Volume 148 — Pennsylvania State Reports

<p>Settlement of paupers — Act of June 13, 1836.</p> <p>Where a nephew lived with his uncle, contributing by his labor to the support of the family and having no distinct and exclusive possession of any part of the house, and no account of their respective contributions was kept by either, there is nothing to sustain the inference that the relation was that of landlord and tenant, and the nephew does not secure a settlement under the 3d clause of the act of June 13, 1836, § 9, which provides that a settlement maybe gained “ By any person who shall bona fide take a lease of any real estate of the yearly value of ten dollars, and shall dwell upon the same for one whole year, and pay the said rent.”</p> <p>In the absence of a lease between them, evidence of the yearly value of the farm, and of the nephew’s work upon it, is immaterial.</p> <p>Contracts — Implied lease.</p> <p>All contracts rest upon the mutual and accordant wills of the parties. A lease cannot be fairly implied from circumstances and conduct which show that none was intended by the parties.</p>

<p>[Marked to be reported.]</p> <p> Will and codicil form a single instrument. </p> <p>That a will and codicil, though written on separate pieces of paper and executed at different times, constitute but one instrument, and that a codicil is as much a part of the will as if written therein, is elementary law. It is an addition to a will, and when properly executed, becomes a part of it.</p> <p>Probate — All testamentary papers should be probated together.</p> <p>All testamentary papers, no matter how numerous, should be proved together, as together constituting one will.</p> <p>It is possible that cases may arise where a codicil could be probated separate from the will, but it would be necessary to show that the testator intended it to operate separately from the will.</p> <p>Domicile of testator unimportant if estate here — Will entitled to prohate if duly executed.</p> <p>Independently of tbe question of domicile, when the bulk of the testator’s estate is situated in this commonwealth, his will, as a muniment of title, is entitled to probate here.</p> <p>In order to carry title to real estate the wall must be executed in conformity to the laws of Pennsylvania.</p> <p>Foreign will — Domicile of testator.</p> <p>By a will executed in Paris before a notary, testator (who had been for some years residing in France) made a will bequeathing the bulk of his property to appellee, with whom his relations were meretricious. He afterwards executed a codicil to the said will in Philadelphia solely for the purpose of appointing an executor. The French will having been proved in Paris after the testator’s death, appellee applied for ancillary letters and at the same time presented for probate the codicil which had been produced on her demand by its custodians, the executors of the party named therein as executor, who at this time was himself deceased.</p> <p>Held, (1) that the executor named in the codicil being deceased, there was no administrative advantage in probating the codicil, standing alone, as it made no disposition of property; (2) there was nothing in the will and codicil to show that testator intended the codicil to act as an independent paper; (3) that the will and codicil taken together constitute but a single instrument, and must be so treated in determining their admission to probate and the question of testator’s domicile incident thereto.</p>

<p>Appeal, No. 83, July T., 1891, by defendant, Richard W. Hartnett, from judgment of C. P. No. 1, Phila. Co., Mareb T., 1891, No. 449, for want of a sufficient affidavit of defence in favor of plaintiffs, Charles Potter, Jr., et al.</p> <p>Assumpsit on judgment recovered in the state of New York.</p> <p>The statement claimed the sum of $538.16 with interest, and annexed was an exemplified copy of the record from the New York court.</p> <p>The affidavit of defence filed by defendant was as follows: “Richard W. Hartnett, being duly sworn according to law, deposes and says that he is the defendant in the above, which is a suit brought to recover of defendant the sum of $538.16, with interest from May 13, 1875, being the amount of a judgment recovered on that day in a court of record in the city and county of New York.</p> <p>“ That he has a full and complete defence to the whole of said claim, of the following nature and character. During the year 1871 he was a member of the firm of Hartnett and Solomons, composed of deponent and one Michael Solomons. Deponent at that time was a resident of Boston, where the said firm carried on the business of selling machinery and printing presses. The plaintiffs at that time were engaged in the business of manufacturing printing presses, doing business in the city of New York. Prior to the twenty-first day of March, 1871, deponent’s firm sold the presses of plaintiffs in Boston. About that time plaintiffs, through Charles Potter, Jr., requested deponent to travel for them outside of Boston, and sell their machines on commission. Deponent declined to do this, unless plaintiffs would advance a sufficient sum of money to guarantee the payment of his expenses incurred in so doing. Plaintiffs finally decided to advance the sum of $400, and on March 21,1871, gave him that amount of money to be used by deponent in the payment of his traveling and other expenses. Deponent continued to travel and sell plaintiffs’ machines until about the end of the year 1874, when he removed from Boston to Bridgeton, N. J. About this time the firm of Hartnett and Solomons was dissolved, and deponent entered the employment (as salesman) of ‘The New York Steam Engine Company,’ whose office was at No. 98 Chambers street, in the city of New York.</p> <p>“Deponent further says that on the twelfth day of May, 1875, while at No. 98 Chambers street, New York, he was visited by the said Charles Potter, Jr., and was handed a paper which he now recollects as being a letter from Potter and Hubbard, asking him to call and see them in reference to the said sum of $400 which he, Potter, claimed his firm had loaned deponent. According to the affidavits filed in this case, the paper handed to deponent was not a letter, but was a summons. In a day or two thereafter deponent called on Mr. Potter at his place of business, and asked him what this all meant. Potter replied that he wanted deponent to repay plaintiffs the loan of $400 which they had made to him. Deponent at once replied that they had never loaned him a cent, and that they knew the $400 advanced in 1871 was to be used in payment of deponent’s expenses in traveling to sell their machinery. Deponent told the said Potter, as was the fact, that the money had all been used by him for the purpose for which it had been advanced. To this Potter made no reply, and after some further talk in which deponent expressed himself in some very strong language, it was finally agreed that if deponent would come with plaintiffs and travel for them and sell their machines that they would accept such services in full payment of any claim they had against him for said sum of $400. Deponent, after considering the matter, agreed to enter plaintiffs’ employment upon the terms proposed as soon as he could get a settlement from the New York Steam Engine Company, in whose employ he then was. It was then distinctly understood and agreed that if he did enter plaintiffs’ employment it would be in full payment of any claim they might have against him. In pursuance of this agreement deponent did, about September 15, 1875, enter plaintiffs’ employment and travel for them until some time during the following year, when he, with plaintiffs’ full consent, left their employment and entered that of one E. S. Menamin of the city of Philadelphia. Deponent heard no more of said pretended loan until quite recently, when he received a letter from an attorney of the city of New York, to the effect that the plaintiffs had recovered a judgment against him in the city of New York on the seventeenth day of June, 1875, and asking immediate payment of the same. Deponent further says, although he did not know it then, that it now appears that when he entered the employment of plaintiffs in September, 1875, that they had previously, to wit, on June 17, 1875, entered judgment against him by default. Deponent further says that in accordance with the agreement made between plaintiffs and. himself, the said judgment was fully paid by his entering their employment, and by the services which he rendered them in traveling for them and selling their machines. That during all the time he was in their employ he was regularly paid his wages and no mention was made of any indebtedness due by him to them. Deponent further says that he is now a member of the firm of R. W. Hartnett & Brothers, and has been for many years. That he is entirely solvent and has been for fourteen years. That during the many years since he left the employment of plaintiffs in May, 1876, he has frequently met the said Charles Potter, Jr., and although he was entirely solvent, which fact deponent believes the said Charles Potter, Jr., well knew, no claim was made against him for any money due, nor did deponent receive any intimation from plaintiffs that he was at all indebted to them until the receipt of the letter hereinbefore mentioned.</p> <p>“ All of which is true, as deponent believes and expects to be able to prove on the trial of this cause.”</p> <p>Plaintiff took a rule for judgment for want of a sufficient affidavit of defence, which the court made absolute, entering judgment. Defendant appealed.</p> <p>Error assigned was the action of the court in entering judgment.</p>

<p>[Marked, to be reported.]</p> <p>Beal estate — Occupancy of — Presumptions.</p> <p>It is well settled that one who has a right of entry upon lands will be-presumed to have entered in virtue of that right, rather than as a trespasser. It is equally well settled that possession is, in general, notice of the title of the possessor; also that where a party having two different titles-records one of them and withholds the other from the record, his possession is referable to, and notice of, only that one which is recorded.</p> <p> Landlord and tenant^-Construction of lease. </p> <p>Where a tenant entered into possession under a lease for a year “ with the privilege of four years ’ additional lease from the first day of January, 1888, at the same rental per annum,” and with the further provision that if he should “ continue in possession after the termination of the above contract, then this contract shall continue in full force for another year, and so on from year to year,” and he continued to occupy the premises for two years succeeding the first day of January, 1888, it was</p> <p>Held, that the holding over was under the former provision of the lease providing for an additional tenancy of four years, and not under the provision for a tenancy from year to year, which could not come into effect until the termination of the four year period.</p> <p>Word “ lease ” equivalent to word “ term."</p> <p>The word “ lease ” must be construed as equivalent to the word “ term,” sucli being the evident intention of the parties. Though this use of the word is untochnical, it has received the sanction of text writers and of acts of assembly.</p>

Appeal, No. 103, Jan. T., 1892, by defendant, Charles Cleary, from judgment of O. & T., Clinton Co., May T., 1889, No. 1, on verdict of murder in the first degree. Indictment for murder.

Appeal, No. 35, Jan. T., 1891, by-plaintiff, Lydia P. Palmer, from judgment of C. P. No. 1, Phila. Co., Dec. T.,1892, No. 15, refusing to take off nonsuit in an attachment against William J. Gilmore as garnishee of Ransom Rogers. Foreign attachment.

<p>Appeal, No. 78, July T., 1891, by Bettie Plate, from decree of O. C. Phila. Co., sustaining the appeal of Mrs. Sallie Runge from the order of the register of wills refusing to admit to probate an alleged! codicil to the will of Herman Theophilus Plate, deceased.</p> <p>The facts appear by the opinion of the court below, Ash-man, J., which was as follows:</p> <p>“ He [decedent] was a bachelor, without any kindred nearer than cousins, and was then boarding with Mrs. Runge, the widow of his former partner, whose house he had made his home for fourteen years continuously, from a date preceding her husband’s death. By his will, dated some years before, he had bequeathed to her for life or widowhood the income of $15,000. On Thursday, February 6th, he sent for counsel and told him that he desired to increase that provision to $25,000, and to give two additional legacies to charities.</p> <p>“ He asked to see his original will, but as that could not be found, counsel drew a codicil, providing therein for the charitable bequests, which was executed the following day; and he commenced the preparation of a new will in which he embodied the provision for the increased allowance to Mrs. Runge. The draft was in these words:</p> <p>“ ‘Phila., February 6, 1890.</p> <p>“ ‘ I, Hermann Theophilus Plate, make this my last will. I give and bequeath the income of twenty-five thousand dollars to be paid to the widow of my former partner, George Punge, for life, in semi-annual payments.’</p> <p>“ The paper was read over to the testator and the latter approved it, but refused to sign until the will should be found. Counsel saw the testator on the three following days, but the will not being produced he did nothing more with the paper. In his absence, Mr. Wiedig, the clerk and business agent of the decedent, tried to induce the testator to sign it, but was put off with replies, ‘ Not now,’ and ‘ some other time.’ On Sunday, the day preceding the death, Mr. Wiedig read the paper to him again and asked him if it was right and if he would sign it and the testator answered, ‘Yes.’</p> <p>“ What followed, the witness narrated thus: ‘ I raised him up in bed; I went into the other room, I asked for a pen and ink, and a pen was handed to me and a pad about fourteen inches long, and I placed the paper before Mr. Plate ; I handed him the pen, and he made this stroke, and he stopped and said, “ I can’t sign it now,” or something to that effect, and then he laid back upon the bed.’</p> <p>“ The stroke alluded to was described as the first up and down stroke of the letter ‘ H.’ He was at this time excessively weak, and in the effort to write trembled so violently, according to the statement of Mrs. Punge, that she was overcome by the sight and left the room. Throughout his sickness his mental vigor declined with his waning physical strength, and he was said by the doctor to be flighty in spells. On Thursday, however, his mind was so clear that he conversed with his counsel at some length upon various topics connected with the details of his business and of his will. On Friday he executed the codicil with full intelligence of the nature of the act. His intellect remained substantially unchanged until Monday, but he grew physically weaker, so that on Sunday his condition was that of extreme debility. His mind, up to Monday, when he died, touse the doctor’s words, ‘ was still right, from time to time, particularly if he was aroused. His replies were intelligent.’ On this point all the witnesses agreed. On Monday, as the doctor testified., he was in a constant stupor and delirium, without any lucid intervals.</p> <p>“ The probate of the paper appears to have been refused upon the grounds; that it did not express the whole will of the testator, and that it was not properly executed. The first point rests on the circumstance that the writing was merely the beginning of the draft of a new will. But if the testator, for any reason, chose to adopt it as the final expression of his testamentary purpose, it certainly became his last will. The proof shows that he did so adopt it, and that he adopted it intelligently. The only real question in the case is whether, in the execution of the paper, he complied with the requirements of the statutes of wills. The act of 1833 declares that a will shall be signed at the end, unless the testator is prevented from signing by the extremity of his last sickness. The act of 1848 permits a testator to make his mark or cross in lieu of signing. Exactly what constitutes a signing has never been reduced to a judicial formula.' Legibility is not a requisite ; if it was, the autographs of some of the most distinguished men, as Mitchell, J., in Knox’s Estate, 131 Pa. 229, pointed out, would have been necessarily invalid. Completeness is not a requisite ; in Palmer v. Stephens, 1 Denio, 478 ; Sanborn v. Flagler, 9 Allen, 474; Salmon Falls Co. v. Goddard, 14 Howe, 446, the initials; in Knox’s Estate, supra, the first name, and in Williamson v. Johnson, 1 B. & Cress. 146, and Main v. Byder, 3 Nor. 217, a fictitious name; and in Brown v. Bank, 6 Hill, 443, an indorsement in figures, were held a sufficient signing. The principle upon which these cases proceeded was, that whatever the testator or grantor was shown to have intended as his signature was a valid signing, no matter how imperfect or unfinished or fantastical or illegible, or even false, the separate characters or symbols he used might be, when critically judged. The principle is so just that any other rule would be cruel; it respects the infirmities of age and sickness; and so long as it can reach the intention, it does not scan with microscopic curiosity the grammar or the penmanship of the dying. We believe that in this instance, if the scrawl which the testator made was all that his failing strength permitted, and was meant by him to represent his name, it was a valid signature within the act. His remark: ‘ I can’t do it now,’ may have meant simply that he could not complete the signing. Yet unfinished as it was, it bore certain characteristics which enabled two witnesses to say that they recognized it as the work of the testator. Even conceding that we may not hold it to be the signature of the testator, what is there to prevent it from being taken as his mark. That he himself regarded it as either the one or the other is reasonably certain from his remark after he had signed, ‘ That matter is fixed, is it ? ’ and to the question ‘ What matter ? ’ ‘You know what I wanted to give her, Mrs. Runge; I want her to have that.’ It was duly witnessed. Mr. Wiedig handed the pen and ink to the testator, and stood by him while he used them; Mrs. Runge stood at the foot of the bed, and saw the pen in the testator’s hand and then turned and stood in the open doorway; and both she and her mother saw the paper in blank just before it was given to the testator, and immediately afterward when it bore his mark at the end. The evidence, which need not be detailed, sets it beyond question that the testator was never afterwards able to do more in the way of signing than he had done. He might have asked some one to sign for him; but if he had already signed or made his mark the law did not require him to call upon another. There is no reason to doubt the judgment or the truthfulness of the four witnesses, including the physician, who were present on Sunday, and who declared that he understood the nature of the testamentary act which he performed that day. We have then a person in extremis, but possessed of disposing ability; fully informed of the contents of the testament; attempting to sign the paper, and making in the proper place, a character which if it were too imperfect to be accepted as his signature, was unquestionably sufficient to serve as his mark; and all this testified to by two witnesses who were actually present. If, by a super-refinement of reasoning the last statement shall be objected to, we have at least the testimony of one witness who was present, supplemented by testimony as to the immediate act of disposition which fully supplied the want of another witness: Eyster v. Young, 8 Yeates, 511; Reynolds v. Reynolds, 16 S. & R. 87; Carson’s Appeal, 59 Pa. 493.</p> <p>“ We think the paper should have been admitted to probate, and we therefore sustain the appeal.”</p> <p>Certain legatees under the will of the testator took this appeal.</p> <p>Errors assigned wore, (1) holding that testator intelligently adopted the incomplete draft; (2) that the alleged codicil was legally executed, either by signature or by mark; (3) that the execution of the draft as a will was legally proven; (4) in reversing the decision of the register and admitting the paper to probate.</p>

Appeal, No. 111, Jan. T., 1892, from judgment for plaintiff, Charles T. Ashman, of C. P. No. 4, Phila. Co., Sept. T., 1891, No. 546, against Mary F. Weigley, for want of a sufficient affidavit of defence. Assumpsit to recover for work and materials furnished. Plaintiff’s statement sufficiently appears by the opinion of the Supreme Court.

<p> Trespass quare clausum, fregit, when maintainable. </p> <p>Trespass quare clausum fregit cannot be maintained if the defendant was in possession of the locus in quo when the alleged trespass was committed, and had been in possession for some years previous thereto.</p>

Appeal, No. 30, July T., 1891, by defendant, from judgment of C. P. Lehigh Co., Sept. T., 1890, No. 28, on verdict for plaintiff, Silas Dubbs. Trespass for damages for removing crossing over defendant’s tracks constructed pursuant to act of Feb. 19, 1849. The facts appear by the opinion of the Supreme Court.

Appeal, No. 31, July T., 1891, by defendants, Kate Marple et al., from judgment of C. P. Montgomery Co., March T., 1890, No. 11, on verdict for plaintiffs, James Pierce et al. Sci. fa. sur mechanics’ lien. The facts appear by the opinion of the Supreme Court.

Appeal, No. 157, July T., 1891, by defendant, Sarah L. Runk, from judgment of C. P. Lehigh Co., Nov. T., 1890, No. 60, on verdict for plaintiff, Henry J. Saeger, executor, etc., to use of Frank J. F. Schantz, administrator, etc. Assumpsit to recover interest due upon dower charged upon land.

<p>Act of June 23,1885 — Advertisement of election proclamation — Authority of sheriff.</p> <p>The act of June 23, 1885, P. L. 144, provides that “It shall be the duty of the sheriff of every county in this commonwealth to give notice of the general election by publication of the same once a week in not more than four weekly, or daily newspapers, published in the county, one of said newspapers to be published in the German language, in counties where such newspaper is published,” etc., etc. Suit having been brought by the publisher of a newspaper against the county to recover for the publication of an election notice, it was conceded that the sheriff had published his proclamation in four other newspapers of the said county, and had certified such fact to the county commissioners who had paid therefor. A referee, under the Act of May 14, 1874, P. L. 166, to whom the ease was referred, found as a fact that the sheriff had ordered the publication in plaintiff’s paper, and concluded as a matter of law that the county was liable therefor.</p> <p>Held to be error. The sheriff cannot bind the county by authorizing a publication in direct violation of the provisions of the act; (2) conceding that the sheriff and county commissioners might, under certain circumstances, be estopped as individuals from denying liability to plaintiff, the county would not be liable, as the taxpayers are only bound by the lawful acts of their officers:</p> <p>Eyster v. Rineman, 11 Pa. 147, distinguished.</p> <p>The number of newspapers in the German language in which the publication shall be made is at the discretion of the sheriff. The object of the act was not to limit the publication to one German newspaper, but to require the publication in at least one such paper, if any such are published in the county.</p> <p>Reference under act of May 14, 1874 — Fiduciaries.</p> <p>County commissioners, being parties acting in a fiduciary capacity, have no authority in law to become parties to a reference under the act of May 14, 1874: Campbell v. Fayette Co., 127 Pa. 86.</p> <p>Where the parties submit to a reference without objection and take the chance of an award in their favor, raising the question of the impropriety of the reference for the first time in the Supreme Court, the court would be slow to interfere on this ground.</p>

Appeal, No. 61, Jan T., 1892, by plaintiff, Elias Brendlinger, from judgment of C. P. Montgomery Co., June T., 1889, No. 126, refusing to take off nonsuit. Trespass to recover for injuries to plaintiff’s horse occasioned by a defective highway.

Appeal, No. 65, Jan. T., 1892, by defendant, E. N. Manning, from judgment of C. P. Montgomery Co., Dec. T., 1890, No. 8, on verdict for plaintiffs, George Goodfellow et al. Sci. fa. sur mechanics’ lien.

