Volume 149 — Pennsylvania State Reports

<p>Appeal, No. 337, Jan. T., 1892, by-defendant, from decree of C. P. Clearfield Co., Sept. T., 1891, No. 5, in equity.</p> <p>Bill in equity by plaintiff, to restrain defendant from preventing plaintiff from constructing its line of track across the tracks of defendant; and cross bill to restrain plaintiff from crossing defendant’s tracks at grade.</p> <p>Preliminary injunctions were issued on both bills. Defendant, at the same time with its cross bill, filed an answer to the original bill. Upon a hearing on bill, answer, cross bill and affidavits, the following facts appeared: Complainant is a corporation organized under the act of May 14, 1889, for the purpose of constructing, maintaining and operating a street railway in Du Bois borough. The borough, by ordinance duly enacted, consented to the construction of complainant’s railway; and the construction and location of the road and line of track was approved by the street committee of the council and borough authorities. That to enjoy its franchises and perform its duty to the public, it was essential that complainant should lay and construct its line of track on Booth street across and beyond Franklin street. The defendant under an ordinance had constructed a railroad with two tracks, which crossed Booth street at its intersection with Franklin street, the tracks being on a level with the grade of Booth street. Complainant proceeded to construct its line at the intersection of Booth and Franklin streets and defendant removed and destroyed a portion thereof.</p> <p>It also appeared that the motive power to be employed by complainant was electricity by means of an overhead wire; and that to construct an overhead crossing at the place in question would cost about $9,000.</p> <p>The court below, in an opinion by Krebs, P. J., entered the following decree:</p> <p>“ And it is therefore adjudged, ordered and decreed that the defendant, ‘The Buffalo, Rochester & Pittsburgh Railway Company,’ its agents, servants and employees, be and are hereby enjoined from preventing or in any manner interfering with the complainant, its contractors, servants, agents or employees from constructing its line along Booth street and across the respondent’s line of track, at the intersection of Booth and Franklin streets, and from interfering with, or in any wise hindering or preventing the complainant from operating and maintaining its street passenger railway on Booth street, and across Franklin street, at the point where Booth street intersects the same.” [3]</p> <p>On the same day, the preliminary injunction on the cross bill was dissolved.</p> <p>Errors assigned were, (1) refusing to dissolve the preliminary injunction; (2) making it perpetual; (3) the decree as above in brackets, quoting it; (4) refusing to make perpetual the preliminary injunction on the cross bill; (5, 6) dissolving same.</p>

Appeal, No. 229, Jan. T., 1892, by a distributee, Charles S. Lackey, from decree of C. P. No. 1, Phila. Co., March T., 1890, No. 561, confirming, on exceptions, report of auditor to distribute estate under trust deed of Ann M. Lackey. Before the auditor, Edward Gr.

<p> Master and servant—Wages—Contract—Evidence. </p> <p>Wages are paid at stipulated times, weekly, monthly, or otherwise, according to custom or contract. It is not the custom between employers and employees to take or give formal receipts, especially for weekly wages, and therefore the books and accounts, where there is no reason to suppose they are improperly kept, and, above all, the acquiescence of the parties for any continued length of time, are usually the best evidence attainable of the contract.</p> <p>' Where an employee is shown to have accepted wages from week to week for a period of months at a rate in accordance with his own returns of time, it is convincing evidence that he was to be paid according to time; and not only should it be so set before the jury, but the jury should not be permitted to disregard it, in the absence of an explanation equally clear, complete and convincing, and made out by evidence that does and ought to carry conviction. McConnell’s Appeal, 97 Pa. 31, applied.</p> <p> Charge of court—Adequate presentation of testimony. </p> <p>Where a witness has testified directly as to the terms of a contract in dispute, in confirmation of the defendant’s contention, it is not a full and adequate presentation of his testimony to say to the jury that, if they believe his evidence, it may throw some light upon the plaintiff’s motive and conduct.</p>

<p>Street—Obstruction of—Injunction—Railroad—Title to condemned land—• Pleading.</p> <p>A railroad company, which has condemned land immediately adjoining a public road, has a sufficient ownership therein to entitle it to a bill in equity against the unlawful obstruction of the highway; and this ownership is well pleaded when the facts of the condemnation proceedings, and the resulting title, are fully set out in the bill.</p> <p>The title of a railroad company to land condemned for depots, stations, etc., is not correctly called an easement; it is a fee in the surface, and so much beneath as may be necessary for support, etc., though a base fee, terminable on the cesser of its use for railroad purposes.</p> <p> Laches—Notice—Demurrer. </p> <p>Where, in such a case, the bill avers notice and warning to defendants, but is demurred to on the ground that it shows laches on the part of the complainant in permitting the erection of buildings without instituting proceedings to enjoin, or giving timely notice to desist, the question of laches is to be determined on the facts when developed by the evidence, not on demurrer.</p> <p> Erection of buildings on public street—Presumption—Notice—Estoppel. </p> <p>It seems that, where buildings are erected upon a public street, those erecting them must be conclusively presumed to know that they are wrongdoers, and, in such a case, it may be doubted if want of formal notice, or anything short of acts of encouragement, would estop an adjoining owner from complaining of the erection.</p>

<p>Appeal, No. 4, July T., 1890, by defendant, from judgment of C. P. Luzerne Co., March T., 1886, No. 68, on verdict for plaintiff, Edward Gallagher.</p> <p>Debt on policy of fire insurance on personal property, which had been destroyed by fire.</p> <p>On the trial, before Woodward, J., the following facts appeared :</p> <p>The property insured was a frame building built on leased ground. The lease had expired, and a railroad company had acquired a right over the ground on which the house was built. The insurance company defended on the ground that the plaintiff was not the owner of the house. The defendant offered in evidence a written paper purporting to be signed by defendant and wife with their marks, conveying the house in question and another house to J. B. Shiffer. The subscribing witnesses to this paper were H. H. Brown and Patrick Regan. The court below rejected the paper, because neither of the subscribing witnesses were called, and sufficient evidence of an effort to reach them had not been proven to make secondary evidence of the signatures to the paper admissible. [1] The court also refused to permit J. B. Shiffer, the grantee named in said paper, to testify who owned the houses described in the paper. [6]</p> <p>Errors assigned were, inter alia, (1, 6) excluding evidence as above.</p>

Appeal, No. 362, Jan. T., 1891, by Andrew Backus, one of the defendants, from judgment of C. P. Erie Co., Nov. T., 1885, No. 116, on verdict for plaintiffs, George M. Whitney et al. Trespass quare clausum fregit to recover treble damages for cutting timber, under the act of March 29,1824. The summons was issued against the defendants “doing business as the Penn Lumber Company, Limited,” and served personally on each of them.

<p>Appeal, No. 47, Jan. T., 1892, by defendant, from judgment of court of oyer and terminer, Lehigh Co., June sessions, 1891, No. 31, on verdict of guilty.</p> <p>Rape under the act of May 19, 1887.</p> <p>The main facts appear by the opinion of the Supreme Court. The jury in the court below were first sworn to try the issue on the plea of once in jeopardy. On this trial the court below by Albright, P. J., instructed the jury: [“ The court say to you that said former trial is not a bar to this prosecution, and if you accept that view of the law you will find on this issue in favor of the commonwealth.”] [1]</p> <p>The jury having found for the commonwealth on this issue, was then again sworn as to the general issue on the indictment. The defendant’s point, negatived, was as follows: “ Under the law and the evidence in this case the verdict must be for the defendant.” [2] A motion in arrest of judgment was overruled ; [3] the court saying:</p> <p>“ It is conceived that there is no foundation for the complaint that defendant ought not to have been tried and be punished in this case because of the trial in No. 30 to this term for fornication and bastardy. What defendant was convicted of in this case—the charge in 3d count and in No. 30—was in substance one offence, that is fornication with the incident that the female was under sixteen and the defendant over that age, with the consequence of the begetting of a child. All could have been included in one indictment. The sentence will be the same as if all had been included in one bill. The court, however, does not decide that the second bill (No. 31) did not lie.</p> <p>“ In No. 30 the only issue was the paternity of the child. The defendant testified that he had carnal intercourse with prosecutrix on July 5, 1890, but not on June 8, 1890 (she testified to intercourse on both of said days). Therefore and because of the nature of the sentence proposed to be imposed, but one fine and costs in one case, and because he was convicted in both cases, he is practically without ground of complaint.”</p> <p>Errors assigned were (1) charge as above, quoting it; (2) negativing defendant’s point, quoting it; (3) overruling motion in arrest of judgment, and (4) imposing sentence.</p>

<p> Negligence—Highway—Duty of supervisors—Evidence. </p> <p>In order for a plaintiff to recover for an injury upon a highway, it is necessary for him to show, not only that he sustained the injury and was free from, contributory negligence; but also that the ordinary needs of public travel conducted in the ordinary way upon the highway in question, had not been anticipated and provided for, and that his injury was a natural and probable consequence of the neglect of duty on the part of the township officers.</p> <p> Same—Cause of danger beyond the roadway. </p> <p>While it is the duty of the supervisors to do what is practicable and reasonable under all the circumstances to make a public road safe, not only as against causes existing in the roadway itself, but also as to those in such close proximity as to render it natural and probable that injury to travelers will result if the cause be not removed or proper safeguards be provided; yet, where no danger may be anticipated from a cause existing beyond the limits of the roadway, no duty in respect to such cause devolves upon the supervisors.</p> <p>Where a tree, growing at the side of a public road extends over the roadbed, but at such a height that it could not be struck by a wagon on any part of the roadbed, the township is not liable for personal injuries to a traveler caused by his wagon striking the tree as a result of his horse shying at two bulls fighting in the road. Nor would such liability necessarily follow, if the wagon struck the tree while the wheels upon one side were in the gutter, when but for the extraordinary occurrence which drove the plaintiff into the gutter, he could have easily passed in safety.</p>

<p> Sheriff’s interpleader—Title of claimant—Property held in trust—Allegation of ownership. </p> <p>One who holds the title to goods levied upon, in trust to manage, release and dispose of the same as he sees proper, only accounting to his cestui que trust (a firm of which he is an employee) for the proceeds, is entitled, in a sheriff’s interpleader, to claim the goods in his own name as owner: Shive v. Finn, 184 Pa. 158, applied.</p> <p>In each of the cases relied upon as establishing a contrary doctrine, there was an interest in the goods which, as against the claimant or anybody represented by him, might have been sold by the sheriff withoutthe commission of a trespass. They are therefore clearly distinguishable from a case like the present, where the legal title to the whole of the property is in the claimant.</p>

<p> Written contract—Parol evidence to vary—Oath against oath. </p> <p>Where the plaintiff alleges that a eotemporaneous parol agreement induced him to execute or accept the -written contract, his unsupported oath to that effect, contradicted by the oath of the defendant, is insufficient to entitle him to have the question submitted to the jury: Thomas v. Loose, 114 Pa. 35, and Jackson v. Payne, Id. 67, applied.</p> <p>Written contract—Construction of—“ Expense ofmaldng ” held to include cost of purchase.</p> <p>A written contract “to divide equally the expense oi making the American Steam Heater, and the profits on the same, on all heaters sold ” in a certain territory, calls for a division of the cost of heaters purchased as well as of those made.</p> <p> Profits—Evidence—Declarations of purchasers—Resistance of payment. </p> <p>On a suit for a share of the profits under such contract, where it was the duty of the defendant to furnish and put up the heaters, declarations of persons for whom work was done by defendant, as to their dissatisfaction, are not evidence to charge him with the amount of their unpaid bills on the ground of his negligent performance of the work; nor should the fact that they resisted payment be permitted to prejudice the defendant, unless their resistance was effectual and on the ground of defendant’s negligence.</p>

Appeal No. 183, Jan. T., 1892, by Commonwealth, from judgment of court of Q. S. Lackawanna Co., Dec. Sess., 1891, No. 27, quashing… Held: the said oath being duly administered to the said George Williams according to law by the said James Beamish, he, the said James Beamish being then an officer of said court, and then and there having-competent authority to administer the same, and it being then and there material for the said judge holding court as aforesaid, to know…

Appeal, No. 273, Jan. T., 1892, by appellant, from decree of C. P. No. 2, Phila. Co., June T., 1888, No. 23, dismissing libel in divorce. An answer having been filed, the case was referred to Thomas B. Beeves, as master ; and he reported in favor of granting the divorce.

