlying said line, including the coal, the removal of which would endanger the safety of the pipes of defendant company. Answer : Refused. [3]</p> <p>The defendant requests the court to charge :</p> <p>12. That, in estimating the damages to the plaintiff’s land, the possibility of damages from the pipe line to the land of [or ?] the coal, and the element of risk and danger to the same from escaping gas, should be left out of consideration, because the law makes provisions whereby the working of coal can be rendered entirely safe. Answer: Affirmed. [1]</p> <p>Verdict and judgment for plaintiff for $175. Plaintiff appealed.</p> <p>Errors assigned were (1) affirmance of defendant’s point; (2, 3) refusal of plaintiff’s points; (4) refusal of plaintiffs offer; (5) the parts of the charge of the court as printed and included in brackets but not quoting them.*</p> <p>As to the defendant company’s right to insist upon surface support, counsel cited: Penn Coal Co. v. Gas Co., 131 Pa. 522. And, as to the measure of damages resulting from the exercise of such right: Searle v. Railroad Co., 33 Pa. 57 ; Reading etc. R. Co. v. Balthaser, 119 Pa. 472; [see s. c. 126 Pa. 1.]</p> <p>^-This case was tried before the announcement of the decision of the Supreme Court in Penn Coal Co. v. Gas Co., 131 Pa. 522, and no stipulation releasing the owner of the coal from the duty of supporting the surface, was offered before or during the trial. If the filing of such stipulation has the effect of eliminating the question of possible danger to the mining of the coal, as an element of damage affecting the market value of the land, the defendant is willing and hereby offers to release the plaintiff from any obligation on her part to support the surface on which th pipe line is laid.</p> <p>And by giving the stipulation this effect, a sensible and safe rule would be made. It would remove wild and speculative guessing, and would prevent great injustice to gas companies. When witnesses are permitted to testify that the market value of land is depreciated because danger might happen to the mining of coal, the gas companies are often compelled to pay for something that may never happen and for something they may never get. If, however, danger should arise or inconvenience happen in the mining of coal, the twelfth section of the act of May 29, 1885, P. L. 84, provides a simple remedy by which the danger can be avoided and the inconvenience remedied. And the gas company can then be compelled to compensate the coal owner for the strip of coal which it might be found necessary to take, or for any other damage or inconvenience suffered by him.</p>

<p>Bank directors — Liability—Banks and banking.</p> <p>Bank directors being gratuitous mandatories, are only liable for fraud, or for such gross negligence as amounts to fraud. If they use the ordinary care which bank directors usually exercise, they will not be liable for misappropriations by the officers of the bank.</p> <p>Ordinary care — Gross negligence.</p> <p>In regard to what is ordinary care, regard must be had to the usages of the particular business. If a bank director performed his duties, as such, in the same manner as they were performed by all other directors of all other banks in the same city, it cannot be fairly said that he was guilty of gross negligence.</p> <p> Presumption as to ordinary care. </p> <p>Whei’e bank directors have not sought to make any profit not common to all the stockholders, there is a strong presumption that they have brought to the administration of the affairs of the bank, their best judgment and skill.</p> <p> Circumstances showing ordinary care. </p> <p>The president of a bank, aided by the cashier and some of the clerks made false entries in the individual ledger, in order to conceal misappropriations of the bank’s funds. By the rules of the bank and of a> large majority of the banks of the same city, the directors were not allowed to see the individual ledger. The other books, all of which were accessible to the directors, were correctly kept. Statements submitted to the directors from time to time, contained nothing to arouse their suspicions. After the suspension of the bank the directors raised a large sum of money on their individual credit to enable the bank to resume. Held, that under such circumstances, they should not be held liable for the fraud of the' other officers.</p> <p>Withdrawal of deposit by director — Partnership.</p> <p>Where a director acting upon information obtained in his confidential relation with the bank withdraws on the day of the suspension of the bank the deposit of a partnership of which he is a member, he will be ordered to repay it.</p> <p>Costs in equity- — Discretion of court.</p> <p>Under the circumstances of this ease, the defendants having vindicated themselves from the charges made against them, the Supreme Court will relieve them from the costs imposed upon them by the court below, although the imposition of the costs was within the sound discretion of the lower court.</p>

<p>Evidence judgment — Becord.</p> <p>In an action to recover the value of certain empty beer barrels, the defendant offered in evidence the record of a judgment for the plaintiff before an alderman for the price of the beer sold in the barrels. It did not appear that any claim was made before the alderman for the value of the-barrels, but the evidence showed that the defendant was to have a reasonable time to return the barrels after selling the beer. The judgment before the alderman was entered fifteen days after the last beer was sold. Held, that the record was not conclusive against the plaintiff and that it was properly excluded.</p>

Appeal, No. 42, Jan. T., 1891, by the Philadelphia Protestant Episcopal City Mission, from decree of O. C. Phila. Held: under the statute of June 25, 1887, which exempts an ‘ estate ’ valued at less thau $500 from the duty or tax, that legacies to that amount or less are not subject to the tax. In Matter of Cager, 111 N. Y. 343; Matter of Howe, 112 lb. 100; Matter of Smith, 5 Dem. 90; Matter of Hopkins, 6 Ib. 1, and Matter of McCready, lb. 292.

<p>Appeal, No. 212, Oct T., 1891, by plaintiff, from judgment of nonsuit of G. P. No. 1, Allegheny Co., June T., 1890, No. 720.</p> <p>Ejectment by R. H. Childs and others against T. A. Gillespie and others to recover forty acres of land in Robinson township.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment of nonsuit.</p> <p>The suit properly lies against Schuler’s vendee. Specific performance will be decreed against all who stand in privity with the party contracting: Brinker v. Brinker, 7 Pa. 53 ; McClure v. McClure, 1 Pa. 378 ; Corson v. Mulvany, 49 Pa. 100; Champion v. Brown, 6 Johns. Ch. R. 402 ; Bispham’s Eq., sec. 365 ; Kerr v. Day, 14 Pa. 116 ; Jaques v. Weeks, 7 Watts, 261; Maul v. Rider, 59 Pa. 167; Hottenstein v. Lerch, 104 Pa. 454.</p> <p>Schuler being bound by the contract of December 26,1889, was not free in his action and could not demand of Childs that he should accept immediately the offer contained in the telegram.</p> <p>Time in a contract to be held essential must be reasonable, and equity will relieve against it where it will give one party an unconscionable advantage: Tier nan v. Roland, 15 Pa. 438; Taylor v. Longworth, 14 Pet. 174; Brightly’s Eq., p. 190.</p> <p>Forthwith,” in an offer, means such promptness, as, under the circumstances, is reasonable: 2 Whart. Con., sec. 886; Leake on Cont., 2d. ed. 839 ; Hudson v. Hill, 43 L. J. C. P. 273. “ Immediately” in contracts and in legal proceedings means such convenient time as is reasonably requisite for doing the thing: Richardson v. End,-*43 Wis. 316; Gaddis v. Howell, 31 N. J. L. 313; McLure v. Colclough, 17 Ala. 89.</p> <p>The acceptance was made within the time limited in the letter, viz.: April 9th, the contract being binding from the time of posting: Hamilton v. Ins. Co., 5 Pa. 343; Tayloe v. Ins. Co., 9 How. 400; 1 Pars. Con., 6th ed. 484.</p> <p>Both the letter and telegram must be taken in connection with the lease of December 26th, to which they refer, and out of which they grew. An accepted offer may be specifically performed, although it appears from it that the parties provided for the execution of a more formal contract: Blaney v. Hoke, 14 Ohio St. 292; Pratt v. R. R. Co., 21 N. Y. 305; Fowle v. Freeman, 9 Yes. Jr. 351; Forster v. Hale, 3 Yes. Jr. 696; Thomas v. Dering, 15 Eng. Ch. R. (1 Keen) 729; Floj’d v. Storrs, 144 Mass. 56 ; Bispham’s Eq., 4th ed. 440 (sec. 377); Pritchard v. Ovey, 1 J. & W. 396.</p> <p>The contract of December 26th, being an option, does not on that account lack the mutuality required to entitle plaintiffs to specific performance: Kerr v. Day, 14 Pa. 112; Corson v. Mulvany, 49 Pa. 99; Napier v. Darlington, 70 Pa. 67.</p> <p>The contract of December 26, 1889, could not be specifically enforced: Elder v. Robinson, 19 Pa. 364. A contract for the sale of lands is within the statute of frauds and therefore void and unenforceable, if parol testimony be required to establish any essential part of it: Ferguson v. Staver, 33 Pa. 413; Hammer v. McEldowney, 46 Pa. 334; Mellon v. Davison, 123 Pa. 298. An agreement to be specifically enforced must contain the exact terms of the contract and a description of the property: Holthouse’s Appeal, 11 Cent. 157; De F. Ballou et al. v. March, 143 Pa. 64.</p> <p>As the offer contained in the telegram was not accepted, Schuler had a right to revoke it. A mere offer to sell real estate upon specified terms may be withdrawn at anytime before its acceptance: Ryan v. United States, 136 U. S. 68. A proposition may be modified or withdrawn before it is accepted: C. H. & I. R. R. Co. v. Clifford, 113 Ind. 460: Bishop on Contracts, sec. 325; Wharton on Contracts, sec. 10; B. & M. R. R. Co. v. Bartlett, 3 Cush. 225. It is not pretended here that there was any acceptance of any sort until after the offer was withdrawn.</p>

Appeals, Nos. 137 and 138, Oct. T., 1891, by defendant, from judgments of C. P. No. 1, Allegheny Co., June T., 1890, Nos. 601 and 602, on verdict for defendant. Assumpsit by J. B. Henry, and J. B. Henry and M. A. Henry his wife, in right of said wife, against Charles Klopfer, to recover damages for personal injuries sustained by M. A. Henry through the alleged negligence of the defendant. The two cases were tried together.

<p>Appeal, No. 444, Jan. T., 1891, by defendants, from judgment of C. P. No. 4, Philadelphia Co., March T., 1890, No. 979, on verdict for plaintiffs.</p> <p>Assumpsit by D. J. Gallagher and George W. Gibson, trading as D. J. Gallagher & Co. against Thomas J. Whitney, J. E. Lockwood and Alva Bryant, trading as J. F. Lockwood & Co. At the trial it appeared that the defendants gave an order to the plaintiffs for 5,000,000 Samoa wrappers used for wrapping chewing-gum, at ten cents per thousand. After the paper which was of a peculiar kind had been bought by plaintiffs, and the work on the wrappers partly completed, the plaintiffs notified the defendants that they would not accept the wrappers.</p> <p>The court charged as follows :</p> <p>“ This is an action brought by the plaintiffs against the defendants to recover damages for a breach of contract to receive and pay for certain labels. The plaintiffs’ testimony is that the defendants refused to take them because they were going out of the business. The defendants’ side of the story is, that while they did make the contract, and did refuse to take the labels, yet the refusal to take the labels was based upon the fact that there had been no copyright granted on the label; and that the order was given by them conditioned upon the obtaining of the copyright.</p> <p>“ Now you have heard both sides of the story.' Which do you believe ? If you believe that the defendants refused to take the labels because they were going out of business, your verdict should be for the plaintiffs. If, however, you believe that the order was conditioned upon the obtaining of the copyright, that the copyright was not obtained, and that the goods were refused by the defendants on that account, then you ought to say so and render your verdict for the defendants. It is for you to say which of these two stories is true, or seems the most probable, from the evidence. If you find for the plaintiffs, then in that case you have to determine the measure of damages [which is the difference between the price at which the goods were to have been taken, and the expense to the plaintiffs for getting them up, or any other damage or expense caused to the plaintiffs by reason of the refusal of the defendants to take the goods.] [1] [If you believe the story of the witnesses, Mr. Gallagher or Mr. Gibbons, that to complete this contract at $500, it would cost the plaintiffs $85 for labor, $294.03 for the paper, $6.84 for the electrotypes, and certain other expenses which were detailed to you by them, amounting to $343.47, the difference between the price at which they were to be taken, $500 and the cost of printing them, being $156.53. If jmu find for the plaintiffs that is what they would be entitled to.] [2] [And, if you believe that the paper from its character was a specially ordered paper, and one not readily marketable, and that it would be worth less than it cost them, or one hundred and forty-seven dollars less, they are entitled to damage for that.] [3] So that if you find for the plaintiffs, your verdict may be for that amount and no more, but you may give them less if you see fit.</p> <p>“ If you find that the contract was conditional, then the verdiet should be for the defendants. This is a fair question of fact for the jury, and to you, as jurors, I submit it.”</p> <p>The defendant presented the following points, all of which were refused:</p> <p>2. The measure of damages in this case is the difference between the value of the goods and what the plaintiffs could get for them; the plaintiffs having failed to show this, your verdict must be for tbe defendants.</p> <p>3. The plaintiffs having failed to show the proper or legal measure of damages in this case, they cannot recover.</p> <p>4. That under all the evidence the verdict must be for the defendants.</p> <p>Verdict and judgment for plaintiffs for $301.50. Defendants appealed.</p> <p>Errors assigned, were (1-3) the portions of the charge as above, quoting them; (4-6) refusal of points, quoting them.</p> <p>cited Lentz v. Choteau, 42 Pa. 435; Ballentine v. Robinson, 46 Pa. 177; Andrews v. Hoover, 8 Watts, 239.</p> <p>cited Schnebly v. Shirt-cliff, 7 Phila. 236; Masterton v. Mayor, 7 Hill (N. Y.) 61; Taylor v. Bradley, 39 New York, 129; Wakeman v. M’f’g Co., 4 Northeastern Rep. 267.</p>

<p>Contract — Evidence.</p> <p>By a contract in writing the defendants James and Charles McGuire agreed to consign all lumber which they manufactured, or that they purchased in the south, to the plaintiffs, who-were constituted the sole agents for that purpose. The defendants agreed to ship, and»the plaintiffs agreed to sell, at least 50,000 feet per week, and this agreement was to continue as long as the defendants trading as the--Lumber Company or under any other name should make, work, or manufacture lumber in the Southern states. In the first part of the agreement the defendants were described as trading as the Tar River Lumber Co. In the other parts before the words “Lumber Company,” there was a blank. In an action for a breach of this contract, it was proper to admit evidence that the defendants organized the Southern Lumber Company, and under its name manufactured lumber and shipped it to other parties from the South.</p>

Appeal, No. 307, Jan. T., 1891, by plaintiff, from judgment of nonsuit by C. P. No. 1, of Phila-. delphia Co., Sept. T., 1887, No. 250. Trespass by Sylvan Picard against tbe Ridge Avenue Passenger Railway Company to recover damages for personal injuries. The facts appear in the opinion of the Supreme Court. At the trial before Biddle, J., the court entered a compulsory nonsuit, which it subsequently refused to take off.

Appeal, No. 438, Jan. T., 1891, by defendant, from order of C. P. No. 4, of Philadelphia Co., Dee. T., 1890, No. 305, making absolute a rule for judgment. Assumpsit by William C. Allison against Edward R. Wood. The plaintiff’s statement set forth the contract quoted in the Supreme Court.

Appeal No. 316, Jan. T., 1891, by defendant, from judgment of C. P. No. 2 of Philadelphia Co., Dec. T., 1886, Ño. 497, on verdict for plaintiff. Case by Kate Fitzmaurice, a minor, by ber next friend, Johanna Fitzmaurice, against James Fabian tó recover damages for personal injuries. Plea, not guilty. At the trial before Pennypacker, J., the facts appeared as stated in the opinion of the Supreme Court.

Appeal, No. 348, Jan. T., 1891, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1886, No. 284, entering nonsuit.

Appeal, No. 274, Oct. T., 1891, by-defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1889, No. 114, on verdict for plaintiff. On May 4, 1889, James Wallace appealed from an award of viewers allowing him $1,000 damages for the depreciation in the value of his land caused by the laying of a pipe line by the Jefferson Gas Company.

Appeal, No. 134, Oct. T., 1891, by defendant from judgment of C. P. No. 2, Allegheny Co., July T., 1890, No. 94, on verdict for plaintiff. Trespass by Thomas Carson, against the Federal Street and Pleasant Valley Railway Co., to recover damages for injuries-to a team of horses, wagon and harness caused by collision with one of defendant’s electric cars. The facts appear in the opinion of the Supreme Court.

Appeal No. 12, Jan. T., 1891, by plaintiff, from order of C. P. No. 1, Philadelphia Co., March- T., 1890, No. 120, M. L. D., striking off a mechanic’s claim. Scire facias sur mechanic’s claim by Robert McCristal, subcontractor against Edwin R. Cochran, owner and Samuel Moll vain, contractor. The bill of particulars filed with the claim -was as follows : 1889. Dr. Aug. 5 to Oct. 5. To digging cellars and foundations, 2,000 yds. at 16¿ cents $325 00 Aug. 14 to Nov. 9.

Appeal, No. 301, Jan. T., 1891, by plaintiff, from judgment of C. P. No. 1, Dec. T., 1886, No. 94, M. L. D., on verdict for defendant. Scire facias sur municipal claim by the city of Philadelphia to the use of David McMahon against Susanna T. Ball. At the trial before Bbeg-y, J., the facts appeared as follows: Defendant’s property, against which lien was filed, abuts on Centre street.

Appeal, No. 313, Jan. T., 1891, by the New Jersey Trust and Safe Deposit Co. of Camden, N. J., from a decree of Q. S. Philadelphia Co., sustaining exceptions to the report of a road jury. On March 21, 1890, a petition was presented for a jury of view to open Thirtieth street. On July 3, 1890, the report of the jury was filed in favor of opening the street.