<p>[Marked to be reported.]</p> <p>Liquor Lav)' — Bottler1 s license — Supplying customers outside the county.</p> <p>A person holding a bottler’s license may sell to any retail dealer in any part of the commonwealth, provided the sales are made at the bottler’s place of business in the county for which his license is granted.</p> <p>Such sales may be made in the usual course of business. It is not necessary that the retail dealer from an adjoining county should call at the place of business of the licensee in order to make his purchase. He may order his goods by mail.</p> <p>Delivery of the goods so ordered may be made by the seller, either by a common carrier or by his own wagons.</p> <p>Defendant was in the habit of receiving orders at his place of business in Philadelphia, from week to week, for lager beer and porter, from licensed hotel keepers in Montgomery county. Upon the receipt of such orders, the materials so ordered were set apart and charged to the purchasers upon the books of the defendant, the sale in each instance being upon credit. The goods thus sold and set apart for the respective purchasers were then either loaded upon defendant’s delivery wagon and delivered by the driver of said wagon to the purchaser in the usual course of business, or were shipped by rail to the purchaser.</p> <p>Held, that defendant was not indictable in Montgomery county for selling liquor without a license.</p> <p>Sale of chattels — When title passes.</p> <p>As between vendor and vendee, the passing of the title upon a sale of chattels depends upon the intention of the parties, to be derived from the contract and its circumstances. Actual delivery, weighing and setting aside are only circumstances from which the intention may be inferred.</p> <p>The cases in which a sale has been held to be incomplete for want of a delivery to the vendee, are all cases in which the rights of creditors were considered. There is no ease which holds that the sale is not complete between the parties, and that the title did not pass as to them merely because delivery was postponed. Where an apparent conflict exists between the cases, it is doubtless due to inadvertence in applying a principle of law which is only intended to protect execution creditors, bona fide purchasers, or the right of stoppage in transitu, to cases arising between vendor and vendee.</p> <p>Common law — Application of, to necessities and wants of business.</p> <p>The courts are constantly applying the accepted principles of the common law to new phases and modes of doing business. This is a necessity alike dictated by common sense and the necessities of trade.</p>

<p>Appeals, Nos. 112 and 113, July T., 1891, by defendants, Sophia Brauninger and Gottlieb Kleinmann, from judgments of Q. S. Montgomery Co., June T., 1891, Nos. 30 and 31.</p> <p>Indictments for selling liquor without a license.</p> <p>The evidence on the trial before Weand, P. J., disclosed a state of facts similar to those in the ease of Commonwealth v. Hess, ante, p. 98. Defendant Brauninger was the holder of a bottler’s license in Philadelphia county, and defendant Kleinmann was the driver of her wagon.</p> <p>Commonwealth v. Brauninger, Appellant.</p> <p>Defendant submitted the following point:</p> <p>“ The evidence being that the defendant, a licensed wholesale liquor dealer in Philadelphia, received at her place of business by mail orders for lager beer, which she caused her driver to fill by delivery to a hotel beeper in Montgomery county, who sometimes paid her at her place of business, sometimes by check through the mail, and at other times to the driver, the court is requested to charge the jury that this does not constitute an offence under the law, and that the verdict should be ‘Not guilty.’ Answer: I cannot so charge you. If defendant, although licensed in Philadelphia, received orders from Montgomery county, and sent the lager beer by her own driver and wagon to this county and delivered it here and was paid for it through her driver here, either by money or check, she is guilty of violation of the law.” [1, 2, 3]</p> <p>The court charged the jury, in part, as follows:</p> <p>“ The delivery of the goods and receipt of the price, or any part of it, by the defendant’s driver, in Montgomery county, at any time within two years preceding the finding of the indictment, constituted a sale by the defendant in this county and a violation of the law.” [4]</p> <p>Commonwealth v. Kleinmann, Appellant.</p> <p>Defendant submitted tbe following point :</p> <p>“ The evidence being that the defendant is driver for a licensed wholesale liquor dealer in Philadelphia, who received orders for lager beer by mail from persons in Montgomery county, which orders were filled by delivery by the defendant as such driver for said wholesale dealer, at the residence of the vendees in the latter county, who sometimes remitted payment to the vendor by mail, sometimes made it to her at her place of business in Philadelphia, and sometimes made it to the defendant in Montgomery county by money or check for transmission to her. The court is requested to charge the jury that this does not constitute an offence under the law, and that the verdict of the jury should be ‘not guilty.’ Answer : I cannot so instruct you. Under the above state of facts, the defendant would be guilty of a violation of the law.” [1, 2, 8]</p> <p>The court charged the jury in part as follows :</p> <p>“ The delivery of the goods and receipt of the price or any part of it, by the defendant, in Montgomery county, at any time within two years preceding the finding of the indictment, constituted a sale in this county, and a violation of the law.” [4]</p> <p>Verdicts, guilty, and judgments thereon. Defendants appealed.</p> <p>Hrrors assigned were, in each appeal, (1-8) refusal to affirm defendant’s point and the answer given thereto, quoting point and answer; (4) the portion of the charge above quoted.</p>

<p>Liquor laws — Bottler's license — Delivery to purchaser in adjoining county. Commonwealth v. Hess, Appellant, ante, p. 98, followed.</p>

<p>Appeal, No. 156, July T., 1892, by defendant, from judgment of C. P. Montgomery Co., June T., 1890, No. 42, on verdict for plaintiff, Harry C. Thomas.</p> <p>Issue directed by the court, under act of April 15,1834, sec. 104, to try the question whether certain claims of plaintiff against defendant were legal. At the trial before Weand, J., the jury found for the plaintiff. Defendant appealed.</p> <p>The opinion of Weand, J., refusing a new trial before discussing the merits of the case, stated, “ As the questions raised involve a consideration of the act of 13th June, 1836, we think it reviewable, and not governed by the decision in Gangewere’s Case, 61 Pa. 342.”</p>

<p>Appeal, No. 240, Jan. T., 1892, by defendant, from judgment of C. P. Lehigh Co., April T., 1888,</p> <p>No. 83, on verdict for plaintiff.</p> <p>Assumpsit to recover license fees for maintenance of telegraph poles.</p> <p>The facts appear by the charge of the court below, Albright, P. J., which was as follows.</p> <p>“ It appears that the city of Allentown enacted an ordinance requiring every telegraph, telephone or electric light company’s poles in the city of Allentown to be inspected by the police department, and that the same should be licensed, and requiring a license fee of fl.OO a year upon each pole to be paid. This ordinance was made on the 19th day of September, 1884, and required that this licensing be done, and that licenses are to run from the 1st Monday of October of each year.</p> <p>“Nowit appears that the defendant, The Western Union Telegraph Company, maintained during the years 1884, 1885, 1886 and 1887, inclusive, about seventy-five poles in this city, and that there was an inspection of them, and the license fee of $1.00 a pole has not been paid. This suit has been brought to recover $75 a year due on the 1st Monday of October, of the years 1884, 1885,1886 and 1887. The defendant is a corporation authorized to transmit messages in various states of this union, including the state of Pennsylvania, and it is claimed in its behalf that no state is authorized to impose a burden of this character upon it. That such imposition-would be an interference with the right of carrying on what is called interstate commerce, and that the laws of the United States forbid such an interference, and it is also contended on its behalf that even if by the exercise of what is called the police power, the right to exact a sum exists, that this sum of $1.00 a pole is excessive. That the expense of inspecting the poles during the years in question amounts to nothing, and at the furthest it involves only the attention of the police officers for one or two days, and that these officers served at the rate of $40 a month, and that therefore it was excessive, and instead of being an exercise of police power, was by indirection a tax, and therefore illegal in as muchas it was imposed on this corporation that has a right to its business in the various states.</p> <p>“ [The impression of this court is that this defence is not well taken, and that the power to impose the tax sued for by the city existed, and there being no dispute that these poles were maintained — witnesses testified to it — if you find that question in favor of the plaintiff, that these poles were maintained during these years, about 75 poles during the years 1884,1885, 1886 and 1887 both inclusive, then we direct you to find a verdict in favor of the plaintiff.] ” [5]</p> <p>Plaintiff submitted the following point:</p> <p>“ Under all the evidence, the verdict of the jury must be for the plaintiff.” Affirmed. [4]</p> <p>Defendant submitted the following points:</p> <p>“ 1. Under all the evidence the verdict should be for the defendant.” Negatived. [1]</p> <p>“ 2. The license fee of one dollar per pole per annum is excessive, unreasonable, and therefore unlawful.” Negatived. [2]</p> <p>“3. The license fee in question is in point of fact a tax, and as against this defendant is in violation of the constitution of the United States, and therefore illegal and void.” Negatived. [3]</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Errors assigned were (1-4) answers to points, quoting points and answers; (5) portion of the charge in brackets, quoting it.</p>

<p>Appeal, No. 312, Jan. T., 1891, from decree of C. P. Chester Co., dismissing exceptions to auditor’s report distributing assigned estate of Ellis Hall.</p> <p>Claims for wages presented before the auditor.</p> <p>The facts shown before the auditor, R. E. Monaghan, Esq., were as follows : The assignor was a carpenter and contractor. He made an assignment of all his property in trust for the benefit of creditors. At the time of the assignment he was possessed of three tracts of land which were subsequently sold under an order of court, and an auditor appointed to make distribution. The real estate fund amounted to $2,008.26 and the personal fund to $154.41. Claimants were parties who had performed labor for the assignor upon properties which he was erecting for third parties, and their claims were filed to secure liens upon his real estate.</p> <p>The auditor reported in part as follows:</p> <p>“ The several counsel representing the claims for wages urge that these wages claims are to be preferred in this distribution. They further contend that their claims have been put in proper shape and filed, so as to give them this legal preference under our statutes regulating the filing of such liens for wages. These liens were filed in the protlionotary’s office of this county, as before set forth, and they were filed in order to become liens on the real estate of the assignor. On the other hand, the counsel for the judgment lien-creditors contend that owing to a defect in the wages claims filed, the judgments must be first paid in their order out of the real estate fund, so far as it will pay the same. They also claim a pro rata dividend out of the personal property fund. They further contend that the assignor, being a contractor and builder, and the wages earned by the respective claimants being for labor bestowed upon houses owned by other people, and which houses were erected by the assignor under contracts, therefore, the liens for such wages could not be entered so as to bind the assignor’s own estate; that he was not such a party as was embraced within the provisions of the laws relating to liens for wages and their preferences.</p> <p>. “ It was in evidence that the assignor was a contractor and builder, and that he neither owned the houses nor the lands on which the houses were erected, and upon which the work and labor had been bestowed by the several claimants. The counsel for the judgments further contended that the claims as filed were defective; because they did not' set forth that the property described in said claims, and against which the liens were filed, was the same real estate which had passed by the assignor into the possession of his assignee, for the benefit of his creditors; that the record of the lien did not show the real estate to be the same which had been assigned to his assignee ; and that the several liens are fatally defective by reason of this omission.</p> <p>“ This is an important point in the case, and requires and demands careful consideration. If it should prove a fatal omission it may do great injury to those meritorious wage-earners to whom it was the design and intention of the lawmakers to give a preference.</p> <p>“ When property is assigned for the benefit of creditors, it is placed by the assignor in the hands of his assignee under the law governing assignments, and, therefore, it is under the control of the court. The property is in the grasp of the law, for the benefit of creditors. And the estate in the hands of an assignee, therefore, is very similar to property in the hands of the sheriff under and by virtue of his levy; and everything required to be done by the wage claimant in the case of the sheriff’s levy in order to secure the benefit of the law must be pursued in cases of assignment for the benefit of creditors; that is to say, the claim in both cases must set forth and show, (1) the amount of wages due and preferred. (2) It should set forth the character of the services for which the claim is filed, and must state that the same were rendered in or about a business carried on by the party against whom the claim is filed, and is such as is defined by law. (8) That the labor was done by the claimant within six months preceding the date of the sheriff’s levy, or the date of the assignment. (4) That the process in the hands of the sheriff, or the deed of assignment, must be sufficiently set out, and described, as to identify the same, and (5) the claimant must set forth that his claim is a lien on the specific property levied upon or assigned.</p> <p>“ It is very true that these special lien laws and wages acts should be strictly complied with. They convey special favors and should be closely adhered to in all respects. The notice of the claims, either by filing a lien, or a notice in writing to the sheriff, under the acts of assembly relating to these laborers’ claims, is intended to serve the same purpose, that is, to inform parties interested of the liens. The one must be as full and particular as the other, as to all the qualities and rights of the claim, and each must exhibit every fact to sustain the claim or the lien. The claimant who seeks the preference must comply with all the conditions on which it is allowed. And the notice in the one case and the lien in the other cannot be explained, enlarged, or helped out by verbal explanation or additions : Crater v. Deemer, 4 County Ct. Rep. 375. Uncertainty in both cases must be avoided. As to the proper notice to be given by the sheriff, our Supreme Court has passed upon that in a number of instances. In Pardee’s Ap., 100 Pa. 408, the court held that the notice should set forth such facts as to bring the claim within the act, so that the officer and others interested may know that the labor was performed within the time limited by the act, and in a business defined therein, the sum due, and that the property subject to the lien is embraced in the levy. In this case the court repeated what it had said on several occasions — ‘ that it is immaterial in what form these things are set out, but it is essential that they appear: ’ McMillen v. First National Bank of Corry, 1 W. N. C. 55 ; Allison v. Johnson, 92 Pa. 314; Adamson’s Ap., 110 Pa. 462.</p> <p>“ The notice is required to be in writing, and in cases of sheriff’s sale must be given to the officer before the actual sale on judicial process. Sales by a sheriff are judicial sales, and so too are sales made by an assignee under the act of February 17, 1876, judicial sales: Carver’s Appeal, 89 Pa. 276. The real object of the notice is to inform others of the existence of the lien, that they may know how to protect themselves. It is not sufficient to put them on inquiry only. Graham v. Machine Co., 1 Chester Co. Rep., 76.</p> <p>“ While our legislature has steadily and most liberally provided the laws of preference and liens for labor of various kinds, our courts have required them to be strictly complied with. In Adamson’s Appeal (supra), Mr. Justice Stbkesettin commenting on the wages act of April 9, 1872, said: ‘ The law under which appellees claim is a species of class legislation, and it is not unreasonable to require that all the facts necessary to bring their respective claims within the provisions of the act should be stated in the notice they are required to serve on the sheriff. This is not only reasonable, but essentially necessary, in order that the officer, as well as the execution creditors and others interested, may act understandingly.’ Such special class legislation as our mechanics’ lien laws and laws giving these preferences for work and labor, etc., are in derogation of the common law, and in some respects against the common right, and the auditor is of the opinion that it is but fair and proper that their provisions should be strictly complied with.</p> <p>“ Woodward, C. J., in delivering the opinion of the court in Esterley’s Ap., 54 Pa. 194, commenting on the act of 1858, giving mechanics a lien upon improvements, etc., said: ‘ This incongruous departure from the principle of the lien law should receive a strict construction and not be carried a step beyond its very words. . . . The judicial mind ought to incline to a strict limitation of the terms of the statute, upon the principle that statutes in derogation of the common law and contrary to the general policy of the public, are always to be strictly construed.’</p> <p>“ So strictly do the courts require these lien laws to be complied with, that it is a common opinion that a large percentage of liens filed under the various acts could not be pressed to judgment and recovered in our courts if rigidly contested.</p> <p>“ The auditor has gone over these claims for wages filed, and has carefully examined them, and' he finds they all are defective in a particular and essential requisite, to wit: The claims do not state that the property described therein, and against which the liens are claimed to have been filed, was the same property which had passed to the assignee, and was in his hands for the benefit of creditors of the assignor.</p> <p>“ The deed of assignment was executed and delivered before any of the claims were filed. It was on the public records of the court a considerable time before any of them were filed or entered. In none of the claims is there any recital indicating how the property came into the hands of the assignee, or whether the particular real estate, mentioned in the claims, ever had been assigned to him by the assignor.</p> <p>“ All these claims are found to be defective in this essential and material point. In none of them is it stated that the real estate described in them is the same which has been assigned by the assignor to his assignee. They refer to no deed of assignment, neither by date nor by reference to the record of the same. In this particular all the claims fail to comply with the requirements of the law. Nowhere in these claims do they indicate that the real estate against which the wage-claimants filed their liens was in the grasp of the law, either by reason of death, insolvency or assignment. Until that is shown, by the claim filed, there can be no preference for wages under the acts. This must be shown by the lien itself, before any preference can be invoked under the law. It cannot be shown by verbal explanation. The lien filed and the record of it are the only evidence to sustain the same.</p> <p>“ Considering all the evidence before the auditor, and governed by the laws applicable to this contention, he is of opinion that all of the liens are fatally defective, and cannot be allowed a preference in this distribution of the funds.</p> <p>“ As to the first, second, third and fourth requisites, the liens are sufficient, but as to the fifth they are all fatally defective.</p> <p>“ The auditor, having disposed of these labor liens under his view of the law as above stated, deems it not really essential to consider the other positions taken against their allowance of a preference in the distribution of the fund in hand. But in order to have all questions which have been raised before the auditor presented to the court, he will consider and pass upon the second position taken against the allowance of the preference, to wit: That the assignor being a contractor and builder, and that the labor claims having been earned by labor bestowed upon houses owned by other persons, and which houses were erected by the assignor under contracts, therefore, the liens for such wages could not be entered so as to bind the assignor’s real estate.</p> <p>“ This question has been the subject of much legal discussion, and has been surrounded by much uncertainty, but the auditor is of opinion that the courts have now reached a position of certainty, and have arrived at a conclusion in harmony with the spirit and letter of these labor claim laws. The first section of the act of April 9,1872, provides as follows: ‘ That all moneys that may be due, or hereafter become due, for labor and services rendered by any miner, mechanic, laborer or clerk, from any person, or persons, or chartered company, employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or ’underowners', of any works, mines, manufactories or other business, where clerks, miners, or mechanics are employed, whether at so much per diem, or otherwise, for any period, not exceeding six months immediately preceding the sale and transfer of such works, mines, manufactories or business, or other property connected therewith, in carrying on said business, by execution or otherwise, preceding the death, or insolvency of such employer, or employers, shall be a lien upon said mines, manufactory, business or other property, in, and about, or used in carrying on the said business, or in connection therewith, to the extent of the interest of said owners, or contractors, as the case may be, in said property, and shall be preferred and first paid out of the proceeds of the sale of said mine, manufactory, business or other property, as aforesaid.’ The purpose of this section of the labor claims act of 1872 was to give the laborer a claim, under certain conditions, upon the purchase money, arising from the sale of mines, manufactories or other business, or property specified in that act, and it was against that mine, manufactory, etc., as the specific subject of sale, that the lien for labor was to attach.</p> <p>“ The third section of the act was intended to apply in certain cases and under different circumstances. This section reads as follows: ‘ In all cases of death, insolvency or assignment, of any person or persons, or chartered company, engaged in operations as hereinbefore mentioned, or of executions issued against them, the lien of preference mentioned, in the first section of this act, with the like limitations and powers, shall extend to every property of said persons or chartered company.’</p> <p>“ The first section has special reference to sales and transfer of mines, manufactories, etc., before death or insolvency, but the third section provides for the preference of labor claims, after death or insolvency, etc. By the third section the legislature intended to extend the lien of preference ‘ to every property of said persons or chartered company.’ The persons or chartered company might own valuable estates in no way connected with the business, on which the labor has been done, still in the opinion of the auditor, the lien is extended to said property by the said third section of the act. The auditor is also of opinion that the assignor was such operator and contractor as comes within the statutes governing these preferences of labor claims. This is clearly the ruling of our Supreme Court, as will appear in the case of Hartman’s Appeal, 107 Pa. 327.</p> <p>“ Mr. Justice Clark delivered a very carefully prepared opinion in that case and reached that conclusion.</p> <p>“ The auditor therefore is of opinion, that if the wage claims had been filed as specifically as the law required them to be, they would be entitled to a preference in this distribution; but as before determined, the auditor holds that these claims are not entitled to be preferred by reason of a fatal defect in the claims as filed.”</p> <p>The auditor accordingly distributed the personalty to the wages claimants pro rata with other claimants, but excluded them from the real estate fund.</p> <p>Exceptions to the auditor’s report were dismissed by the court. Samuel Lachman, and others, wages claimants, appealed.</p> <p>Hrrors assigned were (1) not decreeing that the net personal estate be divided pro rata among the wages claimants; (2) awarding the proceeds of real estate to judgment creditors; (3-8) not awarding to Samuel Lachman and other appellants respectively the amount of their several claims out of the real estate fund.</p>

<p>Evidence — Buie requiring best evidence.</p> <p>The rule which requires that the “best evidence” shall be produced, means merely the best evidence within the reach of the party. The mere fact that more conclusive evidence might possibly be obtained does not preclude the party from offering such testimony as is available.</p>

<p>[Marked to be reported.]</p> <p>Bailroad crossing — Buie of “ stop, look and listen.”</p> <p>The instinct of self-preservation might be trusted to keep a traveler from getting in front of a train that ho knew was approaching. The reason of the rule which requires a man to stop, look and listen, before crossing, is that by such action ho may inform himself whether a train is approaching or not.</p> <p>Private siding — Care required before crossing.</p> <p>While the law does not prescribe that in all cases a man must stop, look and listen before crossing a private siding, it does require that he shall exercise ordinary care. It is his duty to see if the siding is in actual use at the time he approaches it, and a failure to do this is contributory negligence.</p>

<p>[Marked to be reported.]</p> <p>Wills — Legacies—Pay able primarily out of personalty — Blending of realty and personalty.</p> <p>The personal estate is the primary fund for the payment of debts and legacies, and where the real estate is specifically devised, it cannot be resorted to for the payment of the legacies in case of deficiency of the personal estate.</p> <p>Where, however, the will shows a blending of the real and personal estate in one fund for the payment of debts and legacies, the legacies become a charge upon the lands.</p> <p>in the latter case the residue can mean nothing but what remains after-payment of debts and legacies.</p>

<p>[Marked to be reported.]</p> <p>Mechanics' liens — Contract prohibiting filing of — Subcontractor.</p> <p>Where a contract provided that the contractor would not permit the filing of liens against the property, this contract was binding on a subcontractor.</p> <p>Schroeder v. Galland, 134 Pa. 277, followed.</p> <p>Affidavit of defence — Affidavit by counsel — Supplementary affidavit— Practice.</p> <p>An affidavit of defence to a mechanic’s lien was filed by the attorney for the owner, and averred that by the agreement between the contractor and the owner for the erection of the building it was expressly agreed that no lien should be entered against the building. A copy of the contract was attached. No reason was given in the affidavit for the failure of defendant to make the affidavit. Subsequently, however, the defendant filed an affidavit averring that at the time the first affidavit was filed she was without the state, and further that the affidavit filed by her counsel was correct. It was contended by plaintiff on motion for judgment for want •of a sufficient affidavit of defence that defendant’s affidavit was filed too late, under the rules of the court below:</p> <p>Held, 1. If the affidavit was improperly filed, plaintiff’s proper course was to move to have it taken off the file. No such motion having been made the Supreme Court will presume that what appears unchallenged upon the record was properly placed there.</p> <p>2. When there is anything upon the record at the time a motion is made for judgment for want of a sufficient affidavit of defence which shows for any reason that the plaintiff is not entitled to judgment, it is the duty of the court to deny the motion and send the case to a jury.</p>

Appeal, No. 214, Jan. T., 1892, by-Frank H. Bolton, plaintiff, from decree of C. P. Delaware Co., Sept. T., 1891, No. 172, discharging a rule for judgment for want of a sufficient affidavit of defence, filed by Susanne B. Hey, defendant. Sci. fa. sur mechanic’s lien for materials furnished.

<p>Appeal, No. 197, July T., 1891, by defendant, John A. Titman, from judgment of C. P. Schuylkill Co., Nov. T., 1890, No. 138, on defendant’s bond in favor of plaintiff, at the relation of the borough of Shenandoah.</p> <p>Judgment on school tax collector’s bond.</p> <p>The facts as shown by the depositions taken in the court below were as follows:</p> <p>Defendant having been duly elected to the office of collector of taxes of the borough of Shenandoah for the year 1888, and having duly qualified as such, was furnished by the school board with the duplicate of school taxes. In May, 1889, a committee of the board met, and with the defendant reviewed the exoneration list prepared by him. A large amount of the exonerations claimed was disallowed, and the board made a settlement showing a balance of $2,046.47, a certificate of which was entered in the court of common pleas, in accordance with the provisions of the act of April 11, 1862, sec. 18, P. L. 474, Defendant’s bond was then certified from the quarter sessions to the common pleas, and judgment thereon entered for the amount of the balance shown by the settlement. Defendant took a rule to open the judgment. In support of the rule, he showed that he had never been furnished by the board with a warrant for collection of the taxes.</p> <p>The court, Gbken, J., after stating the facts, and stating that the court was given no power to review the action of the school board in the settlement, concluded as follows:</p> <p>“ It is alleged that the collector and his bail are absolved from liability, because a warrant to collect did not accompany the duplicate of the school tax, which was put into the hands of the collector. It appears to have been an oversight of which the collector was as ignorant as the board. The collector never demanded a warrant. If he had, no doubt it would have been given him. It does not appear that the want of a warrant ever prevented him from collecting any part of the tax, or that any one resisted his authority or refused to pay on that account. Not having suffered, by reason of the omission, it will not avail him as a defence to this proceeding.</p> <p>“ Quite a great deal of testimony has been taken and has been submitted to us. It does not show any irregularity in the proceedings before the board in- relation to the settlement with the collector. Pie seems to have been given a full and fair hearing and that is all he could ask for. Having had that, we have not the power to give him relief by opening the judgment and rehearing his matter of complaint.</p> <p>“ And now, July 18, 1891, rule to open and strike off judgment is discharged.”</p> <p>Defendant appealed.</p> <p>Errors assigned were, (1) discharging the rule to open the judgment; (2) failure to open the judgment and admit defendant to make defence thereto. ■</p>

<p>Street railways — Sidings—When they may he constructed.</p> <p>When a railway company has constructed its road within the period limited by law, it may subsequently construct, from time to time, such switches or sidings as may be necessary for the handling of its business and the operation of its road.</p> <p>The right to construct such switches or sidings is not forfeited or lost because not exercised by the company within the period limited for the location and construction of its road.</p> <p>Supreme Court practice — Errors not properly assigned — S. C. Hule XXII.</p> <p>An assignment of error that “ The court erred in overruling the several exceptions filed by the appellants to the master’s report ” is not in accordance with the rules of the Supreme Court.</p>

Appeal, No. 132, Jan. T., 1892, by plaintiff, Frederick Ingram, from judgment of C. P. Schuylkill Co., May T.,,1886, No. 45, on verdict for defendant. Case to recover damages for injuries sustained in defendant’s service.