<p>Corporation—Supervision of, by court of equity—Mection—Appointment of master—Act of June 16, 1836.</p> <p>Under the act of June 16, 1836, § 13, the courts of this commonwealth have the jurisdiction and powers of a court of chancery, so far as relates to the supervision and control of all corporations other than those of a municipal character. This power includes that of supervising and controlling the election of directors, whenever it is made to appear that, by means of fraud, violence, or other unlawful conduct on the part of the corporators, a fair and honest election cannot be held. Under the equity rules, the court may appoint a master, pro hac vice, in any particular case.</p> <p> Stoclc held by executors—Difference of opinion as to how it should be voted. </p> <p>At a corporate election each vote must be cast in person or by proxy; and the right to vote cannot be separated from the ownership without the consent of the legal owner; therefore, where stock is held by executors who differ as to how it should be voted, it cannot be voted at all.</p> <p> Proxy—Provision in will as to. </p> <p>Where the testator directed that certain stock should be voted as his son should direct and appoint, and that his executors should give a proxy or authority to vote said stock as the son may desire to vote it, the son being one of the executors: Held, that not having received such a proxy or authority, the son could not vote the stock in the face of a dissent by his co-executors. Whether or not he could compel his coexecutors to give him such a proxy or authority, not decided.</p>

<p>Appeals, Nos. 277 and 278, Jan. T., 1892, from decrees of C. P. Northampton Co., by George H. Myers and Francis Weiss, Jr., executors of Francis Weiss, deceased; No. 277, from decree Dec. T., 1887, No. 16, overruling demurrers to returns to petition for a mandamus execution against defendant; and No. 278, from decree April T., 1891, No. 1, overruling demurrer to bill in equity, to restrain proceedings on the judgment in the other case.</p> <p>The judgment of the executors of Francis Weiss, deceased, against the Borough of South Bethlehem for damages by reason of the opening of Front street in said borough, having been affirmed by the Supreme Court on Oct. 6, 1890, (136 Pa. 294,) on Nov. 10,1890, the executors presented a petition to the court of common pleas of Northampton Co., praying for a mandamus execution. A rule to show cause was granted; and the borough on Nov. 24,1890, filed an answer setting forth that the judgment of the executors was for damages for the opening of Front street in said borough and that said street had not yet been opened and no land had been taken by the borough for the street. The executors demurred to this answer. On March 28, 1891, the borough filed a supplemental answer, setting out that the ordinance to open Front street, by reason of which the damages sought to be collected had been assessed, had been repealed in Feb., 1891; and that the claims of other property owners on said street had not been prosecuted to judgment, but were pending on appeals of the owners from the report of viewers; that no physical possession of Front street had been taken by the borough and no change whatsoever had occurred therein; and that the borough had filed a bill in equity to vacate the judgment of the executors and to enjoin further proceedings thereon, upon the payment to said executors of all legal costs and expenses suffered by them. To this supplemental return, the executors demurred on the following grounds: (1) that the judgment affirmed by the Supreme Court was final; (2) that the bill in equity would not lie, the defendant having had its day in court; (3) that the supplemental return after demurrer filed and issue joined on demurrer to former answer, without notice to the relator, was irregular; and (4) that the return was “ in other respects, uncertain, informal, insufficient and defective.” The bill in equity is correctly summarized above. No formal demurrer was filed to the bill in equity; but it was treated by the court below as if it had been specifically demurred to. The court below in an opinion by Reeder, J., citing Elliott on Roads and Streets, 209-11; High on Injunctions, § 130; Yolkmar Street, 124 Pa. 320, entered the following decree:</p> <p>“We will therefore have to overrule the demurrers, deny the petition for a mandamus execution, and make such decree as will preserve the said executors of Francis Weiss from any payment of costs and charges.</p> <p>“Now, January 18, 1892, Aaron Goldsmith, Esq., is hereby appointed master to ascertain the amount of legal costs and expenses the aforesaid estate of Francis Weiss has suffered because of the passage of the ordinance and institution of said proceedings of the borough of South Bethlehem, and upon payment of said legal costs and expenses so ascertained, the said judgment is hereby decreed, annulled and vacated.”</p> <p>Error assigned was the decree as above, quoting it.</p>

Appeal No. 254, Jan. T., 1892, by defendant, The President, Managers and Company of the Delaware & Hudson Canal Company, from judgment of C. P. Luzerne Co., March T., 1889, No. 95, on verdict for plaintiff, Frederick Neiman. Trespass for personal and other injuries caused by alleged negligence of defendant in the running of a train.

<p>Appeal, No. 310, Jan. T., 1892, by defendant, The Dwelling House Insurance Company of Boston, Mass., from judgment of C. P. Susquehanna Co., August T., 1890, No. 447, on verdict for plaintiff, P. D. Roe.</p> <p>Assumpsit on policy of fire insurance to recover for total loss of dwelling house.</p> <p>At the trial, before Seable, P. J., plaintiff offered in evidence the insurance policy which contained the following clauses: “ The said company hereby agree to make good unto the said insured, his executors, administrators, and assigns, all such immediate loss or damage, not exceeding in amount the sum insured, nor the interest of the insured in the property, nor the actual cash value of any building or other property at the time of loss or damage as shall happen by fire or lightning, to the property above specified from ” etc.</p> <p>“ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void .... if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant, or unoccupied, or not in use.”</p> <p>The policy also provides that in case of loss, the insured should give immediate notice in writing to the company; and within 30 days after the loss, render the company a sworn statement thereof. It further stipulated that “ no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto.”</p> <p>The letter referred to in the opinion of the Supreme Court was signed “ Dwelling House Insurance Company, per Nutter.” Witness Laythrop, testified that he notified the general agent of defendant at Scranton of the loss and received the letter in question, in reply to his letter. It was then offered in evidence under objection.</p> <p>Plaintiff having testified that Mr. Melchert came to see him 10 days after the fire, was asked :</p> <p>“ Q. What did he say as to the liability for the payment of that loss ? ” [6] Also</p> <p>“ Q. Now state whether or not he made you any offer of compromise ? ” [7]</p> <p>The answers to both questions were admitted, under objection.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Points of defendant, refused, were:</p> <p>“ 2. That one of the conditions of this policy being that the insured shall, within thirty days after the loss or damage by fire or lightning, render a statement to the company signed and sworn to by the insured, stating the knowledge of the insured as to the time and origin of the loss by fire, the interest of the insured and of all others in the property, etc.; the amount of the loss thereon, all incumbrances thereon, etc., 'and that loss shall not be payable till the conditions of the policy are complied with, and no proofs of loss having been furnished as required, the plaintiff cannot recover, and the verdict must be for the defendant. [1]</p> <p>“ 3. The plain and unequivocal provisions of this policy being that no officer, agent or other representative of this company shall have the power to waive any provisions or conditions of this policy unless said waiver be in writing or attached thereto, nor shall said waiver be claimed by the insured unless so written or attached, and there being in this case no evidence of the waiver of the conditions of this policy requiring proofs of loss to be furnished within thirty days, and no proofs of loss having been furnished as required, the plaintiff cannot recover, and the verdict must be for the defendant. [2]</p> <p>“ 4. The house having been vacated by the insured and his tenant before the fire, and was vacant at the time of the fire, and as the policy by its provisions is to be void in case of vacancy or change of possession, the plaintiff cannot recover, and the verdict must be for the defendant. [3]</p> <p>“ 5. Upon the whole evidence produced in this case the plaintiff is not entitled to recover.” [4]</p> <p>The court charged, in part, as follows :</p> <p>“ As to the question of the occupancy of this dwelling house, the defendant claims that the vacancy, which it is admitted existed for a few days at the time of the fire, was sufficient to wholly avoid this policy, and that there can be no recovery upon it. [The question to be considered is whether under the conceded facts in the case the policy is void. There can be no doubt as to what is meant by the occupancy of a building of this character.</p> <p>“ The occupancy contemplated by the policy was such as would be proper according to the character of the property insured. If the property insured is a dwelling, then the occupancy referred to is its occupancy as a dwelling in the ordinary way in which dwellings are occupied. If it is a barn, the occupancy is not a dwelling therein, but such occupancy as is usually with such property. The building in question being a dwelling house, the occupancy contemplated by the policy would be its occupancy as a dwelling house in the ordinary way in which suclrproperty is occupied. It was, therefore, under this policy, necessary, when the premises became vacant or unoccupied, to notify the defendant company and have its consent endorsed upon the policy.</p> <p>“ You are not to understand by the occupancy of premises that there must be some one in the house or on the premises ■during the whole period of the time of its occupancy, but that it is such occupancy as is usually had of such premises. A house may be occupied all the time, some one being bodily present in the house, or about the premises all the time, or no one may be in the immediate occupancy of the house, in the sense that he is there bodily present, and yet the house may be considered in law as occupied. The family might lock up the house and go away on a visit, and yet the house would not be in law unoccupied within the meaning of that clause in the policy; or they might go upon a visit to the seashore or to their neighbors, and remain away a reasonable length of time, and yet the house not be considered as unoccupied during the time its occupants were thus away. While a house, under such circumstances, is in law considered to be occupied, it must not, however, be left unoccupied for any considerable length of time.</p> <p>“ The law does not fix definitely any length of time during which the occupant of the house can remain away, so that each case has to stand upon its own merits, as to whether the length of time the occupant was absent from the premises was unreasonable under all the circumstances.] [8]</p> <p>[“ In case of an out-going and an in-coming tenant, where a few days intervene between the actual physical occupancy of a dwelling house, between the out-going tenant leaving and the in-coming tenant taking possession, the question is a question for the jury to determine whether there was an unreasonable time. One tenant does not always leave the property and the other move in the same day. And under all the evidence this is a question of fact for you to determine whether the occupancy was reasonable or not. And therefore upon this branch of the case we submit the question of the reasonableness of this vacancy to you. If you find that the house was in the possession of Depew as tenant of Roe, under the lease which expired upon the 1st day of April, 1890, and that he had leased the same to one Sivers, for the succeeding year, commencing on the said 1st day of April, 1890, and that said Depew removed his family and part of his things on the 24th day of March, 1890, and the remainder on the 27th day of March, 1890, and that the fire occurred on the 28th day of March, 1890, then if you find that the time during which the house was unoccupied was a reasonable one under the circumstances, then this provision of the policy in relation to the necessity of notice of a vacancy does not prevent a recovery in this case. In other words, if you find that this was not an unreasonable vacancy in the transfer of the tenancy of the house from the out-going to the incoming tenant, then as far as that provision of the policy is concerned you maj*- consider it of no-effect.] [9]</p> <p>“ As to the second question in this ease raised by the defendant, that under the stipulations of the policy it was the duty of the plaintiff ,to have tendered to the company, within thirty days of the time of loss, proofs of loss as required by the stipulations read to you, the plaintiff claims that the defendant has waived the necessity of requiring this proof of loss, first, by reason of the fact that the loss was a total one, and the defendant was notified that the loss was total; and second, that by reason of its being a total loss, and the plaintiff having notified the company of that fact, and the company sending a man upon the ground to settle, and having come upon the ground and held an interview with the plaintiff in the case, and viewed the premises and seen for himself that it was a total loss, and that he then claimed that the company was not liable for any portion of the loss by reason of the house being vacant at the time of the fire, and also offering to compromise ; that by these acts of the company there was a waiver of any necessity for proofs of loss in this case, and that therefore the jury can find for the plaintiff the same as if no such stipulation was contained in the policy. The defendant claims that no such waiver can take place except as prescribed in the policy; that is, by writing indorsed thereon. [There is a provision in the policy that no agent or officer shall have power to waive any of the stipulations of the policy unless it be in writing, indorsed upon the policy. But this refers to express waivers, and not to waivers flowing from the conduct and acts of the company where the agent or officer has power to do the act from which the waiver is inferred. We are of the opinion that this provision that the agent shall have no authority to waive any provision or condition of the policy, unless such waiver, if any, be written upon on attached thereto, relates to express waivers, and not to such as arise from the conduct and acts of the company through their authorized agent.] [10] [Therefore, if you find that the loss in this case was a total loss, that the notice of such loss was immediately given to the company defendant as required by the provisions of the policy, and further, that the defendant company sent an agent to adjust or look over the loss without making any objections as to the absence of any formal proofs of loss, or any deficiency in tbe notice received by the company of the loss, that said adjuster made an offer to compromise the claim, and made no objections to settling for the loss, except that the company were not liable for the same on account of the building not having been occupied at the time of the fire, you may, if you think the evidence justifies it, find that the company waived any objections to any deficiency of notice or proofs of loss, or absence of proofs of loss, and consider that part of the plaintiff’s case made out.”] [11]</p> <p>Errors assigned were (1-4) not affirming defendant’s 2d, 8d, 4th and 5th points, quoting them ; (5) refusal to grant a compulsory nonsuit, and admission of defendant’s letter, quoting it; (6, 7) overruling the defendant’s objections to the questions- as above, quoting the questions but not the answers; (8-11) the portions of the charge as above, in brackets, quoting them.</p> <p>A. IT. McCollum, of McCollum, Smith ¿f McCollum, for appellee.</p>

<p>Appeal, No. 202, Jan. T., 1892, by defendant, Arthur Donahue, from judgment of Q. S. Phila. Co., revoking wholesale liquor license.</p> <p>Rule to revoke license.</p> <p>The petition alleged that the defendant had a wholesale license and had sold vinous, spiritous, malt or brewed liquors in less quantities than one gallon and in less quantities than twelve pint bottles ; that he had sold liquors at retail and had allowed liquors to be drunk on the premises where sold. The defendant’s answer stated that his license ran from the 1st of June, 1891, to the first of June, 1892, and was granted under the provisions of the act of May 18, 1887; and admitted that he had sold vinous, spiritous, malt or brewed liquors in less quantities than one gallon and in less quantities than twelve pint bottles; and that he had allowed liquor to be drunk on the premises where sold ; but denied that he had sold liquors at retail or in less quantities than one quart. The court below having, when the petition was filed, granted a rule to show cause why the license should not be revoked, after argument upon petition and answer, made the rule absolute.</p> <p>Errors assigned were (1) revoking the license ; (2) that upon the facts as they appear of record the court below had no jurisdiction to revoke the license.</p>

Appeal, No. 96, July T., 1891, by plaintiffs L. W. Spencer et al., trading as L. W. Spencer & Co., from judgment of C. P., Clearfield Co., May T., 1891, No. 362, quashing attachment against defendant, Robert Bloom. Appeal by defendant from the judgment of a justice of the peace on attachment under the act of July 12, 1842.

Appeal, No. 85, July T., 1891, by plaintiffs, A. Gates et al., trading as A. Gates & Son, from judgment of G. P. Clearfield Co., May T., 1891, No. 311, quashing attachment against defendant, Robert Bloom. Appeal by defendant from the judgment of a justice of the peace on attachment under the act of July 12, 1842. The affidavit upon which the justice issued the attachment appears by the opinion of the Supreme Court.

<p>Trespass—Damages—Settlement.</p> <p>A settlement for damages sustained by a trespass will bar a suit therefor. There cannot first be a recovery for the damages for the injury, and then a suit for the consequences of the injury.</p>

Appeal, No. 170, Jan. T., 1892, by John Clark, executor of James S. Dean, deceased, from decree of O. C. Huntingdon Co., 1891, No. 227, refusing to grant an issue to determine whether or not the codicil to the will of David Stewart had been canceled by the testator.