<p>Contract — Referee—Employee of ice company.</p> <p>The defendant, the driver of an ice wagon, entered security with the ice company “ for the prompt return of all moneys collected, prompt settlement of all shortages on ice intrusted to his care, and of all losses or damages sustained by said company by reason of his neglect.” In the event of a dispute as to the amount of such moneys due, the settlement was to be made by the book-keeper of the company. The defendant refused to account for overdue ice bills which he had been unable to collect from customers. The book-keeper settled the account and charged the defendant with these bills. Held, that as the dispute was in regard to the construction of the contract itself, the settlement of such dispute was not committed to the book-keeper. Under the contract the defendant was not liable to the ice company for the amount of the unpaid bills.</p>

Appeal, No. 13, Jan. T., 1892, by-George W. Ruch et al., trading as George W. Ruch & Co., defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1890, No. 890, on verdict for the Vulcanite Paving Co., plaintiff. Assumpsit on contract for paving. The facts appear in the opinion of the Supreme Court.

<p>Assumpsit — Contract—Verdict.</p> <p>In an action of assumpsit against several persons on a contract, the verdict must be against all of the defendants or none.</p>

<p>Appeal, No. 165, July T., 1891, by defendant, from judgment of C. P. No. 4, Philadelphia Co., June T., 1891, No. 782, on case stated.</p> <p>Case stated between William W. Frazier, trustee of The Foreign and Domestic Missionary Society of the Protestant Episcopal Church of the United States of America and The Rector, Church Wardens and Vestrymen of St. Luke’s Church, in the city of Philadelphia. The case stated was as follows:</p> <p>“ Miss Catherine M. Moore died seized of two certain ground-rents of forty-five dollars per annum each, issuing out of the premises 1315 and 1317 Pine street, in the city of Philadelphia, described in a deed from John Crean, Jr., to Catherine M. Moore, dated the thirteenth day of December, 1832, and recorded at Philadelphia in Deed-book A. M., No. 28, page 590, etc.</p> <p>“ And by her last will and testament, dated the ninth day of April, 1863, duly proved at Philadelphia on the 3d February, 1864, and recorded in the office of the register of wills in Book of Wills No. 52, pages 142, etc., the said Catherine M. Moore did devise and bequeath all the rest, residue, and remainder of her estate, whether real or personal, including the said two ground-rents, unto the Domestic and Foreign Missionary Committee of the Protestant Episcopal Church in the United States of America, their successors and assigns, and the Hospital of the Protestant Episcopal Church in Philadelphia, its successors, in equal shares.</p> <p>“ That Asa Whitney became duly seized of the said two lots of ground subject to the payment of the said two ground-rents of forty-five dollars each, by a deed from William Chamberlain and others, heirs of John Chamberlain, deceased, dated the 13th June, 1870, acknowledged the same day, and recorded in Deed-book J. A. H., No. 59, pages 324, etc. And by deed dated March 7th, 1871, duly recorded in Deed-boók J. A. H. No. 127, pages 141, etc., the said Asa Whitney and wife granted the said premises to the defendant, in trust, to be occupied and used as and for a home for aged indigent women as now established and conducted under the direction of the rector, church-wardens, and vestrymen of St. Luke’s Church, ‘under and subject to the payment, nevertheless, of one undivided moiety or half part of the said two yearly ground-rents of forty-five dollars, to whomsoever may be legally entitled to recover the same, when and as the same shall become due and payable.’</p> <p>“ The remaining one moiety of the said two ground-rents had been previously extinguished by the Episcopal Hospital, the devisees of the same.</p> <p>“ At the time of the conveyance by Mr. Whitney to defendants he executed a paper, a copy of which is hereto annexed, by which he paid the defendants the sum of $750, being the principal of one moiety of the said ground-rents, to be applied to the extinguishment of the principal of the said ground-rents, which has been duly received and invested, and, together with the interest thereon, remains in the defendants’ hands, as also the sum of $600, to be applied to the expenses of extinguishing the said ground-rent.</p> <p>“ ‘ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America’ was incorporated May 13, 1846, and amendments thereto by the legislature of the state of New York.</p> <p>“ There does not appear to be any corporation as named in the above will of Catherine Mary Moore, as ‘ The Domestic and Foreign Missionary “ Committee ” of the Protestant Episcopal Church in the United States of America.’</p> <p>“ By proceedings in the court of common pleas, No. 4, in the matter of the estate of Catherine M. Moore, on petition of the attorney-general of the state of Pennsylvania, setting forth the devise of the said Catherine M. Moore as to one moiety of the said ground-rents as aforesaid, and that there was no person capable of taking the legal title to a moiety of the said two ground-rents, the ‘ committee ’ being a fluctuating body of persons known as ‘ The Foreign and Domestic Missionary Society of the Protestant Episcopal Church in the United States of America,’ a corporation chartered under the laws of the state of New York, as set forth in the proceedings, a copy of which is hereto annexed, the plaintiff was appointed trustee under the provisions of ‘ An Act relating to corporations, and to estates held for corporate, religious, and charitable uses,’ approved April 26, 1855, P. L., 331, of the undivided moiety of the two ground-rents for forty-five dollars each per annum, described in the deed from John C. Crean to Catherine M. Moore, bearing date December 13, 1832, recorded in the office for recording deeds for the city and county of Philadelphia, in Deed-book A. M., No. 23, page 590, in trust for the support of missionaries or religious teachers of the Protestant Episcopal Church in the United States of America within the United States and foreign countries, the income to be paid to and disbursed by and under the direction of the Foreign and Domestic Missionary Society of the Protestant Episcopal Church in the United States of America. And it was further ordered and decreed that the said William W. Frazier, trustee, may at any time extinguish the said ground-rents on receipt of the principal thereof, and on such extinguishment he shall account for and pay the moneys derived therefrom to the Domestic and Foreign Missionary Society aforesaid, in trust, for the uses aforesaid.</p> <p>“ It is agreed that, if on the above facts this court shall be of opinion that the title to the said ground rent is legally vested in the said plaintiff, and the plaintiff can maintain this suit for the arrears of the said ground-rent, that judgment shall be entered in favor of the plaintiff for the sum of $877.50, being the arrears of one moiety of the ground-rents which have become due and payable out of the same premises, from the date of the said conveyance to the defendants from Asa Whitney and wife, dated the seventeenth day of March, 1871, without interest on said arrears.</p> <p>“ It is further agreed that the charter and by-laws of the Foreign and Domestic Missionary Society of the Protestant Episcopal Church in the United States of America shall be a part of this case stated, and that either plaintiff or defendant may take an" appeal from the judgment of this court in this cause to the Supreme Court of Pennsylvania.”</p> <p>The court entered judgment in favor of the plaintiff on the case stated. Defendant appealed.</p> <p>Errors assigned were (1) the entry of judgment; (2) that judgment should have been for the defendant because no title to the moiety of the two grounckrents for forty-five dollars each, for the arrears of which this suit was brought, and which were devised by Catherine M. Moore to the Domestic and Foreign Missionary Committee of the Protestant Episcopal Church in the United States of America, became vested in the plaintiff by virtue of the proceedings in the court of common pleas, No. 4, of the city and county of Philadelphia, taken in accordance with the act of assembly of April 26,1885, entitled, “ An Act relating to corporations and to estates held for corporate religious and charitable uses,” and the judgment should have been for the defendant.</p> <p>At the time when the will went into effect a foreign corporation could not take or hold real estate in Pennsylvania. The misnomer would not have prevented “ The Foreign and Domestic Missionary Society of the Protestant Episcopal Church,” from taking if it had been capable of so doing: The Domestic and Foreign Miss. Soc. App., 30 Pa. 426.</p> <p>The present case does not come within any of the provisions of the Act of April 26, 1855. The defect cannot be supplied by appointing a trustee for a body forbidden by law to hold real estate in Pennsylvania as this is expressly forbidden by the fifth section of the act. The case falls within the category of void bequests, as for instance, to a corporation not in exisk ence: Zeisweiss v. James, 63 Pa. 465.</p> <p>The Foreign and Domestic Missionary Society cannot be called a trustee of the funds, and there was no power to ap*point a trustee to carry out Miss Moore’s intentions because the devisee was unable to take or hold these ground-rents. (The defect is not cured by the Act of June 8, 1891, P. L. 211. That act is capable of curing a defeasible title, but -will not affect a devise which is void, as the interest of others intervene.</p> <p>1. Where a trustee is incompetent to take the gift for any reason, the court will appoint another trustee to enforce the trust: Zimmerman v. Anders, 6 W. & S. 218; McGerr v. Aaron, 1 Pa. 49.</p> <p>The beneficiaries are the real owners; the trust for them being lawful, the incapacity of the trustees, or the want of one, is of no moment. 4»</p> <p>The object of the present devise was charity. The devisees would have been trustees for the charity if they could have taken: Lydiatte v. Poach, 2 Vernon, 411.</p>

<p>Streets — Paving—Philadelphia—Councils.</p> <p>The councils of the city of Philadelphia have the sole right to designate what streets shall be paved and the character of the paving.</p> <p>Ordinance — Bepairs—■Macadamizing street — Original paving.</p> <p>Where city councils appropriate a certain sum for the repairs of a street, and the highway department uses the money in macadamizing the street, there is no such original paving as will prevent a city contractor from subsequently recovering from a property owner the contract price for laying a pavement of vitrified brick in accordance with an ordinance authorizing such pavement.</p>

Appeals, Nos. 346, 375 and 458, Jan. T., 1891, by Oscar A. Fow, Francis G. Fow and Edward A. Fow from decree of O. C. Philadelphia Co., dismissing appeal from Register of Wills. Appeal by Oscar A. Fow, Francis G. Fow and Edward A. Fow from decision of the Register of Wills admitting to probate the will of George Fow, deceased. The case was referred to an examiner and a large amount of testimony was taken.

<p>Appeal, No. 166, July T., 1891, by defendant, from judgment of C. P. No. 1 of Philadelphia Co., March T., 1890, No. 93, sustaining exceptions to report of referee.</p> <p>Assumpsit by Frank Krug to use of James M. Bowling & Co. against The German Fire Insurance Company of Philadelphia, ,on a policy of fire insurance. The case was referred by agreement to R. C. Dale, Esq., under the Act of May 15, 1874. The referee reported in favor of the defendant. Exceptions to the report were sustained and judgment entered in favor of the plaintiff. Defendant appealed. The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned were (1, 2) the sustaining and not overruling the exceptions ; (3, 4) the entry of judgment for plaintiff and not for defendant.</p> <p>cited Lebanon Mut. Fire Ins. Co. v. Erb, 112 Pa. 149 ; Houghton v. Ins. Co., 8 Met. (Mass.) 114; Doud v. Ins. Co., 141 Pa. 47; Titus v. Glens Falls Ins. Co., 81 N. Y. 410.</p>

<p> Duty of court to lay down rule as to damages. </p> <p>It is the duty of the court in an action of trespass for injury to land to lay down a rule by which the jury may ascertain the damages in an intelligent manner.</p> <p>An instruction .that if the jury find that the trespass was willful the plaintiff should have damages, is calculated to give the impression that the plaintiff could only recover if the defendants conduct was willful. It is misleading, because willfulness affects the measure of damages, not the right thereto.</p> <p>Trespass — Vindictive damages — Evidence—Charge to jury.</p> <p>In an action to recover damages for the obstruction of an alley where it appears that the plaintiff made no serious objection to the obstruction and only instituted the suit at the instigation aud under the threats of his landlord, it is improper to charge that “if the defendant has willfully used the plaintiff’s land for a purpose not authorized, after being remonstrated with, and the jury believe he had done so in willful disregard of plaintiff’s right, they would have a right to find a verdict for the plaintiff for vindictive damages as a punishment to defendant.”</p>

Appeal No. 109, July T., 1891, by defendants, Eloise White and W. W. H. Davis, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1889, No. 121, on verdict for plaintiff, Charles S. Jenkins. Assumpsit on a promissory note. The facts appear by the opinion of the Supreme Court. The defendant presented the following points: “ 3.

<p>Contract — Sale—Warranty.</p> <p>The naked averment of a fact is neither a warranty of itself, nor evidence of it.</p> <p>At the time the sale of a horse was closed plaintiff said to defendant “I have nothing to show that you warrant this horse as you represent Mm,” to which defendant replied: “ The horse is just the same as when you drove him on Monday.” Meld, that these words did not constitute a warranty and that the case' was properly withdrawn from the jury.</p>

Appeal, July T. 1891, No. 192, by James J. Quigley, defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1890, No. 182, on verdict for Frank C. McCown and John A. McCown, plaintiffs. Assumpsit for goods taken by the defendant and not accounted for. At the trial before Gordon, J., it appeared that the defendant was a partner with the plaintiffs in the firm of McCown & Co. He had also a retail shop, which he conducted on his own account.

<p>Equity — Injunction—Doubtful rights.</p> <p>A mandatory injunction will not be issued where complainants’ rights are not clear.</p> <p>Covenants — Building restrictions — Laches.</p> <p>Defendants owned land subject to a covenant that “*no manufactory, workshop, steam-engine house, smith shop, .... or other building for offensive purposes or occupation, or building of any kind to be used for any purpose other than as and for a genteel cottage or dwelling house, stable or coach house, shall ever be built ” on the land. The lessees of defendant, a boat club, built on the land a boat house, club house and a small building used as.a carpenter shop for repairing boats. These buildings were completed in September, 1887. Notice to remove the buildings was not given by the complainant until January, 1889. Held, that the complainants were not entitled to a mandatory injunction.</p>

Appeal, No. 2, July T., 1891, by defendant, James Galbraith et al., from order of G. P. No. 1, Pbila. Co., March T., 1891, No. 196, in favor of plaintiff, Harry Hardwick, making absolute a rule for judgment for want of a sufficient affidavit of defence. Assumpsit to recover royalties from the licensee of a patent. The agreement of license contained inter alia the following clause: “ 1.

Appeal, No. 135, July T., 1891, by defendants, James P. Hosie and John H. Hosie, from judgment of G. P. No. 4, Phila. Go., Dec. T., 1889, No. 348, on report of referee. Assumpsit to recover compensation for services rendered in purchasing land.

<p>Municipal liens — City solicitor’s commissions — Act of March 23, 1866.</p> <p>Under the act of March 23, 1866, P. L. 303, which provides that the city solicitor shall receive five per cent upon mutual claims, ‘ ‘ to reimburse him for carrying into effect the provisions of this act,” the five per cent commissions cannot be collected from the property owner unless the city solicitor has taken steps to find the owner and serve him with notice to make payment, in the manner prescribed by the act. The ordinance of 1882 providing that the five per cent in question should be paid into the city treasury, can make no difference in the construction of the act. /</p>

Appeal, No. 67, Jan. T., 1892, by plaintiff, J. E. Powers, from judgment of nonsuit in favor of defendant, Cyrus H. K. Curtis, by C. P. No. 3, Phila. Co., Dec. T., 1889, No. 110. Assumpsit for work and labor done. At the trial before Reed, J., it appeared that the defendant wrote to the plaintiff requesting him to prepare a series of leaflets or primers as an advertisement of the Ladies Home Journal of which the defendant was proprietor.

Appeal, No. 69, Jan. T., 1892, by plaintiff, the Commonwealth, for the use of Philadelphia County and Eastburn Reeder, agent of the Dairymen’s National Protective Association, from order of C. P. No. 4, Phila. Co., June T., 1891, No. 1081, making absolute a rule for an appeal nunc pro tunc from a magistrate. Appeal nunc pro tunc from the judgment of a magistrate. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 185, July T., 1891, by plaintiff, Thomas L. Long, from judgment of C. P., No. 4, Phila. Co., June T., 1889, No. 310, on verdict for defendant.</p> <p>Trespass to recover damages for loss of baggage. Tbe facts appear by tbe opinion of the Supreme Court. The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the charge directing the jury to find for the defendant.</p> <p>The defendants testimony failed to establish that the breaking of the dam and the consequent flood was the act of God. A common carrier is a virtual insurer against all risks of loss or injury, save those by act of God or the public enemy. Schuler on Bailments, 386. It was essential to prove that the flood was an act of God.</p> <p>Even if the breaking of the dam was the act of God, the defendant cannot be relieved from liability if it failed to exercise the care and skill required under the extraordinary circumstances with which it was confronted. Morrison v. Davis, 20 Pa. 177 ; Hays v. Kennedy, 41 Pa. 384.</p> <p>The case was one for the jury: Penna. R. R. v. Milton, 87 Pa. 399; Penna. R. R. v. Weiss, 87 Pa. 447: Penna. R. R. v. Miller, 87 Pa. 395 ; Speer v. P. W. & B. R. R., 119 Pa. 61; Kelly, v. McGeehee, 137 Pa. 443.</p> <p>A carrier is not liable for loss or damage caused by the act of God. The act of God is natural necessity. Accidents produced by physical causes which are irresistible, as, for example, winds and storms or a sudden gust of wind, by lightning, inundations, or earthquake, sudden death or illness, are occasioned by the act of God, and the carrier is excused. 1 Chitty on Common Carriers, 36 ; Coggs v. Bernard, 1 Smith’s Leading Cases, 315-318.</p>

<p>Constitutional law — Act of May 16, 1891.</p> <p>The act of May 16, 1891, P. L. 71, providing for assessments on property owners for street improvements made under the void acts of June 14, 1887, P. L. 386, and May 16,1889, P. L. 228, is constitutional. The property owners having received the benefits of the improvements, the legislature had the clear right to provide for the assessments, thus legalizing what it might previously have ordered.</p> <p>Title of act. Art. Ill, §3 of constitution of 1874.</p> <p>The purposes of the act of May 16, 1891, entitled “An Act, authorizing 4he ascertainment, levy, assessment and collection of the costs, damages and expenses of municipal improvements, including the grading, paving, macadamizing or otherwise improving of any street, lane or alley or parts thereof completed or now in process of completion and also the costs, damages and expenses of the construction of any sewer completed or now in process of completion and authorizing the completion of any such improvement,” are sufficiently stated in its title, and the act does not violate article IH., sec. 3 of the constitution of 1874.</p>

Appeal No. 46, Oct. T., 1892, by plaintiff, from decree of C. P. No. 3, Allegheny Go., Feb. T., 1892, No. 554, dismissing a bill in equity. Bill in equity by Greorge I. Whitney against the city of Pittsburgh and J. J. Booth and William F. Flinn, contractors. The main averments of the bill were similar to those in Donley v. Pittsburgh, supra. Other averments are stated in the opinion of the Supreme Court.