<p>Appeal, No. 157, Jan. T., 1892, by plaintiff, Selim S. Thomas, from judgment of C. P. Lebanon Co., March T., 1891, No. 78, on verdict for defendant.</p> <p>Trespass to recover for personal injuries sustained while a passenger on defendant’s train.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The charge of the court below, McPherson, J., was as follows:</p> <p>“ Ordinarily when a passenger is injured in the conveyance of the carrier by any means connected with the appliances of transportation or the conduct of the business, a presumption of negligence on the part of the carrier arises, and the case necessarily goes to the jury in connection with such explanation as the carrier may have to offer.</p> <p>“It is agreed by counsel concerned in this cáse, and the court entirely concurs therein, that the presumption of negligence does not arise in this case, because the injury is not shown to have been caused by any means connected with the appliances or business of transportation.</p> <p>“ The plaintiff’s position is, that, entirely aside from the presumption, the question of negligence must be submitted to the jury; whereas the defendant contends that there is no evidence upon that subject which would justify the court in submitting the question. We think the defendant’s position is sound. The plaintiff has shown an injury, but has given no evidence from which a jury could infer how that injury was caused; there are, therefore, no facts in evidence from which the jury could properly infer negligence on the part of the defendant, and without some proof or presumption to that effect the plaintiff must fail.</p> <p>“ [There being no presumption of negligence in the case, the plaintiff is in the ordinary position of being obliged to produce evidence tending to prove negligence on the part of the defendant. Having failed to do so, in the court’s opinion, the verdict must be in favor of the defendant, and the court so instructs you.] [1]</p> <p>“ Tiie accident is one which is much to be regretted, but no reason has been shown why the defendant should be made responsible therefor.”</p> <p>Plaintiff submitted the following point:</p> <p>“ Under all the evidence in this case, the question whether the injury to the plaintiff was caused by the defendant’s negligence is for the jury.” [2]</p> <p>Verdict for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) the portion of the charge in brackets, quoting it; (2) the failure to affirm plaintiff’s point, quoting the point.</p>

Appeal, No. 243, Jan. T., 1892, by plaintiff, Elizabeth Spancake, from judgment of C. P..Lebanon Co., Sept. T., 1891, No. 71, refusing to take off nonsuit. Trespass to recover for the death of plaintiff’s husband. The facts appear by the opinion of the Supreme Court.

<p>Contract — Rescission—Laches.</p> <p>One who desires to take advantage of a change in the contract relation between them, made by the other party, must do so within a reasonable time. If ho continues for a long period to treat the contract as still in force, he will be bound by it, subject to the modification introduced.</p> <p>Mutual insurance association — Transfer of member to a different class— Acquiescence.</p> <p>Plaintiff having become a member of a mutual insurance association was assigned to a particular class therein, and continued a member of this class for thirteen years. Subsequently this class was dissolved, and the members distributed among other classes by a resolution of the board of directors, and a similar change was again made two years later. Notice of the action of the directors, was printed on the backs of the assessment notices. Plaintiff contiiiued to pay assessments for three years after the last change was made, and then brought suit to recover the amount of the assessments paid, alleging breach of contract on the ground that the assessments were rendered heavier by the change of her classification, and claiming the right to rescind.</p> <p>Held, that in consequence of her continuing to pay assessments for more than three years without protest, the defendant had a right to assume that she assented to the change; and, therefore that she was bound by the contract.</p>

<p>Partnership — Balance admitted to be due — Attachment execution.</p> <p>Partnership transactions cannot be settled upon an attachment execution. If, however, the affairs of the partnership have been settled, and an admitted balance is due from one partner to another, this balance may be attached as in other cases.</p> <p>Admission of indebtedness — Question for jury.</p> <p>Plaintiff issued an attachment execution, alleging that a partnership Had existed between defendant and the garnishees, which had been dissolved, and that one of the garnishees had admitted to plaintiff that there was a balance due defendant on partnership account of $1,200. At the trial garnishees denied that there was anything owing by them to defendant. The court charged the jury that the only question for them to determine was whether the garnishees had made any acknowledgment of indebtedness, instructing them that this question was not to be answered from the settlement of the partnership accounts, but simply upon whether there was any evidence that such acknowledgment of indebtedness had been made. ■</p> <p>Reid, not to be error.</p>

<p>Appeal, No. 393, Jan. T., 1892, by defendant, B. S. Gardner, from judgment of C. P. Lackawanna Co., April T., 1891, No. 318, for plaintiff.</p> <p>Case stated in the nature of a special verdict for recovery of taxes. r</p> <p>By the case stated it appeared that defendant owned a farm lying partly in Benton township, where the mansion was situated, partly in the borough of La Plume, and partly in the township of North Abington. The borough council of the borough of La Plume assessed defendant upon the portion of his property lying within the borough limits, while the authorities of Benton township assessed him, not only upon the portion lying within the limits of that township, but also upon the portion situate within the borough of La Plume. If the court were of opinion that the land lying in La Plume borough was assessable there, and not in the township of Benton, where the mansion house was situated, judgment should be entered for plaintiff; otherwise for defendant.</p> <p>The court, Archbald, P. J., entered judgment for plaintiff on the ground that the act of June 1, 1883, P. L. 51, was unconstitutional, so far as it concerned township and borough lines not coterminous with county lines. The terms of the act appear by the opinion of the Supreme Court.</p> <p>Judgment for plaintiff accordingly. Defendant appealed.</p> <p>¡Errors assigned were, (1) declaring a portion of the act of 1883 unconstitutional; (2) entry of judgment against the defendant.</p>

<p>Equity — Subrogation—Bights of third parties.</p> <p>Subrogation is a matter of grace, not of right, and is a creature of pure equity. It will never be decreed where it would work injustice to a third party.</p> <p>Sheriff’s sale — Beeord—Secret equities.</p> <p>In the absence of knowledge or notice of secret equities, a purchaser at ■sheriff’s sale has a right to rely upon the record, and such secret equities cannot subsequently be set up to his prejudice. •</p> <p>Attorney and client — Knowledge by attorney notnotice to client — Practice.</p> <p>A petition was presented to the court praying that petitioner be subrogated to the rights of plaintiff in a judgment which had been entered against him as surety. The prayer was for a rule upon defendant and other “ persons interested,” and the effect of the rule if made absolute would be to postpone the rights of another judgment creditor not named in the petition nor included except under the general term “persons interested.” The attorney of this latter party was present in court, and the petition was read in his hearing.</p> <p>Held, That this did not constitute notice to the party affected.</p> <p>The rules asked for were simply the process by which the parties were to be brought before the court, and for this purpose, especially as to an unnamed party, they possessed no efficacy until they were served.</p>

<p>Appeal, No. 71, July T., 1891, by plaintiff, W. K. Pittenger, from judgment of C. P. Lackawanna Co., June T., 1887, No. 395, on verdict for defendant, Levi Kennedy.</p> <p>Trespass vi et armis for tearing down a partition fence.</p> <p>The case was tried below by Archbald, P. J., a,nd resulted in a verdict for defendant. Plaintiff appealed, assigning numerous errors and filing a paper book, to which appellee excepted.</p> <p>The exception appears by the opinion of the Supreme Court.</p>

<p>Life ‘Insurance — Insurable interest — Defence to suit on policy.</p> <p>Whore a policy oi' life insurance was by its terms payable to the administrator of the insured, and after the death of the insured, in a suit upon the policy by the administrator, the company defendant set up in an affidavit of defence that the policy was issued and delivered to a third party, who took it and paid all the premiums on it as beneficiary, and that such third party had no insurable interest in the life of the insured,</p> <p>field, that the affidavit was insufficient.</p> <p>Practice — Buies of court — Court to interpret its own rules.</p> <p>Each court is the best judge of its own rules, and the Supreme Court will not interfere with the construction put upon its rules by the court below unless for palpable abuse.</p>

<p>Appeal, No. 183, July T., 1893, by defendant, Harry A. Depuy, from judgment of Q. S. Lackawanna Co., April Sess., 1891, No. 181, on verdict of guilty.</p> <p>Indictment for the larceny of a dog.</p> <p>The defendant was tried, convicted, and sentenced to pay a fine of $25 and costs and to undergo an imprisonment for three months. He thereupon appealed.</p> <p>Error assigned appears by the opinion of the Supreme Court.</p>

<p>[Marked to be reported.]</p> <p>Lease — Covenant to pay gas bills or water rents.</p> <p>When a tenant covenants in Ms lease to pay gas Mils or water rents, it is an undertaking in accordance with common understanding to pay the company furnishing the gas or water. Such a covenant is as much a condition of Ms holding as any other covenant in the lease.</p> <p>Forfeiture — Breach of covenant to pay water rent.</p> <p>Where a lease contained a provision that lessee should pay gas bills and water rent, and also contained a clause of forfeiture in case lessee should not keep and perform all the terms, provisions and stipulations of the lease, or any of them, upon a failure of lessee to pay water rent, it was</p> <p>Held, That failure to pay these bills constituted a forfeiture, and justified the assignee of the lessor in entering judgment of ejectment against the lessee under the terms of the lease.</p>

<p>Appeal, No. 158, Jan. T., 1892, by plaintiff, from decree of C. P. Lackawanna Co., April T., 1891, No. 608, striking off municipal lien filed against property of Leonard Arnt.</p> <p>Rule to strike off municipal lien.</p> <p>The facts appear by the opinion of the Supreme Court. The court below struck off the lien, Archbaed, P. J., delivering the following opinion: “ Notwithstanding the amendment which has been allowed, the statement of lien is still deficient in not showing when the assessment was due. The importance of this was considered in the case of the City v. Jones, 183 Pa. 228, and City v. Mears, 2 Lack. Jurist 53. We adhere to the opinions there expressed, and therefore the rule is made absolute and the lien is stricken off.”</p> <p>Plaintiff appealed.</p> <p>Errors assigned were, (1) making absolute, and (2) not discharging, the rule to strike off the lien.</p>

<p>Charge of the court — Misstatement of evidence — Immaterial error.</p> <p>In the hurry of trial the most careful judge is liable to make a slip or unintentional error in instructing the jury. His attention should be oalled to the matter at the time in order that it may be promptly corrected. When such error has not prejudiced* the unsuccessful party, the Supreme Court will not reverse on this account.</p>

Appeal, No. 213, Jan. T., 1892, by Samuel S. Jenkins and Mary Ann Jenkins his wife in right of said wife, plaintiffs, from judgment of C. P. Lackawanna Co., June T., 1889, No. 86, on verdict for defendants, Thomas and Annie Jenkins. Action in partition.

<p>Contract — Original undertaking or guarantee — Statute of frauds — Evidence.</p> <p>Plaintiff, a physician, brought suit to recover for services rendered to defendant’s stepson, who was of age. Plaintiff testified that defendant said to him, “If the boy dies, I don’t want any blame resting on me. You go and get the doctor (i. e. a surgeon) and do all that you can for the boy. I will see that you get your pay.”</p> <p>Held, (1) That this was evidence properly submitted to the jury upon the question of whether defendant’s undertaking was an original contract or a guarantee within the statute of frauds.</p> <p>(2) That the jury, under proper instructions, having found that it was an original undertaking and rendered a verdict for services subsequent to this agreement, the verdict should stand.</p>

Appeals, No. 131, Jan. T., 1892, by plaintiff, Seth L. Keeney, executor of the estate of P. M. Osterhout, deceased, from judgment of C. P. Wyoming Co., Nov. T., 1890, No. 38, on verdict for defendant, Eugene S. Handrick, in feigned issue certified from O. C.; No. 130, Jan. T., 1892, from decree of O. C. Wyoming Co., approving the verdict of the jury in C. P., dissolving injunction and dismissing petition. Issue certified by orphans’ court to determine ownership of bonds.

<p>Contract — Terms to be strictly complied with.</p> <p>Tlie contract between the parties is to be closely adhered to, and where it provides a method for determining price or value, such method must be observed.</p> <p>A contract for the sale of coal provided a method for determining the price of the coal:</p> <p>Held, that this method must be followed, and that plaintiff would not be permitted to give evidence of the market value of the coal delivered under the contract for the purpose of determining its price.</p> <p>Contract — Decision of inspector• — Fraud.</p> <p>The contract provided that the coal delivered under its terms should be subject to the inspection of the superintendent of the coal department of defendant, or such persons as he might employ for that purpose, whose decision should be final and conclusive:</p> <p>Held, that the decision of the inspector was binding upon the parties-unless, fraud be shown, which fraud must have been the result of collusion, between the defendant and inspectors.</p>

<p>Municipalities — Negligence—Sewers.</p> <p>In the absence of negligence on the part oí the municipality, there can be no recovery for damage resulting from the insufficient capacity of a sower causing overflow.</p> <p>Fair v. City of Phila., 88 Pa. 309, and Collins v. City of Phila., 93 Pa. 272, followed.</p>

Appeal, No. 293, Jan. T., 1892, by plaintiff, Charles A. Hunter, to the use of R. H. Holgate, from order of C. P. Lackawanna Co., Nov. T., 1889, No. 376, opening judgment entered against defendant, A. Mahoney. Rule to open judgment entered on judgment note. Judgment was entered on a note under seal. Defendant petitioned for a rule to open the judgment, averring that the note in suit had been paid, and that deponent was in no way indebted to the plaintiff.

<p>Fraud — Collusion—Degree of proof necessary.</p> <p>An alleged fraud must be established either by direct proof, or by facts sufficient to warrant a presumption of its existence clearly proved. It is not enough to charge fraud and prove in support thereof slight circumstances of suspicion only.</p>

Appeal, No. 173, July T., 1891, by defendant, Samuel Berret, from judgment of O. P. Berks Co., Feb. T., 1889, No. 14, on verdict for plaintiff, William R. High. Trespass to recover damages for deceit in sale of mining stock.

<p>[Marked, to be reported.]</p> <p>Decedent’s estate — Parent and child — Claim for services — Recognition of claim in will.</p> <p>A testator provided by his will that one of Ms daughters should receive a portion of Ms estate, less the amount due testator by her husband, “ and also the amount claimed, or may be claimed by her, or thorn, as wages coming from her work and labor done over and above the age of twenty-one years, may bo added to her portion whenever the same may be recovered against the estate by due course of law: ”</p> <p>Held, 1. That the language of the will was a recognition of a valid claim on the part of the daughter for compensation, and that no further proof of a contract relation was necessary.</p> <p>2. That the presentation of the claim in the orphans’ court, and its adjudication therein, constituted a recovery “ by duo course of law.”</p> <p>3. The gift to the daughter was a legacy, the amount of which was to be ascertained by a judicial proceeding.</p> <p>4. That claimant was not entitled to interest during the lifetime of testator, but was entitled to interest beginning one year from the date of testator’s death.</p>

Appeal, No. 104, July T., 1891, by defendant, from judgment of C. P. Northampton Co., June T., 1889, No. 58, on verdict for plaintiff, Thomas H. Beck. Trespass to recover damages sustained by reason of the location and construction of the defendant’s road. On the trial before Reeder, J., plaintiff called a number of witnesses who were familiar with the property, and who wore asked as to the effect produced upon it by the construction of defendant’s road.

<p>[Marked to be reported.]</p> <p>Opened judgment — Judgment note — Burden of proof.</p> <p>Where a judgment is opened without terms by agreement of the parties, the burden of proof is upon the plaintiff. The judgment having been opened amounts to nothing except for the purposes of lien, but a judgment note on which it was entered remains and stands as the plaintiff’s cause o£ action, and by putting it in evidence, plaintiff establishes a prima facie case and puts defendant to a defence.</p> <p>Ham v. Smith, 87 Pa. 63, distinguished.</p> <p>Consideration — Mutual fraud — Contract executed or executory.</p> <p>A judgment note given in order to defraud creditors of the maker, while void as to the creditors, is good between the parties to the note. The law holds them to the consequences' of their fraud, and will not lend its aid to either party to avoid them. It makes no difference whether the contract is executed or executory.</p>

<p>Sheriff’s sale — Distribution—Inconsistent claims on fund.</p> <p>One who has claimed and received payment as a lien creditor out of the iunds realized by a sheriff’s sale of real estate, will not be permitted subsequently to assert that he was the equitable owner of the premises as a vendee under articles of sale. The two positions are entirely inconsistent, and having assumed the first, he is estopped from setting up a claim to consideration in the second.</p>

<p>Appeal, No. 292, Jan. T., 1892., by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1889, No. 49, for defendant, on case stated.</p> <p>Case stated in the nature of a special verdict for recovery of county taxes.</p> <p>From the case stated it appeared that defendant’s lot and stables, horses, cars and vehicles, had been assessed for county purposes and a tax thereon, amounting to §16.72, had been levied. It was “agreed that the said lot and stables and the said horses, cars and vehicles are used only in and about the business of conveying passengers and produce, according to the defendant’s corporate powers, and that they are appurtenant, necessary and indispensable therefor. It is further agreed that the lot aforesaid, with the improvements and also the horses, cars and other vehicles, are a part of the capital stock of the corporation, defendant, and are wholly included in the same, and as such pay the usual state tax to the commonwealth. The stock of the corporation defendant is owned by individuals, who are liable to and pay tax thereon to the said county plaintiff.”</p> <p>The court Reeder, J., entered judgment for the defendant. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment for defendant.</p>

<p>Promissory notes- — Negotiability not destroyed by clause relating to collateral security.</p> <p>The giving of collateral security with a promissory note does not destroy its negotiability, nor will a clause in the note stating that it is accompanied by collateral security.</p>

Appeal, No. 396, Jan. T., 1891, by William Tallman, petitioner, from decree of O. C. Lycoming Co., refusing an issue devisavit vel non, to try the validity of the will of Lucy Tallman, deceased.