<p> Heal estate—Agent—Power to “manage ”—Sight to make exclusive grant to quarry—Informal execution. </p> <p>Duncan v. Hartman, 113 Pa. 595, affirmed.</p>

<p>Appeal, No. 344, Jan. T., 1892, by the Huntington & Broad Top R. R. Co., from decree of Q. S. Huntington Co., dismissing exceptions and confirming report of viewers laying out a private road in the borough of Huntington.</p> <p>On petition of George A. Port, setting forth that he was the owner of two certain plantations in the borough of Huntington and that he labored under great inconvenience for want of a private road, the court appointed viewers to lay out the same, with directions to procure releases and assess damages.</p> <p>To the report of the jury laying out the road exceptions were filed by appellant, and dismissed by the court below in an opinion by Furst, P. J., in which he cited Selinsgrove Road, 9 C. C. Rep. 611.</p> <p>JError assigned was, with one other, (1) assuming jurisdiction and entering decree confirming the report of the viewers.</p>

<p>Appeal, No. 209, Oct. T., 1890, by plaintiff, Henry Brown, from judgment of C. P. Jefferson Co., Sept. T., 1888, No. 818, on verdict for defendant, John F. Carey.</p> <p>Ejectment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiff’s second point, refused on the trial by White, P. J., specially presiding, was : “ That under all the evidence in the case the verdict of the jury should be for the plaintiff.” [4]</p> <p>Plaintiff’s seventh point and the answer thereto were as follows :</p> <p>“ 7 fch. That there is no sufficient evidence to submit to the jury of a mistake in the name of the vendee in the deed from McPherson as it was originally written and delivered; and if the jury find the deed was originally made to John F. Carey their verdict should be for the plaintiff.”</p> <p>Answer: “We have already explained, in our general charge, the nature and effect of the alteration and changing the name of John F. Carey and inserting the name of Sarah Ann Carey therefor, after the acknowledgment and delivery of the deed. Such change would not divest the estate created by it, certainly not as against intervening interests and rights. We have not considered, so far as the legal estate thereby vesting, this alteration as a mistake. We agree, there is not sufficient evidence of mistake to submit to this jury so as to authorize a reformation of the deed and thereby vest the legal title to the land in Mrs. Carey. It does not appear to be denied the deed was originally made to John F. Carey. The alteration made would not, as against the plaintiff, divest such title as the deed conveyed to John F. Carey, and the plaintiff would have the right to recover such title as that deed conveyed to Mr. Carey, and would have the right to recover unless it is found Mrs. Carey purchased, paid for to Joseph McPherson with her own money, and took possession of and held the land, under such purchase —as we have explained to you in our general charge, in this respect.” [5]</p> <p>Defendant’s first point affirmed, was as follows:</p> <p>“ 1st. That if the jury find from the evidence that Sarah A. Carey, wife of John F. Carey the defendant, purchased the land in dispute from Joseph McPherson by articles of agreement in 1854, and that she paid for the land with her own money given her by her mother, and that in the spring of 1855 she and her husband went into possession under the purchase, made improvements and has resided there continuously since that time, the title so acquired and possession so taken was the title and possession of Sarah A. Carey, and would confer upon her a good title, and one that will prevail over a title acquired from the sheriff under a sale upon the writ of fieri facias to No. 105 of December term, 1878, issued upon the judgment of Hastings & Bell for use v. John F. Carey, at No. 156 of May term, 1878, and the verdict of the jury should be for the defendant.” [6]</p> <p>Errors assigned were (1) refusing to instruct the jury to disregard the testimony of John F. Carey and (2) of Sarah Ann Carey; (3) the admission of the testimony of John F. Carey, quoting bill of exceptions and evidence; (4-6) the answers to the points as above, quoting the points and answers.</p>

Appeal, No. 260, Oct. T., 1891, by Imperial Refining Co., Ltd., a creditor, from decree of C. P. Venango Co., Nov. T., 1887, No. 4, confirming auditor’s report and distributing funds in the hands of the receiver of the Keystone Oil Co. Claim by bondholder to limit the funds applicable to mechanics’ liens. In 1887, Robt. G. Lamberton was appointed the receiver of the Keystone Oil Company.

<p> Insolvent corporation—Mortgage bonds issued to president—Subsequent assignee. </p> <p>The president of an insolvent corporation cannot, by accepting its mortgage bonds on account of his claims against it. acquire a preference over its unsecured creditors; and a subsequent assignee of the bonds with no greater equity than the president is in the same position.</p>

<p> Lateral support—Removal of^-Measure of damages. </p> <p>The rule that an owner is entitled to lateral support for his ground, extends only to support for the ground in its natural state, and does not include such support for the protection of buildings or other structures placed upon it. Where by reason of an excavation without negligence made by the defendant on his own land, the land of the plaintiff sinks or falls away, the measure of damages is, not the diminution in value of the lot of the plaintiff by reason of the acts of the defendant, but the amount of the injury actually done to the plaintiff’s land.</p> <p>The measure of damages, where land is taken by right of eminent domain, which is the difference between the value of the whole of the plaintiff’s land before the taking and its value immediately afterwards, has no application in such a case.</p> <p> Evidence—Striking out—Withdrawing juror. </p> <p>Where evidence of damage has been admitted, based upon defendant’s negligence, and the court subsequently rules that there is no evidence of such negligence to submit to the jury and strikes out the evidence as to damages, the defendant is not entitled to have a juror withdrawn and the case continued.</p>

<p>Appeal, No. 197, Jan-. T., 1892, by plaintiffs, E. D. Peters et al., from judgment of C. P. Lehigh Co., Nov. T., 1890, No. 59, compulsory nonsuit.</p> <p>Assumpsit for money had and received.</p> <p>The evidence on the trial before Albright, P. J., was to the following effect: Plaintiffs, through defendant, Abraham S. Grim, a stock broker, bought and sold stock. These transactions showed profits, the amounts of which-were duly paid over to the plaintiffs. At the close of the transactions, defendant retained in his hand the sum of $500, which was the amount of a draft paid by plaintiffs as a deposit with the defendant as security. Other facts appear by the opinion of the Supreme Court. This suit was brought to recover the $500. The court below, at the conclusion of the plaintiffs’ evidence, entered a compulsory nonsuit and afterwards refused to take it off.</p> <p>Errors assigned were (1-3) the refusal to take off the non-suit.</p>

Appeal, No. 295, Jan. T., 1892, from judgment of G. P. Berks Go., May T., 1891, No. 56, for defendant, F. S. Jacobs, n. o. v. for plaintiff, J. F. Repplier. Assumpsit for money had and received. On the trial, it appeared that the plaintiff had deposited with the defendant, a broker, $1,500, as margin to cover possible losses on purchases of Reading Railroad General Mortgage Bonds to the amount of $15,000.

Appeal, No. 242, Jan T., 1892, by plaintiffs, Robert Howarth et al., trading as Robert Howarth & Sons, from judgment of C. P. Delaware Co., Dec. T., 1890, No. 75, on verdict for defendant, John McClure. Assumpsit on appeal by defendant from judgment of the recorder of the city of Chester, to recover the amount of a certain order on defendant.

<p>Appeal, No. 327, Jan. T., 1891, by-defendants, Asa A. Nichols et al., from judgment of C. P. Lackawanna Co., Jan. T., 1887, No. 54, on verdict for plaintiff, James Nichols.</p> <p>Ejectment for an undivided fifth of certain real estate.</p> <p>The facts sufficiently appear in the opinion of the Supreme Court and in the report of the previous appeal, Nichols v. Nichols, 133 Pa. 438.</p> <p>The specification of the -errors assigned, in view of the opinion, is unnecessary.</p>

Appeal, No. 244, Jan. T., 1892, by Commonwealth, from judgment of Q. S. Lackawanna Co., April Sess., 1887, No. 44, vacating order for writ of restitution awarded after plea of guilty of forcible entry .and detainer by defendant, Joseph Griffin. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 196, July T., 1891, by defendant, Wm. C. Frick, from judgment of C. P. Montour Co., May T., 1890, No. 38|, on verdict for plaintiff, W. K. Holloway.</p> <p>Issue to determine amount due b3r defendant on confessed judgment for $10,000.</p> <p>The judgment bond was in the sum of $10,000, conditioned for the payment of a balance, to be ascertained, due by defendant to plaintiff on the purchase of plaintiff’s interest in the firm of W. K. Holloway & Co. Judgment having been entered on the bond and execution issued, on application of the defendant, the court below awarded this issue. At the trial before Ikeler, P. J., the verdict was for the plaintiff in the sum of 110,000.</p>

<p>Assigned estate — Corporation—Claims—Damages awarded stockholder who was ousted before insolvency.</p> <p>The claims of ordinary creditors of an assigned estate are not superior to the claim of one who, as an ousted stockholder, by a decree made after the assignment on proceedings instituted before the assignment, is awarded damages for an act antecedent to the insolvency.</p> <p>In the case of Reading Trust Co. v. Reading Iron Works, 137 Pa. 282, the right of the present appellant to receive dividends out of the assigned estate of the Reading Iron Works on the amount thereby awarded to it was finally settled.</p>

<p> Corporation,—Stock—Failure to obtain full subscription—Affidavit of defence. </p> <p>Where a subscription paper to the stock of a proposed corporation recites that 6500 shares are to be issued to the subscribers therefor, and that the undersigned are desirous of subscribing for the number of shares of said 6500 shares set opposite their names, and states that the undersigned subscribers, for and in consideration of the subscriptions of each other, agree to accept the number of shares set opposite their respective names and pay the par value thereof, in cash, in the following manner, viz., etc., an affidavit of defence, in an action brought to recover unpaid calls, which alleges that only a part of said 6500 shares has been subscribed for in cash, is suffieient'to prevent judgment.</p>

<p>Appeal, No. 112, Jan. T., 1891, by-defendant, from judgment of C. P. Luzerne Co., Sept. T., 1885, No. 9, on verdict for plaintiff, John J. McGeehan.</p> <p>Trespass for personal injuries.</p> <p>The case was tried before Woodward, J., and the verdict was for the plaintiff' in the sum of $3,500.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below charged in part as follows :</p> <p>[“ You will inquire whether it was ordinarily prudent for the company to have a platform, such as this one between the tracks of their road, being about seven feet wide; and if, under the circumstances, such a platform, for the purposes described, and of such a width, would make a necessarily dangerous place in its use for its intended purpose. Then, was it properly guarded and protected by the company so that passengers should have fair notice of danger of the possible approach of trains which might result in two trains passing this platform, the one in the one direction and the other in another, at the same moment.] [1]</p> <p>********</p> <p>“We have said to you a passenger is bound, himself, to be careful. He is not at liberty to put himself in danger when he may avoid it. This has been illustrated by instances of passengers getting off cars when in motion, which is contributory negligence, and which prevents a recovery. There are instances of parties claiming damages for injuries resulting from their putting their arms or their persons in peril unnecessarily— through the windows, perhaps, of the cars;—in any such case wrhere accident and injury result, and where the plaintiff himself has been guilty of the want of ordinary care, the law permits no recovery in damages.</p> <p>[“ But we say to you further, in this connection, that a passenger is not to blame for not foreseeing events which are uncommon in the business concerned, nor is he to be deemed guilty of concurring negligence when he takes only such risks as under the same circumstances a prudent man would take. In this connection we call your attention to the fact which has been argued, that for several years this plaintiff and other workmen had boarded the train at this point, had stood upon this platform which was apparently there for the purpose of accommodating people in getting on and off the cars of the company; and these facts, as has been well argued, are to be considered by you in the consideration of the question of the concurring negligence alleged. ”] [2]</p> <p>Defendant’s second and fourth points, refused, were as follows :</p> <p>“ II. The defendant having provided a safe place for passengers to wait and the plaintiff having voluntarily left such place of safety and gone to one of known danger, the plaintiff cannot recover.” [3]</p> <p>“ IY. Under all the evidence the plaintiff is not entitled to recover.” [4]</p> <p>Errors assigned, were (1, 2) portions of the charge as above in brackets, quoting them; (3,4) the refusal of defendant’s second and fourth points, quoting them.</p>

<p>Assignees—Sale of incumbered real estate—Stay of execution—Waiver of stay by judgment debtor—Act of Feb. 17,1876.</p> <p>The provision of the act of Feb. 17, 1876, in regard to sales of incumbered real estate by assignees for benefit of creditors, authorizing the court granting the order of sale to stay “ execution on all liens that may be divested by such sale,” covers executions on judgments as to which, since the act, stay of execution has been expressly waived: White v. Crawford, 84 Pa. 433, distinguished.</p> <p> Uncertainty as to sale for enough to pay liens. </p> <p>Where the real estate in the hands of the assignee is, in the language of the act, ‘ ‘ incumbered with liens to such an extent as to render it difficult to determine whether the same can be sold for enough to pay all liens,” the power of the court to grant the order of sale and to stay execution is clear; and the mere fact that the aggregate of the liens somewhat exceeds the appraised value of the real estate, does not take away the jurisdictional uncertainty, especially where the real estate consists of a number of pieces, part in the country and part in a town, one of the items being an undivided interest in a large tract of land with coal underneath it: Thompson’s Appeal, 126 Pa. 467, approved and applied.</p> <p> Terms of sale—Credit. </p> <p>In such a case an order fixing the following terms of sale is not improper: “One third of the purchase money to be paid in cash; balance in two equal payments, at six and twelve months respectively, with interest; to be secured by bond or mortgage lien of the purchaser at the discretion of the assignees.”</p>

<p> Confidential relation—Principal and agent—Father and son—Conveyance —Fairness—Fraud—Burden of proof. </p> <p>The mere fact that a son who resides with his father, at the time of the conveyance of real estate to him by his father, holds a general power of attorney from his father executed very shortly before the conveyance and especially authorizing a lease of the farm conveyed, is not sufficient of itself to put upon the son the burden of showing the integrity of the transaction.</p> <p>It seems that, in such a case, the presence of any fact or circumstance which casts the slightest suspicion upon the transaction would require the son to prove there was no taint of fraud or undue influence in it.</p> <p> Evidence—Competency of witnesses—Deceased grantot—Adverse interest. </p> <p>A plaintiff in ejectment who claims as heir an undivided interest in real estate conveyed by his deceased father to the defendant, another son, is not a competent witness to testify that the father had not sufficient mental capacity to make the deed, and that it was obtained from him by means of the fraud and undue influence of the grantee: King v. Humphreys, 138 Pa. 310.</p> <p>In such a case, a sister of the plaintiff and defendant is a competent witness for the defendant; and the fact that at the time of the conveyance it was agreed that part of the purchase money should be paid to her, and the same was secured by a judgment note of defendant not at the time of trial fully paid, does not disqualify her.</p>