<p>Appeal, No. 47, Oct. T., 1892, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 555, dismissing a bill in equity.</p> <p>Bill in equity by C. F. Bingaman against the city of Pittsburgh and J. J. Booth and William F. Flinn, contractors. The main averments of the bill were similar to those in Donley v. Pittsburgh, supra. Other averments are stated in the opinion of the Supreme Court.</p>

Appeal, No. 49, Oct. T., 1892, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1892, No. 263, dismissing a bill in equity. Bill in equity by Noah Rubright against the city of Pittsburgh. The facts were similar to those in Donley v. Pittsburgh, supra.

<p>Appeal, No. 251, Oct. T., 1891, by-defendant, from judgment of O. P. Lawrence Co., Sept. T., 1890, No. S3, on verdict .of plaintiff.</p> <p>Appeal by Henry Woods from the judgment of an alderman in favor of T. W. McDermott. The plaintiff filed in the common pleas the following statement which was not verified by affidavit :</p> <p>“Plaintiff,. T. W. McDermott, claims from Henry Woods, defendant, one hundred and eighty-one dollars, for extra materials furnished and extra work done in the building of a kitchen and porch for said defendant, for which extra materials arid extra work and labor done defendant promised to pay said plaintiff.</p> <p>That in May and June, 1890, defendant made a contract with said plaintiff to huild said defendant a house. That after said house was built, said defendant wanted a common kitchen built with certain specifications, for which said plaintiff agreed to build said kind of kitchen for the sum and price of one hundred and twenty-five dollars. That when said plaintiff commenced to huild said kitchen, the kind mentioned and agreed upon by said plaintiff and said defendant, said defendant would not have the kind of kitchen they had agreed upon built, but wanted an extra kitchen built, for which extra kitchen said defendant agreed there and then to pay said plaintiff. That the extra materials furnished and the price of the extra work and labor done in building said extra kitchen, was one hundred and fifty-one dollars, for which extra work done and extra materials furnished said defendant agreed to pay said plaintiff. That said plaintiff built for said defendant an extra porch for the sum and price of thirty dollars, for which extra porch the said defendant agreed to pay.</p> <p>That the amount of money due said plaintiff from said defendant is one hundred and eighty-one dollars, with interest on the same from July 7, 1890. That defendant is not entitled to any discount, abatements, set-offs or deductions from said claim.</p> <p>The rules of the court of common pleas of Lawrence county provided as follows:</p> <p>“ 1. In personal actions, ex contractu, the plaintiff shall file with or before his declaration, when the suit is brought on a book account, a sworn copy thereof, as taken from his books of original entry. In all other cases for the recovery of debts, a specification of the items of his claims. And in all cases a statement of facts necessary to support the action verified by affidavit. ”</p> <p>“ 3. All items of book accounts and other claims, material averments of facts, written instruments and the execution thereof, not specifically traversed or denied by the opposite party, under oath or affirmation, shall be taken as admitted, and no proof therefore shall be required at trial.”</p> <p>Hazen, P. J., charged in part as follows:</p> <p>“ It is within the province and required under our rules of court that the defendant in defending should specifically set out each and every particle of the defence. He need not set out any, he is not compelled to. He may set out just what suits him but what is not denied is taken as admitted. The items for which pay is claimed by plaintiff are not denied; hence when you reach a conclusion, and if that be that there was other contract than that which the defendant avers there was, and as we have already stated that covers the contract for the house and the kitchen, the former at $1,200, and the latter $125, and as the defendant says no other, but if you find there was other contract and the work and material furnished in pursuance of that, then your verdict must be for the plaintiff for the amount claimed, because it is not denied.”</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>JError assigned was the portion of the charge quoted above.</p>

<p>Appeal, No. 184, July T., 1891, from order of C. P. No. 4, Phila. Co., March T., 1891, discharging a rule to strike off mechanic’s claim.</p> <p>Mechanic’s claim filed by Joseph M. Caldwell, et ah, trading as Caldwell & Johnson, against Joseph H. Carter, owner or reputed owner.</p> <p>The defendant entered a rule to strike off the claim, alleging various defects. On June 27, 1891, the rule was discharged.</p> <p>Error assigned was the order discharging the rule.</p>

<p>Sheriff’s interpleader — Title must be proved.</p> <p>The claimant in a feigned issue under the sheriff’s interpleader act must prove title to the goods; it is not sufficient to show mere possession.</p>

<p>Appeal, No. 101, Jan. T., 1892, by plaintiffs, Arnold & Co., from judgment of C. P. No. 3, Phila. Co., Deo. T., 1889, No. 660, on certificate for defendants, George W. Blabon & Co.</p> <p>Assumpsit for goods sold and delivered. Pleas non assumpsit, payment, set-off. The defendants filed an affidavit of defence in which they averred:</p> <p>“ After delivering to us the quantity of granulated cork, for which suit is brought, the plaintiffs repudiated their contract with us and refused to deliver to us for our manufacturing purposes any further amount of cork. We were obliged to obtain our supply of granulated cork for our manufacturing purposes during the year 1889 from parties other than the plaintiffs. We aver that the advance in value of the three hundred and forty tons of granulated cork which the plaintiffs failed to deliver to us according to their contract during the year 1889, between the price at which we were to receive said cork and the market value of the same was $5,904.03. We claim that there is due to us by the plaintiffs for breach of their said contract with us over and above the amount of $151.19, due by us to them, the sum of $5,752.84. We claim the last named sum from the plaintiffs, and will endeavor to recover it in this suit, with interest.”</p> <p>Before the trial, counsel for defendant notified the plaintiffs that at the time he would “ offer evidence of the matters set out in the affidavit of defence, a copy of which I inclose, and will claim a certificate in his favor for $5,752.84, as therein stated.”</p> <p>At the trial counsel for defendant made the following offer:</p> <p>“ I propose to prove that there was a contract entered into on the tenth of January, 1889, for the purchase from the plaintiffs of all their supply of granulated cork that they should make during the year 1889, which would be needed by Mr. Blabon in his works, and that he was to have the right to take as much óf the whole output, which would be about 350 tons, as the plaintiff would make in their works; that this cork was shipped under that contract, and that the plaintiffs refused to ship any further supply of cork ; that the loss by reason thereof to the defendant was at the rate of some $15 a ton in extra freight.</p> <p>Objected to. An affidavit of defence cannot be substituted for a statement. A specific, statement must be made. The statement in this case is not sufficiently specific. It refers to items of value of cork and freight charges.</p> <p>Mr. Johnson stated that he only wished to prove the market value of this cork in Philadelphia.</p> <p>The Court: I think the statement is sufficient for every purpose, unless you attempt to eke out the lower price of cork by showing that the difference was in freight. I don’t think you can do that under the statement.</p> <p>Mr. Gross: I renew my objection.</p> <p>Objection overruled. Exception. [1]</p> <p>When John C. S. Davis, a witness for plaintiff, was on the stand, he was asked this question:</p> <p>Q. What was the value of granulated cork at the time you received notice from Arnold in January, 1889, that he would not deliver the cork ?</p> <p>Objected to. Objection overruled. Exception. [2]</p> <p>The court refused tinder objection and exception to allow the plaintiffs to show what they sold granulated cork for during 1889. [3]</p> <p>The court charged in part as follows:</p> <p>“ It comes down to a question of the view which you will take of what took place at the meeting where Mr. Davis and Mr. Arnold, the plaintiffs, and Mr. Blabon, the defendant, had a talk of what should be done for the year 1889. The first thing you want to ascertain is whether there was what the law calls a meeting of mind; in other words, in the ordinary history of a contract a certain amount of negotiation takes place, and when that is over and men come to an agreement, their minds meet on a single point; one says, “you will do so and so,” and the other, says, “ I will do so and so,” and the contract is closed.</p> <p>“ Of course, a discussion of this kind may be canceled and end in nothing, if either party fails to agree upon that precise point, or it may end, as it is intended to end, upon the two people making a final agreement, each one perhaps waiving something he had asked for and end in a compromise and come down to a point. That may take a long time or it may be done in a short time, but a discussion undoubtedly took place on that day, and according to the testimony of the plaintiffs, it ended in nothing; they never came to any agreement. According to the testimony of the defendants, there was a plain, precise agreement for the year 1889. That is to say, according to the defendants’ contention, he was to have the entire output of the plaintiff’s place during the year 1889 at $25 a ton, put free on board the cars at Lancaster, the defendants to pay the freight from Lancaster to Philadelphia, or so much of that output as he might need in his business. He was to take until the latter part of the month, or the last of the month, or the end of the month, to let the plaintiffs know what the needs of his business would be.</p> <p>“ In my judgment, under that phraseology taken alone, [the defendant had that entire month to make up his mind.] [7] Unless you can find something in the testimony, and I do not recollect anything to the contrary, the natural meaning of such words would be through the entire month. This is not in writing, and I am not interpreting a writing. I am merely explaining to you the use of those words. If your view of the English language is different, my instruction does not bind you as to the construction of that phrase. It seems to me that the natural construction of that language would be that the defendant had the entire month in which to let the plaintiffs know what his demands were to be. Of course, they could not exceed the output of the plaintiffs’ place; of course, he could not ask for more than there was, but he could take so much of it as he might need at that price.</p> <p>“ There is a discrepancy in the testimony as to what the discussion led up to at this time. The plaintiffs said they had an offer of $30 a ton, $5 better than $25, and therefore wanted the defendant to come up to those terms, which the defendant would not do. The defendant, on the other hand, contended that that offer as stated to him by the plaintiffs was for $30 per ton not free on board, but $30 a ton delivered at the purchaser’s place, and that the freight would about make up the difference, provided the defendant agreed to pay the freight on his goods, which he had not been in the habit of doing before.</p> <p>“ Undoubtedly, if you find there was this contract, as claimed here by the defendant, and if you find that the plaintiffs broke it, the defendant would have the right then to his damages, which damages are fixed; but if the defendant was able' by any acts on his part to lessen his damage, 'he could not, of course, recover more than his actual damage. In other words, [whatever damage there was accrued at the date of the breach of this contract,] [8] it was not necessary to wait until the time called for in the contract elapsed; if it is broken it is broken, and the right to recover damages then accrues.</p> <p>“Then comes the question whether this defendant, in obtaining these goods from other people, did lessen his damages, whether he made them any less than the difference between the price agreed upon in the contract and the market price at the date of the breach.</p> <p>“ You have heard from the evidence what he did pay. You have also heard what was the market price. The market seems to have been a limited market. That is to say, that this article was not one which was dealt in in a general way; there were only certain places you could get it.</p> <p>“ In regard to the freight, I will ask you to leave out of your mind, so far as the defendant is concerned, if you find in his favor, any question as to freight, because, for technical reasons, the defendant was called upon to give the plaintiffs a statement of what special matter he proposed to put in evidence, and in that statement there is not contained, in my judgment, any proper indication of the amount which the defendant had to pay out on account of the freights. But he does make the statement that he had to buy cork of other parties, and he had to pay for that cork $41 a ton.</p> <p>“You can take all these facts into consideration. You will first consider whether there was any contract; you will then consider the damages, if there was such a contract, and you will find damages in the way I have indicated.</p> <p>“ If, on the other hand, you find there was no such contract, then, of course, the defendant is undoubtedly liable to the plaintiff’s for the $151, or whatever the amount is, which was stated to you, which was the price of that amount of cork which was delivered in January.</p> <p>“ You should also take into consideration the question of how far the delivery of the cork in the month of January was an indication of the making of a new contract between these parties. The defendant says that this was made under the new contract and according to the price of the new contract; that is to say, for $25; that the defendant had to pay for that new cork $3.20 more than he paid for his cork before, inasmuch as he was paying for the freight from Philadelphia to Lancaster. The plaintiffs, on the other hand, say that was merely done as an accommodation, and indeed goes on further to say that it was done under the terms of the old contract.</p> <p>“ The evidence, as far as it appears here by the bills of lading and so on, seems to indicate that the defendant is right, at least in this part of his contention, that he paid the price of the new contract and not the price of the old.</p> <p>“ Those are the two sides of the case. If you find for the plaintiffs you will find for this amount, $151. If, on the other hand, you find for the defendant, you will give him a certificate of the amount that he actually paid out, that is the difference between the alleged contract price and the market value of that amount, 340 tons of cork, on the day of the breach of the contract, unless you find from the evidence that what he bought cost him less than that, in which case you will find for the lesser sum.</p> <p>“ It will be one or the other of those two sums.</p> <p>“ The plaintiffs have asked me to charge you as follows:</p> <p>“Mrst. That if the jury find that there was a contract between the .plaintiff and defendant, that the defendant can only recover the difference between the price contracted for and the lowest price paid for any 340 tons of cork bought by him during the year 1889, and if he fails to prove specifically what sueh price or prices were, he cannot recover the certificate he asks for, and the verdict must be for the plaintiff.</p> <p>“ I think I answered that point in my charge when I stated to you that he can recover the difference between the contract price and the market price, unless, as a matter of fact, his loss was actually smaller. [4]</p> <p>“ Second. If the jury find that any 340 tons of cork purchased by the defendant during the year 1889 were purchased at a like price, or less than the price at which the defendant alleges the plaintiff agreed to furnish the same, the defendant cannot recover and the verdict must be for the plaintiff.</p> <p>I will have to ask counsel whether there is any evidence in this case to which that point is applicable. I do not recollect.</p> <p>Mr. Gross: There is no evidence that they purchased 340 tons.</p> <p>The Court: I do not recollect any evidence to which this is applicable. If it is not applicable I will have to refuse it on that ground. I do not want to give the jury points that are merely in the air. [5]</p> <p>“ Third. Under the pleadings and evidence, the verdict must be for the plaintiff. ”</p> <p>I refuse that point. [6]</p> <p>The Court: Gentlemen, you have all the evidence before you. [You can take into consideration the price, $25, and then you have a right also to take into consideration a point which I had forgotten, the precise article ; you must not forget the difference in the nature of the article. Twenty-five dollars per ton for raw material is one thing and $25 per ton for finished product' is another. The evidence was that $25 a ton was paid for comparatively raw material.] [9]</p> <p>Mr. Johnson: And at Chicago:</p> <p>Mr. Gross: And in Philadelphia:</p> <p>The Court: You will take into consideration what that price was.</p> <p>The second point I will refuse as not applicable, except, if you find, as a matter of fact, that these gentlemen did buy cork for a less amount than the contract price. Whatever it is you will find for the lesser of the two amounts.” [5]</p> <p>Yerdict for defendants with a certificate for defendants for $6,801.52, on which judgment was entered. Plaintiffs appealedj</p> <p>Frrors assigned were (1) the admission of evidence, quoting offer and objection, but not the evidence admitted; (2, 3) rulings on evidence; (4-9) instructions of the court, quoting portions of the charge as above, and points and answers.</p>