<p>Appeal, No. 27, July T., 1891, by Shrewsbury Township, from decree of Q. S. Lycoming Co., Sept. Sess., 1889, No. 112, on petition of citizens of Plunkett’s Creek Township.</p> <p>Petition by citizens of Plunkett’s Creek township to ascertain and establish the line between Plunkett’s Creek and Shrewsbury townships.</p> <p>The facts appear by the opinion of the court below, Ikelbr, P. J., of the Twenty-sixth judicial district, specially presiding, dismissing exceptions to the report of viewers, which was as follows:</p> <p>“ Exceptions to the report of viewers to view and mark on the ground and ascertain and establish the true line between Shrewsbury and Plunkett’s Creek township in the county of Lycoming:</p> <p>“ The first, second, third, fourth and fifth exceptions involve the same questions passed upon by the court before the appointment of the viewers, and are therefore dismissed.</p> <p>“ The sixth, seventh and eighth exceptions relate to the power and authority of the viewers and may and will be considered together. They involve an investigation of the existence of township and county lines in that location since 1802. It appeared that, in 1802, Muncy township contained most of the territory now comprising Wolf, Plunkett’s Creek, Shrewsbury and parts of Cascade and McIntyre townships, in Lycoming county, and, as testified to by Judge Eldred, ‘ run clear up to the Bradford county line and clear over to Lycoming creek.’</p> <p>“ In 1803 a petition was presented to the court of quarter sessions, of Lycoming county, under the act of assembly of March 24 of that year, asking that a new township, to be called ‘ Shrewsbury township,’ be erected out of the back parts of Muncy and Loyalsock townships. It was so ordered, as the records show, without the formality of a view, which, at that time, was not considered necessary by the court.</p> <p>“At April sessions, 1804, and soon after Shrewsbury.had been declared a township by an order of the court, on petition of citizens, William Benjamin was appointed to run the southwest and south boundary lines of said new township, to wit: From a place called Indian Pictures, now Picture Rocks, westwardly or northwestwardly course to intersect a road leading from Webster’s to Hill’s, two miles north from said Webster’s, and thence westwardly, the general course of the Allegheny mountains, to the Loyalsock creek.</p> <p>“At September sessions, 1804, before Mr. Benjamin had made a report of the south and southwest lines of Shrewsbury, two petitions, copies of which, by agreement, are in evidence as exhibits ‘ B ’ and ‘ C,’ signed by citizens, were presented to the court asking for a division of Shrewsbury township by certain boundaries, therein stated, calling for ‘a direct line from a point south of the Allegheny mountains, half of the distance between Indian Pictures to the road leading to John Hill’s to the Big Bend of Loyalsock, above what is called Brimstone Falls.’</p> <p>“ In these petitions, now on file at the clerk’s office at Williamsport, according to the evidence of Judge Eldred, who officiated as clerk and prothonotary in the office of Lycoming county since that time, and as commissioner and surveyor of the line in dispute in 1885, was found a third loose paper, naming the proposed new'township of Elkland, giving its description and calling for the line, now in dispute, to begin half way between two lately laid out roads, one leading to Peter Carson’s and the other leading to John Hill’s. But from what place they lead was not stated. And he said, ‘that it is the only evidence we have ’ of the formation of Elkland township. If we did not have that, there is no other ‘ evidence that there was a township by that name.’</p> <p>“ Now, the original inquiry, and the one which has brought on all this difficulty, confusion and litigation, was, and is now, where were those two newly laid out roads? Judge Eldred says that the Genesee road, where the stone heap is — the established and recognized comer at the southern extremity or end of the disputed line for seventy or eighty years — ‘ is not one of them.’ ‘ It was not a new road at that time. The Bear Creek road was a mile or so west of the Genesee road.’ ‘ I think the Bear Creek road was one of them, but could not tell where the other was.’ He said: ‘The loose paper fixed the beginning somewhere near where it is located at the Genesee road, and the only one we could go by.’</p> <p>“ The original township of Shrewsbury contained what is now Shrewsbury and Plunkett’s Creek, in Lycoming county, and Cherry, Forks, Elkland and Fox, in Sullivan county. Elk-land township was formed out of part of Shrewsbury in 1803, and Plunkett’s Creek township out of Elkland in 1835. The upper part still remains as Elkland, in Sullivan county, which latter was established in 1847, the county line being run in 1848. Elkland township, in Lycoming county, now Plunkett’s Creek, extended to Shrewsbury line now in dispute, and is the original line between Shrewsbury and Elkland.</p> <p>“Among the records and attached to the files in No. 61, December session, 1886, is found a copy of a line alleged to have been plotted by William Benjamin in 1804 as and for the boundary and disputed line between Plunkett’s Creek and Shrewsbury townships.</p> <p>“ It is very evident, from the work of subsequent surveyors and the evidence of Col. A. H. McHenry and Judge Eldred, that Benjamin did not run the line from end to end. He did mark a place or point at the Big Bend on the Loyalsoek creek, on the division line between Shrewsbury and Elkland townships — now Shrewsbury and Plunkett’s Creek — and also a point between Picture Rocks and the stone heap at the Genesee road.</p> <p>“ The third paper and the petition of 1804 manifestly contemplate a beginning of the line between the townships at a point or comer on the Muncy, now Wolf, and Shrewsbury boundary line, which would admit of two direct and straight lines from it.' One to run from the Loyalsock or Brimstone Falls, and the other westward to the Loyalsock where the Allegheny mountain crosses the same. There is but one point that will answer this intention and call for two straight lines. A beginning at any other point would be a deformity. All parties concede that it was to be a direct line, and the terminus at the wolf-trap, Big Bend or Brimstone Falls on the Loyalsock is conceded by all to be correct. All interested have regarded the point where the stone heap is, on the Genesee road, as the proper southeast corner since 1804. Both Shrewsbury and Elkland townships were originally formed on petition with their boundaries described therein, without a boundary line having first been run and marked. And whether Benjamin marked it or not prior to 1842, all parties have recognized it for seventy or eighty years, and it is further supported by the fact that the southeast comer of Elkland township, now Plunkett’s Creek, is only determined by the closing line of Elkland township when applied for and surveyed by Mr. Benjamin. Which is the north line of Muncy township, now Wolf and Mill Creek? Which brings you to the northeast corner of Wolf township, the southwest corner of Shrewsbury and the southeast corner of Plunkett’s Creek, or the stone heap at the Genesee road — the beginning or southern terminus of the division line between Shrewsbury and Plunkett’s Creek townships ?</p> <p>“ Col. McHenry acknowledged this as the proper corner in 1842, when he ran the line at the request of the supervisors of Shrewsbury township and the court, without any order issuing from the court for that purpose. He ran the line up from Indian Pictures to the Genesee road; then went over to the other end and found that line to bear date of 1804. He ran it about one mile and three eighths, when its entire length is about ten miles, and at the other end made the stone heap at the Genesee road, at the foot of the mountain. It was known as the Benjamin line, and although rather badly run, passed for the line at that date. It seems that Benjamin and his party, in 1804, did not run the line from the Brimstone falls further than the white ash at Mr. Hill’s, about one mile and three eighths, and then gave it up as did McHenry, in 1842, after going one mile and three eighths. In those days the territory was one vast wilderness and swamp, and McHenry continued the line through as in the return of Benjamin’s draft by plot and protraction, without marking it upon the ground all the way. He says in his testimony: ‘ Continuing the line southwestward to the poplar I found I was not within a mile or two of the point designed to be connected on the paper, and turned from there south, sixty-seven west until I struck the old Genesee road, and then down it to the stone heap.’</p> <p>“ But Mr. McHenry was not so officially employed as to bind any township by what he did in 1842. Plunkett’s Creek township was not consulted or notified in the matter, and the line he ran, when a commissioner in 1874, with Steck and Kahler, seems to have been run in the same manner with the same courses and distances. Exhibit ‘D,’ being the copy of the straight, alleged Benjamin line of 1804, Col. McHenry says is his work. ‘ It seems to represent the boundary line from the wolf-trap through between Plunkett’s creek and Shrewsbury townships, beginning at a road lately laid out between Abraham Webster’s and John Hill’s, opposite the lake in the Allegheny mountains, and thence in a right line to the Big Bend in the Loyalsock. But I am not prepared to say where it is in relation to the wolf-trap. This don’t seem to connect with any other. This, the last course from the Loyalsock to the county line, seems to be above the wolf-trap. I do not know where the hemlock call there is located. Have no knowledge of it only as I see it here. The draft is a protraction of what I found in the prothouotary’s office.’</p> <p>“ If evidence at all, it goes to show that the Benjamin line of 1804 is an imaginary one, not marked upon the ground or connected with any other at either of the recognized and heretofore admitted termini of the said division line.</p> <p>“ As shown by the records in evidence, the first commission to run and establish the line between Shrewsbury and Elkland townships, now Plunkett’s Creek, was appointed in 1859; could not alter or change, but only ascertain and establish as fixed in the order of September sessions, 1804. The same must be said of the commission appointed in 1874, both of which ran and reported a crooked and indirect boundary line between the two townships, different and varying from the one fixed and directed in the order erecting them, and consequently erroneous and not binding upon the township concerned.</p> <p>“ The fact that the townships have worked the roads, paid taxes and supported paupers to the lines as run in 1859 and 1874 is some evidence of where the division line was understood to be, but this, however, would not make it such, and does not conclude either township. It is not or cannot be contended that the Benjamin line, marked exhibit ‘ B ’ and said to be located in 1804, was run or ascertained and established under the act of April 15, 1834, or its supplement of April 26 of 1854.</p> <p>“ Judge E. B. Eld red testifies that ‘ the line run by the commission of 1889 is practically the same as that run by his commission in 1885. Neither found any marks of 1804, except at the termini, because they knew the other lines, so far as they had been marked upon the ground, to be way off. We were appointed to fix the correct line from one corner of the township to the other, and we knew of these other two surveys, where they were, and we decided that there must be a direct line, and after concluding that we could not change the corner on the Genesee road at the foot of the Alleghenies, we ran to the county line on a direct line with the wolf-trap as near as we could. I never heard any one dispute that corner at the Genesee road. The overseers and supervisors of Shrewsbury township were with us and they didn’t dispute that McHenry ended his survey there. Major McHenry told me that the line running west from the corner was the township line that Mr. Benjamin had run, and from niy personal examination it would be about right for that. The older inhabitants all said that since they could remember there had never been any dispute about it.</p> <p>“ The evidence clearly shows that the direct line from beginning to end — more than ten miles in length, and most of it mountainous and a dense wilderness — was never actually run and marked, upon the ground, until the commission of 1889 did it.</p> <p>“H. S. Lucas, one of the commissioners of 1885, says: ‘ Judge Eldred and Mr. McMicken and the other viewers and I met other parties at Picture Rocks in November, 1885, to run this line. I was to bring some of the papers, which Judge Eldred did not take from the prothonotary’s office, with me, which I did. There were three of them. They were blurred and quite dim, but still they could be read. We ran from Picture Rocks to the Genesee road at the stone heap. Parties there present told us that Wolf, Shrewsbury, Plunkett’s Creek and Mill Creek townships cornered at that point. We hadn’t yet fixed it as the point. Whilst we were there one morning trying to find the point to start, other gentlemen from Shrews-bury township and Mr. McHenry, the surveyor, who stated that that was the point he desired to make, but that he had started at the other end of the line, at a place called the wolf-trap, and came through. That he had made that as one point and this stone pile as the point at this end of the line. He said that these points were fixed by papers in the case. And as I said, that was the point we were trying to find when wo made this survey up from Webster’s when he told us where it was. We spent most of the day with Mr. McHenry, who was explaining the courses and distances that he ran in order to make this point, and when he came to the Genesee road and found that he would not strike it, he then struck across to the Genesee road and followed it to the point. That night we staid at Huntersville, and Judge Eldred spent the night figuring out the points of the compass that would take him from this stone pile to the wolf-trap in a direct line. The next morning we met at this stone pile on the Genesee road and proceeded to lay out a straight line from it towards the wolf-trap. We went as far as the Sullivan county line and drove in a post and piled some stones around it and put some witnesses on the trees, and left it as our line and’gave in our report. Whether we would have struck the wolf-trap I do not know.’</p> <p>“Now the commission of 1889 ran from this same stone heap clear through to the wolf-trap, found the witnesses at the Sullivan county line and only missed the wolf-trap by thirty and three tenths perches, which, in that distance of more than ten miles, should be considered approximate^ correct. They then ran' a base line on engineers’ principles, by back-sight and foresight, with stations numbered and distances recorded to each station clear through from the stone heap at one end and the wolf-trap at the other.</p> <p>“ The only question upon which there can be any doubt as to the correctness of this division line is that of the stone heap being the fixed point from which to start. And where there is doubt and uncertainty about which of the two points is the one called for in the boundary line, that should be adopted' and taken as the true one which best accords with adjoining calls and corners of adjoining townships. Especially when it agrees with the calls and corners indicated. And thus Judge Eldred was enabled to establish the stone heap corner as the southern extremity of the boundary line by tracing the lines around it and taking bearings, which aided him in fixing pt and convinced him that it was the identical corner that Mr. Benjamin fixed in 1804 when he was appointed a commissioner for that purpose.</p> <p>“Samuel Neyhart, J. H. Maize and Joseph M. Gerringer, the commissioners appointed by the court in 1889 to inquire into the propriety of ascertaining and establishing the boundary line between Plunkett’s Creek and Shrewsbury townships, report that they first inquired into such propriety and finding it necessary proceeded to ascertain and establish the same.</p> <p>“ S. D. Neyhart, an assistant surveyor with the commission, says: ‘We started from the stone pile corner in the Genesee road because it bore evidence of the corner established in 1804 and was the only natural place a corner could be made under the circumstances. Plunkett’s creek corners there; Shrews-bury and Wolf townships corner there. If you would change that corner you would change the lines of Wolf and Plunkett’s Creek townships equally, and it was recognized by all parties on the ground as the corner.’</p> <p>“ And from this corner they started out to ascertain and establish the aforesaid line direct to the Big Bend of Loyalsock creek, above what is called the Brimstone Falls, and reported such of the same as is now within the territory of Lycoming county.</p> <p>“ Their report and the draft accompanying the same show that they did run a direct line from point to point, in strict accordance with discretion under their appointment, and according to the prayer of the petitioners.</p> <p>“ Their proceedings, being in all other respects correct, will not be set aside because their ascertained line does not correspond with any line previously reported. It does, however, exactly correspond with the line run and reported in 1885 by Judge Eldred’s commission, but distinct in location between the termini from all others. The commissioners of 1889 were not restricted in their orders to any particular line previously run, but were to ascertain the true one adopted by the court in 1803, and if they have found and reported that one, although different from any other mark upon the ground since then, their report for that reason alone cannot be set aside.</p> <p>“Hence, the sixth, seventh and eighth exceptions are not sustained. In deciding the ninth exception, 11'eel constrained to say that the court has not hitherto given the contention about this boundary line the serious consideration and care it required. Important interests have been and are involved. The very fact that three different lines have been returned into the office of the clerk of the quarter sessions of Lycoming county since 1803 — each representing to be the true one, two of which (those of 1859 and of 1874) having been confirmed by the court — calls earnestly for a settlement of such uncertainty and dispute bj^ ascertaining and establishing, according to law, which one or either is the true one adopted or intended to be adopted in 1803.</p> <p>“ It is alleged in the ninth exception that Nos. 3, December Sessions, 1885; 61, December Sessions, 1886, and 2, March Sessions, 1887, relative to the ascertaining or location of said boundary line are pending and undetermined.</p> <p>“ In answer to this we find from the evidence before us— that of the files of No. 3, Dec. Sessions, 1885, and of Judge Eldred — that it appears to be regular up to confirmation nisi returned to the court and filed in the clerk’s office, where it remains of record with one half of a cover or face of the files torn off, and the whole having been submerged and nearly destroyed by the flood of June, 1889. By examination of the report itself we find it unconfirmed, but by careful comparison and by tbe testimony of Judge Eldred and S. D. Neybart, we find the line and termini therein reported to correspond exactly with the line run and reported by the present commissioners of 1889. And whilst the petitioners of 1889 might perhaps have asked the court to take up, complete and finally confirm the proceedings of 1885, yet they no doubt would have met with difficulty in getting it done. But by a proceeding de novo they doubled their risk and undertook to double their proof in support of their line. Besides citizens of the same township represented both petitions of 1885 and 1889. The reports corroborate each other, and the costs all having been paid, the beginning of the latter operates as an abandoning of the former by them, and in no way invalidates the latter, nor did it put the citizens of Shrewsbury township to any undue or unfair advantage to which they have any right to complain.</p> <p>“No. 61, December Sessions, 1886, and No. 2, March Sessions, 1887, are proceedings under one petition and order, but by different bodies of commissioners. It appears that upon the original petition, Stuart, Laird and Reeder were appointed viewers by the court, and from time to time continued by the court until 1887, when it was again continued and the above named persons ‘ released from service as viewers and the following surveyors appointed in their places: George W. West, Danville, Pa.; A. J. Guffy, Watsontown, Pa., and O. J. Reese, Goudersport, Pa., to which the commissioners of Shrewsbury township objected,’ etc. Subsequently an order issued to the first named commissioners to view, and the last named commissioners acting under it, they met all parties interested on the ground Dec. 27, 1887. After wonderful investigation, labor and care, they reported the three lines as filed in the clerk’s office, with conditional instructions to the court with reference to the approval of the same.</p> <p>“ It appears from other testimony in the case that the stricken off commissioners afterwards met on the ground and viewed under the same order, but no report of what they found or did appears. All proceedings under and by virtue of said petition of 61, December Sessions, 1886, are held to be irregular and void and were, no doubt, in the end so considered by the court at that time.</p> <p>“Dismissing the ninth exception brings the court to the point, under the act of assembly, of taking such action upon the line ascertained and proposed by the present commissioners to be established as shall appear just and reasonable.</p> <p>“ I have already disposed of the four different lines on file in the clerk’s office, previous to the one now under consideration. The first of these, the Benjamin line of 1804, because entirely out of joint and not made by authority of law. The second, the McHenry commission and line of 1859, and the West commission and line of 1874, for the reason that both are circuitous and not direct according to the one originally adopted by the court, asked for by the petitions of the citizens and called for by the orders issued. The third, the Judge Eldred commission and line of 1885, because neglected or overlooked, abandoned and effaced by the flood of 1889. But enough of it emerged and remained to verily the correctness of the line of the commission of 1889.</p> <p>“ In their report they say that ‘ having inquired into the propriety of granting the prayer of the petition, in the said order mentioned, they proceed to view, survey, ascertain and establish the boundary line between Plunkett’s Creek and Shrewsbury townships, in Lycoming county, making a plot or draft of said division line as is within the boundaries of Lycoming county. . . . Commencing at a stone heap near a hemlock tree on the north side of the Genesee road leading to Hill’s Grove, and on land of Elmer Reeder, the southeast corner of Elkland (now Plunkett’s Creek township), thence in a direct line to the Big Bend of Loyalsock creek, above what is commonly called Brimstone Palls.’ .... They further report ‘ that they are of the opinion, from all the evidence of both the inhabitants and the records produced before them, that the two points, viz.: the stone heap near the hemlock tree on the north side of the Genesee road leading to Hill’s Grove, being the southeast comer of Elkland (now Plunkett’s Creek township), the northeast corner of Wolf and Shrewsbury cornering there, and the Big Bend of Loyalsock creek, are the two distinct corners that have been recognized for fully three fourths of a century past and cannot be disregarded; and a direct line between the two points which your commissioners have established and marked by monuments and witnesses on the ground is the only correct line that can, in justice to and for the convenience of the inhabitants of both townships, be established. We are, therefore, of the opinion that the prayer of the petitioners should be granted accordingly.’</p> <p>“ Now, February 24, 1891, for the reasons given, the exceptions are dismissed and the report of the commissioners confirmed absolutely, as establishing the line as run and reported as, and for the boundary line between Plunkett’s Creek and Shrewsbury townships, as originally adopted by the court in 1808.</p> <p>“ I ask indulgence of all concerned for this voluminous opinion, believing that the condition in which I found the ease, the earnestness and ability of the counsel engaged in it, and its importance to the parties interested required a full examination. Costs for taking depositions and the record costs to be paid by the county of Lycoming.”</p> <p>An appeal was taken on behalf of Shrewsbury township.</p> <p>Errors assigned were, (1, 2, 5) lack of jurisdiction because the report of 1874 confirmed by the court was on record; (3, 4) the line having been established, this proceeding should have been to alter it; (6, 7, 8) because the commissioners without authority, instead of running the line of 1804, located a new line; (9) because the proceedings instituted in 1885 and 1887, relative to the location of this boundary line, were still pending and undetermined; (10, 11, 12) certain findings of fact; and (13) the decree entered, quoting it.</p>

<p>Eminent domain — Gonstitution, article XVI, section 8.</p> <p>A canal company, which places upon its dam permanent splash-boards, having the effect of raising the water, and hence increasing the area of the dam, is liable to a property owner under article XVI, section 8 of the constitution, for the injury resulting from the consequent increased overflow of his land occasioned by this “ enlargement of their works.”</p> <p>Practice — Amendment of narr — New cause of action.</p> <p>The narr originally filed having alleged damage occasioned by the use of splashboards on the dam, an amendment, setting forth that the overflow was also caused by the closing oí a chute in the dam, did not introduce a new cause of action and was therefore properly allowed.</p>

Appeal, No. 60, Jan. T., 1892, by defendant, Enoch Fritz, from judgment of C. P. Lycoming Co., Sept. T., 1890, No. 826, on verdict for plaintiff, James T. Glass. Trespass to recover damages for obstruction of natural water course.

<p>Appeal, No. 85, Jan. T., 1892, by plaintiff, Samuel A. Cook, to the use of Samuel Jeanes, from judgment of C. P. Clinton Co., Sept. T., 1872, No. 102, on verdict for defendant, George S. Matlack, administrator of Philip Billmeyer, deceased, who was a member of the firm of Billmeyer, Nogel & Co.</p> <p>Assumpsit on promissory note.</p> <p>The note on which suit was brought was as follows :</p> <p>“ Lewisburg, Pa., January 21, 1869.</p> <p>“ Four months after date we promise to pay to Samuel A. Cook, agent, $1,287, at the Union National Bank of Lewis burg, on contract for delivery of pine logs dated January 21, 1869.</p> <p>“ Billmeyer, Nogel & Co.”</p> <p>The defence relied upon was a failure on plaintiff’s part to perform his contract. It appeared that a contract between the parties for the sale of logs by plaintiff to defendant was made-December 3, 1868, and a second contract, the one referred to in the note, January 21, 1869. Plaintiff’s contention was that the later contract supplied and took the place of the earlier ; defendant’s, that they were independent agreements.</p> <p>Plaintiff having given notice to defendant to furnish copies of papers that defendant intended to offer in evidence, it appeared that upon the contract dated January 21, 1869, was the following indorsement:</p> <p>“ Upon the delivery of one hundred saw logs, marked S C in the boom at Flemington, in addition to those already delivered by Samuel A. Cook, we mutually agree to cancel and annul the within agreement and release all claims on the said Samuel A. Cook for any further delivery of logs under this agreement, and release all claims of every nature and kind under this agreement against the said Samuel A. Cook.</p> <p>“ Sam’l A. Cook.”</p> <p>Plaintiff’s counsel offered this writing in evidence for the purpose of showing that this contract was performed by Cook, at least substantially to the satisfaction of Billmeyer, Nogel & Co., and that they released Cook from any further delivery of logs under the contract. This was objected to by defendants and excluded by the court. [1]</p> <p>The court, Maten, P. J., charged the jury, in part, as follows:</p> <p>“ Now, this whole case depends upon the determination of this question of fact by the jury, whether this second contract is an independent contract for the delivery of an additional million feet of logs, that is in addition to the logs which were to be delivered under the contract of December 3, 1868. If this note was given for the logs to be delivered under this contract of December 3,1868, and that contract was merged in the contract of the 21st January, 1869, then we do not see any difficulty in the way of the plaintiff recovering the amount of the note and interest; but if from the evidence the jury believe there were two contracts, the contract of December 3, 1868, and the contract of January 21,1869, and this note was given as an advance upon the contract of the 21st of January, 1869, then the plaintiff is not entitled to recover, because it does not appear and it is not claimed that any logs were delivered under the contract of the 21st of January, 1869 ; that is if you come to the conclusion that it was an additional contract to the contract of December 3, 1868, because all the logs . which were delivered by Cook to Billmeyer, Nogel & Co. have been delivered under the contract of December 3, 1868.”</p> <p>Yerdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>JErrors assigned were, among others, (1) the rejection of the written indorsement upon the agreement of January 21, 1869, quoting the bill of exceptions; (7) the portion of the charge above quoted.</p>

Appeal, No. 328, Jan. T., 1892, by defendants, from decree of Q. S. Lycoming Co., Dec. Sess., 1891, No. 24, affirming order of removal. Appeal from order of removal of pauper. The facts appear by the opinion of the court below, Metzger, P. J., which was, in part, as follows : “ Sarah Johnson, the pauper, is the wife of Charles Johnson, and her settlement therefore is the district where he was last legally settled.

Appeals, Nos. 455 and 456, Jan. T., 1892, by defendants, Christopher J. Murphy and John C. Williams, from judgments of C. P. No. 4, Phila. Co., June T., 1890, Nos. 253 and 254, for want of sufficient affidavits of defence, in favor of plaintiffs, Benjamin F. Tayloy and F. Wardell Taylor, trading as B. F. Taylor & Co. Sci. fa. sur mechanics’ liens.

Appeal, No. 342, Jan. T., 1892, by plaintiff, J. Harvey Moore, from judgment of C. P. Bradford Co., Dec. T., 1891, No. 631, on case stated, in favor of defendant.