<p>Appeal, No. 246, Oct. T., 1891, by plaintiff, E. Richey, from judgment of O. P. Greene Co., April T., 1888, No. 151, on verdict for plaintiff and against defendants, Charles Y. Hathaway et al., administrators of John W. Hathaway, deceased.</p> <p>Assumpsit on book account and for moneys had and received, and laid out and expended.</p> <p>Under the instructions of the court below by Inghram, P. J., the jury rendered a verdict for the plaintiff for so much of the book account as was not barred by the statute of limitations. As to the other items of plaintiff’s claim, the court ruled that she could not recover in this action, affirming the following points presented by the defendants :</p> <p>“ 1. Upon the evidence before you, the plaintiff cannot recover in this action the alleged balance of deposits made by Hathaway in the Commercial National Bank of Pittsburgh; and as to that part of the case your finding should therefore be for the defendants.</p> <p>“ 2. Upon the evidence before you the plaintiff cannot recover in this action the payments, or any part thereof, alleged to have been made by her for Hathaway in excess of deposits made by him with her; and, therefore, as to that branch of her case your finding should be for the defendants.”</p> <p>The other facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were (1,2) the affirmance of defendants’ points, quoting them; (3, 4) .the portions of the charge relating to these points, quoting charge.</p>

<p>Public officers — Emoluments—Constitution of 1874, art. Ill, §13, and art. XIV, § 5—Act of March 81, 1876.</p> <p>The rule that one part of a statute must be so construed that the whole may, if possible, stand, applies to the constitution.</p> <p>The provision of §5 of art. XIV of the constitution of 1874, that officers of counties containing over 150,000 inhabitants shall be paid by salary, is to be construed in connection with § 13 of art. Ill, which provides that no law shall increase or diminish the salary or emoluments of a public officer after his election or appointment.</p> <p>Section 13 of art. Ill of the constitution prohibits an increase or diminution of the salary or emoluments of a public officer after his election or appointment, although the law under which the increase or diminution would be made was passed before his election or appointment.</p> <p>The act of March 81, 1876, providing that officers of counties containing over 150,000 inhabitants shall be paid by salary, is not made to apply to an officer elected when the county contains less than that number, by an increase to that number during his term.</p> <p> Population—Ascertainment of—Federal census. </p> <p>In the absence of any legislative provision for otherwise ascertaining the fact, the population of a county is to be determined by the last federal census.</p>

<p>Appeal, No. 117, Jan. T., 1892, by-defendant, Andrew Comrey, sheriff of Schuylkill Co., from judgment of C. P. Schuylkill Co., July T., 1891, No. 243, awarding writ of peremptory mandamus, at the suit of the plaintiff, the Commonwealth of Pennsylvania, ex rel. Samuel Gr. DeTurk et al., Commissioners of Schuylkill Co.</p> <p>Petition for mandamus to compel defendant to comply with the act of March 31, 1876, known as the salary act.</p> <p>The petition for the mandamus filed June 29, 1891, set out the election of defendant to the office of sheriff of Schuylkill county in November of 1888; that said county at the time of the petition filed contained 154,163 inhabitants “ as set forth by Robert P. Porter, Supt. of Census, in his certificate, dated Washington, D. C., January 7, 1891,” a copy of which was annexed to and made part of the petition; and the refusal of the defendant to comply with the provisions of the act of March 31, 1876.</p> <p>The answer set out that, at the time of the defendant’s election in November, 1888, and at the time he took upon him the duties of the office in January, 1889, the census for 1890 was not taken. That by the census of 1880 the population of the county was less than 130,000.</p> <p>A demurrer was filed to the answer; and, on argument, the court adjudged the answer to be insufficient and directed a writ of peremptory mandamus to be issued, commanding the defendant to comply with the provisions of the act of March 31, 1876.</p> <p>Errors assigned were, (1) not dismissing the prayer of petitioners ; (2) not giving judgment for the defendant; (3) holding that defendant was subject to the act of 1876 ; (4) holding that § 18, art. Ill of the constitution was abrogated or made nugatory in any of its provisions by § 5 of Art. XIV, and the act of March 31, 1876.</p>

<p>Appeals, Nos. 199, 200, 347, 348, 349, 350, 351, 352, Jan. T., 1892, by defendant, from decrees of C. P. No. 3 Phila. Co., Sept. T., 1891, Nos. 661, 840,. 764, 853, 854, 852, 855 and 848.</p> <p>Bills for injunction.</p> <p>The bill filed by the Penna. Railroad Co. was in its own right and as lessee of the Phila. & Trenton Railroad Co. and of the River Front Railroad Co. The bill alleged that the defendant had received a permit from the board of highway supervisors-of the city of Philadelphia by virtue of the ordinance of December 26, 1890, to lay a track of railroad on Delaware Avenue from Callowhill street to Queen street and had commenced to lay said track; that said track would pass the property of the Penna. Railroad Co., used as a warehouse, and wharf propel in its possession as lessee of the Phila. & Trenton Railroad Co.; that Delaware avenue, from Vine street on the north to South street on the south, prior to 1831 was private estate improved by wharves or piers along the river front; that b3r the will of Stephen Girard, probated in 1831, the sum of $500,000-was bequeathed to the city of Philadelphia in trust inter alia “ to lay out, regulate, curb, light, and pave a passage or street on the east part of the city of Phila., fronting the river Delaware, not less than 21 feet wide and to be called Delaware avenue, extending from South street to Vine street; ” that by another provision of said will, Mr. Girard bequeathed to the commonwealth of Pennsylvania $300,000, for the purpose of internal improvement by canal navigation, to be paid into the state treasury as soon as such laws shall have been enacted by the constituted authorities of the said commonwealth as should be necessar3' to carry into effect the making, paving, etc., of Delaware avenue; that the commonwealth by act of March 24, 1832, enacted such legislation and thereafter the sum of $300,000 was paid to the commonwealth ; that under such laws- and b37 reason of said bequests, Delaware avenue was open to the width of 25 feet, chiefly at the expense of said bequest; that under the act of April 16, 1858, Delaware avenue was widened to the extent of 50 feet, $90,000 of the expense of so doing having been paid out of the fund bequeathed as aforesaid ; that the Phila. & Trenton Railroad Co. dedicated to the city for the purpose of such widening as much of its property as was required. The bill also averred that the River Front Railroad Co., by virtue of an ordinance of May 31, 1877, and subject to a decree procured at the instance of the directors of city trusts in C. P. No. 2, Phila. Co., June T., 1887, No. 411, had already laid a track on said avenue over part of the distance in question. The bill alleged injury to the plaintiff in its three capacities and prayed for an injunction against the defendant laying any tracks on Delaware avenue between Vine and South streets until it should have procured the assent of the directors of the city trusts, who, by virtue of the act of June 30,1869, have the administration of the estate of Stephen Girard; and against laying said track, along the property of the Pennsylvania Railroad without making compensation for the injury thereto.</p> <p>The other bills were by owners of property fronting on Delaware avenue.</p> <p>The court below, after hearing on affidavits and argument, granted an injunction in each case.</p> <p>Errors assigned, were (1) granting and (2) continuing the injunctions (3) without condition; (4) not dissolving the injunctions and (5) not providing a mode for entering security for damages and (6) ordering a dissolution of the injunctions upon defendant entering security for payment of damages accruing to complainants from property taken, injured or destroyed by the construction of defendants’ works.</p>

<p>Negligence—Proximate and remote and concurrent causes—Highways— , Guards.</p> <p>^ tW° causes are operating at the same time to produce a given l‘esult> which might be produced by either, they are eonourrent causes. if two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause. In such case, the law regards the proximate as the efficient and responsible cause and disregards the remote.</p> <p>A horse which was drawing the omnibus in which plaintiff was riding fell near the middle of a roadway about 20 feet wide and in good condition. On one side of the road was a steep descent of several feet without any guard rail. The horse struggled to regain its feet, but failed; in its struggles, it went over the declivity, dragging the omnibus after it, and the plaintiff was injured. The jury found that the city was negligent in not erecting a barrier at the edge of the highway; but that the fall of the horse was not caused by the negligence of the city; held, that the city was not liable. Wagner v. Jackson Township, 133 Pa. 61, overruled.</p> <p>If any injury were suffered by reason of the absence of the barrier of which such absence was the proximate or efficient cause, the city would be liable. If, therefore, in the ordinary use of the street, one had been crowded over the bank by the volume of the travel, by the sudden shying of his horse, or by the accumulation of ice on the roadway, the absence of the barrier might justify a recovery, if the 2ilaintiff was not guilty of contributory negligence: Per Williams, J.</p>

Appeal, No. 100, Jan. T., 1892, by William A. Lippe, from decree of O. C. of Phila. Co., distributing estate of Adolph Lippe, deceased. Audit of executor and trustee’s account. Prom the adjudication before Ashman, J., it appeared that testator gave his residuary estate to his executor in trust to pay the income to his wife for life, with remainder to his children, of whom William A. Lippe alone survived him. The testa: tor died January 23, 1888 ; the widow, December 19,1890.

<p>Appeal, No. 87, July T., 1890, by defendant, John D. Hart, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1888, No. 602, on verdict for plaintiff, William Fisher.</p> <p>Trespass for personal injuries.</p> <p>On the trial the following facts appeared: Plaintiff, a minor, was in the employ of defendant learning the trade of bricklaying. On Aug. 7,1888, the plaintiff was working on a building which was being erected by defendant. It became necessary to raise the scaffold. In so doing, a ledger board (the board which is nailed to the uprights and acts as the support of the putlocks upon which the floor of the scaffold rests) was insufficiently nailed to all the uprights, except the westernmost one. In consequence, the scaffold fell while plaintiff was working upon-it where he had. been directed to go by defendant. For the injury thus sustained this action was brought.</p> <p>There was no question but that the defendant was personally present at the time the scaffold was raised and directed the work. One of the witnesses testified that, after Gordon, the workman who nailed the ledger board, had put one nail in it, the defendant ordered him to come to another place on the scaffold and nail there.</p> <p>After the preliminary questions given in the opinion, counsel for plaintiff was, under objection, allowed to put the following question to one of plaintiff’s witnesses: “ Did not you say to me yesterday afternoon as follows: ‘ I did not superintend the construction of the building of this scaffold; John D. Hart did that himself. When he was around he didn’t allow anybody to superintend anything. He did all that himself. I only saw Gordon nail on this ledger board that fell. He nailed one nail in one end of the board. This was all that I saw. Hart was standing there looking at him also.’ ” [1]</p> <p>Defendant’s sixth point, refused, is quoted in the opinion of the Supreme Court. [2] His fifth point, also refused, was: “ Under all the evidence in this case, the verdict of the jury should be for the defendant.” [3]</p> <p>The court charged in part as follows:</p> <p>“ The contention between counsel here appears to be tlaat there was negligence on part of defendant. And on defendant’s part it is claimed that one of his employees was negligent, and defendant seeks to have you apply the principle of law that where the accident is a result of the negligence of a co-employee there is no right to recover. There is such a principle of law, and if the facts warrant the application of it the defendant is absolved from responsibility, and plaintiffs cannot recover.</p> <p>********</p> <p>“ If this accident was caused by the improper construction of this scaffolding, and you believe it was constructed under the supervision and direction of defendant, and such faulty construction was the result of defendant’s order, or want of proper care, he is liable to plaintiff, if plaintiff is not guilty of contributory negligence; if the accident was caused by the improper construction of the scaffold erected by-a fellow employee, simply under orders to erect a scaffold, and if the negligence was unknown to defendant, your verdict should be for defendant, if he gave directions which would have secured a safe scaffold if carried out.”</p> <p>The verdict was for the plaintiff in the sum of $7,500.</p> <p>Errors assigned, were (1) refusal to sustain objection to above question, quoting it; (2, 3) refusal of defendant’s 6th and 5th points, quoting them.</p>

<p>Mortgage of coal lease—Sheriff’s sale—When mortgage not discharged— Labor claims—Acts of April 5, 1853 and March 22, 1801.</p> <p>A coal lease mortgage in Schuylkill county under the acts of April 5,1853, and March 22, 1861, is not discharged by a sheriff’s sale under executions on judgments on claims for labor subsequently performed and other executions on ordinary claims, on the proceeds of which executions these and other similar labor claims not reduced to judgment, were a preferred lien.</p>

<p> Surety—Subrogation. </p> <p>Where one of a guardian’s two sureties has money of the ward in his hands loaned him by the guardian and held for the protection of himself and his co-surety, and refuses to apply the same toward the payment of a judgment obtained on the guardian’s bond, his no-surety, upon payment of one half of the judgment, is entitled to subrogation as against him to the amount of one half of the fund in his hands.</p>

Appeal, No. 34, Jan. T., 1892, by plaintiff, B. F. Smith, from judgment of C. P. Crawford Co., Sept. T., 1888, No. 65, on verdict for defendant. Trespass for personal injuries.