<p>Appeal, No. 114, Jan. T., 1892, by Edwin C. Atkinson, guardian, from decree of O. C. Phila. Co., directing the register of wills to admit to probate a certain writing as the will of William P. Fouché, deceased.</p> <p>Appeal from the refusal of the register of wills to admit a paper to probate as a will.</p> <p>Ashman, J., filed the following opinion:</p> <p>“ On the morning of November 7, 1890, six days before his death, and when he was in declining health, the decedent, in the presence of his wife and children, declared that he was about to make his will by word of mouth; that he desired them to witness that he left everything to his wife after his death and that she could do with it as she pleased. Immediately before this interview he had explained to one of his sons, who was very deaf, the meaning of a nuncupative will, and, apparently in order to be certainly understood, had shown the son a paper on which he had already written the word ‘ nuncupative,’ and to which he proceeded to add as the definition ‘by word of mouth.’ A few days after his death, the writing now offered as his will was found among other papers which were taken from his desk. It was upon the identical paper which had been exhibited to the son, the words ‘ nuncupative by word of mouth ’ not having been erased. The paper read as follows:</p> <p>“November 7th, 1890.</p> <p>“ Nuncupative by word of mouth my will was maid on the above date, everything left to my dear wife, Mary W. Fouché, all my real and personal estate and everything I own at the time of my death.</p> <p>“William W. Fouché.</p> <p>“Probate was refused on the ground that this was not a valid testament. The reasoning by which it is sought to uphold this ruling is highly ingenious, but of necessity highly technical; and for the latter cause should be adopted cautiously, if at all, in determining the intent of a testator who knew nothing of technical terms. It assumes at the outset that the decedent had actually no purpose whatever in writing the paper; or, as counsel states it, he scrawled it to while away a weary hour; the basis of this assumption was that the testator had used the blank page of a printed notice, and on a fold of the paper had made some calculations in figures. However it may be with counsel, this is not the spirit, in which a court may proceed to test the validity of the instrument in the nature of a will. If it may find that the testator wrote simply for amusement because his pretended will was upon note paper, it may also find that he wrote only as a joke because his spelling was grotesque. It would be well, perhaps, if all wills were engrossed on parchment and drafted by lawyers; but the circumstances under which many of them are prepared preclude any nice selection of stationery or counsel. Certainly it would be cruel if a testator, in his last hours, should be harassed with the thought that his final wishes as to the disposal of his estate would depend for their fulfillment upon the size and quality of the paper on which his will was written. We pass over the next argument which, however, was not pressed with fervor, that the writing was void as a will, because the testator had not signed his name at the foot of the figures. These figures had no more to do with the writing than the circular on the reverse of the paper, and he was no more called upon to sign the one than the other. The point upon which the contestants mainly rested was that the utmost effect of the writing was to serve as a republication of a nuncupative will, and that the latter was void and therefore incapable of revival. It is, at least, open to debate whether a will which is void in its inception may not be made good by a codicil duly executed which distinctly affirms it: Druce v. Denison, 6 Yes. 397; but is it within the bounds of credulity that a testator who has made what he deems a complete will in the morning should think it necessary to formally republish it in the afternoon of the same day, or that, having formed such a resolve, he should recite anew all the provisions of the anterior will? The contrary supposition, which the evidence here raises into a certainty, is that the decedent intended by this writing, not a republication but a new will. He had cut out from newspapers and had placed in his desk, along with the will, various slips descriptive of short and eccentric wills which had been admitted to probate, and he had also kept by him a pamphlet giving directions for drawing wills and defining the law as to nuncupative wills. It was taken for granted by the contestants themselves that he had patterned his will after these specimens, and that he knew the character of unwritten wills. If the field of conjecture is to be laid open for one purpose we may pursue it for another, and, assume that having learned that a nuncupative will must be reduced to writing within six days after the testator’s death, the decedent had anticipated that duty and had himself written out his testament. Or he may have concluded that his oral will was void because it was not made in the extremity of his sickness, or that, even if valid, it would not carry his real estate ; and he thereupon, and, we think, wisely, committed his intentions to writing. But there is no need either for evidence of what the testator had previously declared was his purpose, nor for conjecture as to what he afterwards intended. The writing itself is before us, and the sole inquiry is: Does it contain the requisites of a valid will ? Is it signed by the testator at the end thereof, does it take effect at his death, and does it make an intelligent disposition of his property ? To all of these questions, we believe there can be but one answer. Its form, or rather its want of form, is nothing: Frew v. Clarke, 80 Pa. 170. That it speaks in the past tense, and not in the present is nothing: Black v. Tobling, 1 L. Rep. 685; Williams on Executors, vol. I, p. 188, and that the testator called it nuncupative is also nothing. A promissory note or a deed, provided it is meant to operate at the death of the maker or grantor, may be a good will, no matter by what name the instrument may have been described: Turner v. Scott, 51 Pa. 126; Patterson v. English, 71 Pa. 458. This paper, so far from depending upon extrinsic testimony to explain or to enforce it, is absolutely complete in itself, and is to be upheld in the face of all adverse criticism as to its form upon the principle laid down in Boyd v. Bunting, 210, that ‘ wherever a party has the power to do a thing — statutory provisions being out of the way — and means to do it, the instrument he employs shall be so construed as to give effect to his intention.’ This contest would have been avoided if it had been borne in mind that whether the testator had executed one will or many, nuncupative or written, valid or invalid, was a thing of no measurable consequence, if the paper which he finally executed and which is now under scrutiny conformed to statutory requirements and expressed his last intentions. That it did both we have no manner of doubt. The appeal is sustained and the record recommitted to the register with direction to admit the instrument to probate.”</p> <p>JSrror assigned was the order sustaining the appeal.</p>

<p>Appeal, No. 118, Jan. T., 1892, by defendant, Horace Geiger, from order of C. P. No. 2, Phila. Co., June T., 1891, No. 372, making absolute a rule for judgment for want of a sufficient affidavit of defence.</p> <p>Assumpsit to recover assessments on stock.</p> <p>From the statement it appeared that defendant participated in the first meeting of the stockholders of the plaintiff corporation, held on Dec. 3, 1888, and was elected a director, which office he held until Dec. 2,1889. Defendant paid the first call, but refused to pay any of the subsequent calls. The defendant averred that the directors were authorized at the first general meeting of the stockholders to make a call for the first installment of 25 per cent of the par value of the capital stock, and that the remaining 75 per cent of the par value of the stock should be called by the board of directors in such installments, and at such times, as might be necessary for the purposes of the business, and not merely at the discretion of the board of directors as set forth in plaintiff’s statement. “ The business of the company has not been a success, and is not now being pushed by the officers of the company, and practically no business is being done. The company is solvent and has sufficient assets to meet all liabilities, and the defendant avers that the said assessments called as set forth in the plaintiff’s statement, are not necessary for the purposes of the business, as the resolution passed by the stockholders provided that they should be, and were therefore called without authority on the part of the directors, and the company has no need for the money to be provided by the said assessments, except for the purpose of paying useless and exorbitant salaries to certain officers of the corporation, and the defendant avers that the said assessments were made, and are now being attempted to be collected simply for that purpose and for no other.</p> <p>“ This defendant is informed and believes that steps have already been taken for the purpose of the dissolution of the plaintiff corporation, and that two thirds in interest of the stockholders have agreed to dissolve and wind up the affairs of the corporation as provided by the statutes of the state of New Jersey under which said corporation was organized, and that in view of such action the defendant should not be obliged to pay the said assessments, which were not made in accordance with the resolution, authorizing the board of directors to call assessments as above set forth. Defendant further avers that he never received any notice whatever of the assessments called, and which are sued for in this case, until he received notice from air attorney that suit was about tobebrpught therefor, and defendant further says that he is informed and believes and expects to be able to prove that notice of said assessments was not published in public newspapers as is required by the statutes of the state of New Jersey, under which the plaintiff company was incorporated, and he is advised and believes that by reason of the failure to publish notice of the said assessments as required by law, the said assessments are unlawful and cannot be collected in this action, defendant never having had any notice of said assessments, either actual or constructive.</p> <p>“ All of which facts defendant says are true; as he expects to be able to prove on the trial of this cause.</p> <p>“ Defendant further says that although he was a member of the board of directors at the time when several of the assessments are alleged to have been called, yet as such director he had no notice of the said meetings, and was not present when the said assessments were made and had no knowledge thereof, except of the first assessment, which he paid.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence.</p> <p>Error assigned was the order of the court entering judgment.</p>

Appeal, No. 182, July T., 1891, by defendants, from order of C. P. No. 1, Phila. Co., Dee. T., 1890, No. 642, M. L. D., making absolute a rule for judgment for want of a sufficient affidavit of defence. Scire facias sur mechanics’ lien filed by a subcontractor. The affidavit of defence set forth a contract between the builder and owner, the material portions of which appear in the opinion of the Supreme Court.

Appeal, No. 198, Jan. T., 1891, by defendant, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1889, No. 88, on verdict for plaintiff, Wm. A. Vallo. Trespass for personal injuries. At the trial before Pennypacker, J., it appeared that plaintiff, who was blind in one eye, was walking on the evening of July 1,1889, on Chestnut street in the city of Philadelphia.

<p>Appeal, Nos. 265 and 460, Jan. T., 1891, by Caroline E. King and F. G. Dexter, from decree of O. C. Phila. Co., July T., 1880, No. 57, sustaining exceptions to adjudication.</p> <p>Adjudication of account of F. G. Dexter, trustee under the will of William M. King, deceased.</p> <p>At the audit before Hanna, P. J., it appeared that the testator by his will provided as follows:</p> <p>“ I give devise and bequeath all my individual estate and household goods plate furniture, pictures and stores the estate and property respecting which I have the power of appointment as aforesaid both real and personal to my friend F. Gordon Dexter of Boston of the State of Mass, to have and to hold the same to his heirs successors and assigns forever, but upon the following usages and trusts conveying the same viz. To hold and invest the same according to his best judgment in safe and reliable property real or personal to take and collect from time to time the income profits thereof and to pay over the said income and profits quarter yearly payments to my wife Caroline E. J. King during her life but upon her sole separate receipt or order in writing to be from time to time and not by anticipation given and at her death to convey and pay over the same to such person or persons as she may by her last will or writing in the nature of a last will convey direct or appoint the same and I hereby order and direct my said Trustee to see that none of the income of the trust fund shall go or be paid directly or indirectly to any of my wife’s collateral relatives nor shall he permit them to enter my residence 315 South 15th street Philadelphia. This I enjoin upon him as a solemn duty I making this provision knowing full well by experience the nature of their demands and the yielding disposition of my wife who has already suffered bitterly at their hands.”</p> <p>The accountant claimed credit for certain payments made to the cestui que trust before any income had actually been received by him. It appeared that most of these payments had been made during a period in which, by reason of a contest over the will, no moneys whatever came into the hands of the trustee. The auditing judge held that these payments were either gifts or loans from the accountant to the widow, and that as anticipation was prohibited by the will, the accountant was not entitled to credit for the amounts claimed. Credit was also refused for an allowance of $250 counsel fee, the judge holding that the services had been rendered to the accountant personally to protect him from surcharges which the auditing judge was compelled to make.</p> <p>Exceptions to the adjudication were sustained by the court, Ashman, J., filing an opinion which was in part as follows :</p> <p>“ That the trust before us was not valid as a separate use trust is demonstrable ; the cestui que trust was the wife of the testator, and became discovert at the moment of his death. That it was not a spendthrift trust is almost as evident. No set form of words, it is true, is required to create a trust of that character, yet the intent to create must be not merely discernible, but, as the trust is an anomaly in the law, must be unmistakable: Girard Insur. Co. v. Chambers, 46 Pa. 485. Can it be said that an unmistakable intent to declare such a trust is found in this will? There is hot a word about creditors nor about debts; and not a hint that the beneficiary was lacking in prudence or was addicted to extravagance. The sole thought of the testator was to secure his wife from the ■solicitations of her collateral relatives; and the conditions which to this end he imposed upon the trustee were simply impossible. It was impossible for the trustee to prevent those relatives from entering the house of the cestui que trust if the latter encouraged their visits; and it was impossible to prevent them from borrowing or begging from the cestui que trust the income after it had come into her hands. Whether, however, they were or were not impossible, we cannot add to these conditions another which is illegal in estates of inheritance, and looked upon with disfavor in others, because it is in restraint ■of alienation. Our first duty is to carry out the intent of the testator. We defeat that intention if we allow the non anticipatory clause to stand, for the reason that we thereby convert’ a trust which the testator aimed against certain relatives, into ■a trust which he did not contemplate, against creditors. The maxims of interpretation are too well settled, to permit such a remodeling of the will of a testator. If a donor intends to ■create a trust, but fails for lack of right words, the court may not construe his disposition into a gift, although the words were adequate: Milroy v. Lord, 4 De Gr., F. & J. 264. So we cannot transmute an invalid trust against relations into a ■good trust against creditors, when it is clear that the testator intended the first and did not intend the second.</p> <p>“But aside from these considerations, the real difficulty in the way of exceptant — a difficulty which should be removed before she can claim to be heard as to the nature of the trust— is a practical one; as to most of the payments which she seeks to repudiate, there has been no anticipation whatever. An anticipatory payment of income is a payment which is made before the income is due. It is not alleged that the payments to the exceptant during the two years covered by the will contest were made before the income had accrued; the objection is that they were made before it had been reduced into possession by the trustee. The fact is overlooked that the trustee was the legal owner of the estate and of its income, saddled, of ■course, with an obligation to pay to the cestui que trust; if he paid in full as the income fell due, but before he had himself collected it, the only effect would be that when the money come into his custody it came to him relieved of the obligation. The cestui que trust had no more right to it than the remotest stranger.</p> <p>“We think that the credits taken for payment of income should have been allowed, but without interest thereon; and it follows that the request for $250 counsel fees should now be granted. To this extent, the exceptions to the adjudication are sustained.</p> <p>“ And now, to wit, October 25,1890, the court orders and decrees : 1. That the claim of the trustee in the above estate for the various sums paid by him to Mrs. King, the tenant for life, over and above the income received by him from the estate devised in trust be allowed but without interest, which said sums amount in the aggregate to three thousand and fifty-five dollars and forty cents ($3,055.40) after deducting one thousand eight hundred and ninety-six dollars and thirty-four cents ($1,896.34), being the aggregate of the interest on the sums paid by the trustee until he was recouped by receipts of income. 2. That the claim of the trustee to the sum of three thousand and fifty-five dollars and forty cents ($3,055.40) as against his liability to the cestui que trust for income received be allowed. 3. That the trustee be allowed two hundred and fifty dollars ($250) as the fee to his counsel in the litigation growing out of the account.”</p> <p>Errors assigned by Caroline E. King were (1-3) the decree, quoting it; (7) in not dismissing exceptions to the adjudication.</p> <p>Error assigned by' F. G. Dexter was in refusing to allow interest on the credits claimed and allowed to the trustee.</p> <p>The trust created by the will was a spendthrift trust: Fisher v. Taylor, 2 Rawle, 33; Rife v. Geyer, 59 Pa. 393 ; Yaux v. Parke, 7 W. & S. 19 ; Keyser v. Mitchell, 67 Pa. 473; Stambaugh’s Est., 135 Pa. 585.</p> <p>If the trust in question be not regarded as a spendthrift trust, it is submitted that the action of the trustee in making these advances was a direct breach of trust and a violation of the confidence reposed in him by the testator, and that, therefore, he can have no standing in his efforts to recoup himself out of the accruing income even as against the life tenant, the recipient of the advances : Stambaugh’s Est., 135 Pa. 585; Thomas v. Price, 46 L. J. Ch. 761.</p> <p>The cestui que trust cannot hold her trustee liable for a breach of trust which she has requested and received the benefit of: Hill on Trustees, 790.</p> <p>There is nothing in the will to show an intention to create a spendthrift trust: Gerard v. Chambers, 40 Pa. 485 ; Neale’s Ap., 104 Pa. 214.</p>

Appeal, No. 422, Jan. T., 1891, by plaintiffs, R. A. Malone & Sons, from judgment of C. P. No. 1 of Pbila. Co., Dec. T., 1888, No. 846, on verdict for defendant. Assumpsit on a municipal contract. Tbe facts appear by tbe opinion of tbe Supreme Court.

Appeals, No. 133, 155 and 192, Jan. T., 1891, by John S. Stevens, John P. McGrath and Mary A. Steward from order of C. P. No. 2, Phila. Co., June T., 1887, No. 874, dismissing exceptions to report of auditor. On Feb. 8,1888, J. Warner Goheen was appointed auditor to distribute the assigned estate of the Columbian Bank. From the report of the auditor it appeared that John S. Stevens was director and vice president of the Columbian Bank.

Appeal, No. 29, July T., 1891, by defendant, from judgment of C. P. Lehigh Co., April T., 1890, No. 12, on verdict for plaintiff, Sarah N. Hauser. Trespass for personal injury. The facts appear by the opinion of the Supreme Court.

Appeal, No. 194, Jan. T., 1892, by defendant, Henry F. Meyers, from order of C. P. Lehigh Co., Jan. T., 1892, No. 13, entering judgment for plaintiff, Milton B. Laubach, for want of a sufficient affidavit of defence. Assumpsit on a lost instrument in writing.

<p>Landlord and tenant — Construction of contract.</p> <p>Plaintiff owned premises No. 622 Chestnut street, and plaintiff rented premises No. 716 Chestnut street. Plaintiff agreed to take No. 716 off the hands of defendant if the defendant would take a lease of No. 622 for five years. Subsequently an agreement in writing was prepared which recited the letting of No. 622, and that in the “ preliminary contract for said letting,” the plaintiffs had agreed to relieve defendant of the rent falling due on No. 716 from April 1, to September 1, 1889. Following these recitals was the promise of the plaintiff to pay the rent from which he had previously agreed to relieve the defendant. Held, that the defendant was entitled to retain possession of the old premises for such reasonable time as might be required to fit up the new premises for occupation, and that at the expiration of such reasonable time- the plaintiff should have possession of the old premises, to protect himself, if possible from the liability which he had assumed.</p>

Appeal, No. 23, Jan. T., 1892, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1888, No. 872, entering compulsory nonsuit in favor of Julia F. Barnes. Assumpsit to recover balance of assessment for cost of a sewer. At the trial before Gunstek, J., it appeared that under the act of May 23, 1874, the city of Scranton laid out a sewer district, and proceeded to construct therein a main sewer. Defendant was assessed $105 on her property in the district.

Appeal, No. 148, July T., 1891, by defendant, Howard Spencer, from judgment of C. P. No. 1, Phila. Co., March T., 1888, No. 387, dismissing exceptions to report of referee. Trespass to recover damages for an alleged wrongful distress.

<p>Boad law — Several roads in one proceeding — Act of June 13, 1836.</p> <p>Under the act of June 13, 1836, P. L. 555, conferring upon the cóurt of quarter sessions jurisdiction to lay out roads, it is improper to join together in one proceeding, before the same viewers, two or more separate roads..</p> <p>If such a proceeding were sanctioned, it would furnish an easy method of securing the location of a road with as many fixed intermediate points' as the petitioners might desire. ' If they desired a road so located as to touch two or more intermediate points between the extreme termini, they-might petition for three or more separate roads, so designating the termini of'each as to make virtually one connected road between the extreme termini. In this way no room would be left for the exercise of the discretion vested by law in the viewers.</p> <p>Practice (Supreme Court) — Certiorari.</p> <p>Questions of fact cannot be considered on certiorari.</p>

Appeal, No. 3, July T., 1891, by defendant, from judgment of C. P. No. 1, Phila. Go., Dec. T., 1889, No. 98, on verdict for plaintiff, Thomas Wagner. Trespass to recover damages for personal injury alleged to have been caused by the inhalation of poisonous fumes. The facts appear by the opinion of the Supreme Court. Defendant’s points which were refused were as follows : “1.