<p>Equity — Sale of land for lump sum — Deficiency in acreage in absence of deceit no ground for equitable relief.</p> <p>Defendant sold to plaintiff a tract of land, stating that he did not know the acreage and furnishing a description of the tract from his own deed, which described it as 213 acres more or less, in accordance with which description he conveyed it to plaintiff. It further appeared that plaintiffs were not injured, they having bought the land for timber and bark, of which they had had an estimate made before purchasing, though there was subsequently shown to be a shortage of 95 acres. It was</p> <p>Held, That the ease presented no ground for equitable relief.</p>

<p>Fire insurance — Policy — Condition against incumbrances — Condition against foreclosure.</p> <p>A condition in a policy that the assured shall not “ incumber the property without the consent of the company indorsed hereon,” is not broken by the fact that the insured allowed judgments to be entered against him, which became lions on the property insured, provided the total amount of incumbrance is no greater than when the insurance was effected.</p> <p>A condition that if any change take place in the title of the property, “ or if foreclosure suit shall have been or be hereafter begun, or the title or possession be now or hereafter become in any way involved in litigation,” the policy shall bo void, is not broken by the issue of a scire facias sur mortgage. The scire facias is not a technical foreclosure within the meaning of the policy, nor is it a violation of its spirit, since there has been no alienation of title or change of possession and increased risk.</p> <p>Proofs of loss — Failure to furnish within time specified — Waiver.</p> <p>Where a policy required that proofs of loss should be furnished within thirty days from the date of the Are, and a total loss occurred, of which prompt notice was given to the company, which sent its agent and adjuster to investigate, and the company denied all liability under its policy and the adjuster attempted to settle, and on failing left, saying that he would be back in a short time, and afterward, thirty-nine days after the fire, formal proofs of loss were furnished to the company, which retained them for eighty-six days without any objection thereto,</p> <p>Held, That no advantage could be taken by the company of the failure to furnish proofs within thirty days.</p>

<p>Appeal, No. 297, Jan. T., 1892, by defendants, Charles A. Allen et al., from judgment of Q. S. Bradford Co., Sept. Sess., 1891, No. 63, on verdict of guilty.</p> <p>Indictment for maintaining a public nuisance.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The indictment was in two counts. The first is set out in the opinion of the Supreme Court; the second charged defendants in substance with drawing great and unusual loads over the highway, by which damage was done to the roadway and bridges thereon, thereby endangering the safety and lives of the people using said highway.</p> <p>Defendants moved to quash the indictment. Overruled. [1] At the trial before Peck, P. J., the commonwealth submitted the following points, among others:</p> <p>“ 5. That the carrying of an unreasonable weight on a highway and over its bridges, thus endangering their safety, and wearing them out in very much less time than would be the case with the ordinary and reasonable use thereof, is a nuisance. And if the jury believe the defendants so did, they must find them guilty of at least the second count in the indictment. Answer: We affirm this proposition with the same qualification that we made as to the fourth point, namely, — if such use renders the roads or bridges dangerous or unsafe for public travel. [3]</p> <p>“ 6. That even if the jury believe the defendants had a right to run their traction engine over the public highway, but by their frequent and constant use of the same several times a day they prevented the public from their enjoyment of its use, then the defendants are guilty of maintaining a nuisance, and must be found guilty. Answer: We affirm this proposition. [4] ” The defendants submitted the following points, among others:</p> <p>“ 4. If the jury believe from all the evidence in the case that the defendants in running the traction engine over the highway, from Allen’s quarry to the station at Rummerfield, for the purpose of traffic, ran and managed the same properly, using such precautions as required by the act of assembly, for the safety of the traveling public, then such an use was lawful, and the defendants cannot be convicted upon the first count of the indictment. Answer ; We refuse this proposition. We leave it to you to determine whether their use was reasonable, and whether or not by its use they unreasonably interfered with the use of the road by the public. [5]</p> <p>“ 5. That under all the evidence in the case the defendants cannot be convicted upon the first count of the indictment. Answer : This is refused. [6] ”</p> <p>Verdict, “ guilty as indicted.”</p> <p>A motion in arrest of judgment was overruled after argument. [2] Defendants were sentenced to pay a fine of one dollar and costs, and abate the nuisance within five days. Defendants appealed.</p> <p>[Errors assigned were (1) overruling the motion to quash the indictment; (2) overruling the motion in arrest of judgment; (3, 4) affirming the fifth and sixth points of the commonwealth, quoting the points and the answers; (5, 6) refusing the fourth and fifth points of the defendants, quoting the points and the answers.</p>

<p>[Marked to be reported.]</p> <p>Streets — Dedication of by description and plan.</p> <p>When a proprietor of land lays it out in lots, which he afterwards conveys according to a plan which shows that the lots are upon a street, the conveyance of the lots bounded on the street is a dedication of the land covered by the plotted street to the use of the lot owners as a means of access to their lots.</p> <p>Title of grantor and grantee — Dasements—Subsequent vacation of street.</p> <p>In such a case the grantor can retain no title to such street against the lot owners, unless it is by virtue of an express reservation in his deed.</p> <p>Grantor conveyed certain lots referring to a plan, which plan showed that the lots were on one side bounded by a street 120 feet in width, in the centre of which was located the line of a railroad. The city plan at this time corresponded to the plan referred to by the grantor, and showed this street with a width of 120 feet, in the centre of whieh was the line or right of way of the railroad, having a breadth of 66 feet, or 33 feet on each side of the centre line of the track. On each side of the right of way was a strip 27 feet wide. Two years later the city, by a revision of its plan, abandoned this street alongside the railroad. The grantee advanced his buildings and fences so as to inclose the strip from which the city receded. The grantor then brought this action, alleging title to the strip thus surrendered by the city.</p> <p>Held, (1) That the deed conveyed to the grantee title to the centre of the street, along the entire street front of the lots conveyed, and that there was no title left in the grantor to the land within the lines of the street on which the lots were laid out, and that grantor would be estopped by his own deed from denying the existence of the street, or interfering with its use by grantee.</p> <p>(2) That the title of the grantee was subject to certain existing rights which he was bound to respect. These were (a) the right of the railroad company to 33 feet from the centre of the street for the purposes of its railway; (6) tire right of the city to the 27 feet between the railroad and the line of lots; (c) the right of lot owners on the plan of lots referred to in the deed to the use of the same 27 feet in breadth as a way of access to their lots.</p> <p>(3) The nature of grantee’s title to the strip of land in question is not involved in the case, and whether he has any interest in this strip of land other than as a way or means of access to his own and other lots fronting on the street, as it was shown to exist on the plan of lots referred to in his deed, is not determined.</p>

<p>Appeal, No. 345, Jan T., 1891, by defendants, Amy S. Powel et al., from judgment of C. P. Huntingdon Co., April T., 1886, No. 4, on verdict for plaintiff, John B. Weaver.</p> <p>Debt on award of arbitrators.</p> <p>At the trial before Furst, P. J., it appeared that plaintiff, in 1871, conveyed certain land to Robert Hare Powel, with the-proviso that the grantee should have the right to make use of adjacent land of the grantor for construction of roads, railroads, tramways, and erection of buildings, machinery, etc., paying to grantor within thirty days after entry a fair value for the land so taken, provided that in case the parties could. not agree upon a fair valuation then they should each choose ■one person, and the two persons so chosen should choose a third, who should go upon and view the premises and make a report under their hands and seals, a copy whereof should be given by them to each party, and should be final and conclusive, and the payment made accordingly within twenty days after the delivery of the copies aforesaid.</p> <p>Land having been so taken, in accordance with the provisions of the deed, William Ward on behalf of plaintiff and Thomas Keith on behalf of Powel were chosen arbitrators, and as they failed to agree, they selected John Ketterman as the third. A report having been prepared, Keith refused to sign it, and it was signed by the other two. The suit was brought upon this instrument.</p> <p>At the trial plaintiff made the following offer:</p> <p>“ Plaintiff offers in evidence agreement of submission dated the 26th of August, 1885, signed by John B. Weaver for himself and Edward McHugh, general manager for the defendant.</p> <p>“ The warrant is dated the 7th of January, 1886, and it is an award for $893.99. This to be followed with the testimony of John Ketterman and William Ward, the two viewers who have signed and sealed the same, to show that on the 7th of January, 1887, the three viewers, William Ward, Thomas Keith and John Ketterman, met on the premises to view the land, and agreed upon the sum of $893.99, and that Mr. Keith, who had been chosen by the Powels as their arbitrator, said it was all right, but he wouldn’t sign it until he saw the Powels, and he has never yet signed it.</p> <p>“ Defendant’s counsel objected to the offer as stated, that it is not a complete award as provided by the deed, and as the offer now is it is incomplete, being signed only by two viewers.</p> <p>“ The Court: We will receive the evidence for the present; the legal effect will be determined hereafter, and seal a bill for the defendant.” [1]</p> <p>Defendants offered to show a failure to give proper notice to defendants’ representative, Edward McHugh, of a meeting of the arbitrators under the terms of the submission. Rejected. [2]</p> <p>The court charged the jury, in part, as follows:</p> <p>“ If they agreed, it was the duty of these three men to sign the written report. If they did not agree that day, then there is no award here upon which this suit can he predicated. Mr. Keith did not sign this award. He has been called as a witness for the defendants and he swears to what occurred, you will re-col1 ect it in connection with the testimony of the other two viewers; he swears that after the three viewers had fixed their amounts or prices, a division of it was made, he said he would not sign the report until he saw the Powels or their representative. [Well now, if his purpose was to defeat the agreement of the parties, or if his purpose was not to» sign it unless the Powels directed him to sign it, he was not acting in that good faith that the agreement required.] [4] [If he agreed to the amount and then failed to sign- the report by any influence, which Mr. Powel or Powels or any of their representatives brought to bear upon him, we say that would not vitiate their agreement, if you find from the evidence that that was the reason which prevented him from signing the award.] [5]</p> <p>“If, however, he did not agree to that amount, as a viewer, on the 7th of January, 1886, then there is no award here such as is stipulated for by the parties and your verdict would then of necessity be for the defendants, and the case would then go-back, to be completed according to the agreement of the parties. But if they did agree and Mr. Keith refused to sign the award because he was influenced by the Powels not to do so, we do not think he could defeat the agreement of the parties and the result of the viewers in that manner.</p> <p>“ They made an award that day, which is signed by two of the viewers, and notice was given of it to the other side on the 14th of January, 1886, and that award became payable in twenty days from the 14th of January, 1886, if it be a good award as you may find from the evidence.</p> <p>“It is alleged as another branch of defence on the part of the defendants, that when the agreement of submission was entered into on the 26th of August, 1885, that there was a parol agreement, made between Mr. McHugh and Mr. Weaver that notice of the time and place of meeting of the ¡viewers should be given to both parties. Mr. McHugh, who represented the defendants, alleges that that agreement was entered into distinctly and that no notice was5 ever given, so that this award was an ex parte proceeding, made in the absence of the defendants.</p> <p>“ If that be a fact that an agreement was made to give notice of the meeting of the viewers and no notice was given, and this proceeding was conducted ex parte in the absence of the defendants, then it would not be binding upon them and the proceedings would have to go back again to be properly completed, and in that ease your verdict would have to be for the defendants.</p> <p>“ Mr. Weaver is called and he swears that no such agreement was entered into, so far as he recollects — he thinks there was not. He says repeated notices were given to Mr. McHugh, and that the viewers met and adjourned and met again and did not come to a final conclusion until the 7lh of January, 1888, and that for some reason or other Mr. McHugh did not attend. Mr. Weaver further claims by his counsel that the written agreement itself shows that there is no necessity for notice to be given; that it is not provided for in the written instrument; that the viewers were to go upon the premises that were taken possession of by the defendants and see what they had done there, and that there was no occasion therefore for a notice to be given, because the ground itself would show to the viewers what possession was taken by the defendants, and secondly, that notice was in fact given.</p> <p>“We say to you, gentlemen of the jury, upon the question whether or not notice was agreed to be given, you have the written agreement which does not provide for it; you have the testimony of Mr. Weaver in conflict with the testimony of Mr. McHugh, and you have Mr. McHugh’s testimony. You must first determine from all of the evidence whether or not there was a verbal agreement entered into at the time this award or submission was agreed upon, and if you find there was no such agreement to give notice then it would be immaterial although it would be a better practice that notice should be given.</p> <p>“ If, however, you find that notice was agreed upon to be given, then in fact was such notice given? You have the evidence of Mr. McHugh and the evidence of Mr. Weaver on that question.</p> <p>“ [If you find that the award was made under the principles we have given, that is that Mr. Keith refused to sign it because he was influenced by his principal, and that he had agreed to the amount, then we say the award is binding.] [6] If not, as we said before, your verdict must be for the defendants. If you further find that notice was to be given of the meeting of the view and it was not given, then your verdict must be given for the defendants. But, if you find that no such notice was stipulated for, or, if stipulated for, it was in fact given, then your verdict would be the other way and you would therefore find for the plaintiff.</p> <p>“ The plaintiff would be entitled to recover the sum mentioned in the award, — the sum of $599.99, with interest from 20 days after notice of the award to the defendants until the present time.” .</p> <p>Defendants submitted, among others, the following point:</p> <p>“ 1. That the award is incomplete and will not sustain an action, for the reason that the deed offered in evidence and read contained the terms of submission; that the entry upon the land is to be for any portion of the land embraced within the boundaries described and the adjacent land owned by Weaver so far as may be judged necessary by Robert Hare Powel, his heirs or assigns, and that the terms of the agreement as to the selection of viewers being in those words: ‘It is provided in case the parties cannot agree upon a fair value thereof, they will each choose one person, and the two persons so chosen shall choose the third, who shall go upon and view the premises and make a report under their hands and seals,’ contemplated an award to be signed by three viewers. The award offered in evidence being signed by two only, and the proceedings being at common law, and not by statute, it is incomplete under the terms of submission.” [3]</p> <p>Verdict for plaintiff for $1,067.07. Defendants moved for a new trial.</p> <p>In discharging the rule the court said:</p> <p>“ Defendants also contend that the award is fatally defective, because not signed by all three.</p> <p>“We submitted to the jury the question of fact whether all three viewers had met, consulted and agreed upon the amount to be allowed Weaver, and whether or not Keith assented to and agreed to this and whether he refused to sign until he could see his principals and find whether the amount was satisfactory to them; and if not, whether he was influenced by them or their agent not to sign the report; that if that was the reason why he did not sign the written award, it would not vitiate the award.</p> <p>“ That the proceedings before the viewers could not be avoided in that manner. We also instructed the jury that if Keith had not agreed to the award, then it was not binding under the covenant, etc.</p> <p>“We held on the trial that it required the agreement of all three viewers, and further, if after they had agreed the party on the one side prevented his viewer from signing the award, the other two could make a valid award under the deed.</p> <p>“We now think if we committed any error in so instructing the jury it consisted in holding the law too strictly against the plaintiff. We think the true construction of this covenant is that if the two chosen by the parties had, when they first went upon the premises, agreed upon the amount, there would have been no necessity of calling in the third viewer, who was to be chosen by the other two.</p> <p>“ Be this as it may, we required the joint agreement of the three viewers as to the amount of damages, and submitted to the jury the question of fact as to whether Keith had agreed with the other two, and whether through the influence of his principal he was influenced not to sign, etc.</p> <p>“ What constituted a good award in this case we think was fairly submitted to the jury, under the authority of Robinson v. Bickley, 30 Pa. 384, and cases there cited.</p> <p>“ It must not be overlooked that arbitrators chosen under a submission are the agents of the parties themselves: 1 Am. & Eng. Ency. of Law, 673. If therefore a party undertake to influence or in any manner prevent his own arbitrator from signing the award to which he himself had agreed, he ought not to be permitted to say that the award for that reason is invalid and void.”</p> <p>Holding also that interest had been improperly included in the verdict, the court directed that if plaintiff should file a remittitur of all of the verdict in excess of the sum of $773.07, the rule for a new trial should be discharged; otherwise rule to be made absolute.</p> <p>Remittitur filed accordingly and judgment entered for $773.07. Defendants appealed.</p> <p>Errors assigned were, (1) plaintiff’s offer as above, quoting the bill of exceptions; (2) rejection of defendants’ offer, quoting the bill of exceptions; (3) failure to confirm defendants’ first point, quoting the point; (4, 5 and 6) the portions of the charge in brackets, quoting them.</p>

<p>Appeal, No. 359, J an. T., 1891, from decree of Q. S. Clearfield Co., Feb. T., 1890, No. 26, dismissing an appeal from an order for removal of a pauper.</p> <p>Appeal from order of removal.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below, Krebs, P. J., found that the pauper had gained a settlement in Delaware township, Juniata county, by payment of taxes under the act of June 13, 1836, section 9, clause 2. The overseers of that township appealed.</p> <p>Errors assigned covered this finding by the court.</p>

<p>Appeal, No. 459, Jan. T., 1891, by defendant, Elizabeth C. Russell, from judgment of C. P.-Eiie Co., May T., 1891, No. 181, for want of a sufficient affidavit of defence.</p> <p>Scire facias sur municipal lien for reconstruction of sewer.</p> <p>A lien was filed against defendant as owner, or reputed owner, for the cost of reconstructing a sewer on Seventh street in the city of Erie. The defendant filed an affidavit of defence, the substance of 'which appears by the opinion of the Supreme Court.</p> <p>The court, Gunnison, P. J., gave judgment for want of a sufficient affidavit.</p> <p>Errors assigned were, (1, 2) making absolute the rule and entering judgment.</p>

<p>Appeal, No. 9, Jan. T., 1892, by defendant, John Pitcairn, from decree of C. P. No. 3, Phila. Co., Dec. T., 1889, No. 398, for plaintiff, Michael Brown.</p> <p>Bill to enforce specific performance of contract for sale of real estate.</p> <p>The bill was filed against John Pitcairn alone.</p> <p>Before James Penn MacCain, Esq., the master, to whom the case was referred, it appeared that plaintiff wanted a lot on which to erect a blacksmith shop. His friend, Byers, was sent by him to B. F. Glenn & Sons, real estate agents, who had been intrusted by defendant with the sale of a lot belonging to him. Byers concealed the object for which the lot was wanted. He was told that defendant wished to sell to some one who would improve, and thus benefit the adjoining property. Plans were sketched to show how dwellings would be built on the lot; there was a conflict of testimony as to whether plaintiff or Byers for him agreed to build dwellings. Plaintiff told Glenn that he was employed at the Baldwin Locomotive Works, which was false, and Byers confirmed the story. Subsequently an agreement of sale was executed. This agreement contained no promises or agreements as to the character of the buildings to be erected. After the signing of the agreement plaintiff disclosed his purpose of erecting a blacksmith shop, and defendant refused to execute a deed. The facts are further stated in the opinion of the Supreme Court.</p> <p>The master recommended a decree that defendant and his wife be directed to execute a deed for one half the property (it having been shown that defendant owned only a one half interest therein), on payment of one half the purchase money by plaintiff.</p> <p>Exceptions were filed to the report of the master in finding as a fact that no promises or agreements were made by plaintiff inducing the agreement of sale as to the purpose for which he would use the premises which he proposed to buy, and that the agreement contained within itself everything that either party was bound to observe [1-5] ; because the master failed to find that the plaintiff was guilty of a fraud in obtaining the contract, intended to deceive the defendant as to the character of the buildings to be erected, and in obtaining the contract violated good conscience, good faith and fair dealing [6-8] ; because the master failed to find that as matter of law the plaintiff was not entitled to any relief in equity [9] ; because the master reported a decree that defendant and wife convey all their undivided one half interest in the property in question to plaintiff, and pay the costs of this proceeding [10] ; because the master failed to report a decree that the plaintiff’s bill be dismissed and that plaintiff pay the costs. [11]</p> <p>These exceptions having been dismissed by the court, no opinion being filed, and the decree in the form recommended by the master having been entered, defendant appealed.</p> <p>Errors assigned were, (1-11) the dismissing of the above exceptions, quoting the exceptions ; (12) because the court erred in confirming the report of the master.</p>

<p>Appeal, No. 73, Jan. T., 1892, by defendant, Josephine Falkenhagen, from judgment of C. P. No. 1, Philadelphia Co., June T., 1891, No. 750, in favor of Oliver B. De Morat, plaintiff, for want of a sufficient affidavit of defence.</p> <p>Assumpsit to recover one month’s rent.</p> <p>The plaintiff’s statement claimed to recover of the defendant one month’s rent for premises demised under a lease under seal, of which a copy was annexed to the statement.</p> <p>The affidavit of defence, of which the material portions are given in the opinion of the Supreme Court, alleged a surrender by lessee and an acceptance by plaintiff’s agent.</p> <p>The court entered judgment for the plaintiff for want of a sufficient affidavit of defence, and defendant appealed.</p> <p>Error assigned was the entry of judgment against the defendant.</p>

<p>Appeal, No. 154, July T., 1891, by Mary Martin et al., residuary legatees, from decree of O. C. Philadelphia Co., April T., 1890, No. 140, in the estate of Jane Adams, deceased.</p> <p>The testatrix, Jane Adams, by her will, gave sundry pecuniary legacies, and devised several pieces of real estate, and then concluded as follows:</p> <p>“ Seventh. All the balance of my personal estate, after the payment of my debts and the aforesaid legacies, I give, devise and bequeath unto my said two sisters, Mary Martin and Isabella Walk, their heirs, executors and administrators.</p> <p>“Eighth. In order to pay any of my debts or any of the aforesaid legacies, I authorize, empower and direct my executors hereinafter named to sell, either at public or private sale, my house and lot of ground, No. 1789 Latona street, to make, execute and deliver unto the purchaser or purchasers thereof all necessary deeds of conveyance, and without any liability on the part of the purchaser or purchasers to see to the application of the purchase money.”</p> <p>Within three weeks of the date of the death of the testatrix, her executor advertised and sold this particular piece of real estate. The two sons of the testatrix, who were her only heirs at law, objected to the sale on the ground that the personal estate of the testatrix was primarily liable for the payment of her debts and legacies and was sufficient for the purpose, and that therefore no reason existed why the real estate should be sold. Upon their petition an injunction was granted and the matter referred to an examiner and master, and while it was still pending, the account of the executor having been filed came up for audit. The master, Robert J. Williams, Esq., reported in favor of the sale.</p> <p>At the audit it appeared that the personal estate amounted to $1,819.80, and the debts and legacies to $1,250, in addition to which Thomas Adams, one of the testatrix’s heirs, presented a claim for $641, offering at the same time to abate the claim to such an extent that the personal estate should not be exhausted. The auditing judge (Ashman, J.) held that the accountant was justified in making the sale, saying:</p> <p>“He was not bound to await a judicial determination of the validity and amount of the indebtedness where there was no reason to suspect fraud or mistake. But the will authorized him to sell in order to pay any of the debts or legacies, and he received, moreover, from Thomas Adams a letter from the counsel of the claimant, setting forth that Thomas Adams was entitled to two thirds of the rents of both houses, which, if allowed, would unquestionably have required the sale to be effected. As to the terms of the power, it is sufficient to say that if the testatrix did not intend to sell she must have intended to die intestate of the property, because she made no disposition of it as realty. On the other hand, if when she directed her executor to sell in order to pay any debt or given legacy, she intended a conversion, her whole will was consistent, because her residuary gift embraced all her personal estate in payment of legacies. The auditing judge thinks that the injunction should be dissolved and the sale confirmed, and so decrees.”</p> <p>Exceptions to the adjudication filed on behalf of the heirs of the testatrix were sustained by the court in an opinion by Ferguson, J., and the executor enjoined from selling the real estate, or distributing the proceeds thereof in payment of legacies, the court holding that the same had not been converted, but remained the property of the heirs at law.</p> <p>Mary Martin and Isabella Walk, residuary legatees, took this appeal.</p> <p>Errors assigned were (1) refusal to sustain a conversion of the Latona street house and lot; (2) failure to distribute the balance of the fund realized by such sale as personalty to the residuary legatees.</p>

<p>Appeal, No. 258, Jan. T., 1892, by plaintiff, Elizabeth Harrington, from judgment of C. P. Chester Co., August T., 1889, No. 71, refusing to take off nonsuit entered on motion of defendants, Joseph P. Hickman, et al., executors of Joseph Pratt, deceased.</p> <p>Before Paxson, C. J., Sterrett, Green, Williams, McCollum, Mitchell and Heydbick, JJ.</p> <p>Assumpsit to recover wages at the rate of $5.00 per week for nursing and taking care of defendants’ testator.</p> <p>At the trial the evidence was to the following effect: Joseph Pratt was an old man over eighty years of age at the time of his death, and very feeble. In addition to the general infirmities of his age, lie suffered from disease of the bladder and kidneys, and in addition to this was very intemperate and, as his physician testified, hard to manage and care for. The plaintiff was not related to him either by blood or marriage, but was engaged by him as his housekeeper and nurse, serving in this double capacity from July 15,1883, to December 1, 1886, when, her health becoming impaired, she was obliged to leave, and Pratt employed two persons, a housekeeper and a nurse, to perform the services which she had formerly rendered. It was shown that by a contract between them she was to receive $1.00 per week. This she claimed was for her services as housekeeper merely, and that by a distinct understanding she was to receive compensation for her services as nurse from the ex- ' ecutors of Pratt after his decease. The testimony in support of plaintiff’s contezztion appeaz’s by the opiziion of the Supreme Court.</p> <p>At the conclusion of plaintiff’s case, the court on motion of defendants, entered a compulsory nonsuit, and subsequently refused to take it off. Plaintiff appealed.</p> <p>.Error assigned was the refusal of the court to take off the nonsuit.</p>

Appeal, No. 450, Jan. T., 1891, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1888, No. 95, on verdict for plaintiff, Daniel Whitmore. Assumpsit on a policy of insurance. At the trial before Gunstbr, J., the evidence was to the following effect: On April 15, 1888, property on which plaintiff held a policy in defendant company was totally destroyed by fire.