<p> Executory contract—Option to lease. </p> <p>An agreement providing that, upon the completion by defendant of a certain railroad within a certain time, plaintiff will lease to defendant his iron ore interests in certain places at a royalty not exceeding a specified sum per ton, and providing for minimum royalties and for the renewal of the lease, is not a lease and rent cannot be claimed under it, the defendant not having mined any ore or called for or accepted a lease, although the railroad was completed within the time fixed.</p>

<p>Will— Execution of by testator not directly concerned in its preparation.</p> <p>Where a will has been prepared for a testator by the direction of one who and his wife are the sole beneficiaries under it,without the scrivener and testator having been brought together, there ought to be clear evidence that he had an intelligent understanding of its contents and that he knew what disposition he was making of his property: Yardley v. Cuthbertson, 108 Pa. 395.</p> <p> Testamentary capacity—Evidence. </p> <p>On the question of testamentary capacity, evidence of the condition of the mind of testator near the date of the will is admissible.</p> <p>The opinion of testator’s neighbors, who had known him for many years and who had been in the habit of visiting him, is also admissible.</p>

<p> Negligence—Master and servant—Fellow workman—Contributory negligence. </p> <p>It is not contributory negligence for a person employed as a blacksmith knowingly to continue work with an incompetent helper, if he has been assured by the foreman over him, who had authority to engage and discharge blacksmiths, etc., that a suitable person would be employed in the place of the helper as soon as such a person could be obtained.</p> <p> Vice principal—Notice to foreman, when notice to master—Question for jury. </p> <p>Where the evidence shows that plaintiff’s foreman had authority to employ and discharge men and, up to a certain point, fix their compensation, although there was a superintendent over the foreman, and the business was conducted by a partnership, the question is for the jury, whether or not the foreman was so far a vice principal as to render notice to him of the incompeteney of a fellow workman notice to the principals.</p> <p> Practice, S. O.—Appeal—Assignment of error—Form of. </p> <p>Where the error assigned is the admission of certain evidence, and the assignment of error only gives the question objected to and ruling of the court, it will not be considered.</p> <p> Practice, G. P.—Trial—Point assuming facts. </p> <p>A point which assumes facts which are for the consideration of the jury should not be affirmed.</p>

Appeals, Nos. 306, 308, 305, Jan. T., 1892, by general creditors, from decree of C. P. Berks Co., confirming report of auditor of the account of the Reading Trust Company, assignee of the Reading Iron Works. Claim to surcharge assignee. From the report of the auditor, ,it appeared that the assignee had paid out of the proceeds of real estate $100,000 and interest on a judgment of the Phila. & Reading Railroad Co. against the Reading Iron Works.

Appeal, No. 70, July T., 1891, from judgment of C. P. No. 3, Phila. Co., June T., 1888, No. 275, discharging rule obtained by defendant, Mary Y. Eyre, to set aside fi. fa. issued by plaintiff, A. Louis Smith. Foreign attachment. Judgment for want of an appearance was entered Dec. 11, 1888. On June 14,1889, a rule was obtained to open judgment and let defendant into a defence; and on Dec. 11, 1889, this rule was discharged.

Appeal, No. 218, Jan. T., 1892, by defendants, James T. Hale and John P. Morrow, late trading as Hale & Morrow, from judgment of C. P. Bradford Co., Sept. T., 1890, No. 72, on verdict for plaintiff, John F. Oorser. Assumpsit for breach of contract to purchase stock.

<p>Constructive trust—Purchase of realty by agent—Act of April 22,1856, § 6.</p> <p>A constructive trust, arising by legal implication from a purchase by an agent at a judicial sale of the land of his principal, is clearly within the operation of the sixth section of the act of April 22, 1856; and an action to enforce the trust must be brought within the time thereby limited.</p>

<p>Appeal, No. 463, Jan. T., 1892, by plaintiff, from judgment of C. P. Elk Co., Feb. T., 1887, No. 232, on verdict for defendants, Elizabeth D. Kane et al.</p> <p>Ejectment.</p>

Appeal, No. 462, Jan. T., 1892, by plaintiffs, Oscar Brasington et al., from judgment of C. P. Warren Co., Sept. T., 1886, No. 34, on verdict' for defendants, John P. Hanson et al. Ejectment. At the trial before Brown, P. J., it appeared that in 1842 the premises in question were conveyed by a deed in which Archibald Tanner was named as party of the first part and Sally Brasington as party of the second part.

Appeal, No. 102, July T., 1891, by plaintiff, Margaret Breckwoldt, from judgment of C. P. Warren Co., for defendants, Clinton S. Morris and W. C. Beardsley, n. o. v. Trespass for seizing and removing personal property.

<p> PMdence—Parol contract to drill oil well for an interest therein—Assignment of the oil lease by defendant—Statute of frauds. </p> <p>In the case of a parol contract for the drilling of an oil well on land of which the defendant was the lessee under an oil lease, evidence on behalf of the defendant, in a suit for the drilling of the well, that the contract was that he should hold the oil and the property until the proceeds paid for the drilling when plaintiff was to have a quarter interest, is admissible. The statute of frauds has no bearing.</p> <p>In such a case, evidence on behalf of the plaintiff that the defendant had conveyed the lease in question after the suit was brought, and after the plaintiff had repudiated the contract as set up and alleged by the defendant, is inadmissible.</p>

<p>Appeal, No. 31, Jan. T., 1892, by plaintiff, Geo. W. Huntley, from judgment of C. P. Potter Co., June T., 1888, No. 302, on finding for defendants, Geo. A. Barclay et al.</p> <p>Ejectment.</p> <p>This case was referred for trial to Olmsted, P. J., under the act of April 22,1874. On the trial the following facts appeared: The tract in dispute was claimed by both plaintiff and defendants under warrants, surveys and patents from the commonwealth, the warrant of plaintiff bearing date March 24, 1886. In 1794 a block of warrants was surveyed to William Willink et al. These tracts included No. 4918 and were rectangular in form; the external lines and corners were clearly marked upon the ground and are yet. to be found without difficulty. In 1851 Timothy Ives, under whom defendants claimed, obtained a warrant for 900 acres, which were stated, in his application and the warrant, to adjoin lot No. 4918. In 1851 the then surveyor “ located ” this warrant about 57 rods north of lot No. 4918; the intervening strip was the land in controversy; the surveyor, however, called for warrant No. 4918 as the south adjoiner of the Ives warrant. The patent to Ives in 1854 followed this survey, and showed that, according to it, the land granted was 990 acres, and that the extra amount had been paid for. In 1860 Ives„obtained from the board of property an order of re-survey, alleging in his application that the surveyor had neglected to trace the lines and mark the same on the ground and marking the corners. The re-survey was made the same year and accepted in 1861; it brought down the line of the Ives tract to the north line of 4918 and called for 990 acres.</p> <p>The final finding of law was as follows :</p> <p>“ And I now, with great doubt and hesitation, hold as matter of law that the effect of the full payment to the commonwealth of the amount covered by the re-survey, together with the resurvey returned and accepted by the proper officers of the commonwealth, vested in Ives et al. title to the land otherwise vacant, down to the north line of warrant No. 4918, and that there was therefore no vacancy to be covered by the plaintiffs’ warrant and survey. This results in a finding in favor of the defendants, and I now direct that a judgment be entered in favor of the defendants at the plaintiff’s costs.” [5]</p> <p>Error assigned was, among others, (5) the final finding of law as above, quoting it.</p>

Appeal, No. 182, Jan. T., 1892, by plaintiff, from judgment of C. P. Warren Co., March T., 1891, No. 49, quashing case stated. Assumpsit to recover penalties from the defendant, A. W. Howard, for unlawfully exercising the business of a real estate broker without a license.

Appeal, No. 179, Jan. T., 1892, by defendant, Will Baldwin, from judgment of Q. S. McKean Co., Oct. Sess., 1890, No. 28, refusing to discharge defendant. From the record, the following facts appeared: Defendant was arrested, charged with desertion and non-support of his wife. His father became his bail in $500.

<p>Appeal, No. 308, Oct. T., 1891, by plaintiff, Frank S. Layng, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1889, No. 110, dismissing bill in equity against The A. French Spring Co., Ltd., and its chairman and board of managers.</p> <p>Bill in equity to set aside the purchase of stock in the Bolton Steel Company.</p> <p>The case was referred to R. B. Carnahan, as master and examiner ; and, upon his death, to Thomas Patterson. From the report of the master, it appeared that the plaintiff was one of the, stockholders of The A. French Spring Company, Ltd., a limit-_ ed partnership under the act of 1874, the business of which, according to its articles of association was “ the manufacture of springs of every description.” The Bolton Steel Company was originally a corporation under the laws of Ohio, but at the time of the filing of the bill, had been merged into a corporation organized under the laws of Pennsylvania under the name of “ The Bolton Iron & Steel Company,” the purpose of the corporation, according to its charter, being the “manufacturing iron or steel or both, and of articles of commerce .composed of either of these metals exclusively, or in combination with other material or with wood.” The character of work chiefly conducted by the Bolton Steel Company at the time of the purchase of the stock in question was the manufacture of spring steel. The capital stock consisted of 2000 shares of the par value of $100. The purchase was formally reported to the board of managers of The A. French Spring Company, at their quarterly meeting October 15, 1888, and by them approved, the company assuming the purchase and relieving Mr. French from liability thereon.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The master’s report was in part as follows:</p> <p>“ There remains then the single question whether the act complained of is ultra vires, or rather an.unauthorized diversion of the capital of the defendant company from the purposes marked out in its articles of association. This is the real question in the case.</p> <p>“ It is argued by counsel for plaintiff that the purchase complained of is simply taking a large portion of the assets of the limited partnership and placing them in a corporation where the rule of liability, the management of the business, and the character of the business, are entirely different.</p> <p>“ That Ihe Bolton Iron and Steel Company differs in these respects from the limited partnership must be admitted, but it does not seem to the master that this is the proper test to determine the unauthorized character of the investment.</p> <p>“ There would appear to be two underlying principles applicable to a case of this sort. The first exists for the benefit of creditors, though the shareholder may doubtlessly avail himself of it, and is that the capital of a limited partnership is a trust fund for the benefit of creditors, and cannot be diverted from their reach: Coffin’s Appeal, 106 Pa. St. 286. Justice PAX-SON there states the rule as follows: ‘ It (the capital contributed) is a fund, set apart by the act for the benefit of creditors, and to some extent partakes of the nature of a trust. I do not, of course, mean a technical'trust, which would require to be invested and so held, but a trust in the sense that neither the special nor the general partners can lay their hands upon it except for the purposes for which it was created. It may be used in the business, for it was contributed for that purpose, but it cannot be diverted either directly or indirectly by any device whatever.’</p> <p>“ Has there been any violation of this rule by the purchase of. stock complained of ? As the master looks at it, there has not, for two reasons: 1st. The investment here is of a portion of the surplus, about one fourth, and the capital is still intact and answerable to creditors. 2d. The stock in the Bolton Iron and Steel Company represents the money expended, and is an available asset of the defendant company. The creditors of that company, are not turned over to extricate its capital from a corporation which has appropriated it. The limited company is untouched, and the only difference is that in the surplus account there is 501 shares of stock in the Bolton Company, in place of <¡[>50,000, just as there might be a government or railroad bond in place of a corresponding amount of cash.</p> <p>“ In the master’s opinion, there has been no violation of the trust pointed out in the remarks of Justice Paxson, above cited.</p> <p>“ The second rule exists for the benefit of the stockholders directly, and is that the enterprise must be conducted within the limits marked out at the time the capital was invested in the joint enterprise. A good example of this rule is the case of Asbury R. & I. Co. v. Riche, 7 E. & I. Ap. 672; though the cases are numerous, and there is really no dispute as to the statement of the principle.</p> <p>“ In determining whether or not the purchase complained of is an infraction of this rule, we must look to the entire scope of the enterprise, and give to the directors all incidental powers proper for carrying the main purpose into effect.</p> <p>“ ‘ A corporation may transact all such matters as, being auxiliary to its primary business or main enterprise, are transacted by ordinary individuals under similar circumstances: ’ Green’s Brice’s Ultra Vires, p. 65; Watts’s Ap., 78 Pa. 370.</p> <p>“ The primary object of The A. French Spring Company, Limited, was the manufacture of railway springs. For this purpose, they were obliged to use large quantities of steel. Prior to this purchase, they had bought their steel in the open market. The association of steel makers having forced up the price of this article, they found themselves at a serious disadvantage as against competitors who made their own steel. It can hardly be questioned that if, at this time, the defendant company had put up a plant for the manufacture of steel, the act would have been sustained as within the sound discretion of the board of managers. The use of steel is a necessary link in the production of the finished article. It is in the discretion of the managers at what link in the chain they begin their operations. It would seem impossible for a court of equity to draw the line at any one step in the process, and forbid the company from taking up its work of manufacture beyond that point. As the master views it, the company have the right to start with the ore in the hills, if in the'judgment of the managers they can reach more advantageous results in this way, than by taking the partly finished product from the hands of other manufacturers.</p> <p>“ The question then arises, assuming this view to be correct, can the defendant company associate itself with others, by means of the purchase of stock in a corporation, in order to compass any of its legitimate ends ? This question is by no means free from perplexity, but the weight of authority seems to be that they can make such purchase, provided the corporation into which they buy is conducted for the same general purpose as their own.</p> <p>“ Cook on Stockholders thus states the rule, sec. 63: ‘It is not equally clear that one private corporation may subscribe for stock in another such corporation. On the contrary, such subscriptions are ultra vires and void, unless clearly within the ordinary objects and business of the subscribing corporation.’</p> <p>“ The tendency in Pennsylvania seems to be to sustain a bona fide purchase of this sort, where it is for the purpose of carrjdng out the main object of the purchasing corporation.</p> <p>“In Watts’s Appeal, supra, the charter of the Improvement Company authorized them ‘ to aid in the development of the minerals and other materials, the use and transportation of them to market, and promote the clearing and settlement of the country .... to employ their capital in the construction of such railways, not exceeding twenty miles in length, as may be necessary from such mines to intersect the Sunbury and Erie and the Allegheny Valley Railroad .... to create a capital stock of §100,000, for the purposes specified in this section.’</p> <p>“ Instead of building a branch road on their own account, the directors subscribed §162,000 to the stock of the Sunbury and Erie Railroad, in consideration of which that road adopted a route which carried it through the heart of the Improvement Company’s lands. On a bill filed setting forth that the subscription was contrary to law, the court say: ‘ That they had the power to build fioth common roads and railroads, or to aid others to a reasonable extent in so doing, is beyond doubt. Under such circumstances, their subscription, though larger than was warranted,' looks to me more like a mistake in judgment than a willful perversion of power.’</p> <p>“ In Wright v. Pipe Line, 101 Pa. 204, the subscription for stock was expressly prohibited by the general act under which the company was incorporated, and it was distinctly upon the terms of the act that this portion of the decision is based.</p> <p>“ The corporation act of 1874, sec. 88, relative to iron and steel companies, gives them the right to purchase and hold stock in any other corporation of a similar nature.</p> <p>“ The limited partnership act of June 2,1874, is silent on the subject, but the 7th section contains a provision relative to the loan of its credit, name, or capital ‘ to any other person or association.’</p> <p>“ It would seem clearly that there is then no statutory prohibition of an investment of this character, but that on the contrary, so far as a legislative intent can be inferred, it is favorable to the right claimed. ‘</p> <p>“ The question here raised was considered in almost the same aspect, and the view above indicated was adopted by Judge Church, of the common pleas of Crawford county, in the case of Patterson v. The Tide Water Pipe Co., 12 W. N. C. 452. After discussing the question of the character of limited partnerships, and holding that associations of this sort are much more nearly allied to corporations than to ordinary partnerships, Judge Church proceeds:</p> <p>“ ‘ If the association has the right to refine oil, they have a right to acquire real and personal property for this purpose, and to use their capital and credit in such acquisition and business. If they have a right to use their capital or credit for this purpose, it would certainly seem they had a right to use a portion of their capital therefor, and to join such portion to the capital or credit of some other person or organization, if the capital required in the venture were too large for the sole and individual capacity of the association. Moreover, it is in evidence, and we unhesitatingly believe it, that the business of these refining companies has proven and is proving profitable, that their establishment was wise, and, indeed, a necessity. I do not think, therefore, that the taking stock by the managers in these refining companies was a diversion of the association funds from their legitimate purposes, nor do I believe the act to be ultra vires.’</p> <p>“ As it seems to the master, this view is most reasonable, and most consistent with a sound policy which shall encourage and protect the existence of these artificial'bodies.</p> <p>“The purchase in the case before us appears to have been made with care and discretion and after canvassing all other expedients. All precautions necessary to protect the company and its shareholders were taken; and the result appears to have justified the judgment of the managers. To hold the contrary rule would be to very greatly, and as it seems to the master unnecessarily, restrict and hamper the successful business management of associations of this nature.</p> <p>“ Upon these considerations, the master concludes that the purchase by The A. French Spring Company, Limited, of the stock in the Bolton Iron and Steel Company, was not ultra vires or unauthorized, but a matter within the sound discretion of the board of managers. He therefore recommends that the bill be dismissed at the costs of plaintiff.”</p> <p>Exceptions filed to the report of the master were dismissed by the court below and a decree entered dismissing the plaintiff’s bill and putting the costs, including the master’s fee, upon the plaintiff.</p> <p>Errors assigned were (1) the entering of the decree, quoting it; (2) as stated in the opinion of the Supreme Court.</p>