Appeal, No. 126, July T., 1891, by plaintiff, Clarence B. Moore, from decree of C. P. No. 3, Phila. Co., Sept. T., 1890, No. 105, dismissing bill in equity against John Taylor, receiver of taxes. Bill in equity to prevent the levying and collection of taxes. The bill averred that the Church of the Messiah, a Universalist Church, became seized in 1854 of premises 1317 and 1319 Locust street, Philadelphia.

Appeal, No. 171, July T., 1891, by complainant,. The German-American Title & Trust Company, Committee of Francis Mawhinney, from decree of C. P. No. 4, Phila. Co., Dec. T., 1887, No. 829, dismissing bill in equity filed against Ida Y. Shallcross and Lewis Stover, executors of the last will and testament of Lewis Shallcross, deceased. Bill in equity to compel the satisfaction of mortgages and judgment and extinguishment of ground rents.

<p>Replevin — Practice (C. P.) —Amendment—Pefective judgment.</p> <p>In an action of replevin for goods distrained for rent, the jury returned a verdict “ that defendant is entitled to $561 rent in arrears, and that the value of the goods liable to said rent is $300. As to the rest of the goods they find for plaintiff.” Subsequently the following entry was made on the record: “Feb. 2, 1891, jury fee paid (by deft) eo die judgment.” Held, that the verdict contained sufficient to have justified the court in molding it into proper form, but that the judgment itself would not support an execution, inasmuch as it was silent as to the sum for which and the person against whom it was intended to be entered.</p> <p>Practice (Supreme Court) — Amendment of record.</p> <p>In this case the Supreme Court refused to amend the record and mold the judgment to the verdict, because (1) it would have been unfair to the appellant in view of the trouble and expense to which he had been put; (2) because amendments of the record of the common pleas, if necessary, belong more appropriately to that court.</p>

Appeal, No. 23, July T., 1891, by defendants, Lewis R. Walters, et al., from judgment of C. P. Chester Co., Oct. T., 1888, No. 68, on verdict for plaintiff. Appeal from judgment of justice of the peace in proceedings to obtain possession under the landlord and tenant act of December 14, 1863. • At the trial before Hemphill, J., the facts appeared as stated in the opinion of the Supreme Court.

<p>Malicious prosecution — Malice—Plaintiff's testimony conclusive of absence of malice.</p> <p>In an action for malicious pi'oseeution, the plaintiff is not entitled-to recover where it appears from his own testimony that the investigation which led o his arrest was instituted by the police for the purpose of discovering criminals who were engaged in a series of systematic robberies of the cars of the defendant, a railroad company.</p> <p>Public policy and the demands of public justice cannot permit a jury to punish a prosecutor where the inference of malice, drawn from the discharge of the plaintiff by the magistrate, is rebutted by plaintiff’s own testimony disclosing circumstances showing entire absence of malice.</p> <p>A jury ought not to be permitted to infer malice from the mere Want of probable cause, when, by other circumstances, it is disproved.</p>

Appeals, Nos. 253 and 277, Jan. T., 1891, by defendants, John I. Green et al. Administrator, d. b. n., of Palneck Doyle, deceased, and Guarantee Trust and Safe Deposit Co., guardian of minor heirs of said Doyle from decree of C. P. No. 4 of Phila. Co., March T., 1885, No. 461, in favor of plaintiff, Michael Mullen, trustee of Robert F. Simpson and wife, on a bill inequity. Bill in equity for con veyance of real estate.

Appeal, No. 8, July T., 1891, by defendants, John A. Wenderoth, Joseph H. Mundy and Henry C. Johnson, auctioneers, and Philadelphia Tattersall and John Reamer, from judgment of C. P. No. 3, Phila. Co., March T., 1891, No. S8|, in favor of plaintiff, Henry C. Terry, upon a rule for judgment for want of a sufficient affidavit of defence. Assumpsit upon a warranty of a horse. The material averments of the statement are set forth in the opinion of the Supreme Court.

<p>Appeal, No. 143, Jan. T., 1891, by plaintiff, Edward L. Stewart, administrator of Charlotte Smith, deceased, from decree of C. P. No. 3, Phila. Co., March T., 1888, No. 717, in favor of Delia T. S. Parnell, dismissing exceptions to a master’s report.</p> <p>Bill in equity for an account.</p> <p>The facts appear by the opinion of the Supreme Court. The case was referred to Thomas J. Worrell, Esq., as master, who recommended that the bill should be dismissed. Exceptions to the master’s report were overruled, and a decree entered dismissing the bill.</p> <p>Errors assigned were the decree of the court and the dismissal of exceptions.</p> <p>The defendant’s conduct estopped her from setting up the defence presented before the master: Bigelow on Estoppel, p. 639; Knights v. Wiffen, L. R. 5 Q. B. 660; Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96; Broom’s Legal Maxims, 169 ; Cave v. Mills, 7 H. & N. 913; Bassett v. Holbrook, 24 Conn. 453; Cocks v. Masterman, 9 Barn. & Cress. 902; Ins. Co. v. Ins. Co., 97 Pa. 1; Harris v. Truman, L. J. 51 Q. B. 338.</p> <p>The transaction contemplated by the parties was stock gambling: Dickson v. Thomas, 97 Pa. 278; North v. Phillips, 89 Pa. 250; Gheen v. Johnson, 90 Pa. 44; Ruehizky v. De Haven, 97 Pa. 202.</p> <p>Mrs. Parnell is not estopped from showing the loss of the money, because nothing she said or did injured Miss Smith, or induced any change in her position, or led her to refrain from any action: Commonwealth v. Moltz, 10 Pa. 527; Patterson v. Lytle, 11 Pa. 53 ; Gould v. Ins. Co., 134 Pa. 570; Weaver v. Lynch, 25 Pa. 449.</p> <p>The transactions in which the money was lost were bona fide sales and purchases and not gambling: Smith v. Bouvier, 70 Pa. 325; Maxton v. Gheen, 75 Pa. 166; Esser v. Linderman, 71 Pa. 76.</p> <p>Even if these transactions had been' gambling ones, the contract being executed and the parties sui juris, this court would not interfere : Speise v. McCoy, 6 W. & S. 485; Prick v. Hammond, 2 Clark (Pa.) 156.</p>

<p>Appeal, No. 296, Jan. T., 1891, by Daniel McDonald et al., from decree of O. C. Clearfield Co., distributing estate of Mary Janes, deceased.</p> <p>Audit of account of S. H. Witherow, administrator of Mary Janes, deceased.</p> <p>Krebs, J., filed the following opinion :</p> <p>“ The fund in court for distribution at this time goes to the heirs at law of John McDonald, who was a brother of Mary Janes, deceased. [The testimony filed in the estate shows that John McDonald died, leaving to survive him four children, namely, Janet McDonald, Daniel McDonald, Marion McDonald and Bruce McDonald.] The evidence discloses that Janet married William Bain; that she and her husband are dead, and that they left children to survive them. Under the disclosure made by the testimony it was deemed but just and right that further effort should be made by the court to ascertain how many of these children were living, if any, so that their mother’s share of the fund might be distributed to them. Some effort was made in this direction after the distribution made under the order filed April 18, 1889, but no report or return was ever made to the court in relation thereto. It is highly probable that some of these children are living, or if dead have left heirs to survive them, who are entitled to their mother’s or grandmother’s share of the fund, which is the one fourth of the amount yet in court. But the court has done all it could to discover these facts and can go no farther.</p> <p>“ [The other question raised in the matter of distribution is the right of Bruce McDonald to receive the one fourth part of the moneys distributable to the heirs of John McDonald. His legitimacy is brought in question. That he was recognized as a child by John McDonald cannot be doubted after a perusal of the testimony.] [2] [His brothers and sisters are not competent witnesses under either the Scotch or English law to question the legitimacy or to prove it. The only testimony was that of his mother, a woman who, under the facts before us, was at the time of her testimony over 95 years of age. Her testimony, if it is taken as true and can be considered, would show that he is illegitimate, but we are advised and believe it to be the law that a father cannot testify so as to make illegitimate his child, and if this is the law in England and Scotland we do not think a mother should be permitted to do so either.] [3]</p> <p>“ [It is proper to say that through information given by reputable counsel, represen ting the widow of Bruce McDonald, namely, Robert J. Porter, Solicitor, Belfast, to Henry F. Walton, of Philadelphia, under date of 24th May, 1889, and through Mr. Walton to S. V. Y. Wilson, Esq., of this court, the court directed a commission to be filed to show the facts, whether true or not, as to the mental condition of this aged woman, who is the only witness called to testify as to the illegitimacy of Bruce McDonald and thereby bastardize her own issue'. Whether or not a commission for the purpose did issue the record does not show,] [4] but a commission for some purpose issued in January or February, 1890, to George W. Savage, U. S. Consul at Belfast or Glasgow, but no testimony was taken thereunder, because of the absence of the commissioner at that time in the United States. In order to show the reasonableness of the grounds upon which the court ordered these commissions to issue, both as to the mental and testifying capacity of the principal witness on the question of the legitimacy of Bruce McDonald, and also as to the existence of heirs entitled to take the interest of Janet McDonald, we refer to the testimony of record and the letters hereto attached.</p> <p>[“ The presumption of law is in favor of the legitimacy of the claimant, Bruce McDonald, and has not been overcome by competent testimony, and I award to his widow and children the one fourth part of the moneys that descends to the heirs of John McDonald.”] [5]</p> <p>“ Whatever of delay there may seem to have been in this case arises from the questions above stated and the desire to place the money to those justly, legally and equitably entitled thereto.</p> <p>[“It is therefore adjudged, ordered and decreed that the one fourth part of all the moneys yet in court for distribution, including those covered by the order of August 30,1889, be paid to the representatives of Bruce McDonald upon proper power of attorney being filed, and that the remaining three fourths be paid to the representatives of Daniel McDonald and Marion McDonald and Janet Bain, nee McDonald, upon proper power of attorney being filed.” ] [6]</p> <p>Errors assigned were (1-6) the portions of the opinion as above.</p> <p>cited Reeve’s Domestic Relations, 272; Starkie on Evidence, part 4, 224: Cook v. Lloyd, Ped. Ev. Ap. 38; Meurer v. Meurer, 119 Pa. 115 ; Hemmenway v. Towner, 1 Allen, 209; Phillips v. Allen, 2 Allen, 453; Dennison v. Page, 29 Pa. 420; Tioga Co. v. South Creek Twp.,. 75 Pa. 433; Smith v. Denis Admr., 34 Pa. 126 ; McGunnigle v. McKee, 77 Pa. 81; Killam v. Killam, 39 Pa. 120.</p> <p>presented no paper book and were not heard by the court.</p>

Appeal, No. 218, Oct. T., 1891, by defendant, from order of C. P. No. 2, Allegheny Co., April T., 1891, No. 921, making absolute a rule for judgment for want of a sufficient affidavit of defence. Assumpsit by McKeesport Borough against Eliza Fidler, to recover an assessment for the cost of constructing a sewer.

<p>Landlord and tenant — Lease—Henewal.</p> <p>A lease “ for the term of one year, to commence and be computed from March 1, 1886,” was in printed form, and the clause providing that “ if the lessee shall hold over after the expiration of the term hereby created, with the consent of the lessor, it shall be held and taken to be a renewal .... and so on until either party shall give previous notice,” etc, was stricken out and this clause written in: “ From and after the expiration of the term hereby created this lease shall be deemed to be renewed and in force for another year, and so on from year to year unless either party shall have given to the other notice of its intention to determine said tenancy sixty days prior to the expiration of any current year.” Held, that sixty days’ notice was required to be given by the lessee before March 1, 1887, in order to determine the tenancy.</p> <p>A covenant in the lease that “ the lessee shall, and will, during the continuance of the said term, keep, and at the expiration thereof, peaceably •deliver up the said demised premises,” etc, is not repugnant to the clause of renewal. It is at the end of the tenancy, whenever by the terms of the whole lease it does end, that the lessee is to surrender the possession.</p> <p> Payment of rent as evidence of renewal. </p> <p>Payment of rent after the expiration of the original term is not an affirmance of the lease for a new year, but merely evidence of affirmance, which may be rebutted by proof that such was not the intention of the parties.</p>

Appeal, No. 302, Jan. T., 1892, by Wm. Miller et al., administrators of Mahlon Miller, from an order of C. P. Berks Co., Aug. T., 1890, No. 15, setting aside fi. fa. so far as same related to real estate.

Appeal, No. 303, Jan. T., 1892, by William Miller et al., administrators of Mahlon Miller, deceased, from order of C. P. Berks Co., Dec. T., 1890, BD., distributing proceeds of sheriff’s sale. In addition to the facts stated in the preceding case it appeared that after appellants obtained judgment in their sci. fa. they issued execution and sold defendant’s real estate. On Dec. 20, 1890, a rule to pay the money into court was made absolute.

Appeal, No. 159, Jan. T., 1892, by Henry A. Muhlenberg, trustee of Cyrus J. Hunter and wife, from a decree of O. C. Burkes Co., distributing estate of Frederick O. Hunter, deceased.

<p>Deeds — Mistahe—Beformatioiir-rJEmdence.</p> <p>Evidence to reform a deed on the ground of mistake must be clear, precise and indubitable. It must be not only credible, but of such weight and directness as to make out the facts alleged beyond a reasonable doubt.</p> <p>A wile’s name was mentioned in the recitals of a deed as a party to the instrument, but in the granting clause and in the habendum and covenants her name was omitted, and the husband’s, name alone appeared. It was claimed that her name was omitted by mistake and that it was intended to convey the land to the husband and wife jointly. One witness testified that directions were given to the scrivener to draw the deed to both, the husband and wife corroborated this, but a mortgage of the same date was offered in evidence in which the husband was recited as sole owner. Held, that the evidence was insufficient to sustain a verdict for defendants in proceedings by a sheriff’s vendee to recover possession of the land which had been sold as the property of the husband, and that the court below would have been justified in giving binding instructions for plaintiff.</p>

<p>Appeal, No. 312, Jan. T., 1892, by defendants, Herb & Greenhoff, from judgment of C. P. Berks Co., Oct. T., 1891, No. 28, in favor of plaintiffs Ellen Kelly et al., for want of a sufficient affidavit of defence.</p> <p>Assumpsit on three promissory notes.</p> <p>The averments of the affidavit of defence appear in the opinion of the Supreme Court.</p> <p>The court entered judgment for want of a sufficient affidavit of defence.</p> <p>Defendants appealed.</p> <p>Errors assigned were the entry of judgment and in not discharging the rule for judgment.</p> <p>cited, Murdock v. Martin, 132 Pa. 93; Gould v. Gage, 118 Pa. 559; Sims v. Hampton, 1 S. & R. 412; Metzler v. Kilgore, 3 P. & W. 247; Mechanics’ Bank v. Gorman, 8 W. & S. 307; Lanning v. Pawsori, 38 Pa. 481; Small’s Ap., 24 Pa. 400; Claason’s Ap., 22 Pa. 363; Ex parte D’Obree; 8 Yesey 82.</p> <p>cited Austin’s Case, 5 Rawle, 202 ; Adam v. Mengel, 8 Atl. Rep. 606; Campbell v. Com., 96 Pa. 344; Riddle v. Bedford Co-, 7 W. & S. 391; Keyser v. McKissan, 2 Rawle, 139.</p>