<p>[Marked to be reported.]</p> <p>Constitutional law — Classification of cities — As to what classes of subjects constitutional — Grading and paving of streets — Act of May 23, 1889.</p> <p>The test by which is to be determined the constitutionality of a law relating to cities of a particular class is the subject-matter to which the law is applicable. If it relates to subjects of municipal concern only, it is constitutional because operating upon all members of the class, and therefore a general law. If it relates to subjects of a general, as distinguished from a municipal character, it is local and therefore invalid, although it may embrace all the members of a class.</p> <p>The subject of the grading and paving of streets is clearly and exclusively one for municipal control. The power to collect the cost of the work so done by any appropriate form of taxation is a municipal power. Therefore-an act upon this subject relating to one of the classes of cities is constitutional.</p> <p>So far as such an act applies in such cases the regular and settled course of procedure, as for example, the filing of a lien for assessments, with the usual procedure thereunder, it does not offend against the constitution by providing for peculiar local procedure.</p> <p>Semble, That any provision varying the usual course in such eases by providing a special period of limitation, duration of lien or similar special provision, would be unconstitutional;</p> <p>The act of May 23, 1889, art. XV., P. L. 317, is not unconstitutional as a whole. Whether certain of its provisions, for example, those providing for the duration of a municipal lien, the effect of a sheriff’s sale thereunder, etc., ai’e unconstitutional, not decided.</p>

<p>Water companies — Act of April 29, 1874 — Appropriation of a stream.</p> <p>The act of April 29, 1874, section 34, P. L. 93, authorizing water companies incorporated under the provisions of the act to appropriate to their use the waters of a stream, contemplates a single taking and one assessment of damages. In an issue framed on an appeal from an award by viewers of damages for such taking, and where the pleadings in conformity with the act rest upon a bond filed by defendant company, which shows that a permanent appropriation of the entire stream was intended evidence on defendant’s part that the water of the stream was not entirely exhausted, but sufficient remained for plaintiff’s uses, is immaterial.</p> <p>Water companies — Measure of dam,ages for property taken.</p> <p>In cases of such taking, the measure of damages is the difference in value of the whole property before and after the appropriation of the stream. The rule is to inquire what would the entire property unaffected by the appropriation have sold for, and what would it sell for as affected by tlie appropriation. The difference is the true measure of compensation.</p> <p>The jury must consider the question of damages without reference to the person of the owner, or the actual state or profits of his business. At the same time they may consider the use to which a property may be put, and if, by reason of its location or use, it may be worth more than if used for other purposes, its market value is governed accordingly.</p> <p>Evidence — Assessment for taxation — When admissible.</p> <p>Assessments or valuations for taxation are a very unreliable measure of market value at the time they are made. Their relation to the true value of the property is known to vary greatly in different counties.</p> <p>While a recent assessment of this nature would have been admissible in evidence, one made eight years before the taking of the property of which the value was in dispute was properly rejected by the court, considering that in addition to the unreliability of such assessments as a measure of value the one offered was too remote in point of time.</p> <p>Practice — Motion to strike out testimony — Assignment of error.</p> <p>Where a portion only of a witness’s testimony is objectionable, a motion to strike out the testimony of the witness, without specifying the objectionable portion, was properly rejected by the trial judge.</p> <p>An assignment of error to such ruling of the court which recites only that portion of the witness’s testimony to which objection is taken, is improper, since it fails to conform to the motion in the court below, which was to strike out all of the testimony.</p>

<p>[Marked to be reported.]</p> <p>Practice — Case stated — Presumptions of fact.</p> <p>A case stated, when well drawn, is like an issue developed by special pleading, and presents in a single point, or in a series of points, the very matter that is up for judgment. The court cannot go beyond the issue that is thus brought upon the record, however manifest the justice that might be reached by going farther. The duty of the court is to decide the case that is stated and to presume that what is not included was kept out for sufficient reason: Phila. & Reading R. R. Co. v. Waterman, 54 Pa. 387.</p> <p>A presumption of one fact from others is an inference of fact, and although, according to a rule of law, the jury may be bound to make the presumption, yet the court cannot make it without them: Diehl v. Ihrie, 3 Wharton, 1T3.</p> <p>Municipalities — Public contract — Deposit—Forfeiture.</p> <p>By the ease stated it appeared that the plaintiff was the successful bidder for the construction of sewers in the city of Easton, according to certain plans and specifications, and that as required by the city, he had deposited with the city treasurer a certified check for $2,000 as security that he would enter into a contract for the performance of the work, and that he had failed to enter into such contract. The receipt of the city treasurer, which was made a part of the case stated, contained the clause, “ which check, if the same shall not be declared forfeited by the said department of sewers, will be returned to the said S. B. Mutchler”:</p> <p>Held, (T) That in the absence of a statement in the case stated that the check had been declared forfeited by the said department, the court must assume that no such forfeiture had taken place, and judgment must be entered for the plaintiff.</p> <p>(2) The contract of the parties, and hence the law of their relation, was that plaintiff was entitled to a return of his check in the absence of a declaration of forfeiture by the department of sewers. As the city has the undoubted power to pay debts that are due, according to the terms of its contract there can be no question as to plaintiff’s right to recover. ,</p>

Appeal, No. 53, July T., 1891, by plaintiff, Jacob L. Grim, from judgment of C. P. Northampton Co., June T., 1886, No. 3, on verdict for defendant, Charles H. Reinbold. Replevin for goods bought at sheriff’s sale.

<p>Appeal, No. 126, Jan. T., 1892, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1888, No. 88, on verdict for defendant.</p> <p>Scire facias on claim for registered taxes.</p> <p>At the trial before Pennypacker, J., the evidence was to the following effect:</p> <p>• The city of Philadelphia filed a lien for taxes against a piece of ground in the 24th ward of the city of Philadelphia, on which was erected a three-story stone building belonging to the Jewish Hospital Association. Prior to 1873, this property had been used and occupied as a hospital. In that year the association removed to Germantown in the 22d ward of the city of Philadelphia, and the property in the 24th ward had not since been used for hospital purposes.</p> <p>The defendant claimed exemption, under special act of April 8,1867, P. L. 937.</p> <p>The court below directed the jury to find a verdict for defendant.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>JErrors assigned were (1) directing a verdict for defendant; (2) failure to direct a verdict for plaintiff.</p>

<p>Appeal, No. 66, Jan. T., 1892, by defendants, John H. Fellows, mayor of city of Scranton, et al. from decree of C. P. Lackawanna Co., Sept. T., 1891, No. 9, awarding a preliminary injunction at the suit of plaintiff, Horace E. Hand.</p> <p>Bill in equity praying an injunction to restrain the mayor and the city controller from entering into a contract for paving, in pursuance of an ordinance of the city of Scranton.</p> <p>The bill alleged that plaintiff was the owner of property abutting on Clay avenue in the city of Scranton, and that the city councils had passed an ordinance providiiig for the paving and curbing of that street, and for the assessment of the cost of such improvement against all abutting property owners, according to the “ foot-front ” rule ; that such ordinance was passed under the provisions of the act of May 23, 1889, on August 18,1891, and that said act of assembly was superseded and repealed by the act of May 16,1891, providing that assessment for such improvements should be made according to benefits; that said assessment is therefore illegal, and that this bill was filed on behalf of plaintiff and other property owners affected who might wish to come in.</p> <p>The bill prayed a preliminary injunction, restraining the mayor from entering into or executing any contract for paving in front of plaintiff’s property in pursuance of said ordinance and the controller from approving such contract, such injunction to be made permanent on final hearing, and that such ordinance and the assessment thereunder by the “ foot-front ” rule be declared illegal and void, and for general relief.</p> <p>The court, Gunster, J., granted a preliminary injunction as prayed for, and defendants appealed.</p> <p>Error assigned was the granting of the preliminary injunction.</p>

<p>Appeal, No. 274, Jan. T., 1892, by plaintiff, George McCall, from decree of C. P. Delaware Co., dismissing bill filed against Joseph R. T. Coates, mayor, and William H. Hall, controller, of the city of Chester.</p> <p>' Bill in equity praying an-injunction to restrain the mayor and city controller from entering into a contract for paving in pursuance of an ordinance of the city of Chester.</p> <p>Plaintiff’s bill in this case was similar to that filed in the preceding case. It alleged that an ordinance had been passed for the paving of Seventh street in the city of Chester, under act of May 23,1889, that that act was unconstitutional, and also that it was superseded and repealed by the act of May 16,1891, and prayed an injunction against the mayor and controller restraining the first from making and the second from approving a contract in pursuance of the said ordinance.</p> <p>The case was heard on bill, answer and replication, and the court, Clayton, P. J., delivering an opinion, dismissed the bill at the costs of the plaintiff. Plaintiff appealed.</p> <p>Errors assigned were (1) the decree dismissing plaintiff’s bill; (2) failure to award an injunction as prayed for.</p>

<p>Appeals, Nos. 235 and 236, Jan. T., 1892, by defendant, Staugliton George, controller of the city of Williamsport, from decrees of O. P. Lycoming Co., Nos. 398 and 399, Dec. T., 1891, awarding peremptory mandamus at the suit of the Commonwealth at the relation of F. H. Keller, mayor, et al., and at the suit of the Commonwealth at the relation of John Jacoby.</p> <p>Petitions, the one by the mayor and councils of the city of Williamsport, and the other by John Jacoby, contractor, each praying for a mandamus against the city controller.</p> <p>The petitions set forth that an appropriation of 130,000 was duly made for the construction of sewers in the city of Williamsport by ordinance of councils, and that subsequently an ordinance was passed providing for the making of a contract for the construction of a sewer on Mulberry street in that city, and that a contract in due form was entered into with John Jacoby; that this contract was delivered to defendant to be certified, in accordance with the provisions of the act of May 23, 1889, art. IX, sec. 5, and that he refused to certify the same.</p> <p>The defendant’s answers averred that there was no legal and valid appropriation made to carry into effect the contract between the city and the relator, Jacoby, for constructing a sewer on Mulberry street, because the ordinance authorizing the construction of sewers provided for assessing the cost thereof on the property benefited by viewers appointed by the court of common pleas of Lycoming county, in pursuance of the act of assembly of May 13, 1891, sec. 8, P. L. 75, and until the deficiency in the cost and expenses of said sewer was finally ascertained as provided in said act, there could be no legal appropriation therefor. Respondent denied that it was his duty to certify said contract, because in the proper discharge of the duties of the office of city controller of the city of Williams-port, the respondent was vested by law with judgment and discretion, and having exercised that judgment and discretion by refusing to certify said contract, and having given his reasons therefor to the city councils, the court of common pleas of Lycoming county cannot compel the city controller by mandamus to certify said contract. Respondent further averred that the ordinance in question was illegal and void.</p> <p>Plaintiffs demurred.</p> <p>The court granted the mandamus, Metzger, P. J., delivering the following opinion:</p> <p>“ This is an application for a mandamus to require the city controller to certify a contract entered into between John Jacoby, of the one part and the city of Williamsport, of the other part, for the construction of a sewer in Mulberry street, from Fourth street to the river, by the said party of the first part, in pursuance of an ordinance passed by the select and common councils of said city, known as ordinance No. 441.</p> <p>“ The controller, for the reasons stated in his answer to this application, refused to certify this contract, and it therefore could not take effect as a valid contract. Section 5, of article IX, act of 1889, P. L. 303, which requires this certificate, reads as follows: ‘ Every contract involving an appropriation of money, shall designate the item of appropriation on which it is founded and the estimated amount of the expenditure thereunder shall be charged against such item, and so certified by the controller on the contract before it shall take effect as a contract, and the payments required by such contract shall be made from the fund appropriated therefor. If the controller shall certify any contract in excess of the appropriation made therefor, the city shall not be liable for such excess, but the controller and his sureties shall be liable for the same, which may be recovered in an action at law by the contracting party aggrieved. ' It shall be the duty of the controller to certify contracts for the payment of which sufficient appropriation has been made.’</p> <p>“ There are but two questions involved in this case :</p> <p>“ First. Whether a sufficient appropriation had been made for this contract?</p> <p>'■'■Second. Whether the duty of the controller under the above section is discretionary or merely ministerial ?</p> <p>“ If there was a sufficient appropriation, and the duty of the controller is merely clerical or ministerial, then the writ of mandamus asked for in this case should issue.</p> <p>“By an ordinance of the city of Williamsport, approved April 6, 1891, known as No. 430, there was appropriated and set apart, out of the general revenue of said city, for sewers, the sum of $30,000, and by ordinance No. 441, above referred to, there was appropriated out of this fund the sum of $1,900 for the sewer in Mulberry street. The sum for which the work on this sewer was agreed to be done by the relator is $1,858.75, which is less than the amount appropriated for the same.</p> <p>“But it is earnestly contended that this appropriation is illegal. After carefully considering the reasons given by the controller, and after hearing the arguments of counsel in this case, we cannot sustain this position. It is sought, in the first instance, to pay for the construction of this sewer out of the general revenue. We think it cannot be doubted but that it is one of the inherent and implied powers of the city to pave, grade, sewer and otherwise improve its streets, and to pay therefor; and that this power exists without any express legislative grant. This inherent power of the city clearly exists unless it has been taken away by some legislation. The act of 1891, which is relied on as taking away this power, in no wise affects it. This act provides for a mode of assessing the damages on the properties benefited, and was not intended to deprive the city of the general power to make these improvements at the expense of the city.</p> <p>“ But if this implied power did not exist, the 1st section of article XIII, of the act of 1889, expressly empowers city councils to construct or reconstruct sewers of all kinds, and to pay therefor out of the general revenue of the city. There is nothing in the act of 1891 inconsistent with this provision of the act of 1889, and it is therefore not repealed by implication. The part of the act of 1889, providing for the assessments upon properties benefited as the councils may determine, is supplied and repealed by the act of 1891, which provides that these assessments shall be made by viewers appointed by the court. There is nothing whatever in this latter act from which it can be inferred that the method provided therein for assessing the cost of these improvements was intended to limit the power of councils to pay for the improvements in that way alone. The power therein given is additional to the power to do this work at the expense of the city. Whether the ordinance in controversy is properly drawn, and the property holders may defend or not on the ground that an assessment should have been made before the contract was entered into, is not the question now before us. All that is pertinent to the issue that is involved in this proceeding is, whether there was a sufficient appropriation, and this depends solely on the question whether the appropriation made out of the general revenue was within the power of councils ? If so, it was clearly the duty of the controller to certify the contract. The fact that it was sufficient in amount is not controverted, and we think the appropriation likewise legally made.</p> <p>“This, however, is not the principal question involved in this ease. The question now to be determined depends upon the construction given to the 5th section of article IX of the act of 1889. Has the controller, under said section, discretionary power, or is his duty only ministerial ? His duties are statutory, and as far as relates to the subject in controversy are contained in the section of the act of 1889 above referred to. He had no such duty to perform under the act of 1874, but under that act he had other duties, among which were the duties conferred upon him which are enjoined upon county auditors by the laws of this state, while under the act of 1889 this provision is entirely omitted.</p> <p>“ The case of Runkle v. Commonwealth, 97 Pa. 328, and the case of Dechert v. Commonwealth, 113 Pa. 229, do not rule the question here involved. These decisions were based upon the fact that under the act of 1874, and the acts governing the controller of the city of Philadelphia, his duties were such as to require judgment and discretion, and therefore were not ministerial. In both these cases, the court put great stress upon the fact that there was imposed upon him by the laws of the state all the duties now enjoined by law upon county auditors of the state. In case of Dechert v. Commonwealth, supra, Justice Clark, in delivering the opinion of the court, inter alia, said: ‘ It was his duty in any case, before countersigning the warrant, to know that the appropriation necessary for each department had been made, and that the total was within the estimate of the income, as required by the act of 1879; to be satisfied that the warrant covered items for which appropriations had been made, and that these appropriations had not been exhausted, as required by the act of 1856 ; these inquiries, as they involved no particular exercise of discretion, are perhaps of a clerical and therefore of a ministerial character only. But other duties devolved upon him ; as the superintendent of the fiscal affairs of the city, (act 2d Feb., 1854,) it was his duty to do what he might “ deem needful to protect the interests of the said city.” (Act 13th Feb., 1856.) To this end, (act 2d Feb., 1854,) he was invested with all the powers and directed to perform all the duties enjoined by law on county auditors; and as a legal sanction to the just and full performance on his part of these duties, in the interests of the city, it was declared (act 21st April, 1855) to be a misdemeanor in office, and so subjected him to the pains and penalties of the criminal law, if he should “ pass any bill or order for any object not authorized by law.” ’</p> <p>“ It will also be noticed that both the cases cited arose out of the refusal of the controller to countersign certain warrants drawn on the city treasurer. In both cases, therefore, the party had a legal remedy, notwithstanding the refusal of the controller to countersign the warrants. In the case of Dechert v. Commonwealth, supra, the court, on page 240, say: ‘ In the event of the controller’s refusal to countersign any warrant, the courts of the commonwealth are open for vindication of the claimant’s rights as against the city, and if these alleged rights are submitted to the decision of a court of competent jurisdiction and are there finally adjudicated in his favor, either the neglect of councils to provide for payment, or the refusal of the controller to countersign a warrant in discharge of a legally ascertained liability of the city, would present a different question here.’</p> <p>“ In the case at hand, if the duty of the controller to certify contracts is discretionary, both the contractor and the city is without remedy. It gives the controller a final veto wherever an appropriation of money is involved. That such a power should be intrusted to the city controller, who requires no qualification except the qualifications prescribed by the act of assembly for city treasurer, seems marvelous. We cannot, from a careful reading of the act, come to any such conclusion. The last sentence of section 5 of the act above quoted uses the following imperative language: ‘ It shall be the duty of the controller to certify contracts for the payment of which sufficient appropriations have been made.’ There is nothing whatever here which requires judgment and discretion. It is true, he must have knowledge of a fact, to wit: The fact that a sufficient appropriation has been made. This knowledge requires neither judgment nor discretion. To perform clerical duties, in most instances, requires a knowledge of some fact or facts. Where such fact or facts are acquired by mere inspection without the exercise of judgment, it cannot be said to confer on the party judicial or discretionary duties.</p> <p>“ We do not undertake to say that none of the duties of the controller, prescribed by the act of 1889, are discretionary. Wherever anything is required of him which requires the exercise of judgment, his duties are of this character, and in such case we could not control him by mandamus or otherwise. All we decide is that his duties under the fifth section of article IX of said act, in relation to certifying contracts, are ministerial only. There is no inconsistency in the same officer being vested with both judicial and ministerial duties. This is true in the case of many officers, and the courts will enforce the performance of merely ministerial duties, but have no power to coerce the performance of duties which require judgment ' and discretion, and are therefore discretionary.</p> <p>“We think it is unnecessary to consider the other reasons contained in the answer of the respondent.</p> <p>• “And now, to wit: the fifth day of January, 1892, it is ordered that a mandamus issue in accordance with the prayer of the relator.”</p> <p>Defendant appealed.</p> <p>jErrors assigned were (1) granting the mandamus; (2) not dismissing the petitions of the relators ; (3) sustaining the demurrer and awarding the writ.</p>

Appeal, No. 103, July T., 1891, by petitioner, Theodore N. Kates, from decree of O. C., Phila. Co., Jan. T., 1886, No. 305, dismissing petitions filed in the estate of William Kates, deceased. Petitions praying for an inquest in partition and for an issue to the common pleas to try the question of fact whether or not petitioner is a son of William Kates and Eliza Jane Kates, deceased.