Appeal, No. 356, Jan. T., 1892, by plaintiff, Robert Power, from judgment of C. P. Elk Co., May T., 1890, No. 144, compulsory nonsuit. Trespass for damages caused by a change in the abutments of a bridge. On the trial before Mayer, P. J., at the conclusion of plaintiff’s evidence, a nonsuit was entered, which the court after-wards refused to take off. The facts sufficiently appear in the opinion of the Supreme Court.

Appeal, No. 390, Jan. T., 1892, by plaintiff, Frederick G. Kinyon, from judgment of C. P. Potter Co., Sept. T., 1891, No. 139, compulsory nonsuit.

<p>Appeal, No. 162, July T., 1891, by one of the defendants, James K. Orr, from judgment of C. P. Elk Go., Nov. T., 1889, No. 58, on verdict for plaintiff, George Schnyder.</p> <p>Ejectment by plaintiff against James E. Orr and Emma M. Shiffer and C. H. Shiffer, of whom James K. Orr alone was served.</p> <p>On the trial the jury rendered a verdict for the plaintiff for the land described in the writ “ to be released upon payment of 1269.24 with interest within three months, subject to the opinion of the court on question of law reserved, whether ejectment will lie against present defendant to enforce the provision contained in the deed from George Schnyder to Emma M. Shiffer, dated August 1,1885.” The court below first entered judgment for the defendant n. o. v. A certiorari from the Supreme Court on the appeal of the plaintiff having been filed, the court below reversed its former opinion and vacated the judgment and ordered judgment to be entered for the plaintiff, in the following opinion by Mayer, P. J.:</p> <p>“We have reconsidered this case and are convinced that we were in error in entering judgment for the defendant. Our opinion was that the clause in the deed from George Sehynder to Emma M. Shiffer, viz.: ‘ this conveyance, made subject to the following liens,’ was only a covenant on the part of the grantee which could not be enforced by an action of ejectment. Further reflection and examination of the authorities have satisfied us that it is a condition. George Schnyder sold and conveyed the premises in controversy to Emma M. Shiffer by deed dated August 1, 1885, for the consideration of $2,000, and recorded in Elk county on the twenty-sixth day of January, 1886. This deed contained the following clause: ‘ This conveyance made subject to the following liens, against the premises herein described; .... A. judgment of Prince E. Gifford to No. 96, May term, 1879, real debt, $155.75, with interest, from May 26, 1879, and costs. . . .’ These liens, according to the testimony of George Schnyder, formed part of the purchase money at the time of the sale to Emma M. Shiffer. This clause in the deed from Schnyder to Shiffer created a lien upon the premises conveyed, and Mrs. Shiffer, the grantee, took the estate, conditioned for the payment of these liens, and the performance of the condition could be. enforced by ejectment: Strauss’ Appeal, 49 Pa. 353; Eichelberger v. Gitt, 104 Pa. 67; Kensinger v. Smith, 94 Pa. 384.</p> <p>“ On the first day of November, 1887, E. M. Shiffer and her husband sold and conveyed by deed to James K. Orr, one of the defendants, the premises in dispute. When Orr purchased this land he had notice on the face of the title of his vendor of the condition upon which the land was held by her. It was the duty of Orr to have made inquiry and ascertained whether these liens were outstanding and unpaid. He stands in the place of his vendor, holding this land with notice of the amount remaining unpaid on these liens. The rule is that whatever puts a party on inquiry amounts to notice, when the inquiry becomes a duty, as in the case of a purchaser of land, and would lead to a knowledge of the requisite fact by the exercise of ordinary diligence and understanding. ‘ When inquiry becomes a duty the party who neglects to perform it should be visited at least with constructive notice of the facts that probably would have been brought to light if it had been only made: ’ Leonard’s Appeal, 94 Pa. 168.; Hottensteinv. Lerch, 104 Pa. St. 454; Eichelberger v. Gitt, Ibid. 64.</p> <p>“ Judgment should therefore be entered for the plaintiff for the land to be released on the payment of the Gifford judgment. It is therefore ordered that the judgment heretofore entered in favor of the defendant non obstante veredicto be vacated and set aside, and now judgment is ordered to [be entered in favor of the plaintiff for the land described in the writ, to be released on the payment of the amount of the judgment of Prince E. Gifford against George Schnyder, entered to No. 180 September term, 1884, to wit: the sum of $246.20, with interest from May 27, 1889, and costs, $9.45, within four months from this date, March 31,1891.”]</p> <p>Error assigned was the order directing the judgment to be entered, as above in brackets :</p>