<p>Appeal, No. 311, Jan. T., 1892, by-defendant, George L. Kestner, from judgment of C. P. Berks Co., Feb. T., 1892, No. 59, in favor of B. Frank Dettra, receiver of the Standard Mutual Live Stock Ins. Co.</p> <p>Amicable action of assumpsit to recover assessments levied by order of court to pay losses.</p> <p>The case was tried without a jury under the act of April 22, 1874. At the trial before Endlich, J., defendant offered in evidence certified copy of the articles of agreement and application for charter of the Berks County Mutual Live Stock Insurance Company, afterwards the Standard Mutual Live Stock Insurance Company, as the same is on file in the office of the secretary of the commonwealth of Pennsylvania; to be followed by evidence that many of the subscribers whose names appear upon the said articles of agreement, and among whom appear all the directors of the company, did not have insurable property to the value which they have subscribed, and that some of them did not have any' insurable property at all; to be followed by evidence, also, that no policies were in fact ever issued by the company to any of the subscribers, although the record books of the company show that such policies were issued. In division “A” the policies are numbered from 1 to 500, inclusive, and in division “ B ” they are numbered from 1 to 498, inclusive; that from the time of the issuing of letters patent’ to the plaintiff corporation to within a very short period of the time when application was made to this court for a receiver, said policies were carried upon the books of the company not marked canceled, although no dues or’ assessments were paid, and that by resolution of the board of directors of the company on March 4, 1889, all of said policies, to wit, 998 policies, were ordered canceled; to be followed, further, by proof that from time to time the plaintiff company issued circulars in which is set forth the alleged condition of the company in reference to its financial standing as well as the number of policies and the membership of the company, in which circulars it is stated that they had policies numbering a certain amount, in which were included the 998 alleged fraudulent policies which were never issued, and that the defendant was handed some of these circulars by the officers or agents of the company before he applied for the insurance.</p> <p>Mr. Derr: The offer is objected to, first, because for any fraud perpetrated in the procurement of the charter by misrepresentation, or amount of insurance already applied for, it can be taken advantage of only by the commonwealth, and therefore the testimony showing or tending to show fraud in the procurement of the charter is irrelevant to the issue now trying.</p> <p>Second. The assessment in this case is for the benefit of about 200 members who have sustained losses and who are equally innocent of the alleged fraud with the defendant, and even if the facts are as the offer proposes to prove, they would not constitute a defence to an action brought for the purpose of raising a fund to pay other members who have sustained losses, and who are equally innocent with the defendant.</p> <p>Third. The defendant became a member of the company as early as September 9, 1887, participated in the election of directors and officers of the company, and in the management of the affairs of the company through the said directors and officers who were his agents ; he cannot set up a fraud in which he acquiesced in order to defeat the rights of members who came in after him and who have sustained losses.</p> <p>Fourth. The arrangement between the members of the company such as this is virtually one of copartnership and the frauds perpetrated by the agent of the institution cannot be taken advantage of by one of the members as against other members equally innocent of the fraud.</p> <p>Fifth. The offer is generally irrelevant and incompetent.</p> <p>Mr. Ruhl. — I will amend the offer by adding thereto the following: “ And became a member of the company upon the representations contained in those circulars.”</p> <p>The Court. — I will admit anything that offers to prove that this defendant in procuring the policy in suit was induced by direct and fraudulent representations made to him by the company to become a member. Exception. [1]</p> <p>The court filed the following opinion:</p> <p>FINDINGS OF FACT.</p> <p>“ 1. The Berks County Mutual Live Stock Insurance Company was incorporated by letters patent issued November 10, 1886, as a corporation to make insurance upon the mutual principle on horses, colts' and mules against death or theft, under act May 1, 1876, P. L. 58.</p> <p>“ 2. By amendment, approved March 16,1888, duly certified and recorded under act June 13, 1883, P. L. 122, the name of said corporation was changed to The Standard Mutual Live Stock Insurance Company of Reading, Pennsylvania.</p> <p>“ 3. (a) Upon his application dated September 9, 1887, George L. Kestner, the defendant, obtained from said company a certificate of membership therein, bearing the same date and to be in force for three years thereafter, numbered No. 2274, insuring a mare, property of the defendant, for the sum of $128 ; one of the conditions of which is that ‘the holder of this certificate by accepting the same binds himself or heirs to pay the annual dues and assessments on this policy so long as the same may be in force; not more than four assessments annually shall be made, which shall be the policy holder’s pro rata share of the losses sustained by the company.’</p> <p>“ (b) Upon his application dated the same day, defendant obtained from said company a certificate, numbered No. 2275, dated the same day and to be in force for three years, of similar character and contents with the one described above, insuring a horse, property of the defendant, for $128.</p> <p>“ (e) Upon his application dated April 11, 1888, defendant obtained from said company a certificate numbered No. 4592, dated the same day and to be in force for three years, of similar character and contents, insuring a horse, property of defendant, for $180.</p> <p>“ (d) Upon his application dated January 7, 1889, defendant obtained from said company a certificate numbered No. 7151, dated January 18, 1889, and to be in force for three years, of similar character and contents, insuring a horse, property of defendant, for $128. ■</p> <p>“ (e) Upon his application dated March 8, 1889, defendant obtained from said company a certificate numbered No. 7626, dated the same day and tó be in force for three years, of similar character and contents, insuring a horse, property of defendant, for $152.</p> <p>“ 4. All the applications above mentioned were made by the defendant upon the faith of and in reliance upon the statements made in certain circulars from time to time issued by said company, or its general manager, with its apj^oval, and by it or him placed in defendant’s hands, holding out to the public the advantages of membership and insurance in said company, inviting the same, stating the names of persons to whom losses have been paid, the number of certificates or policies issued up to certain dates, the total amount of insurance written up to date, etc.</p> <p>“ 5. The circulars just mentioned were untrue and were known to the company and its authorized agents to be untrue, in this, that 998 certificates or policies claimed by them to have been issued, and representing $200,000 of insurance, to wit, in division ‘ A ’ certificates Nos. 1 to 500, and in division ‘ B ’ certificates Nos. 1 to 498, were never issued by said company, but were fraudulently entered and carried along on its books without payment of fees or assessments thereon, until shortly before the company ceased to do business, when by a vote of the board of directors they were ordered to be canceled for nonpayment of dues.</p> <p>“ 6. Large sums of money, viz., about $5,000, received by said company during the year 1888 as assessments were diverted by the order of the board of directors from the legitimate purpose of paying losses and proper expenses, and appropriated to the payment of increased salaries and back pay to. officers, or have disappeared and remain unaccounted for upon the books of the company.</p> <p>“ 7. The defendant had no knowledge of the untruth of the statements made in circulars concerning the number of policies issued and the aggregate of insurance written, nor of-the illegal acts of the directors in the disposition of moneys collected by the company, until after the appointment of the receiver.</p> <p>“ 8. During the operation of the company something over two hundred losses were paid by it to members insured.</p> <p>“ 9. Among the losses paid was one for a horse insured by the company to the defendant under certificate No. 6148.</p> <p>“ 10. Upon bill in equity filed by one Aaron H. Wood against said company, to No. 480 equity docket, 1889, in the court of common pleas of Berks county, alleging inter alia the insolvency of said company, said court on 80th July, 1889, appointed Peter W. Fisher receiver of the same. On 6th October, 1891, said Fisher was on his own application discharged, and B. Frank Dettra, the plaintiff, appointed receiver of said company.</p> <p>“ 11. On 11th January, 1892, the said court in said proceedings ordered the said B. Frank Dettra, receiver as aforesaid, for the purpose of paying the losses incurred by said company and remaining unpaid and subsisting claims against it on July 30, 1889, to levy an assessment of 15 per cent upon all policies or certificates of membership in force at the time of the occurrence of the losses respectively.</p> <p>“ 12. The plaintiff thereupon levied an assessment pursuant to the terms of said order. (Note. — It was agreed by counsel for both parties upon the trial that the question of the reasonableness of the amount of the assessment should not be inquired into in this proceeding; this agreement to be without prejudice to the right of the defendant, notwithstanding any judgment in this suit, to apply for a reduction of the same in the equity proceedings or otherwise.)</p> <p>“ 13. The losses on certificates issued by the company, which occurred during the defendant’s membership therein, by virtue of the certificates above referred to and while said certificates were in force, and which remained unpaid and subsisting claims against the company on 30th July, 1889, number 193, and amount in the aggregate to $26,074.46.</p> <p>“ 14. The amounts levied by the receiver as assessments under order 11th January, 1892, upon the certificates or policies held by the defendant are:</p> <p>On certificate No. 2274 . . . $27.06</p> <p>“ “ “ 2275 .... 27.06</p> <p>“ “ “ 4592 . . . 32.38</p> <p>“ “ “ 7451 .... 9.09</p> <p>“ “ “ 7626 . . . 7.69</p> <p>-$103.23</p> <p>“ Upon the basis of these facts and as applicable to them, 1 make the following</p> <p>“ CONCLUSIONS ON LAW.</p> <p>“ 1. Under the terms of the policies or certificates held by the defendants, aside from any question of fraudulent practices by the company, or its agents, or officers, the defendant is liable for a proportionate amount of the losses occurring to other members of and insured in said company, and become claims against the latter before the date of its suspension and the appointment of a receiver and during a period when the said certificates were in force; and for the purposes of this case, the assessment levied by the receiver upon the several policies or certificates held by defendant represented the proportionate amounts due by him. [2]</p> <p>“ 2. The fraud or misrepresentation practiced upon the defendant by means of the misstatements of the company and its agent in the circulars given to the defendants concerning the number of polices issued and the aggregate of insurance written, though it was the inducing circumstance that led defendant to apply for and accept the certificates held by him, and though he had no knowledge of the falsity of said statements until after the appointment of a receiver, cannot avail him as a defence in this suit.</p> <p>“ 3. The illegal and fraudulent acts of the board of directors in misapplying or wasting moneys collected by way of assessment to pay losses, and in failing to keep proper account thereof, though unknown to the defendant until after the appointment of the receiver, cannot be set up by him as a defence in this suit. [3]</p> <p>“4. The plaintiff in this suit is entitled to judgment against the defendant for the whole amount of his claim — $103.23.” [4]</p> <p>Endlich, J., filed the following opinion on exceptions:</p> <p>“ There are four exceptions by defendant upon this record. The first was taken at the trial to the ruling of the court upon his offer to show fraud on the part of the corporators of the Insurance Company in obtaining their charter of incorporation. The others relate to the second, third and fourth conclusions of law as stated in the decision filed. The statutory allowance of thirty days is waived by counsel.</p> <p>“ 1. I take it to be a very clear proposition that one who has agreed to become a member of a corporation and has enjoyed the benefits and privileges of membership, cannot, when called upon to perform the obligations of his contract, set up as a defence that the corporation was not legally organized: 2 Morawetz, Priv. Corp., 743. The fraud that was offered to be shown was a fraud upon the commonwealth. But it is argued that it constitutes at the same time a fraud upon every person subsequently entering the corporation, because he has the right to assume that the statutory prerequisites in order to legal incorporation have been complied with; that he must be presumed to have entered upon the strength of that assumption, the falsity of which in itself is presumptively a fraud upon him, vitiating his contract of membership. That it can only, be presumptively a fraud upon him is clear from the fact that it may be rebutted by evidence of knowledge by the member of the true state of facts: Morrison, Receiver, v. Dorsey, 48 Md. 461. Apart from the objection that defendant’s argument would thus require us to countenance a presumption of fact raised upon another mere presumption as its basis, which is not permissible, Douglass v. Mitchell, 35 Pa. 440-443 ; Phila. C. Pass. Ry. Co. v. Henrice, 92 Pa. 431-34, it appears subversive of the rule that the validity of a charter cannot be collaterally inquired into — a rule too well settled to require citation of authorities. There can be no substantial distinction between a collateral impeachment of the existence de jure of a corporation on the ground of fraud in the procurement of its charter, and the attempt to avoid the obligation of a contract made with the corporation on the ground of such fraud. If the one cannot be done, and of that there is no doubt, the other cannot be done. It is true that in Lycoming F. Ins. Co. v. Woodworth, 83 Pa. 223, a feigned issue to try the question of fraud in procuring the insured to enter into his contract, the company submitted the following points:</p> <p>“‘A member of a mutual insurance company who has contracted with it as a valid corporation is not in a position to object to the regularity of the incorporation or formation of the company.’</p> <p>“ The court below answered it as follows: ‘ This point we cannot affirm if you find there was fraud practiced upon them in procuring their assent to take the policy.’</p> <p>“ The verdict was for the insured and judgment was entered upon it. On writ of error, assigning inter alia the answer to the above point, the judgment was affirmed. In the opinion of Mr. Justice Gordon, it is said that certain of the assignments, including this one, raised the material question in the case. But there is no discussion of this particular assignment. Indeed, the material question was that of the applicability of the principle that the company, having profited by the fruits of its agent’s acts, was bound by his representations. The answer to the point seems to mean and to have been accepted by the Supreme Court as meaning that, if there was fraud, the point, while abstractly correct, became immaterial. At any rate, I cannot regard that case as upsetting a rule of law recognized by innumerable decisions in this state and elsewhere.</p> <p>“ 2. Concerning the fraudulent misrepresentations made to the defendant on the subject of the financial condition of the company as an inducement to acquire membership and insurance in it, it may be conceded that, as between the company and the insured, they would avail the latter as a defence in a suit by the former upon his contract: Sunbury F. Ins. Co. v. Humble, 100 Pa. 495; 1 Moraw., P. G, §§ 105-107. But it does not follow that they will do so in this suit. To be sure, Sunbury F. Ins. Co. v. Humble, supra, was an action by a receiver for an assessment levied by him. But the objection here made to the allowance of the defence was not there made, and its merits, of course, not passed upon; nor have I been referred to any decision exactly in point.</p> <p>“ Membership in a mutual company dates from consummation of the contract by which it is created: Eilenberger v. Ins. Co., 89 Pa. 464-469. Hence during the negotiation the relation of the applicant for membership to the mutual company is the same as that of one negotiating to become a member of a stock corporation to it: Ibid. There is, therefore, an analogy between the acquisition of membership in a mutual company and a subscription of shares in a stock company. Such a subscription is not only an undertaking to the company, but with all other subscribers: Graff v. R. R. Co., 31 Pa. 498; Miller v. R. R. Co., 87 Id. 95. It is a trilateral undertaking and even if fraudulent as between two of the parties, it is to be enforced for the benefit of the third: Graff v. R. R. R. Co., supra, p. 498. The third parties may be shareholders: Ibid.; Miller v. R. R. Co., supra; Minor v. Bank, 1 Pet. (U. S.) 66, per Stoky, J.; or creditors: Turner v. Ins. Co., 65 Ga. 649; 38 Am. Rep. 801; Taylor on Private Corp., § 744, or both. The receiver is not the mere representative of the corporation, but the custodian of the interests of all the parties who may establish rights in the cause: Booth v. Clark, 17 How. (U. S.) 331, per Wayne, J. As against him, therefore, no defence can be made which could not be made as against any of the interests which he represents. Hence, ‘ when the receiver of an insolvent corporation sues to recover the amount unpaid on a subscription, it is then too late to plead that the subscription was induced by fraudulent misrepresentation: ’ Taylor on Pri. Corp. § 523. That plea, as was said by Chelmsford, L. C., in Oakes v. Turquand, L. R. 2 H. L. 325, 344, would have availed in a case between the subscriber and the company, in which the latter had sued him for calls on his subscription; but, the contract being not void, but only voidable, that plea could not be set up as against the liquidator or receiver: Ibid., p. 352. The decision in this ease does not, perhaps, as clearly as our own, recognize the trilateral character of the contract of membership. But it gives another reason, which is at least cumulative to it and leads to the same result. It is that, no matter if there was fraud in the statements made by the prospectus or circular upon the faith of which the relation of membership was assumed, the person who was thus misled into assuming it had, during the continuance of his membership, opportunity of investigating the affairs of the company of which he was bound to avail himself, and his voluntary ignorance upon the subject, until the company broke up, precluded him from then raising the objection: Ibid., p. 356. I prefer this reason to that based upon the analogy pointed out by Cairns, L. C., in Tennent v. Glasgow Bank, L. R. 4 Ap. Cas. 615, 621, between the liabilities in this respect of stockholders and partners both fraudulently led into a joint enterprise, because this illustration can scarcely be extended . beyond the rights of creditors and is based upon the supposition of fraud on the part of one partner inducing the other to join him. But, as was said by Jessel, M. R., in re Hull and County Bank, Burgess’ Case, L. R. 15 Ch. Div. 507, 512, so here the other members are as innocent of this fraud as the defendant. There is no pretence for saying that they authorized a committal of it; on the contrary, they themselves were defrauded in like manner; and, therefore, they acquired rights as innocent parties which would be defeated by a rescission of defendant’s contracts. In other words, the voluntary ignorance of the defendant as to the true condition of the company’s financial standing and his failure to withdraw in séason constituted negligence on his part as against others becoming members and insuring after him; and all authorities agree that the right to avoid the contract of membership induced by fraud is barred by laches: 1 Moraw., P. C., § 108; Taylor, P. C., §§ 524-6; Garrett v. R. R. Co., 78 Pa. 465.</p> <p>“ There is probably no room for doubt that this company as regards its originators and managers was conceived in fraud and lived in fraud. But the persons, who, like the defendant, became members, insurers or creditors of it, are as innocent as he, and, so far as his undertaking with the company and his acts and omissions while suffering himself to be held out as a member of it have clothed them with rights upon him and imposed on him duties and liabilities towards them, the fraud of the company upon him cannot avail him as a defence against their enforcement. And that is this case.</p> <p>“ 8. The exception to the third conclusion of law stated in the decision is, I think, disposed of by what was said by Mr. Justice Williams, in Koehler v. Beeber, 122 Pa. 291, 298 :</p> <p>“ ‘ The defendant in the court below, when he took his policy and gave his premium note, became a member of the company. As such he had a right to attend the meetings of its members and to vote at the election of directors. If the directors were extravagant, incompetent, or careless of their trust, they were nevertheless his representatives in the management of the affairs of the company, and their acts done within the scope of their authority bind him. He should have investigated the situation of the company and the character of the management before giving his note and subjecting himself to contribution towards the payment of salaries that bore no relation to the value of services actually rendered,’ etc.</p> <p>“ Moreover, it is a general rule that illegal acts of a corporation are no defence to the enforcement of obligations incurred towards its members or others: Hoboken B. A. v. Martin, 2 Beas. (N. J.) 428 ; as, e. g., the misappropriation of corporate funds: Reg. v. D’Eyncourt, 4 B. & S. 820, per Cockburn, C. J.</p> <p>“ 4. If the second and third conclusions are right, as I think they are, the correctness of the fourth follows as a matter of course.</p> <p>“And now, to wit, February 6, 1892, the exceptions filed are dismissed, and it is ordered that judgment be entered in favor of plaintiff and against 'defendant according to the decision previously filed.”</p> <p>Subsequently the court filed the following supplemental opinion:</p> <p>“ I desire to add to the opinion filed in this case on February 6,1892, as pertinent to the first point discussed therein, the reference to a recent case which has come to my notice since that date.</p> <p>“ Stat. Mass. 1884, c. 330, § 3, provides that every foreign corporation doing business in that commonwealth shall file, with the commissioner of corporations a copy of its charter or certificate of incorporation, and a statement of the amount of its capital stock and of the amount paid in thereon to its treasurer, etc., which statement shall be subscribed and sworn to by its president, treasurer, and by a majority of its directors.</p> <p>“A corporation chartered in Maine engaged in business in Massachusetts, after filing the statement required. Plaintiff took certain notes of the corporation after an examination of the statement and communicated to him of its contents by his attorney. The statement was in point of fact untrue, and plaintiff brought an action of deceit against its subscribers. It was held by the Supreme Judicial Court of Massachusetts that the action could not be sustained upon the ground of the untruth of the statement: Hunnewell v. Duxbury, 28 N. E. Rep. 267. In the opinion of the court, filed September 2, 1891, Barker, J., citing a number of authorities, says:</p> <p>“ ‘ The main question is whether the plaintiff can maintain an action of deceit for alleged misstatements contained in the certificate. In the opinion of a majority of the court, this question should have been decided adversely to the plaintiff. The execution by the defendants of the certificate to enable the corporation to file it under St. 1884, c. 330, § 3, was too remote from any design to influence the action of the plaintiff to make it the foundation of an action of deceit. To sustain such an action, misrepresentations must either have been made to the plaintiff individually, or as one of the public, or as one of a class to whom in fact they are addressed, or have been intended to influence his conduct in the particular of which he complains. This certificate was not communicated by the defendants or the corporation to the public or the plaintiff. It was filed with a state official for the definite purpose of complying with a requirement imposed as a condition precedent to the right of the corporation to act in Massachusetts. Its design was not to procure credit among merchants, but to secure the right to transact business in the state. ... If such an action lies, it might have been brought in many instances upon representations made in returns required of domestic corporations, and yet there is no instance of such an action in our reports. . . . Nor is there any English case which goes to the length necessary to sustain the plaintiff’s action. ... In these cases the representations were clearly addressed to the plaintiffs, among others of the public or of a class, and were plainly intended and calculated to influence their action in the specific matter in which they claim to have been injured. So, too, in the American cases relied on to support the action. ... In the case at bar the certificate wTas made and filed.for the definite purpose, not of influencing the public, but of obtaining from the state a specific right, which did not affect the validity of its contracts, but merely relieved its agents in Massachusetts of a penalty. It was not addressed to or intended for the public, and was known to the plaintiff only from the search of his attorney. It could not have been intended or designed by. the defendants that the plaintiff should ascertain its contents and be induced by them to take the notes. It is not such a representation made by one to another with intent to deceivé as will sustain the action. Its statements are in no fair sense addi'essed to the person who searches for, discovers and acts upon them, and cannot fairly be inferred-or found .to have been made with the intent to deceive him.’</p> <p>“It seems to me that the principle of this decision, whose application to this case lies upon the surface, sustains the ruling made at the trial on the defendant’s offer, in respect of both what was excluded and what was admitted.”</p> <p>Errors assigned were (1) the ruling on evidence, quoting the bill of exceptions; (2-4) the conclusions of law found by the court.</p> <p>This case is ruled by Sunburg Fire Co. v. Humble, 100 Pa. 495 ; New Era Life Ass’n v. Weigle, 128 Pa. 577.</p> <p>cited Graff v. R. R., 31 Pa. 498; Litchfield Bank v. Church, 29 Conn. 137.</p>