<p>Appeal, No. 286, Jan. T., 1892, by plaintiff, from judgment of C. P. Bradford Go., Sept. T., 1891, No. 799, on verdict for defendant, Harry Phillips.</p> <p>Action to recover penalty for violation of borough ordinance.</p> <p>The facts appear by the charge of the court below, Peck, P. J., which was as follows:</p> <p>“ You have been sworn in the case of the Borough of Sayre against Harry Phillips; an action brought by the borough of Sayre against this defendant for the purpose of collecting a fine or penalty growing out of an ordinance passed by the borough on the 13th of July, 1891, known as ordinance number 28.</p> <p>“ The evidence in the case shows that this defendant between the 6th and the 25th of August; between the time this ordinance went into effect and the day he was arrested, took orders in the borough of Sayre to be filled at Waverly in the state of New York, and on the following day he delivered the goods, which had been ordered the day previous : That this defendant is in the employ of T. S. Walker & Son, and was their agent for the purpose of obtaining orders, and delivering these goods.</p> <p>“ I think there is no evidence in this case of the distance between Waverly and the borough of Sayre.</p> <p>“ It is contended on the part of the plaintiff that this was in direct violation of the ordinance of the 13th of July, 1891; and if this ordinance is legal, we would be disposed to instruct you that this defendant had violated the provisions of this ordinance ; because he admits upon the stand that he took orders, and delivered the goods in pursuance of these orders, in the borough of Sayre, and that he had no license for that purpose : That while he was a resident himself of the borough of Sayre, he had no place of business in that borough.</p> <p>“ Under the second section of the act of April 3, 1851, the borough authorities have the right to make all needful regulations respecting markets, and market days; the hawking, peddling of market produce, and other articles in the borough, and for inspection, measurement or weighing of cord wood, hay, coal and other articles, sold or offered for sale in the borough. To make all needful regulations. That is, they can regulate the trade and the traffic mentioned in this article. Ordinances of this kind must be reasonable. It should not be oppressive. It should be lawful and constitutional. It should not be in restraint of trade, nor in prohibition of it. If it is, then it is the duty, as we believe, of this court so to pronounce it.</p> <p>“ This defendant is charged with the sale of groceries in the village of Sayre without a license. This ordinance provides this: That in order to sell groceries under the provisions of this ordinance, for dealers in dry goods, notions, groceries, provisions, teas, coffees, spices, etc., three dollars per day, $15.00 per week. It is in evidence that the sales of Walker & Co. amount to $500 per month. According to this license the tax upon them per month, according to this ordinance, would be $60.00 or 12 per cent upon all the goods that they sold in the borough. [If he is a permanent dealer, and the evidence is that he has been engaged in delivering goods in this locality for the last 12 years, and long before this borough was organized; the evidence being that it was organized sometime in March or February last; that he has continued during the last 12 years, and he is still selling goods, claiming the right to do so. If he is a permanent dealer, and is permanently engaged in this business, it will cost him per year the sum of $780. Is this in restraint of trade? Is it a fair trade regulation? Or was it as virtually admitted by the counsel who argued the case on the part of the plaintiff when he said if people could not afford to pay this tax, they could keep out. Is it in restraint, and prohibition of trade ? Because persons who reside in this borough, by taking out a mercantile license, have a right to trade without paying anything at all, while those who reside out of it, unless they have a place of business, and pay the mercantile tax in addition, must, if they engage in the sale of groceries, pay the sum of $3.00 per day, $15.00 a week, $60.00 a month, and $780 a year. Can this be said to be a fair trade regulation ? Is it not in restraint of trade ? In prohibition of trade ? In the judgment of this court a regulation which taxes a man at that rate, it seems to me, is clearly intended for the purpose of restraining trade, and prohibiting trade instead of regulating it, and that such an ordinance is void.] [2]</p> <p>“ [It has been argued to this court, that there is no power in this court to restrain a municipality from putting any amount of tax upon those who desire to deal within its corporate limits. That they themselves are the sole judges; that they may fix the tax at $3.00 a day or $300. That they are to be the sole judges, and that this court has no power to pass upon an ordinance so declared. That if the people of a municipality will stand it, that the courts of this commonwealth have no power whatever to control the municipality in relation to the restraint of trade. We believe, gentlemen, that such is not the law.] [4] If it is the Supreme Court must say so, before we will so hold.</p> <p>“ The fact that Towanda borough or any other municipality has an ordinance which is oppressive, illegal, unjust, and in restraint of trade is no justification for Sayre. Sayre borough and this ordinance must stand upon its own merits. It must stand or fall upon its reasonableness. Is it reasonable, and is it a regulation of trade ? [The people we think have a right, both as a police regulation, and as a right under the act of 1851, to make a fair regulation, which shall be for the protection of the people. Not in restraint of trade but in protection of the people, and in the regulation of business. We believe, and so hold that they have that right. But when they go beyond that, and go so far as to restrain trade, or in other words as to prohibit trade, then I say that they have exceeded their authority, and that their acts are null and void.] [3] [We direct you, gentlemen, in this case to find a verdict for the defendant.] [1]”</p> <p>The plaintiff submitted the following points:</p> <p>“ 1. That the ordinance of the borough of Sayre, being an ordinance regulating fines, and rates of license for hawkers, peddlers, and traveling merchants, approved on the 13th day of July, 1891, is not in restraint of trade, so far as the same relates to the business in which the defendant was engaged at the time of his arrest. Answer: Gentlemen, we refuse so to charge. [5]</p> <p>“ 2. That the going from house to house, by any person, not having a place of business in said borough, soliciting orders for the sale of goods, wares or merchandise, either dry goods or groceries, to be afterwards delivered, is a business the regulation of which is a proper police regulation by the authorities of said borough, and the license fee named in such ordinance by said authorities is reasonable and is not in restraint of said business, but is a regulation thereof. Answer: We refuse so to charge. [6]</p> <p>“ 3. That the uncontradicted evidence in said cause showing that the defendant did go from house to house in the borough of Sayre soliciting orders for goods, wares and merchandise in violation of the ordinances aforesaid, subjects him to the penalty thereof, and the verdict of the jury should be in favor of the plaintiff. Answer : Refused. [7]</p> <p>“ 4. That under all the evidence in the case the verdict should be in favor of the plaintiff. Answer: We refuse this, gentlemen, and direct you to return a verdict for the defendant.” [8]</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were (1) directing a verdict for defendant; (2-4) the portions of the charge in brackets; (5-8) answers to1 plaintiff’s points, quoting the points and the answers.</p>

<p>Appeal, No. 111, Jan. T., 1890, by plaintiff’, Mary R. Matthews, from decree of C. P. No. 4, Phila. Co., March T., 1887, No. 770, refusing to take off non-suit.</p> <p>Case to recover damages for the death of plaintiff’s husband.</p> <p>At the trial before Willson, J., the evidence was to the following effect:</p> <p>Plaintiff’s husband went to Collins station, Lancaster county, for the purpose of taking a train of defendant company. There was at the said station a passenger platform, resting on the ground at the side nearest the rails and supported by joists at the other side, which was flush with the tracks of the railroad and about one hundred and thirty feet in length and from eight to ten feet in width. At each end of this passenger platform was a raised platform, used as a baggage, freight or milk platform. The raised platform at the west end was thirty feet eight inches in length, ten feet in width, and its average height was two feet eight and one half inches. This elevated platform stood four feet back or away from the outer rail of the tracks. The passenger platform extended and was continued into this space of a width of four feet between the raised platform and the outer rail and along the full length of the raised platform. There was no warning board or notice, nor was there any gate, bar or rail at this contracted portion of the platform to forbid passengers from going thereon. It was testified that the bumper or dead wood of the engine extended laterally out from or beyond the' edge of the rail about twenty inches, so that the entire passenger platform was swept or overlapped by the bumper of the engine to a distance of twenty inches from the outer edge of the platform.</p> <p>Deceased and a companion stood on the lower platform, about the middle of the raised platform, facing the latter and leaning upon it while engaged in conversation. The deceased stood on the side from which the train was to come. His companion testified that he looked up and saw the train within a short distance approaching the platform. He then said to deceased, “ Sam, there is your train coming, ” and deceased replied, “ Yes, that is my train, ” and thereupon stepped around the witness to go and get his valise which was at the other end of the raised platform. While he was behind the witness and in the act of passing around him in the direction in which the train was moving, he was struck by the bumper or other projecting portion of the engine, and was thrown down. In falling, one of his legs fell in front of one of the wheels of the engine and was run over and crushed, from the effects of which in a few days thereafter he died. The train was at that time being run by the fireman and not by the engineer, at the rate of eight to ten miles per hour, and was a few minutes late.</p> <p>In the course of the trial plaintiff’s counsel asked a witness on the stand the following question: “ Have you noticed on other roads the construction of raised platforms for purposes similar to this at Collins station, how they differed from this particular construction there, and whether they avoided what may be deemed objections to these structures, and whether they were so constructed on other roads as to avoid such objections ? ”</p> <p>Objected to; objection sustained; exception. [8]</p> <p>At the conclusion of plaintiff’s testimony, counsel for defendant moved for a nonsuit, which was entered by the court. The court in banc afterward overruled a motion to take off the nonsuit. Plaintiff appealed.</p> <p>Errors assigned were (1) entering nonsuit; (2) refusing to take it off; (3) overruling the above offer of evidence, quoting the question.</p>

<p>Appeal, No. 367, Jan. T., 1891, by defendant, William Russel, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1890, No. 719, on rule for judgment for want of s ufficient affidavit of defence.</p> <p>Assumpsit on promissory note.</p> <p>The plaintiff’s statement set forth a note of the firm of Smith & Russel, to the order of William B. Smith and indorsed by the payee.</p> <p>William Russel, one of the defendants, filed the following affidavit of defence:</p> <p>“ William Russel, one of the above-named defendants, being duly sworn according to law, doth depose and say that he has a just and true defence to the whole of the plaintiff’s claim, the nature of which is as follows, to wit: — ■</p> <p>“ That he knows nothing whatever of said note other than is contained in the statement filed by said plaintiffs. It is true that at the date of giving said note the said William B. Smith and deponent were partners trading as Smith & Russel, but that if said Smith gave said note it was for his own sole and separate personal use and benefit, and that the money received for same was not and does not appear in any manner on the books of said firm of Smith & Russel. That deponent did not sign said note nor did he authorize said Smith to sign said note, and in no wise did he the said Russel or the firm of Smith & Russel derive any benefit from said note. That the said firm of Smith & Russel were in no manner indebted to plaintiffs and that said note was not given for firm purposes. Furthermore, your deponent saith the said firm of Smith & Russel was dissolved on sixth day of February, 1889, and at time of said dissolution a statement was made by said Smith of all indebtedness due by said firm and that there is no record of plaintiffs’ claim therein and their name does not appear on the list of creditors. Furthermore, that, according to law, on the dissolution of said firm a notice was sent to every creditor of said firm, notifying them of said dissolution, and that your said deponent was to continue said business ; besides this, your deponent advertised the said dissolution of said copartnership in the newspapers and filed a copy of the same in the court of common pleas according to law, and no notice or demand of any kind was ever received by your deponent, nor did he know anything of the claim against him until suit was commenced in this matter on the third day of January last past.</p> <p>“ That work had been done by the old firm of Smith & Russel for plaintiffs, and that plaintiffs paid their bill, to wit, the amount of §119, on February 4,1889; that your deponent also did work for them to the amount of §456.50, which was paid to deponent in full, April 9,1889; both these payments were long after said note was due, and plaintiffs made no claim or demand or set-off of any kind whatsoever to deponent, and that no notice was ever given deponent of any claim they had against him. That said plaintiffs accepted said note from said William B. Smith with the knowledge that its proceeds were for his own private use, he having signed said note drawn to his own individual order and indorsed by him individually; they therefore took the same with the full knowledge that it was the said William B. Smith’s individual transaction and not for the benefit of the firm of Smith & Russel. That said note fell due on January 11, 1889, and that payment was not demanded in the usual manner, nor was the note protested for nonpayment so as to give public notice of its dishonor.</p> <p>“ Your deponent, therefore, avers that great injustice will be done him if judgment against him is given, all of which deponent avers is true and will be able to prove on trial of this cause.”</p> <p>Plaintiff took a rule for judgment for want of a sufficient affidavit of defence, which was made absolute and judgment entered for $1,131.66.</p> <p>Error assigned was the making absolute of plaintiff’s rule for judgment.</p>

Appeal, No. 371, Jan.T., 1891, by defendant, D. Davies, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1891, No. 26, on verdict for plaintiffs, Joseph Louehheim et al. Foreign attachment to recover the price of goods purchased by plaintiffs from defendant and returned as defective.

<p>Cities of the first class — City councils — Committees—Power to compel attendance of witnesses — Act of June 1, 1885.</p> <p>Under the provisions of the act o£ June 1, 1885, article XV, section 1, each branch of councils in cities of the first class is given power to compel the attendance of witnesses, and upon the issuing of a subposna it is the duty of the person summoned to appear in response to the summons and be sworn as a witness.</p> <p>When so summoned a witness cannot refuse to appear and be sworn on tlie ground that he is already under indictment for alleged criminal connection with the matters which the committee propose to investigate, and that the answers to questions propounded to him might tend to prejudice him in the criminal proceedings then pending. The proper course would be for him to wait until the question is propounded to him which tends to criminate him, or which is in violation of any of his rights as a citizen, which question he can then decline to answer.</p>

<p>Insolvent laws — Bond—Suit against surety — ■Failure of petitioner to appear — Subsequent surrender — Technicalities—Growth of the law.</p> <p>Where a petitioner for the benefit of the insolvent laws failed to appear on the day fixed for the hearing of the petition until after twelve o’clock, the hour at which the court adjourned, but subsequently came into court, and finding that the court had adjourned, proceeded at once to the county prison and surrendered himself to the keeper thereof in relief of his surety, the condition of the bond was complied with and there could be no recovery thereon against the surety.</p> <p>A comparison of the earlier with the later cases upon this subject may show a mellowing of the law, and that the latter pay less heed to technicalities than the former. This change runs all through our laws, civil and criminal. The law does not now wholly disregard technicalities, but it shrinks from impaling a man on sharp points which have no relation to the justice of the cause.</p> <p>Petition for benefit of insolvent laws — Insufficiency of — Too late to raise objection to, in suit on bond.</p> <p>While a petition for the benefit of the insolvent laws, which had appended to it a schedule of creditors containing the names of creditors and the amounts due but not the nature and character of the debts, is open to criticism as not strictly complying with the act of assembly, it is too late to raise such objection in a suit on the bond subsequently given, and which has been accepted by the obligee.</p> <p>Juridical day — Practice—Adjournment of court — Subsequent appearance of party.</p> <p>It may be conceded that a juridical day in Philadelphia county ends as to a party to a proceeding in the court, whose duty it is to be present, when he is called and fails to appear. The judge is not bound to wait until three o’clock, or any other hour, before he may proceed to visit upon a party the consequences of his default. At the same time it would appear to be a harsh proceeding to deny a party an opportunity of being heard when he has in good faith attempted to comply with the law, and his default appears to have been the result of a misunderstanding upon the part of counsel as to the time of hearing.</p> <p>Contradicting record — Parol evidence — Agreement of counsel.</p> <p>An offer to prove an understanding between petitioner’s counsel and a trial judge that a hearing of a petition for the benefit of the insolvent laws should be postponed for one week, was properly rejected upon the ground that it tended to contradict the record, which showed that the ease was called at the earlier date, and the petition dismissed and proceedings quashed.</p>

Appeal, No. 3, Jan. T., 1892, by plaintiff, Benjamin L. Fairchild, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1890, No. 968, on verdict for plaintiff. Trespass for damages for injury to plaintiff’s property while in transit on defendant’s road. At the trial before Arnold, J., the evidence was to the following effect: Plaintiff purchased a mare in Washington, D. C., for $400, and ordered that she be shipped to him at Harsimus, N. J., by railroad.

Appeal, No. 121, Jan. T., 1892, by defendant, Robert Sheridan, from judgment of C. P. No. 4, Philadelphia Co., December T., 1881, No. 217, M. L. D., on verdict for plaintiff, the City of Philadelphia to the use of D. B. Williams. City claim for macadamizing street.

<p>Appeal, No. 136, Jan. T., 1892, by plaintiff, John L. Harvey, from judgment of C. P. No. 3, Philadelphia Co., March T., 1889, No. 244, discharging rule to open judgment of nonsuit, in favor of James Pollock et al., defendants.</p> <p>Feigned issue under sheriff’s interpleader act.</p> <p>The record showed that appellant made a claim upon goods which had been taken in execution under a judgment obtained by the appellees against John W. Reilly. An interpleader was granted wherein appellant became plaintiff, and appellees defendants. The appellant was nonsuited in the interpleader issue in consequence of his absence from court when the case was called for trial. Appellant subsequently took a rule in the court below to show cause why the judgment of nonsuit should not be -opened, alleging that his failure to be present was due to his having received no notice that the case was on the trial list. The court discharged the rule [1], and discharged also a later rule to show cause why judgment should not be opened upon payment of costs. [2]</p> <p>No exception was taken to the refusal of the court below to take off the nonsuit. Plaintiff appealed.</p> <p>Errors assigned were (1) discharging the rule to open the judgment of nonsuit; (2) refusing to open the judgment of nonsuit on payment of the costs; (3) refusing to open the judgment of nonsuit and permit plaintiff to prove his title to the goods claimed.</p>

Appeal No. 45, July T., 1891, by Caroline B. Pilling, from decree of C. P. No. 2, Phila. Co., June T., 1875, No. 208, M. L. D., refusing to open judgment on sci. fa. sur municipal claim filed by the city to the use of Emanuel Peters.

<p>Will — Legacies—Blending of realty and personalty.</p> <p>Where real and personal estate are blended in the residuary clause of a will, the legacies are a charge on the real and personal estates so blended.</p> <p>The will of testatrix expressly included in the residue of her estate her dwelling house, directing that the personal property included in the residue should be converted into money, with the exception of the furniture in her dwelling house, which should be retained so long as in the judgment of her said executor the house would rent more advantageously furnished than otherwise, with power of sale of said house to her executor. Testatrix had no other real estate than the house in question, and her personal property being insufficient to discharge the legacies, it was</p> <p>Held, That the same must be paid by a sale of the dwelling house.</p>

<p>Appeal, No. 167, Jan. T., 1892, by defendant, James Kitchenman, from judgment of C. P. No. 2, Philadelphia Co., June T., 1888, No. 128, on verdict for plaintiff, Isabella Branson, administratrix of George Branson, deceased.</p> <p>Assumpsit for breach of contract.</p> <p>The facts of the case appear by the opinion of the Supreme Court and by the charge of the court below, Pennyp acker, J., which was as follows:</p> <p>“ This is a case in which I am sure you will give careful attention to the testimony, and it is one which you will find of considerable difficulty. It appears that in .June, 1884, the firm of Vernon & Co. were in financial straits. They owed to the defendant here the sum of $3,500 for borrowed money, for which a judgment note, dated in April, had been given, and a further sum of some $650 for merchandise ; they owed the plaintiff here $2,500 for borrowed money, and they owed to Mr. Blood about $2,000 for borrowed money, and to other creditors some $30,000. [In this situation of affairs there was an agreement of some kind made between the plaintiff and the defendant, and the serious question which you are called upon to determine in this case is as to what was that agreement.] [2]</p> <p>“ The difficulties are considerably increased by the fact that not only the parties themselves differ in their testimony as to what that agreement was, but the witnesses differ in their testimony now from the testimony which was given on other occasions, and even in the course of the evidence which they give now upon the stand there arises a material difference. Amid all these difficulties you are, however, to ascertain what was the character of the agreement made.</p> <p>“ The contention of the plaintiff is that it was an agreement on the part of the defendant that the goods should be sold at sheriff’s sale and that he would be the purchaser; that the goods were to be bid up to an amount to cover the judgments that were given to the plaintiff and to Mr. Blood, and that out of the proceeds of the sale the defendant was to pay the plaintiff the amount of his judgment.</p> <p>“ Mr. John Blood, who was a witness produced for the plaintiff, in giving his account of the agreement, says that ‘The defendant told me and Branson, the plaintiff, that out of the proceeds of the sale our notes would be paid.’ ‘ Make out these notes and I will pay them out of - the proceeds of the sale.’ He is corroborated in that testimony by George Blood, who says that Mr. Kitchenman said ‘ the judgment notes v?ere borrowed money to be paid. He would buy the place in, the judgments should be paid, and he would arrange to put the place in his name; and again, that he would have the sale fixed up so as to fetch money enough to pay them the judgments that were to be paid out of the proceeds of the sale.’</p> <p>“ To some extent that testimony is corroborated by certain other witnesses. Mr. Vernon, who, you remember, was one of the firm, says, ‘ They were to give to all of them judgments. They were to be secured, all the borrowed money was to be secured. Mr. Kitchenman was to sell out the place to make it fetch as much as would cover the judgment notes for the borrowed money.’ Mr. Johnson, who was the bookkeeper of the firm, also gives some testimony, which, in some of its features, corroborates the statements made by these witnesses. He says that ‘ Mr. Kitchenman told him to put a price on each lot, so that it will cover my judgment, Mr. Branson’s and Mr. Blood’s, and the costs; I want to fix it up so that it will pay the judgment notes; the others must wait.’ While there has been a good deal of testimony in this case, those are the main features of the testimony of the witnesses for the plaintiff.</p> <p>“You will consider all the testimony, and consider all the facts of the case, and say whether or not that was the arrangement which was made. You will see from the testimony whatever the arrangement was, the defendant, Mr. Kitchenman, was put in a different position from the plaintiff. It does appear that the plaintiff gave up a lien under the execution upon the judgment upon the property which was testified to have been worth some $24,000, subject, of course, to the prior liens, and that he gave a receipt for his proportion of the proceeds of the sale, and after that had no hold upon the property which was transferred. Mr. Kitchenman, upon the other hand, got the goods ostensibly into his own possession by the sale under the judgment. He was the purchaser at that sale, and the business was afterwards, under some arrangement, conducted in his name and the proceeds were to be turned over to him, so that he was in a different position so far as protecting his own interests was concerned, certainly from that occupied by the plaintiff. If the arrangement was, and you will consider this fact in endeavoring to ascertain what this arrangement was, that the defendant was to bid up the goods to an amount to cover the judgment, that arrangement was not carried out to that extent, because it appears that the property was bid up only to the sum of $7,880, and the amount of these judgments would amount to over $9,000 irrespective of any lien of the mortgage. It is also argued, and with a good deal of force, on the part of the defendant, that if the arrangement was that the plaintiff was to be paid out of the proceeds of the sale, it is difficult to understand why he did not urge his right to those proceeds at the time. If that was the understanding that he was to get it then and get it out of those moneys, he seems to have done just the other thing, because he gave a receipt ostensibly to show that the moneys were paid when really he did not get them at all. [If that was the contract between the parties, and the defendant was to buy the goods in and afterwards conduct the business, and the plaintiff was to be paid out of the proceeds of the sale, and it was the whole contract, then your verdict ought to be for the plaintiff.] [3]</p> <p>“ [It is a contract which can be enforced, if there be nothing more in it than what I have explained to you from the testimony of the plaintiff’s witnesses. It was apparently for a good consideration, since the plaintiff gave up his right to the lieu, and gave up whatever claim he might have upon the proceeds of the sale, and the defendant was to get the goods without paying the amount for which he had bid.] [4]</p> <p>“ On the part of the defendant, however, it is denied that the contract was so made. Mr. Kitchenman says: ‘ I did not say that 1 would pay the judgment out of the proceeds of the sale. The judgments were to be paid out of the proceeds of the business. There was no agreement as to bidding it up to any amount,’ and then says that ‘ under the arrangement which was made, Vernon & Co. were still to carry on the business; that they controlled everything and that it was their business.’ Mr. Letchworth, and I think it proper to say to you that a great deal of importance ought to be attached to the testimony of Mr. Letchworth, who was the counsel of the parties at the time, and who seems to have put down in writing his view of what occurred, or at least much of it, says ‘ it was the understanding that it was to be bid in for the benefit of Vernon & Co. and in Mr. Kitchenman’s name. Mr. Vernon was to go on until they got over their trouble; it was to keep Vernon & Co. in business, and that he never heard of Mr. Kitchenman undertaking to pay the amount of the other judgments.’</p> <p>“ As Mr. Kitchenman testifies to the contract, it was nothing more apparently than an agreement to postpone, on the part of Mr. Kitchenman and the plaintiff, their right to recover from Vernon & Co. They gave up their judgments with a view to the benefit of Vernon & Co., and Vernon & Co. were to continue the business, and after certain of the debts were paid, or all of them, Mr. Kitchenman’s name was to be withdrawn and it was to be handed over to them. It amounted substantially to a postponement of the rights of the parties, looking still to the liability upon the part of Vernon & Co., with the further arrangement that it was to be ostensibly in the name of Mr. Kitchenman, to be conducted in his name. He was to lend them credit. While the purpose of this arrangement does not appear with entire clearness, there has been testimony that the object of it was to save them from the demands and claims of the remaining creditors; that it was intended to protect the judgment creditors and, at the same time, permit Vernon & Co. to go ahead with their business, while apparently it was in the name of Mr. Kitehenman. Now if this was the arrangement and the understanding, then it was a contract upon which the law frowns, since it was substantially an attempt under cover of Mr. Kitchenman’s name to hold the creditors at bay while in reality Vernon & Co. were the owners of the property. If the plaintiff entered into that arrangement, and that was the arrangement, he would not be entitled to recover, because the consideration would be illegal. He would have no rights under such a contract, at least not such rights as could be enforced.</p> <p>“ Mr. Kitehenman, while on the stand, testified in the way in which I have described. [In his affidavit of defence, however, and that affidavit has been offered in evidence, he says that the agreement was entirely, I may say, of a different character.] [5] He said there: ‘ It was expressly agreed that the defendant should be liable to pay the plaintiff’s judgments and the judgment of the other judgment creditor only out of the profits of the business, if any, and then only after the defendant’s judgments had been fully paid.’ In other words, he set up there that the contract was that he was to go ahead and conduct the business, and that he was to pay the plaintiff, but only out of the profits and after his own judgment had been paid. If that was the agreement between the parties, as it appears in the affidavit which he made, it would be incumbent upon the plaintiff before he could recover to show that there were profits from which that amount could be realized. [He has given some evidence here, or at least Mr. Kitehenman, on his cross-examination, said that a statement made out by the bookkeeper of the first year’s business showed a profit of some $12,000. If there was such a profit, and it was enough to cover the judgments of Mr. Kitehenman and to pay something besides, and that was the agreement, then the plaintiff would be entitled to recover what sum there was remaining to the extent of the claim.] [6] Mr. Francis, an expert accountant, who went over the books, testified, however, that there was no evidence on the books that any amount had been made. He said there had been some profits, but it could not be ascertained from the books as to how much it was or what it was..</p> <p>“I have now gone over the facts of the case with you, and [I say to you, as I have said to you before, if the contract was as testified to by the plaintiff, and that the defendant was to take the goods and was to pay, out of the proceeds of the sale, the claim of the plaintiff, and there was nothing more in the agreement than that, the plaintiff ought to recover.] [If it was substantially a scheme to prevent the other creditors from recovering what was due to them, Mr. Kitchenman’s name was simply to be used and the property was still to be that of the firm of Vernon & Co., that is a fraudulent transaction in law, whatever the parties may have intended by it, and the plaintiff would not be entitled to recover.] [7]</p> <p>“ If the agreement was as testified to by Mr. Kitchenman, and to some extent, at least, corroborated by Mr. Letchworth, and amounted to an extension of time with the liability on the part of Vernon & Co. still remaining for this indebtedness, without an undertaking on the part of Mr. Kitchenman to pay the indebtedness, then the plaintiff is not entitled to recover.” The defendant submitted, inter alia, the following points :</p> <p>“ 6. It being uncontradicted that the proceeds of said sale amounted to $7,830, of which $4,820 were the proceeds of the boiler, engine, shafting, and machinery, and $3,010 were the proceeds of other personalty, the jury is instructed that the defendant was entitled to the entire $4,820 under and by virtue of his mortgage dated March 18,1879, and to the remaining proceeds under and by virtue of his judgment obtained June 18, 1884, and that these with the costs and accrued interest consumed the entire proceeds of said sale. Answer: I decline that point. Whatever were the priorities of the lion and amounts of it, if the defendant, as has been testified to by the plaintiff, promised the plaintiff that he would pay this judgment out of the proceeds of the sale, he would be bound to pay them from those proceeds, even though they did not reach more than enough to cover the prior lien. [8]</p> <p>“ 9. The alleged agreement between the plaintiff and defendant, upon which the plaintiff now seeks recovery, is void as against public policy, and your verdict must be for the defendant. Answer: I decline that point. I have told you as to what the law is upon that subject, and this point does not sob out what the alleged agreement was, as testified to by the plaintiff; it does not come within the law which the defendant here wishes to invoke. [9]</p> <p>“ 11. If the plaintiff and defendant surrendered any possible share of the proceeds of the sheriff’s sale, to which they claim they were entitled, to Vernon, Blood & Co., and allowed them to continue the business and pay out of future profits the judgments of plaintiff and defendant, then the plaintiff and defendant were partners and assumpsit will not lie to state an account between them. Answer: I decline that point. [10]</p> <p>“ 12. If the jury believe that the business subsequently to the said sale, conducted in the name of James Kitchenman, resulted in a loss, and was never profitable, then the plaintiff cannot recover. Answer: I decline that point. [11]</p> <p>“14. Under all the evidence the verdict must be for the defendant. Answer: I decline that point.” [12]</p> <p>Verdict for plaintiff for $1,936.79 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were (1) the admission of the evidence as to the aggregate value of the machinery in the mill referred to in the opinion of the Supreme Court; (2-7) the portions of the charge in brackets, quoting them; (8-12) answers to defendant’s points, quoting the points and the answers.</p>