<p>Appeal, No. 896, Jan. T., 1892, by defendants, Samuel Davidson, Thomas Davidson, Addison Davidson and L. D. Whitcomb, from judgmeut of C. P. Warren Co., June T., 1891, No. 6, on verdict for plaintiffs, Jacob Henrici and John S. Duss, trustees of the Harmony Society at Economy.</p> <p>Replevin for timber.</p> <p>On the trial, it appeared that William Davidson’s heirs were, among others, the three Davidson defendants and James Davidson, a lunatic, whose committee was Addison Davidson, and Loretta D. Appleton, wife of Harlan Appleton.</p> <p>The charge of the court below, by Noyes, P. J., was as follows :</p> <p>“ On the 27th of February, 1891, a writ of replevin was issued out of this court at the suit of Jacob Henrici and John S. Duss, trustees of the Harmony Society, at Economy, against Samuel Davidson, Thomas Davidson, Addison Davidson and L. D. Whitcomb, and by virtue of this writ a quantity of pine and oak timber was seized by the sheriff. The defendants claimed the timber as their property, and, as they had a right to do, gave bonds to the sheriff, to appear and make good their claim; whereupon the timber was redelivered to them. The question to be determined in this case is, whether the property in the timber replevied was in the plaintiffs, or in the defendants.</p> <p>“The timber was cut on lands known as tracts .5279 and 5280, in this county; and in order to show title to the timber, the plaintiffs introduce evidence by records, documents and other proof, that they, as trustees of the Harmony Society, were and are the owners of that land. This evidence is entirely uncontradicted, and it shows a valid legal title in the plaintiffs to the land in question, and by virtue of that ownership they are to be regarded as the owners of the timber taken therefrom, and hence entitled to recover in this action, unless prevented by facts shown on the part of the defendants.</p> <p>“ The defendants show no legal title to the land in question, but they claim that an equitable title was vested in Samuel, Thomas and Addison Davidson in common with others, by a parol, or verbal, agreement between them and their co-owners, heirs of Wm. Davidson, deceased, and Jacob Henrici and Jonathan Lenz, the then trustees of the Harmony Society; and that L. D. Whitcomb, so far as he had any possession of the timber, had it under the other defendants and their privies. Although such an agreement would not vest in them a legal title, such as is vested by deed, yet if in fact made, and in part executed, and the circumstances surrounding the transaction, and the .character and amount of the proof are such that a court of equity would enforce it against the trustees of the Harmony Society, then by the long established practice in Pennsylvania, it will be recognized in a court of law, and will constitute a good defence to this action.</p> <p>“It is the duty of the jury to determine matters of fact, and of the court to determine questions of law. The nature of this part of the defendant’s claim is such, that before the truth of their allegations can be submitted to you, we must determine whether the facts are such that a court of equity could establish and enforce the alleged parol contract.</p> <p>“ In general, no estate in lands, tenements or hereditaments, except leases not exceeding the term of three years, can be created without writing, by reason of the express provisions of the statute called the statute of frauds and perjuries, which for more than a century has been in force in this commonwealth. Such estates have the force of estates at will only, and are determinable at the will of either party.</p> <p>“ But as the statute was designated to prevent fraud, the court have controlled its effect so as not to permit it to be made the instrument of fraud. Under some circumstances, an agreement to sell land, not reduced to writing, may be enforced. Where there is clear, precise and indubitable proof that an agreement to sell land was made between the parties, upon a valuable consideration, the proof embracing all the terms of the contract; and the vendor has in part executed it, by delivering the exclusive possession of the land to the vendee, under the contract; and the vendee has paid, and the vendor received, the purchase money; or if not, where the vendee has made such valuable improvements that he could not be compensated in damages, and a rescission of the contract would be unjust, inequitable and practically a fraud, then it may be enforced notwithstanding the statute.</p> <p>“ Our first inquiry is, whether the evidence shows a contract fully made between the parties.</p> <p>“ The testimony of the defendants tends to show that in the fall of 1887, Samuel Davidson met Jacob Henrici, one of the trustees, and had a conversation, in which he asked Mr. Henrici whether he was going to fix up that land business up the Allegheny river satisfactory. That he told him unless it was fixed up he was going to bring suit. There is some evidence that prior to this time Samuel Davidson and others, the heirs of Wm. Davidson, had made some claim to a large body of land, growing out of the rights or claims of their father. That subsequently Jonathan Lenz met Samuel Davidson in Warren county, and after some discussion offered a settlement, which was not at the time accepted; Samuel replying that he must consult the other heirs.</p> <p>“ Addison Davidson, another of the heirs, and one of the defendants, testifies that about December, 1887, he had an interview with Mr. Lenz, and another in the first week of January 1888. That Lenz proposed to give the heirs half the lands which had formerly been sold at sheriff’s sale as the property of their father ; which was communicated by him to his brothers and sisters, and they concluded to do it, and he so informed .Lenz. There is evidence of subsequent meetings between Samuel and Thomas Davidson and Mr. Lenz, concerning the settlement ; that a survey was made, which divided the land in a way which was unsatisfactory to both parties; and later another, which was according to their wishes. There is evidence that in the fall of 1888, or about the first of January, 1889,— and about this date I am a little uncertain whether all the witnesses gave it alike, but I believe it was so given by Thomas Davidson, and the circumstances would point to that as about the right time—there was a meeting between Henrici and Lenz and Samuel and Thomas Davidson, at Economy. That there was produced there by the trustees, a draft, exhibiting all the land in question, and a line showing the division of tract No. 5221, so as to divide the land into equal acreage; that Lenz and Henrici talked in German together, and then it was stated by Mr. Lenz and the Davidsons, that the land was to be divided, and the part to be allotted to each was pointed out and agreed to by all present. That it was further agreed that Judge Hice, the attorney of the trustees, should draw all the necessary papers.</p> <p>[“ There is no evidence that the other heirs of Wm. Davidson had authorized Samuel and Thomas to make the particular agreement, which it is claimed they did make. There is evidence that the heirs agreed to take half the land, but not that either agreed, or authorized any person to agree, to the particular contract now set up by the defendants.] [19] A contract such as this, iu which there is uo money consideration, but which consists of promises to perform specific acts, as the consideration for like promises on the other side, and where the performance requires the ■ concurrent act of all the parties on each side, is not complete until all the parties whose assent is necessary have given such assent. So far as the evidence shows, only Samuel and Thomas, of the heirs of Wm. Davidson, gave their assent at the interview at Economy. There was, therefore, no complete contract at that time. Until the assent of all the necessary parties was given, either party might withdraw and decline to be bound by the propositions then made.</p> <p>“ It is not denied that subsequently a deed of release from the heirs of Wm. Davidson was drawn by Judge Hice, the person selected by both parties, and duly executed by all the heirs of Wm. Davidson, except two; and that Mrs. Appleton’s interest was conveyed to Samuel Davidson before his execution of the deed to the trustees. It is not claimed that up to the time when this was done and the deed delivered to Judge Hice, that the trustees had done any act evincing an intention to withdraw from the bargain. This Was an assent and ratification on the part of those so executing the deed, from the date of the execution and delivery of the deed to Judge Hice.</p> <p>“ But two of these heirs were under disability. One was a married woman and the other a lunatic. The married woman signed and acknowledged the deed, but her husband did not join. And the deed was also executed by Addison Davidson, the committee of James Davidson, the lunatic.</p> <p>“ The deed or conveyance of land by a married woman, unless also executed by her husband, is void. The committee of a lunatic is limited in his power and authority by act of assembly ; and has no- power or authority to convey or release any interest in lands, unless so ordered by the court.</p> <p>“ The execution by the married woman and the committee of the lunatic, in the manner shown, was not a valid assent, binding upon either to the contract alleged to have been made in their behalf; nor was it performance on the part of the married woman, or the lunatic. This suit was brought before the assent was given in a legal and binding form. Until so given the trustees might lawfully withdraw from the negotiations; and their act in bringing this suit was so inconsistent with its continuance that it must be regarded as a refusal to go on. The contract, as shown by the defendants, being thus wanting in mutuality, is not available as a defence to the defendants in this case.</p> <p>“We think it is not available for another reason. The consideration for the contract is alleged to be the settlement of a doubtful right as to the ownership of the whole body of land, purchased in 1858, at sheriff’s sale, as the property of Wm. Davidson. There is little evidence of the nature of this claim, but all that is proved concerning it shows that it was a claim made by Wm. Davidson after the sheriff’s sale, and growing out of some agreement between himself and the trustees at the time of their purchase. No foundation whatever for such a claim is shown, and it appears by writings, signed and sealed, by Wm. Davidson, and Nancy, his wife, a few years before his death, that if in truth any such claim existed, it was compromised and settled to his full satisfaction, and upon a full consideration in his lifetime.</p> <p>[“There is no evidence that William Davidson, in his lifetime, made claim to any interest or right against the Harmony Society after this compromise and settlement. Nor that any facts existed, or were supposed to exist, which could give any color or shadow of right to his heirs.] [20]</p> <p>“ The alleged contract, being wholly verbal, and against the statute of frauds, must not only be clearly proved, and partly executed, but it should be conscionable, fair, and such as can appeal to the conscience of a chancellor to compel its execution.</p> <p>[“ The evidence does not permit us to suppose that, knowing the defendants had no right, the trustees intended to make a gift; and it does not disclose such a doubtful right as would be a sufficient consideration to sustain a parol contract for the sale of lands. The evidence of defendants fails to establish such an equitable title to the land in question as will carry with it title to the timber cut.] [21]</p> <p>“ There remains, however, the question whether, apart from enforceable title to the land, the defendants have shown a right to cut and remove the timber in question, and to take and hold it as their own.</p> <p>“ There is evidence, tending to show that during the pendency of the negotiations we have referred to, permission was given to the defendants—the Davidsons^—to go into possession of the land; and to cut, remove, and sell timber therefrom. There is evidence that with the express consent of at least one of the trustees, the hemlock bark was taken by Mr. Wheeler, under the Davidsons. That at the time of the negotiations at Economy, the trustees were informed—I leave this to the recollection of the jury, possibly I am wrong—it seems to me now there was some evidence,' at the time of the negotiations at Economy, when they had what is called the ‘love feast,’ that one of the Davidsons stated to the trustees they had been taking timber, and how much they were getting for it in the market ; perhaps that was some other time.</p> <p>“ Mr. Ball: It was not at that time.</p> <p>“The Court: Somewhere in the evidence there was some such testimony. Precisely what it was is for you to remember. And that they were told they had full possession, and might go on and they hoped they would do well. The facts relating to this branch of the case, are to be determined by you, upon the weight of the evidence.</p> <p>“ If you find, from the evidence, that the timber in question in this case was in fact cut and removed from the land, by the express consent of the trustees, even although such consent was given in the expectation that a contract for the land would be entered into, subsequently, and the consummation of the expected contract has been prevented by the withdrawal or refusal of the trustees, the plaintiffs are not entitled to recover. The liberty to cut timber could be terminated at the will of the trustees, but until so terminated, it was a protection to the defendants against such an action as the present. [But if you find from the weight of the evidence that the consent to take timber was given, but was induced by statements made by the defendants, or any of them, as to material facts, which were false and known to them to be false; or if it was given under a mutual mistake as to material facts on the part of the trustees, and those of the defendants who obtained it, then the trustees could not only terminate the liberty at their will, but can recover the timber taken from the land, in replevin.] [22]</p> <p>[“The fact that Wm. Davidson and his wife had received full satisfaction for any claim against the Harmony Society, in his lifetime, and executed and delivered a full release and satisfaction for such claims is a material one, and if all the parties acted in ignorance of that fact, or if the defendants knowing of it, suppressed it with fraudulent intent, and the liberty or license to take timber was thereby obtained from the trustees, it cannot avail the defendants in this case.] [23]</p> <p>“ There is evidence that Samuel Davidson testified at one time, that some question as to whether this claim had not been settled was raised, in conversation between himself and Mr. Lenz, that Mr. Lenz asked about his stepmother—calling her mother—and said that he would go and see mother, and if it had not been fixed up in the lifetime of his father, to his satisfaction, it must be done. And I think in the same conversation or some other, Mr. Davidson said to Lenz that he was not aware that it had been settled.</p> <p>[“ There is no direct evidence that Samuel Davidson had knowledge of this settlement. Whether there are any facts in the case, from which you can legitimately find that he had knowledge, I leave to you, from all the evidence, and all the circumstances, but I know of no direct evidence that he knew of it. There is evidence that Lenz, who was not trustee at the time of the settlement with Wm. Davidson, was informed by Judge Hice, that he believed such a settlement had been made and that it was probably recorded. The paper was in fact recorded in this county. Henrici was trustee at the time and a party to it.</p> <p>“ On the other hand, it is difficult to understand what should move the trustees to act as the defendants claim they did, if they had not forgotten that settlement. You must determine how this matter was, from the evidence.] [24]</p> <p>[“ The mistake which would entitle the plaintiffs to recover for timber taken by their consent, must have been a mutual one, and not caused by their own negligence, or recklessness; and it ought to be pretty clearly made out by the evidence. But a mutual mistake as to such a material fact as the settlement in the lifetime of Wm. Davidson, would avoid not only a contract to sell land, but a license to cut timber.] [25]</p> <p>********</p> <p>“Now, gentlemen, the substance of these instructions may be stated in a few words. The question as to whether or not these defendants, the Davidsons, are the owners of the land need not concern you at all. We have decided that, so far as this case is concerned.</p> <p>“ The question is, whether, in the first place, the trustees of the Harmony society gave them permission to take possession of this land, and other lands ? Whether they knew that they were cutting timber ? Whether they authorized them, either by expressly telling them they might do' so, or by knowing that they were doing so, and keeping silent with that knowledge ?</p> <p>“ If that is so, [then you are to inquire whether that consent and license by the trustees was obtained fraudulently, by the statement to them of facts which were not true, and which the parties stating it knew were not true. There is, as I have said, no direct evidence of such statement; there is no evidence that the Davidsons said that there had been no settlement or any other fact, that I now recall, that would amount to fraud, or any direct evidence showing their knowledge. It is with some hesitation that I leave the question of fraud with you at all, but the case involves many facts, and if you are thoroughly satisfied that there was an intentional or fraudulent misrepresentation, or concealment of facts, on the part of Davidsons, that would avoid a license.] [26] [Then further, if there was no fraud, if the fact which appears without contradiction in the cause, that the controversy between Wrii. Davidson, in his lifetime and the trustees had been settled to their entire satisfaction, and the Davidsons had no knowledge that it had been so settled, and the trustees had no knowledge that it had been so settled, had forgotten it—that is the only way we can conceive that they did not have knowledge of it—Mr. Henrici was a party to it—if that was the situation, was based upon such a mutual mistake, then the plaintiffs may recover. But if they knew of it, and took their chances, even although the contract cannot be enforced so as to compel them to convey the land, it cannot be so rescinded as to take away from the Davidsons the timber which they had cut with the consent and knowledge of the trustees.] [27]</p> <p>“ If the plaintiffs are entitled to recover, the measure of damages is the value of the timber, less the amount which it has been enhanced in value by the labor of the defendants.</p> <p>“ This is substantially the value of the timber on the stump. I think you may add such an amount to that as you are satisfied is a fair compensation for the detention of the property, or the value of it, from the time of the replevin to the time you render your verdict, not exceeding the interest upon the value.</p> <p>“ As to the value, the evidence has been commented upon by the last counsel who addressed you; and I need not go over it. Counsel for plaintiffs seem disposed to take the evidence of the defendants as to amount. That was 50,952 feet of the good pine, and 5,380 feet of cull pine, one third of which was not replevied in this case. I don’t remember the amount of oak. The evidence as to value differs from 14 to 15 cents on the bank, on the part of plaintiffs; to 9 or 10 cents, as given by the witnesses, on the part of defendants. There is evidence that it cost 4 to 5 cents per cubic foot to take it from the stump to where it was found.</p> <p>“ If you find for the plaintiffs, under the facts we have submitted to you, you will compute what amount they are entitled to, and your verdict will be for that amount. If you find for the defendants, it will simply be for defendants.”</p> <p>Question by Juror: “ If it would be necessary to have consent of both trustees and all the other parties ? ”</p> <p>The Court: “ It would not be necessary to have consent of all the other parties ; and I think the consent of one trustee, for license to take timber, would be sufficient.”</p> <p>The verdict was for the plaintiffs in the sum of $2,290.</p> <p>Errors assigned were (19-27) the portions of the charge as above in brackets, quoting them.</p> <p>The other errors assigned are immaterial.</p>

<p>Appeal, No. 294, Jan. T., 1891, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1889, No. 96, on verdict for plaintiff, Frances E. Hepburn.</p> <p>Trespass for personal injuries.</p> <p>On the trial before Finletter, P. J., the following facts appeared: The plaintiff on the night of Sept. 2, 1888, walked across Arch street toward a car which she wished to board, but before reaching it fell into a ditch ,and was injured. Other facts appear by the opinion of the Supreme Court. The letter of acceptance of the bid of the contractor, Kane, dated Aug. 1, 1888, and referred to in the opinion, was signed by the chief of bureau, and stated that “the contract for ditching, refilling and repaving, in accordance with the specifications, .... was awarded you this day.”</p> <p>The court below charged in part as follows:</p> <p>“ The city is not responsible when the street, or the locality of the cause of accident is in charge of a contractor for a public or private purpose.</p> <p>“ If the city had entered into a contract for the digging of this trench, and the contractor had entered upon the work, the city was not responsible for anything which was done to the street, or for anything which occurred in consequence thereof, or in consequence of any neglect, either in doing the work, or in not giving notice by a light or otherwise of the dangerous condition of the street.</p> <p>“ Under such circumstances, the contractor was liable, and he alone.</p> <p>[“ It is for you to determine whether there was such a contractor, and whether or not he had completed his work and the city had resumed its control and authority over the street.] [1] “ The mere completion of the work by the contractor is not enough to impose liability upon the city. There must be, in addition, an acceptance of the work by the city, and a discharge of the contractor from possession of the locality of the work, and from liability for its condition and a resumption of control by the city. You will, therefore, carefully consider the evidence in reference to the contract, and the work to be done under it.</p> <p>********</p> <p>[“ If, however, you are satisfied from the evidence that the city had resumed control, then the question arises, Were its agents, the authorities, negligent? Their negligence is the negligence of the defendant.] [2]</p> <p>“ Negligence is a neglect, or violation of duty, and where no duty is imposed, no negligence can arise.</p> <p>“ It is the duty of the city government to keep the streets, the roadbeds and the sidewalks in repair and free from dangerous obstructions, depressions, or holes.</p> <p>“ Any obstruction or hole, or want of repair which is dangerous, is evidence of negligence on the part of the city, and it becomes responsible for all injuries which may arise therefrom under certain circumstances. It is not responsible, however, unless its agents, those who have charge of the streets, have notice of the cause of injury.</p> <p>“ This notice may be direct, that is, to the proper agent, by written or verbal information of the dangerous condition of the street, 'It may also be indirect or presumptive notice, such as existence for some time, sufficient to give knowledge to those in charge, to give knowledge of its existence to the proper authorities. Notice to any of the agents of the city who would be likely to give those in charge of the streets notice, and also knowledge of the fact by such persons is evidence. In this case, notice was given to a police officer. This is not evidence of notice to the proper agents, but it is evidence that the police qfficer knew of the existence of the hole, or obstruction, or depression. It is also in evidence that this ditch was dug for the purpose of laying gas pipe, and that work was completed or finished on Saturday preceding the accident—Sunday. [ [From all these matters the jury are called upon to decide whether or not the proper authorities should have known of the condition of the street.] [4]</p> <p>“ If the jury find from this evidence that the proper agents of the city should have had this knowledge, then they had sufficient notice, and should have guarded this break in the street, or should have had a light or other means to give warning of its existence placed there, and if this was not done, the defendant, the city, was negligent.] [3]</p> <p>“ The importance which the jury should give to witnesses will always depend upon the intelligence they evince, their means of observation, and a desire to tell what they know, or think they know, without prejudice or passion.</p> <p>“ In all cases you may expect conflicting, or apparently conflicting testimony. It is the duty of the jury to ascertain the truth from the reliable testimony in the cause.</p> <p>“ There is a very decided difference of opinion between the witnesses as to the condition of the locality of the accident and the manner in which it occurred, and the appearance of the plaintiff at the time.</p> <p>[“ So far as the liability of the defendant is concerned, it is of no importance, no consequence, where the exact truth lies in this conflict of evidence.] [5]</p> <p>[“ The city is liable, no matter what the exact condition of the street was, if it were out of repair, and that want of repair caused the injury.] [6]</p> <p>“ The exact condition of the trench is important, so far as it may have effected the extent of the injuries, and their subsequent consequences. The injuries themselves and their consequences are likely to depend upon the depth and width of the trench and its conditions.”</p> <p>JOrrors assigned were (1-6) the portions of the charge as above in brackets, quoting them; (7, 8) the refusal of defendant’s points, quoted in the opinion; (9) the entry of judgment for the plaintiff.</p>