<p>Appeal, No. 259, Oct. T., 1891, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1889, No. 489, in favor of plaintiffs, Bernard Rafferty et al.</p> <p>Bill in equity to restrain defendants from operating a cable street railway on High street in the city of Pittsburgh.</p> <p>Prom the record it appeared that the bill was filed by six separate owners of property on High street. The defendant demurred to the bill on the ground of misjoinder of parties. The court overruled the demurrer, and ordered the defendant to answer. [1]</p> <p>The case was referred to Lewis McMullen, Esq., as master, who reported the facts as stated in the opinion of the Supreme Court. The master recommended a decree perpetually enjoining the defendant from the use of High street. The following exceptions, inter alia, were filed to the master’s report:</p> <p>1. The master erred in holding that the bill is maintainable under the authorities. [2]</p> <p>2. The master should have stated in addition to the facts relied upon by the defendants, as showing their legal right to occupy High street, that the defendants rely upon the agreement between the company and the Central Passenger Company, evidenced by the resolutions in evidence and the letter of the officers of the Passenger Company to the Traction Company preceding the work. [3]</p> <p>3. The master erred in holding that the agreement of December 27, 1888, between the Traction and Railroad Companies, shows “ that the Traction Company was to construct the tracks of said branches at its own cost, if it desired to use them.” [4]</p> <p>4. The master erred in holding, as a matter of law, that such companies (to wit, traction companies) are only authorized to enter on such streets upon which railways are constructed, that is, built, completed, — and all damages sustained by private individuals, for which there was a remedy, would have been settled and paid for by the railway company.</p> <p>5. The master erred in the effect given by him to the resolution of the board of directors of the Passenger Railway Company of December 27, 1888, and the letter of the same date, from the Passenger Company to the president of the Traction Company. [5]</p> <p>6. The master erred in holding that the Central Traction Company by entering upon High street, and therein constructing such motors, cables and other appliances, and the necessary, apparatus and mechanical fixtures, including tracks for the traction of cars over and along said street, before a passenger railway had been constructed upon said street, exceeded the power granted by the act of the legislature under which it was incorporated, and therefore its entry on said street and the construction of its motors, cables, railroad, etc., was without authority of law and hence a nuisance. [6]</p> <p>7. The master erred in recommending a decree in favor of plaintiffs. [7]</p> <p>8. The master should have recommended a decree in favor of the defendants, dismissing the bill. [8]</p> <p>The court, in an opinion by Ewing, P. J., overruled the exceptions, and entered the following decree:</p> <p>“ And now, to wit, August 4, 1891, this cause came on to be heard at this term upon bill, answer, proofs, master’s report and exceptions thereto, and was argued by counsel, and thereupon the exceptions to said master’s report are dismissed and said report is confirmed absolutely, and it is considered, adjudged and decreed that an injunction issue under the seal of this court restraining and enjoining the defendants, their agents and servants perpetually from constructing and laying down upon High street between Wylie street (or avenue) and Webster street (or avenue) in the city of Pittsburgh, any track or tracks, and from opening the surface of said High street, or digging upon the same for such purpose.</p> <p>“ And it appearing to the court that since the date of the filing of the original bill in this cause, and notice thereof to defendants, defendants have laid down and constructed their conduits, machinery and tracks upon said High street; it is further considered, adjudged and decreed that the said defendants take up and remove from said High street, between Wylie and Webster streets the said conduits, machinery and tracks heretofore laid down and constructed by defendants upon and under the surface of said High street, and restore and replace and repair the portion of said High street occupied by said conduits, machinery and tracks. And it is further considered, adjudged and decreed that the said defendants pay the costs of these proceedings, including the master’s fee, which is now fixed at the sum of one thousand dollars ($1,000).”</p> <p>Errors assigned were (1) in overruling demurrer; (2-9) in 'dismissing exceptions, quoting exceptions; (10) the decree, quoting it; and (11) in not decreeing a dismissal of plaintiffs’ bill.</p> <p>The bill was fatally defective on account of misjoinder of parties : Hudson v. Maddison, 12 Simon, 416; Cutting v. Gilbert, 5 Blatchford, 259; Hinchman v. Railroad Co., 2 C. E. Green, 75; Cumberland Yalley R. R. Co.’s Ap., 62 Pa. 218.</p> <p>Under the act of 1887, the railway company had the right to make a contract with the Traction Company to furnish power by a mechanical means to operate its railway.</p> <p>The company had á right to contract under the act of February 18, 1870. A passenger railway company is a railroad within the meaning of this act: Hestonville Ry. v. Philadelphia, 89 Pa. 210; Millvale v. Evergreen Pass. Ry. Co., 131 Pa. 1; Mount Holly Paper Co.’s Ap., 99 Pa. 513.</p> <p>The laying of street railway tracks upon a highway is not an additional servitude: Com. v. E. & N. E. R. R. Co., 3 Casey, 354; Mercef v. P. F. W. & C. R. R. Co., 12 Casey, 104; O’Connor v. Pittsburgh, 18 Pa. 189; Pennsylvania R. R. Co.’s Ap., 115 Pa. 526; Phila. & Trenton R. R. Co., 6 Wharton, 41; Faust v. Pass. Ry. Co., 3 Phila. 164; Hodges v. Pass. Ry. Co., 58 Md. 603; Elliott v. Fair Haven R. R. Co., 32 Conn. 579; Williams v. Ry. Co., 41 Fed. 556; Halsey v. Ry. Co., 20 Atl. Rep. 859; Newell v. Ry. Co., 35 Minn. 112; Lockhart v. Craig Ry. Co., 139 Pa. 419; Taggart v. Newport Ry. Co., 7 Ry. and Corp. L. J. 385.</p> <p>The right of access to the property of plaintiffs is not disturbed except at the moment a car is passing in front of the property; but the owners themselves cannot keep vehicles standing indefinitely in front of their property: Norristown v. Moyer, 67 Pa. 355; Rex v. Russell, 6 East, 427; Kellinger v. Railway Co., 50 N. Y. 206; Carson v. Railway Co., 35 Cal. 325 ; Hobart v. Railway Co., 27 Wis. 194.</p> <p>The interference with the right of placing building materials, in the street is in no way a confiscation of plaintiff’s property :• Mallory v. Griffey, 85 Pa. 275; Piollet v. Simmers, 106 Pa. 95.</p> <p>The bill was not multifarious: Story’s Eq. PI., sec. 271; Wier’s Ap., 74 Pa. 230; Dilworth’s Ap., 91 Pa. 247 ; Powell v. Powis, 1 Y. & J. 159; Daniell’s Ch. Prac. 346; Persch v. Quiggle, 57 Pa. 247; Kunkle v. Markell, 26 Md. 390; Williams v. West, 2 Md. 198; Young v. Allegheny Oil Co., 10 Phila. 525; Shields v. Thomas, 18 Howard, 253; Brinkerhoff v. Brown et al., 6 Johns. Ch. 139; Dix et al. v. Briggs, 9 Paige, 595; Sizer v. Miller, 9 Paige, 605.</p> <p>A number of persons* may join as plaintiffs in a bill to restrain the collection of a tax illegalty assessed: Sallade v. Township, 2 Pearson, 48; Dunne v. Deegan et al., 43 Pa. 334; Tyson v. School Directors of Halifax Township, 51 Pa. 9. If the nature of the transaction makes but a single suit convenient, the objection of multifariousness will not be sustained: City v. Trustees, 12 W. N. C. 477; Stewart’s Ap., 56 Pa. 413 ; Penna. R. R. Co.’s Ap., 115 Pa. 514..</p> <p>The defendants suffer special injuries, separate and distinct-from the public: Edgwood Railroad Co.’s Ap., 79 Pa. 257; McCandless’s Ap., 70 Pa. 210; Henry v. Deitrich, 84 Pa. 286; Sterling’s Ap., Ill Pa. 35.</p> <p>The Traction Company’s entry was wholly illegal: Thomas; v. Railroad, 101 U. S. 71; G. B. & M. R. R. v. Union Steamboat Co., 17 Otto, 98; T. & B. R. R. v. B. H. T. & W. R. R., 86 N. Y. 112; Com. v. Erie & Northeast R. R., 27 Pa. 851. '</p> <p>The act of 1887 does not give to the Traction Co. a right to enter upon the streets where another passenger railway company has never been constructed.</p>

<p>Appeal, No. 14, July T., 1891, by defendants, William R. Hart & Company, from judgment of C. P. No. 1, Phila. Co., June T., 1890, No, 189, on verdict for plaintiff, George P. Cooper.</p> <p>Trespass for malicious prosecution.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Bregy, J., charged in part as follows:</p> <p>“ [Por the purposes of this case I charge you that if Mr. Cooper’s story is true — and it is the only story now before you —there was no probable cause on the part of the defendants to bring the action against him — that is, • to issue the warrant against him.] [1] ....</p> <p>“ If you come to the conclusion that your verdict should be for the plaintiff — that there was want of probable cause — if you are satisfied from the evidence that there was malice against the plaintiff, then you will have a right to give such' punitive damages as will punish the defendants for the injury and disgrace, and whatever else they may have inflicted upon the plaintiff.” [2]</p> <p>The defendants’ point which was refused was as follows:</p> <p>“ That under all the evidence in the cause, the verdict of the jury should be for the defendants.” [3]</p> <p>Verdict and judgment for plaintiff for $10,000. Defendants appealed.</p> <p>Errors assigned were (1-3) instructions, as above.</p> <p>Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged: Munns v. Dupont, 1 Amer. Lead. Cases, 213; Broad v. Ham, 5 Bingham’s N. C. 722; Braveboy v. Cockfield, 2 McMullan, 270; Bacon v. Towne, 4 Cush. 238 ; Foshay v. Ferguson, 2 Denio, 617; Seibert v. Price, 5 Watts & Sergeant, 438; Travis v. Smith, 1 Pa. 234; Smith v. Ege, 52 Pa. 419; Cabiness v. Martin, 3 Dev. 454; Gilliford v. Windel, 108 Pa. 142; Bernar v. Dunlap, 13 Norris, 329.</p> <p>It is impossible to say that there was a lack of probable cause, in view of the fact that Judge Simonton, after Cooper’s story had been told to him, found that there was not only probable cause for the arrest, but that Cooper had actually committed a fraud.</p> <p>The affidavits of Bertolet and of Pilling furnished to Barnes, one of the defendants, probable cause for demanding a warrant of arrest.</p> <p>The testimony established the existence of probable cause at the time the warrant of the arrest was demanded.</p> <p>The proceeding of Judge SlMONTON in issuing the warrant of arrest having been reversed by this court as irregular, the plaintiff could have recovered damages for false imprisonment; and his action at common law for this purpose would have been trespass. But as he sought to recover from the defendants for maliciously procuring the issuance of the warrant, he would at common law have been remitted to an action on the case in which it would be necessary to allege and prove malice : Allison v. Rheam, 3 S. &. R. 139; Berry v. Hamill, 12 S. & R. 210'; Sommer v. Wilt, 4 S. & R. 19; Kerr v. Mount, 28 N. Y. 659; Miller v. Adams, 52 N. Y. 409.</p> <p>In all eases, where it appeared that the plaintiff had been in fact innocent, and the defendant relied upon a “ reasonable ground of suspicion ” as affording probable cause, the circumstances upon which the suspicion was based, and the fact and manner of bringing them to the knowledge of the defendant, were shown by affirmative proof. “ In general the plaintiff must give some evidence showing the absence of probable cause. But such evidence is in effect evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative, especially where the nature of the affirmative is such as to admit of proof by witnesses: ” Lord Tentekdbn, C. J., in Cotton v. James, 1 Barn. & Adolph., 128; s. c., 20 Eng. Com. Law Rep. 358. Mere belief is not enough, however sincerely entertained: Winebiddle v. Porter-field, 9 Pa. 137; Merriam v. Mitchell, 13 Me. 439; Galloway v. Stewart, 49 Ind. 156; Honneycut v. Freeman, 13 Iredell, 320.</p> <p>The charge of the learned judge in regard to damages was clearly within the law. Gibson, C. J., delivering the opinion of the court in Pastorius v. Fisher, 1 Rawle, 27, says that in eases of personal injury damages are given not to compensate but to punish: Waterman on New Trials, vol. I, chap. XII; Voltz v. Blackmar, 64 N. Y. 440; Sommer v. Wilt, 4 S. & R. 19.</p>

<p>Promissory note — Affidavit of defence.</p> <p>An affidavit of defence to an action on' a promissory note, which avers that the maker signed the note with the understanding that it was a mere matter of form, and not an obligation to pay.money, but only an undertaking to furnish a horse, is insufficient.</p> <p>Conditional payment — Misunderstanding—Settlement.</p> <p>Plaintiff held the note of defendant, which was given in repayment of the purchase money of a horse. The horse was kept by the defendant for several months, and then returned. Subsequently the defendant, in reply to a request for repayment of the purchase money, sent to the plaintiff a certain sum in cash and a receipted bill for the use of the horse while in plaintiff’s hands — the two amounts making up the sum due on the note. The defendant did not expressly state that the payment was conditioned on the acceptance of the receipt. The plaintiff kept the cash, but returned the receipt. Held, that this was not a full settlement of the plaintiff’s claim.</p> <p>Sale — Rescission—Liability for use of article.</p> <p>Where the parties rescind a sale of personal property, and the article which was paid for at the time of the sale is returned to the seller, in the absence of a condition to the contrary, there is no implied liability upon the part of the buyer to pay for the use of the article during the time it was in his possession.</p>

<p>Mines and mining — Coal lease — Covenants—Bight of way.</p> <p>The owner of coal lands contracted to “grant, bargain, sell and convey the stone coal lying and being under ” a tract of land, with mining privileges and with the right to erect machinery shops and houses on the surface, such as might be needed for the convenient and economical mining of the coal. The consideration was the payment of a certain royalty per ton, the purchaser to remove 2000 tons of coal each year, and to pay for that quantity whether it was removed or not, until the coal was exhausted. It was also provided that if the purchaser should find that by reason either of the “quantity, quality or condition of the coal ” it was not practicable to mine the coal with profit he might abandon the contract and yield up the coal mine and privileges without mining the remainder of the coal. Another stipulation was that the purchaser should have “ the right of way through, over or under said land to transport coal from adjoining lands. . . . and the use of five acres of land ” on which to erect dwelling-houses, “ paying said first party a fair annual rental for said five acres of ground. Held, that the grant of the right of way for operating the adjoining lands was independent of the sale of the coal and the mining privileges. Held, also, that after all the coal was removed, the lessee had simply a right of way through the chamber, and that the lessor was in possession by virtue of his ownership.</p>