<p>Liquor laws — Sales without license — Sham club — Scheme to evade the license laws — Facts.</p> <p>Defendant was indicted, under the act of May 13, 1887, for selling liquor without a license. His defence was that he was not selling on his own account, but as steward of an incorporated club, and that no sales were made to others than members of the said club, unless brought there by a member. The evidence of the prosecution was to the effect that defendant had been selling liquor under a wholesale license and that his place was of bad character. He failed to procure a license for the year 1891. Soon after, the alleged club came into existence in the defendant’s old barroom. The evidence showed that it was a mere sham or device to evade the license laws. Though a club in form, it was in fact a mere barroom where liquor was sold without a license. There was a clumsy attempt to disguise its real character and throw over it the protecting mantle of the law:</p> <p>Held, that under these circumstances it was not error to instruct the jury that, if they believed the testimony, it was their duty to find the defendant guilty of that with which he was charged.</p> <p>The rights of abona fide club, not being involved in this case, not considered.</p>

<p>Appeal, No. 186, Jan. T., 1892, by defendants, J. Otis Paul et al., from judgment of C. P. No. 4, Philadelphia Co., Sept. T., 1891, No. 673, on ease stated, in favor of the commonwealth to the use of Andrew J. Manaugh.</p> <p>Case stated for recovery of penalty on appeal from a magistrate.</p> <p>The case stated set forth that defendants are residents and citizens of the state of Pennsylvania and that they, on October 12,1891, purchased from Braun & Fitts, who were manufacturers of oleomargarine, residents in and citizens of the city of Chicago and state of Illinois, one ten-pound tub of oleomargarine. Said oleomai’garine was shipped from Chicago to defendants in the city of Philadelphia, packed in a tub duly stamped, branded and labelled in the manner prescribed by the act of congress entitled “ An Act Defining Butter,” also imposing tax upon and regulating the manufacture, sale, importation and exportation of oleomargarine; that defendants are dealers in provisions in the city of Philadelphia, and on October 12, 1891, paid to the collector of internal revenue of the First district of Pennsylvania the sum of $36.00, as and for a special tax upon the business as retail dealers in oleomargarine, and obtained from the said collector a license which was set forth in full and which contained the clause quoted in the opinion of the supreme court; that on October 14, 1891, in the city of Philadelphia, at their place of business, defendants sold to Andrew J. Manaugh, from the said tub or original stamped package, two pounds of oleomargarine, and did pack the same in a suitable paper package, which was marked, branded and stamped in the manner prescribed by the commissioner of internal revenue with the approval of the secretary of the treasury. If upon this statement of facts, the court is of opinion that defendants are liable for the penalty imposed by the act of May 21, 1885, then judgment to be entered in favor of the commonwealth and against the defendant in the sum of $100; but if the court be of opinion that for any reason the defendants are not so liable, then judgment to be entered for the defendants.</p> <p>The court below entered judgment for plaintiff on the case stated, Arnold, J., delivering the following opinion:</p> <p>“We are of opinion that the sale admitted to have been made by the defendant was not by original package. It was a sale of two pounds of oleomargarine out of a package of ten pounds, originally brought into this state. There was a breaking of the original package, and thereby the contents of it became part of the common mass of property within the state.”</p> <p>Defendants appealed.</p> <p>Errors assigned were (1) that the court erred in entering judgment for the plaintiff, because the act of May 21,1885, does not apply to a sale in Pennsylvania of oleomargarine manufactured outside of the state; (2) that the court erred in entering judgment for plaintiff because the said act of May 21, 1885, if it does apply to said sale, under the circumstances recited in the case stated, is unconstitutional and void as an interference with the rights of citizens to conduct interstate commerce guaranteed by the federal constitution.</p>

<p>Appeal, No. 409, Jan. T., 1892, by James McAlarney, executor of George Longenberger, deceased, from decree of O. C. Columbia Co., May T., 1878, No. 21, ordering appellant to enter security or be dismissed.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was, among others, ordering the executor at this time to execute a bond in the sum of ten thousand dollars, otherwise to be dismissed.</p>

Appeal, No. 80, July. T., 1891, by defendant, from judgment of C. P. Luzerne Co., Oct. T. 1887, No. 962, on verdict for plaintiffs, William Weir and Mary C. Weir. Trespass for injury to plaintiffs’ land.

<p>Appeals, Nos. 353 and 354, Jan. T., 1892, by William Wood & Company and Knower & Cooley, from decree of C. P. Luzerne Co., dismissing exceptions to report of auditor distributing proceeds of sheriff’s sale under sundry executions, one of which was issued on judgment of Vietor & Achelis v. Johnson, Dec. T., 1889, No. 430.</p> <p>Claim that above plaintiffs should not participate in said distribution.</p> <p>From the report of the auditor, R. C. Shoemaker, it appeared that William Wood & Company were attaching creditors of Johnson, and that Knower & Cooley were judgment creditors and had issued a fi. fa. subsequent to that issued on the judgment of Yietor & Achelis. The note of Vietor and Achelis on which their judgment was entered was as follows :</p> <p>“ §12,500.</p> <p>“ Wilkesbarre, Pa., November 12th, 1889.</p> <p>“ Four days after date I promise to pay to myself or bearer twelve thousand five hundred dollars ($12,500) value received, without defalcation with interest, and I do hereby confess judgment for the said sum waiving inquisition and all exemption ^aws'</p> <p>“Witness my hand and seal:</p> <p>R. P. Johnson, (seal.) ”</p> <p>The following praecipe was attached to the note:</p> <p>“ George Frederic Vietor,. Thomas Achelis, Carl Vietor and John Achelis, partners, trading as Frederic Vietor & Achelis, Bearers, v. R. P. Johnson. In Common Pleas of Luzerne County. No.</p> <p>“ Enter judgment on the above note.</p> <p>“John T. Lenahan.</p> <p>“ Atty. for Plffs.”</p> <p>The auditor allowed the judgment of Vietor & Achelis to participate in the distribution. The following exceptions, among others, were filed to the auditor’s report: “ Third. The auditor erred in not finding as matter of law, that the note on which the judgment of Vietor & Achelis was entered was a void instrument, and did not warrant the entering of judgment and the issuing of execution.” [2] “Fourth. The auditor erred in not finding as matter of law that the entry of judgment on the note of Vietor & Achelis, as bearers, was irregular and void.” [3] The court overruled the exceptions; but directed an issue to be framed between Vietor & Achelis, as plaintiffs, and the appellants, among others, as defendants, to try the questions whether the note upon which the Vietor & Achelis judgment was entered was given by Johnson to them for a valuable consideration; and whether said note and confession of judgment were given for the purpose of hindering or defrauding the petitioners for the issue. A verdict and judgment were entered in this issue for the plaintiffs, in January, 1892; and, in February, the auditor’s report was confirmed absolutely.</p> <p>Errors assigned were, among others, (2, 3) overruling the appellants’ third and fourth exceptions to the report of the auditor, quoting them.</p>

<p>Appeal, No. 40, Jan. T., 1892, by defendants, Janies McAlarney, executor of George Longenberger, deceased, landlord, and Martin C. Woodward, bailiff, from judgment of C. P. Columbia Co., Sept. T., 1890, No. 124, on verdict for plaintiff, W. A. M. Grier.</p> <p>Replevin upon-distress for rent.</p> <p>Defendant avowed as landlord. Plaintiff’s plea was “ Non tenuit.”</p> <p>On the trial before Ikeler, P. J., the following agreement was put in evidence by defendant :</p> <p>“ Whereas, W. A. M. Grier has purchased the interest of J. A. Losee in a certain lease of the coal upon the Catharine Longenberger tract of land, granted by the representatives of George Longenberger, deceased, the said land being situated in Columbia county, state of Pennsylvania, and whereas, certain modifications of the said lease are desired by the said purchaser : Now, therefore, it is agreed on the part of the said W. A. M. Grier that in consideration of the reduction of the rents in said lease as hereinafter mentioned he will at once sink a trial slope to the basin of the coal, commencing the said slope at the point agreed upon between J. A. Losee, Allen Mann and Charles Hutchinson, and the same to be completed without unnecessary delay.</p> <p>“And in consideration thereof James McAlarney, executor of George Longenberger, deceased, hereby agrees to reduce the rents mentioned in the said lease to ten cents per ton for pea coal, fifteen cents per ton for nut coal, and twenty-five cents per ton for all larger sizes during the remainder of the term of said lease, the said rents to be paid under the terms and conditions of the said lease which in all other respects is to remain unchanged.</p> <p>“Witness our hand and seals this first day of July, A. D. eighteen hundred and seventy-eight.</p> <p>“W. A. M. Grier. [seal.]</p> <p>“James McAlarney. [seal.]</p> <p>“ Signed, sealed and delivered in the presence of</p> <p>“A. Ricketts.”</p> <p>The other facts sufficiently appear in the opinion of the Supreme Court.</p> <p>Errors assigned, among others, were (2) the portion of the charge quoted in the opinion of the Supreme Court, quoting it; (4) the affirmance of plaintiff’s second point, also stated in the opinion, quoting it.</p>

Appeal, No. 187, Jan. T., 1892, by defendants, Jones & Skinner and others, from judgment of C. P. Luzerne Co., March T., 1891, No. 110, on verdict for plaintiff, William H. Walter, administrator of the estate of Ellen Ludwig, deceased. Sheriff’s interpleader.

<p>Appeal, No. 253, Jam T., 1892, by plaintiff, Robert Boner, from judgment of O. P. Luzerne Co., Oct. T., 1887, No. 1104, compulsory nonsuit.</p> <p>Appeal from judgment of a justice of the peace.</p> <p>On the trial before Rice, P. J., the following agreement was in evidence:</p> <p>“January 3, 1887. Agreement between Adolph Luhman and Robert Boner and Theodore Kennedy. This day Robert Boner and Theodore Kennedy agree to sell to Adolph Luhman all the timber measuring five inches over at the butt on all of their unfenced lands, including one field that is fenced with wire; the timber to be removed by Adolph Luhman or any party authorized by him within three years from the date of this agreement. He also has the privilege of making roads and using them on the land to remove the lumber.</p> <p>(Signed) Adolph Luhman,</p> <p>Robert Boner,</p> <p>Theodore Kennedy.”</p> <p>The other facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were (1-3) rejection of plaintiff’s offer of evidence and his offers to amend, stated in the opinion ; (4) refusal to take off nonsuit.</p>

<p>[Marked to be reported.]</p> <p>Life insurance — Condition in policy as to designation of beneficiary by company — Public policy.</p> <p>A condition in a policy of life insurance, that the “ company may pay the sum of money insured hereby, to any relative by blood, or connection by marriage of the assured, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred expenses in any way oh behalf of the insured, for his or her burial, or for any other purpose, and the production by this company of a receipt, signed by any or either of said persons, or any other sufficient proof of such payment to any or either of them, shall be conclusive evidence that such sum has been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied,” makes the company the judge as to who is the person equitably entitled to the money. Such a contract is not against public policy.</p>

Appeal, No. 367, Jan. T., 1892, by plaintiff, John Welsh, from judgment of C. P. Luzerne Co., Oct. T., 1888, No. 92, compulsory nonsuit. The facts sufficiently appear by the opinion of the Supreme Court. Error assigned, among others, was (6) refusal to take off nonsuit.

<p>Corporation — Charter — Bridge Company — Elevation of bridge — Approaches.</p> <p>A legislative grant of the power to construct a bridge carries with it the right to elevate the bridge to a'sufficient height to avoid the danger of ice and floods. While, after its original construction, the bridge may not be relocated, its elevation can be changed to the extent that experience shows to be necessary; and the right to elevate carries with it, by necessary implication, the right to construct reasonable and proper approaches.</p> <p>Nuisance — Public convenience — Injunction—Approach to bridge elevated over highways.</p> <p>Where the public convenience is increased by the elevation of the approaches to a bridge over highways in such a manner as not to interfere to any appreciable extent with the public travel upon said highways, such elevation will not be enjoined as a public nuisance.</p> <p>Laches — Consent to original erection.</p> <p>That the commonwealth has moved with a leaden heel in such a case, does not bar her right; but is not without weight in considering the question whether or not the construction is a public nuisance. The further fact that the individuals most active in pressing the case, or their pi-edeoessors in title, assented to the original construction, the renewal of which is objected to, is not without weight.</p>

<p>Appeal, No. 371, Jan. T., 1892, by defendant, from decree of C. P. Luzerne Co., Dec. T, 1890, No. 4, in equity, enjoining defendant at the suit of William Hancock and others.</p> <p>Bill for an injunction to prevent defendant from removing the buildings and fences of plaintiffs.</p> <p>The case was referred to a master, Henry M. Hoyt, who reported, in part, as follows :</p> <p>“ The plaintiffs in this case are, severally, the owners of real estate fronting on Wyoming avenue in the borough of Wyoming, Luzerne county. The purpose of the bill is to restrain the defendant, the borough of Wyoming, from destroying or disturbing the improvements, trees, buildings, fences, etc., of the plaintiffs on certain lots fronting on said road. The questions therefore are — are the improvements, etc., on these lots within the line of the public highway, and, if so, are they liable to be removed under the action of the defendant by summary proceedings ? ... .</p> <p>“ The road is six rods wide and was laid out by order of the Quarter sessions of Luzerne county by viewers appointed by the court in 1788. Their report is on record, on pages 20 and 21, Road Docket No. 1, September sessions, 1788. There has been no legal action by the courts since that date which could affect the boundaries of the road as then opened and used. The location of this road is the question at issue.</p> <p>“The lots fronting on the road were by the commissioners under the act of April 4,1799, (Smith’s Laws, vol. 8, page 362,) bounded on said road, and the official surveys call for this road. These surveys were made in 1802. By the act of assembly of April 14, 1851, P. L. 583, the state appointed certain commissioners “ to carefully retrace the original lines of said road.” These commissioners made their report filed September 1,1851, recorded in Extra Road Book, page 65, with a map recorded in Map Book, page 115. It is under the authority of this report that the borough authorities seem to have based their action. The report of viewers in 1788 — the line of ‘Certified Lots’ bounded on this road by surveys in 1801 and 1802, and the report of the commissioners under the act of 1851, thus constitute the data for the location of this road.</p> <p>“ Unfortunately for arriving at the truth, the lines of these three roads, or these three lines, through the territory in controversy, do not correspond.</p> <p>********</p> <p>“ The work of the commissioners of 1851 can only be valid in case and on condition that they retraced the original lines of the road. The moment their work differed from the work of the viewers of 1788, it ceased to have validity. The legality of their work and their findings depend on its correspondence with the location and opening of the road as already established by act of the law. The commission took no judicial authority by virtue of the act by which they were appointed. The commissioners under the act had no authority to interfere with rights outside of the road. That the commissioners, under that act, did not definitely ‘ retrace the original lines of the said road ’ is evident from the face of their report. They do not pretend they found any monument. They state that their location of the road is based on the statement of citizens — mere neighborhood talk — local tradition — that the several monuments which governed them were considered ‘ by old citizens of the place as authentic.’ Evidently, they deemed it ‘ expedient ’ to adopt the lines of the neighborhood and traditional talk. While it may be (and likely is) true that this line was a most available compromise between the conflicting claims of right by citizens of the place, ‘ strong evidence that the inhabitants had been regardful of metes and bounds and had shown a laudable spirit in carefully preserving the width of the road ’ is not the kind of evidence as to ‘ monuments ’ which the law recognizes. ‘ The several monuments that have governed them,’ are evidently the fences and houses on lots on the east side of the road — inhabitants on the west side could point to the same evidence in kind of an entirely different location of the road. Any owner of adjoining lots whose rights were interfered with by the location would not be bound by it, because the commission could not have exercised judicial rights. No notice of any kind was given to the public or the lot owners that the commission was proceeding to adjudicate their rights. Their proceedings are a nullity and their findings conclude nobodju It was a tribunal proceeding, manifestly without ‘ due process of law: ’ Penny Pot Lauding, 16 Pa. 89; Rutherford’s Case, 72 Pa. 82; Ervine’s Ap., 16 Pa. 256; Phila. v. Scott, 81 Pa. 80.</p> <p>“It follows from these views that the road, as fixed by the commissioners of 1851, is not on the lines of the road laid out and opened according to the report of the viewers of 1788, as matter of fact. As matter of law, they had no jurisdiction or authority to locate a new road. The borough of Wyoming, therefore, had no authority in law to compel the lot owners bordering on Wyoming avenue to conform to the road as returned by the commissioners of 1851. The act appointing them was unconstitutional: Rutherford’s Case, 72 Pa. 82; Ervine’s Ap., 16 Pa. 256.</p> <p>“ Whatever the rights of the borough may be, they cannot be adjusted in this proceeding. Until the location of Wyoming avenue is ascertained, legally or by ‘ due process of law,’ no ti'ibunal can adjust the disputed claims of adjoiners on this road. If it is desirable to alter or relay this road it seems probable that new proceedings must be commenced under the road laws, with due notice to all interested: Furnias v. Furnias, 29 Pa. 1.5; McMurtrie v. Stuart, 21 Pa. 322; Clark v. Commonwealth, 33 Pa. 113.”</p> <p>Exceptions filed to the report of the master were dismissed by the court below and the report confirmed in the following opinion by Woodward, J.:</p> <p>“ The above case is in substance a bill to restrain the defendant from opening or straightening Wyoming avenue in accordance with the lines as designated in the report of the commissioners appointed in pursuance of the act of assembly of 14th April, 1851, Pamph. Laws, 583, etc. This line differs widely from the line of the road as actually used as far back as there is any recollection of living men. After full argument and careful consideration, [we are of opinion that that act does not provide for ‘ due process of law ’ and that the property owners along said highway are not to be concluded nor even prima facie affected in their rights by that proceeding of which they had no notice:] Rutherford’s Case, 72 Pa. 82; Ervine’s Appeal, 16 Pa. 256 ; Phila. v. Scott, 81 Pa. 80.”</p> <p>Errors assigned were, among others, (1) the portion of the opinion as above in brackets, quoting it; (6) not dismissing the plaintiffs’ bill.</p>

Appeal, No. 413, Jan. T., 1892, by defendant, William F. Keck, from sentence and judgment of court of O. & T., Lehigb Co., Jan. Sess., 1892, No. 37, on verdict of guilty of murder in the first degree. Trial for murder. The facts appear by the opinion of the Supreme Court. Krror assigned was the admission of the evidence referred to in the opinion, quoting the offer but not the testimony.

Appeal, No. 32, July T., 1891, by Montgomery County, from decree of Q. S. Montgomery Co., dismissing exceptions to and confirming report of road jury awarding damages to Ella E. Guilbert for the opening of Hamilton Street in the borough of Norristown. The facts appear by the opinion of the court below. The county commissioners filed, among others, the following exception to the report of the jury: “ 2.

Appeal, No. 162, Jan. T., 1892, by defendant, Sylvester Beiber, from judgment of C. P. Lehigh Co., April T., 1890, No. 8, on verdict for plaintiff, Emeline C. Keek. Assumpsit on bond of indemnity for $2,000.