<p>Appeal, No. 141, July T., 1891, by defendant, Milton Gehman, from judgment of O. P. Montgomery Co., Oct. T., 1890, No 176, on verdict for plaintiff, Nicholas Glossen.</p> <p>Trespass for personal injuries sustained in defendant’s service.</p> <p>On the trial before Swartz, P. J., the evidence was to the following effect: Plaintiff was employed by defendant as superintendent of a hay press. In connection with the work a boiler and engine were used, which were under the charge of an engineer. The boiler was known to be defective and not able to carry more than a limited pressure of steam. Plaintiff was in the habit of making the fire before the engineer arrived.</p> <p>On a Saturday afternoon defendant gave directions to have steam up early on the following Monday morning, plaintiff and the engineer both being present. Plaintiff testified that he thought the order was addressed to him, and that in reply he spoke of the difficulty he had in making the fire, owing to the defective condition of the boiler. In this he was supported by the engineer; but contradicted by defendant. On the Monday morning plaintiff made the fire. After the engineer had arrived and while he was greasing the engine such pressure of steam had been generated in the boiler as to cause it to blow off with considerable force, and defendant asked the engineer whether he was ready to start. He replied that he was not. Plaintiff then said that he would go down and shovel coal on the fire to reduce the pressure, which he did. While he was so employed a boiler tube burst and he was severely scalded.</p> <p>Defendant’s points, among others, were as follows :</p> <p>“6. The undisputed evidence being that Oberholtzer was the engineer and fireman, whose duty it was to take charge of the engine and boiler as soon as he came upon the ground, and that he arrived that morning at six o’clock and took charge of the engine and boiler, any act done in relation thereto after Oberholtzer arrived was voluntary upon the plaintiff’s part and not in the line of his duty, and hence there can be no recovery. Answer: This is refused. You are to say whether the plaintiff was in the line of his duty when the accident occurred. [1]</p> <p>“ 10. Under all the facts in this case there is no evidence sufficient to submit to the jury from which they can find negligence upon the part of the defendant, or such negligence as constituted the proximate cause of the plaintiff’s injury. Answer. This is refused. [2]'</p> <p>“11. Under all the evidence in the case there must be a verdict in favor'of the defendant. Answer. This is refused.” [3]</p> <p>Yei’dict for plaintiff for $475, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were, (1-3) answers to above points, quoting points and answers.</p> <p>If it was proper to submit this case to the jury we have no complaint as to the manner of submission. But the evidence clearly showed that plaintiff was injured while voluntarily performing work outside of his line of duty, and the legal conclusion should have been announced by the court. There was evidence which showed negligence upon the part of the defendant. Whether a defect existed in the boiler or not, such defect was not the proximate cause of the accident, which was due to the carelessness of the engineer in accumulating steam in excess of the use required.</p> <p>If a defect in the boiler existed, according to his own showing plaintiff knew of it, continued to work without objection, and hence assumed the risks: Bemish v. Roberts, 28 W. N. C. 171; Pittsburgh etc. R. R. v. Sentmeyer, 92 Pa. 276; Breittermiller v. Brewing Co., 22 W. N. C. 33 ; Sykes v. Packer, 99 Pa. 465; Payne v. Reese, 100 Pa. 801; Goshorn v. Smith, 92 Pa. 435; R. R. Co. v. Bresmer, 97 Pa. 103 ; Marsdeu v. Haigh, 14 W. N. C. 526; Wannamaker v. Burke, 111 Pa. 429; Brossman v. R. R. Co., 113 Pa. 490.</p> <p>That a recovery cannot be had for an injury, the result of one’s own carelessness, is set at rest: Mullierrin v. R. R. Co., 81 Pa. 366; Lehigh Valley R. R. Co. v. Greiner, 18 W. N. C. 231.</p> <p>as to master’s duty to supply safe appliances, cited Tissue v. B. & O. R. R. Co., 112 Pa. 91; Baker v. Allegheny Valley R. R. Co., 95 Pa. 211; Railroad Co. v. Agnew, 11 W. N. C. 394; Railroad Co. v. Keenan, 103 Pa. 125.</p> <p>Where the servant informs his master of the danger or defect in the tools or machinery used, and the servant continues in the use in obedience to the master, the latter is liable in damages for a resulting accident: Patterson v. Pittsburgh, etc. R. Go., 76 Pa. 389; Rummell v. Dilworth, 111 Pa. 343; Tissue v. R. R., supra; Wannamaker v. Burke, supra; Railroad Co. v. Hughes, 119 Pa. 301; Railroad Co. v. Lyons, 119 Pa. 324.</p> <p>The scope of a servant’s duty is defined by what, with the knowledge and approval of the master, he actually performs, rather than the verbal designation of his position: Rummell v. Dilworth, supra.</p>

<p>Confidential relations — Duties and obligations incident to such relations.</p> <p>The confidential relation is not at all confined to any specific association of the parties to it. While its more frequent illustrations are between persons who are related as trustee and cestui que trust, guardian and ward, attorney and client, parent and child, husband and wife, it embraces partners and copartners, principal and agent, master and servant, Physi0ian anc^ patient, and, generally, all persons who are associated by any relation of trust and confidence: Authorities reviewed.</p> <p>When such relation exists, the party in whom confidence is placed is held to the strictest accountability. The burden is upon him to show that a transaction between himself and his principal, by which he derives benefit, was fair and conscientious and beyond the reach of suspicion. The rule is founded upon motives of general policy and is irrespective of any admixture of deceit, imposition, overreaching, or other positive fraud. There must be full and clear proof that the transaction was the free and intelligent act of the party, fully explained to him, and performed with a thorough understanding of the transaction and of its consequences.</p> <p>Attorney in fact — Uncle and nephew.</p> <p>A man 83 years of age went to reside with his nephew, and by letter of attorney conferred upon the latter full power to manage his estate, which amounted in value to about $9,000. Subsequently the nephew presented to his uncle a promissory note for $7,000, which the latter signed stating that it was given for past services and for care during the remainder of his life. After the uncle’s death, the note was presented by the nephew before the auditor appointed to make distribution of the estate. The auditor found that at the time the note was made the maker was capable of attending to business:</p> <p>Held that, in the absence of affirmative proof that the maker was informed of the effect which would result from his signing the note, of the proportion of his estate which would be required to pay it, and of the fact that, if paid, but little of his estate would remain for payment of legacies provided for in his will, the note must be held to be void.</p> <p>Mr. Justice Sterrett and Mr. Justice Mitchell, dissent.</p>

<p>Appeal, No. 89, Jan. T., 1892, by George B. Hoff, from decree of O. C. Berks Co., April T., 1891, No. 83, awarding to Susan C. Johnson her share of the estate of her father, John Hoff, deceased, free of all trusts.</p> <p>The issue for the decision of the court was raised by a petition of the executors of the estate of John Hoff, deceased, setting forth the terms of testator’s will and asking that they be discharged and a new trustee appointed, under the terms of the will, for Mrs. Johnson; and a petition by Mrs. Johnson denying that any valid trust was created by the will, and praying that the trust property be paid over to her absolutely.</p> <p>The opinion of the court, Albright, P. J., specially presiding, which states the facts, was as follows:</p> <p>“John Hoff made his last will on February 24, 1875. The date of his death does not appear in this proceeding, but he died within a few weeks after said date, as the will was proved on March 19, 1875.</p> <p>“ He left a widow (who died on July 3,1890), two sons and five daughters, all of whom are still living.</p> <p>“ The first material provision of the will is a gift of all the testator’s estate, real and personal, to his wife Susan, ‘subject, however, to the following devises and the payment of the following bequests; ’ then is mentioned a devise of a certain bank building to the two sons Henry and George, and a bequest of five thousand dollars to each of the five daughters, to be paid within a year after testator’s decease, (their names are mentioned ; one is Susan C., the wife of Mr. Smith,) and in two years after his decease, or sooner if convenient to the executors, the sum of five thousand dollars to each of said children, including said sons, these bequests to be paid in bonds which the executors were directed to purchase. Next the testator declares : ‘ And in case either of my daughters shall die without issue, either before or after the decease of my wife, then the amount of their share or shares in the residue of the estate shall revert back to the remainder of my children, share and share alike; my said sons Henry A., George B., and my daughter Mary Ann are to hold in trust the share or shares that such of my daughters as may be without issue before or after the death of my wife may be entitled to, and invest their legacies in bonds, and paj' to them the interest thereon semiannually.’ Next the executors are authorized to sell real estate during the widow’s lifetime, if they find it to the interest of the estate to do so, and to invest the proceeds in bonds for the benefit of the testator’s estate. Finally, said Henry, George and Mary Ann are appointed executors, and he also appoints ‘ said executors as trustees of the estate bequeathed to my wife, they to take under their care and management during her lifetime, and furnish to her all the means out of her income that she may require, the balance to be invested for the benefit of the estate, and after her death the residue of the estate is to be divided share and share alike amongst those of my heirs that are then living, in manner as herein directed.’</p> <p>“ It seems the estate left by the testator consisted of about $127,000 of personalty, and realty worth about $43,000 (exclusive of what was devised to the sons). The real estate remained undisposed of until after the widow’s decease, when all the parties concerned joined in a conveyance thereof. The one seventh of the proceeds are in the account of the trustees of Susan C. Johnson, who was formerly Mrs. Smith.</p> <p>“ It appears that the executors settled finally the estate of the testator, and paid over to all the children except Mrs. Susan C. Johnson. At the date of the will all the daughters were married women, and all had issue living except two, Susan being one. At the time of the decease of the widow all the daughters except Susan had children.living. As remarked, at the date of the will Susan was the wife of Mr. Smith. She was divorced the year following. She married Mr. Johnson in 1881 and is his wife now. She is now, and has been ever since the date of the will, without issue. She is fifty-one years of age. Said trustees petitioned to be discharged from said trust for Susan Johnson; all concerned desire that the Reading Trust Company be appointed trustee, if it is found that there is a trust to be maintained, Mrs. Susan J ohnson contending that she is entitled to the whole estate embraced in the account, absolutely. On June 27, 1891, this court discharged said trustees, provided they should account and pay and deliver to the parties entitled, their successors or Susan C. Johnson, the money and property in their hands.</p> <p>“ The testator intended that soon after his decease a designated portion of his estate should go to his children, and another portion vest in his widow, or remain for her benefit. This last named portion he termed the ‘ residue.’ It was testator’s intention that whatever remained of his estate after his widow’s decease, including unexpended income, should go to his children, subject to the provision regarding issue above quoted. (The trustees now account for $10,000 and one seventh of said residue ; Susan received the interest all along.)</p> <p>“ The only question presented is to whom the trustees shall deliver what they hold, to Susan C. Johnson or to a new trustee. All other questions, such as whether the widow had a right to appropriate or consume the whole residue; whether the other daughters who have issue but may die without issue rightfully have possession of shares, are immaterial.</p> <p>“ In the first place Susan was entitled to the $10,000 at the hands of the executors during her mother’s lifetime; she is entitled to it now.</p> <p>“ The provisions of the will concerning the dying without issue, and the holding in trust-, do not apply to it. The testator did not intend to restrict the enjoyment by any of his daughters of the $10,000. When the testator declared that all his estate should go to his widow, subject to certain specified devises and bequests, he meant that she should have all, except the real estate specially devised to the sons, and the sums directed to be paid to each of the children. The will is to be read as if there was first given to the sons the bank building, and $5,000 to each of them, and $10,000 to each of the daughters, and then what remained of the estate to the widow, and the provision regarding the enjoyment by the widow, and the disposition after her decease, found at the end of the will, is to be taken as coming next, and after that the provision about the daughters dying without issue.</p> <p>“ Such transposition of the order of bequests is to be made where thereby the real intention of the testator is rendered more clear: Fox’s Ap., 11 W. N. C. 236; Merkel’s Ap., 109 Pa. 235.</p> <p>“ It is said that the trustees shall hold the shares and invest the legacies of the beneficiaries, but that is not an independent-provision ; it is but a clause of the sentence employed to express testator’s meaning regarding his daughters having issue. All that is written about the daughters having issue, above quoted, is to be taken together as expressive of testator’s thought on that point. The limitation is confined to the daughters’ shares in the ‘residue of the estate,’ — that is the expression in the clause now under consideration. ‘ After her death the residue of the estate is to be divided,’ is found in another part of the will.</p> <p>“Shall the fund and securities beyond the $10,000 be decreed to Susan Johnson?</p> <p>“ The first clause of the provision relative to the daughters and their issue mentions the contingency of their ‘ dying without issue, either before or after the decease of my wife; ’ the next clause speaks of the shares of such of the daughters ‘ as may be without issue before or after the decease of my wife,’ It was suggested in the argument that those daughters who had a child or children when testator died had vested in them a- share absolutely at once, and as to any one of those who had no children then, but had one born to her afterwards, upon such birth a share vested in her, and that the trust existed only as to such as had no child at any time after testator’s decease. It is claimed that this results from said provision, ‘ be without issue.’ It seems that all concerned acted on that theory, and consequently all the daughters except Susan C. Johnson have received their shares absolutely. It is not pertinent to the present- controversy to discuss whether that theory is correct, except so far as it affects the share of Susan C. Johnson in the hands of the executors and trustees.</p> <p>“ The court is of the opinion that the intention was that the one seventh of such residue should not go to a surviving husband, or be disposable by the will of a daughter; that if she left issue such issue was to have it, and if she died without descendants testator’s other issue should possess such share. In other words, that the plain language in the first clause of said sentence expresses testator’s meaning.</p> <p>“ What then is the estate of Susan C. Johnson in the fund affected by this provision ?</p> <p>“ The words in question mean an indefinite failure of issue: Eichelberger v. Barnitz, 9 W. 447; Vaughan v. Dickes, 20 Pa. 509.</p> <p>“ If a devise be made to one in fee, and if he die without issue, or on failure of issue, or for want of issue, or without having issue, then over to another in fee, the estate of the first taker is a fee tail, which if he have issue passes to them ad infinitum by a descent as tenants in tail. The estate vests in the first taker fully as a fee tail, and any devise over must be bad as an executory devise: Eichelberger v. Barnitz, supra.</p> <p>“ A devise of real and personal property to testator’s children in equal shares, with a provision that in case of the death of any of them without issue, his or her share shall be equally divided among the survivors, passes an estate tail in the land to the first taker, and the personal estate absolutely: Amelia Smith’s Ap., 28 Pa. 9.</p> <p>“In Potts’ Ap., 30 Pa. 1(?8, the testator gave his estate, real and personal, to a trustee to pay one fifth of the income to each of his sisters and the children of a deceased sister, and upon the decease of any sister or niece without issue (if with issue, such issue to inherit their shares) such portion to be for the use of the other sisters and children in equal parts in fee ; it was held that the devisees took an estate tail in the real property, and the personal estate absolutely. (The fact that the issue, if there was any, was to take, did not affect the legal aspect of the case, for, as has been shown, in a devise of this character the issue of the first devisee, although not named, take by descent:) Eichelberger v. Barnitz, supra. To the same effect is Biddle’s Ap., 69 Pa. 190. It was said there that though an estate for life may be limited in chattels with a remainder to others, yet there can be no limitation of chattels in fee or in tail; the estate in the realty if entailed may be barred' by deed, and the estate in the personalty becomes absolutely-vested in the first taker.</p> <p>“ The estates in both the cases last named vested before the act of April 27, 1855, which declares that a gift, conveyance or devise of an estate in fee tail shall be taken to be in fee-simple.</p> <p>“ In Mallock v. Roberts, 51 Pa. 148, a testator (whose will-was proved in 1841) had devised his land to his two sons, and added this clause : — ‘ and in the case of the death of either of my children unmarried or without issue, then I do order that the share of said child or children so dying may be divided equally among my surviving daughters or their heirs.’ He left four daughters. After testator’s decease, the land was sold by the sheriff on a debt owing by testator. The question was as to who was entitled to a fund representing the share of one of the devisees not required to pay debts. It was held that it was-properly paid to such devisee ; that he had an estate tail; that he had a right to bar the entail, and cut off the contingent interests ; that the conveyance by the judicial sale did for him what he might have done by deed.</p> <p>“ The principles controlling the cases cited were recognized in Lawrence v. Lawrence, 105 Pa. 385, and in Hackney v. Tracy, 137 Pa. 53.</p> <p>“I am of the opinion that Susan C. Johnson is entitled to the funds and securities derived from what is herein treated as the residue of the estate, absolutely. I think the cases cited admit no other conclusion, and that further argument is superfluous. It is hardly worth while determining whether the will operates to Gonvert the realty, or whether the rules applicable to devises of land are to govern as to part of the property. If it be treated as land in part, then Susan C. Johnson was tenant in tail as to it, and said act of 1855 enlarged that estate into a fee simple.</p> <p>“ That trustees were named, and they directed to hold the shares of those who had not issue, does not affect the rules of law applicable. The trust cannot be sustained. If it ever was sustainable as to Susan C. Johnson, it was on the ground solely that she was a married woman. She became discovert in 1876 by the decree of divorce. A trust for coverture merely fails upon the death of the husband of the cestui que trust: Kuntzleman’s Est., 136 Pa. 142. A dissolution of the marriage by divorce has the same effect as if by decease of the husband, so far as the capacity of the wife to hold property is concerned.</p> <p>“ By a statement filed at the argument by accountants’ counsel, it appears that in addition to the balance in the account the trustees have $18 excess of receipts over expenditures since the filing of the trustees’ account. Accountants state that they claim no compensation. Their counsel suggests that he be allowed $100 for his services to the trustees. The court deems this a very moderate demand, and that counsel is entitled to it. There is owing to Register Strunk for filing this and a former account, and in proceedings thereon, $24.50.</p> <p>“ [October 12,1891, it is decreed that Henry A. and George B. Hoff, and Mary A. Millholland, executors and trustees under the will of John Hoff, deceased, have in hand money and securities belonging to Susan C. Johnson amounting to $26,179.22, as is shown by the credit side of their account filed June 27, 1891, and the sum of $18 additional; that they pay G. B. Stevens, Esq., $100, and Register Strunk $24.50, and that they pay and transfer, and deliver to Susan O. Johnson the money, securities and property in their hands as aforesaid, after deducting said $24.50.] [1]</p> <p>“Since the writing of the foregoing opinion, it has been Shown that said John Hoff died on March 14, 1875.”</p> <p>George B. Hoff appealed.</p> <p>Errors assigned, were (1) the decree entered, quoting it; (2-8) decreeing that the executors had in their hands securities, etc., belonging to Mrs. Johnson; not decreeing that said executors pay over to the Reading Trust Co., as substituted trustee, the funds set apart for Mrs. Johnson.</p>