<p>Appeal, No. 105, July T., 1891, by plaintiff, The Commonwealth of Penna. ex rel. J. S. Fisher, Dist. Atty., from decree of C. P. Carbon Co., June T., 1891, No. 5, refusing application for quo warranto against E. H. Kistler et al.</p> <p>The suggestion for the quo warranto was made by John F. Fisher, district attorney, on behalf of the commonwealth. It stated that on the 10th of June, 1890, by order and decree of the court of quarter sessions of Carbon county, the borough of Lansford was divided into three wards; that an appeal was taken to the Supreme Court on the 26th of June, 1890, and on the 23d of March, 1891, the Supreme Court affirmed the decree and dismissed the appeal. That by said order and decree of said court of quarter sessions an election was ordered to be held in said three wards at the election in Feb., 1891; that in accordance therewith an election was held and certain councilmen elected for the several wards; that the old council refused to recognize the new councilmen so elected; and praying for a writ of quo warranto as to the old councilmen.</p> <p>The answer denied the validity of the election referred to in the suggestion, alleging that the appeal to the Supreme Court mentioned in the suggestion was a supersedeas of the decree of June 10, 1890 ; and stated that at the true February, 1891, election, held at the polling place for the whole borough, other councilmen were elected. The defendants also demurred to the suggestion on the ground, inter alia, that the appeal of June 26,1890, was a supersedeas. The plaintiff demurred.</p> <p>The court below in an opinion by Dbeher, P. J., discharged the rule to show cause why a writ of quo warranto should not issue.</p> <p>Errors assigned were (1) the discharge of the rule; (2) not sustaining the commonwealth’s demurrer; (8) not entering judgment of ouster.</p> <p>Edward Marvey, with him ErederieJe Bertolette, for appellant. —The writ of quo warranto was of right in this case, being applied for by the district attorney: Act of May 30, 1850, P. L. 654; Gilroy v. Commonwealth, 105 Pa. 484; Commonwealth v. Walter, 83 Pa. 105; Commonwealth v. Bank of Amer., 10 Phila. 156.</p> <p>The appeal of June 26,1890, amounted to nothing more than the issuing of a certiorari and was not a supersedeas, except as to the court. It did not prevent the holding of a valid election under the decree which had been entered: Ewing v. Thompson, 43 Pa. 376 ; Patchin v. Mayor, 13 Wend. 665.</p> <p>The affirmance of the decree by the Supreme Court related to the date of the original decree and ratified all that had been done under it.</p>

<p>Appeal, No. 326, Jan. T., 1892, by plaintiffs, Wm. It. Butler and Jas. N. Hersh, trading as the Hersh Furnace Co., from judgment of C. P. Carbon Co., Oct. T., 1889, No. 32, on verdict for defendant.</p> <p>Assumpsit to recover the price of furnaces under the following agreement:</p> <p>“ Agreement made this 21st day of July, 1888, between the Hersh Furnace Company of Leighton, Penna., party of the first part, and the Leighton School Board, party of the second part, Witnesseth: The party of the first part agrees to put in the Leighton Public School Building, four of their largest size brick-set furnaces, complete, with all necessary piping, registers, dampers,' etc., including the construction of a cold-air box to each furnace, communicating with the outside of the building together with a portable octagon galvanized flue for the third floor on the north side of the building. The party of the first part agrees to give to the party of the second part ample time in which to fully test the furnaces and their capacity to heat the building, say until January 1st, 1889, and should the weather not be severe enough to fully test these furnaces by that date, party of the first part agrees to give party of the second part until March 1st, 1889, if desired in writing, before January 1st, 1889. Said building is to be heated comfortably for school purposes to a temperature of seventy degrees; and should the furnaces fail to thus heat said buildings, the party of the first part agrees to remove them, without charge to party of the second part after close of school term. The party of the second part agrees to pay to the party of the first part, for the above furnaces, when found to meet requirements as above, the sum of eight hundred and sixty-four dollars ($864).”</p> <p>On the trial before Dbeheb, P. J., F. P. Lentz, the secretary of the school board, was allowed, under objection, to testify as stated in the opinion of the Supreme Court. [1] The court charged in part as follows:</p> <p>“ If the directors failed to give notice to the plaintiffs on or before the first day of March, 1889, that the furnaces didn’t meet the requirements of the contract, and that they would not keep the furnaces, then the plaintiffs would be entitled to your verdict, whether the furnaces were of the capacity and quality stipulated in the contract or not. The defendants were bound to make their election to reject the furnaces on or before the first of March, 1889, and a notice given afterwards would not be sufficient. Some letters were given in evidence, one from the secretary of the board of school directors to the plaintiffs, containing a copy of a resolution passed by the school directors, I think in May; and a letter from the plaintiffs to the school board in reply to that. This was all after the first day of March, 1889, and, according to our view of this contract, any notice given after the first of March would be insufficient.</p> <p>“ If the furnaces did not meet the requirements of the contract, then did the school board notify the plaintiffs, on or before the first of March 1889, that they would not accept or keep the furnaces. What is the evidence bearing upon this question ? The only testimony is found in the evidence of F. P. Lentz. . . .</p> <p>[“Mr. Lentz, the secretary, testified to conversations between himself and Mr. Butler in relation to these furnaces, and I have asked the reporter to write out his testimony, and I have it in my hands and shall read it. The witness, Mr. Lentz, is asked the question, ‘ Did you ever have any conversation with Mr. W. R,. Butler.’ The answer is, ‘ Yes, sir.’ Question: 4 In relation to these heaters giving satisfaction ? ’ Answer: ‘Yes, sir.’ Question: ‘You were going to tell the date, I believe ? ’ Answer: ‘ I was trying to recollect about the time Mr. Butler and I had the conversation, but cannot recollect the time. We had, however, a talk about the furnaces.’ Question: ‘ What was the talk; can you approximately fix the time ? ’ ‘ No, sir, I can’t any closer than saying it was sometime during the winter of 1888 and 89.’ Question: ‘ Can you say whether it was before January 1st or after?’ Answer: ‘ No, sir, I can’t say; it was sometime during that winter.. I met Mr. Butler accidentally and we spoke about the workings of the heaters in the schoolhouse, and I said there was some complaint; and he said, “ Of course the furnaces must come up to the agreement and if they don’t we will take them out.” I said Mr. Butler said, they must come up to the requirements of the agreement and if they don’t we would remove them. He didn’t hesitate to say that at any time.’ Question: ‘ What did you say to him ? ’ Answer : ‘ I spoke of the complaints that had been made by the janitor and different ones who had spoken to me about them, and then he made that remark.’</p> <p>“Now, gentlemen of the jury, when was this conversation had between the secretary and Mr. Butler ? As I have already said to you, it was the duty of the defendants, on or before March. 1st, to notify the plaintiffs that the furnaces did not meet the requirements of the contract, and that they declined to keep or retain them. You must determine from this evidence whether this conversation was before or after the first day of March, 1889. Unless the evidence satisfies you that it was prior to the first day of March, then this evidence is to be disregarded by you, and there being no evidence in the case at all to show that any notification was given to the plaintiffs prior to that date. If you find this conversation took place before the.first of March, 1889, then was that intended by Mr. Lentz, representing the school board, as a notice to Mr. Butler that the furnaces were not sufficient and that the school board would not accept them. Did Mr. Lentz so intend this to be a notice to that effect, and did Mr. Butler so understand it? That is a question you must settle from this evidence.</p> <p>“ Mr. Butler says that the plaintiffs had no notice of the intention of the school board not to keep these furnaces, until some time in the summer of 1889. If no notice was given until that time, I must say to you that that was too late, and that the plaintiffs would be entitled to your verdict. You will understand me, gentlemen, that as we review this case and this matter of notice, it is all, so far as the evidence shows, to be gathered from the evidence of Mr. Lentz as to this conversation, and you must determine whether that conversation was before March 1,1889, and if so, then what was that notice. Was it a notice from the school board, through their secretary, that they would not keep the furnaces ? If it was not such a notice, then of course the conversation, so far as this present suit is concerned, was as if no conversation had been held.”] [5]</p> <p>The plaintiffs’ first, second and third points, and the answers thereto, were as follows:</p> <p>“ 1. The failure of the school district defendant, on or before 'March 1, 1889, to give notice of disapproval of the furnaces made the sale absolute and rendered the district liable for the purchase money.”</p> <p>Answer: “ Refused. It assumes the fact of failure of defendant to give notice. This is a fact to be determined by the jury.” [2]</p> <p>“ 2. If the school district defendant continued to use the furnaces placed in the school building after March 1,1889, and gave no notice of disapproval, this constituted an election on the part of the district to retain the furnaces and rendered* the district liable to pay the contract price.”</p> <p>Answer: “ Failure of defendant to give notic.e of disapproval of or dissatisfaction with the furnaces prior to March 1, 1889, would make the school district liable for the price. I cannot ■say that the fact that the use of the furnaces after that date would make 'the defendant liable, if notice of disapproval was given before March 1st.” [3]</p> <p>“ 3. Under the law and the evidence the verdict must be for the plaintiff.”</p> <p>Answer : “ Refused. The evidence is for the jury.” [4]</p> <p>Errors assigned were (1) ruling on evidence, quoting bill of exceptions and the evidence; (2-4) not affirming plaintiffs’ points as above, quoting them and the answers; (5) the portion of the charge as above in brackets.</p>

<p> Negligence—Contributory negligence—Railroad crossing. </p> <p>Where a person walking on a public street comes to a railroad crossing while a north-bound train is passing on the further track, and just as soon or even before it has completely passed starts to cross the nearer track, and either stands or walks near enough to be struck by a south-bound train, recovery is barred by contributory negligence.</p>

<p>Appeal, No. 4, July T., 1892, by plaintiff, Wilson W. Cypher, from judgment of C. P. Bed-ford Co., Sept. T., 1891, No. 169, compulsory nonsuit,</p> <p>Trespass for personal injuries.</p> <p>On the trial it appeared that plaintiff was employed as a carpenter at defendant’s repair shop, and had been so employed for over four months at the time of the accident. Other facts appear by the opinion of the Supreme Court.</p> <p>The nonsuit was granted by the court below, which after-wards, in an opinion by Longenecker, P. J., refused to take it off.</p> <p>Errors assigned were (1) the entry of the nonsuit and (2) the refusal to take it off.</p>

Appeal, No. 460, Jan. T., 1892, by plaintiff, Edward Snider, executor of John Snider, deceased, from judgment of C. P. Fayette Co., June T., 1891, No. 846, for defendant, John Snider, Jr., on case stated. Assumpsit on defendant’s note. From the case stated, it appeared that the note sued on was dated May 7, 1883. Under the will of John Snider, deceased, dated April 11,1889, the defendant took only an undivided third of certain real estate in remainder.

Appeal, No. 175, Jan T., 1892, by defendant, from judgment of C. P. Montgomery Co., March T., 1891, No. 138, on verdict for plaintiff, Augustus Boyd. Assumpsit to recover dividends on stock.

Appeal, No. 288, Jan. T., 1891, by defendant, Washington Ewing, from judgment of C. P. Chester Co., on verdict for plaintiff, Harvey Spalding. Assumpsit on appeal from judgment of justice of the peace to recover amount claimed for services performed, under written contract signed by defendant. On the trial before Waddell, P. J., it appeared by the evidence that defendant had received a post-office department warrant for $94.57, dated Jan. 28,1889.

Appeal, No. 40, Oct. T., 1392, (certified from the Western district) by ten taxpayers on be-' half of the defendant, from judgment of C. P. No. 1, Allegheny Co. March T., 1892, No. 18, on verdict for plaintiff, John A. Bell, the county treasurer. Assumpsit to recover salary as county treasurer.

Appeal, No. 39, July T., 1890, by plaintiff, Messmore Lawrence, from judgment of C. P. Payette Co., March, T., 1888, No. 300, on verdict for defendant, Daniel F. Keener. Ejectment. On tbe trial before Ewing, J., the plaintiff offered in evidence a deed to himself for the premises in question from Thos. Hemstead and wife, dated April 3, 1866, and recorded the same year.

<p> Assigned estate—Distribution—Foreign attachment. </p> <p>An assigned estate cannot be distributed by the process of foreign attachment by a court which has no jurisdiction over the accounts of the assignee.</p> <p>Same—Wages—Lien—Acts of 1872 and 1883.</p> <p>Where one claims a lien for wages under the acts of 1872 and 1883 on a stock of goods transferred by his employer to a creditor and which passed under an assignment for benefit of creditors by the transferee and was subsequently sold by the assignee, the lien cannot be enforced by a foreign attachment against the employer (he having removed from the state) in which the assignee is made garnishee. If the lien exists, the claim must be presented to the assignee or the auditor appointed to make distribution of the assigned estate.</p>

Appeal, No. 79, Jan. T., 1892, by John W. Osborne, from decree of C. P. Payette Co., Sept T., 1889, No. 5, discharging rule to set aside decree awarding real estate to Eliza J. Craft, in partition. On November 9, 1887, James R. Osborne died, leaving a widow and six children, among whom were John W. Osborne and Eliza J. Craft. On Sept. 2,1889, proceedings for partition of the real estate of the decedent were begun by Mrs. Craft.

Appeal, No. 240, Jan. T., 1892, by-plaintiff, Martin Meixell, from judgment of C. P. Union Co., Sept. T., 1888, No. 25, on verdict for defendant, John Morgan. Trespass for discharging water upon plaintiff’s land. The facts sufficiently appear by the opinion of the Supreme Court.

<p>Will—Fee simple—Devise over in case of death without issue—Estate tail—Act of April 27, 1855.</p> <p>Where a will gave the first taker a fee simple and afterwards contained a devise over in case of his death without issue: Held, that he took an-absolute estate, as either the death without issue referred to his death in the lifetime of the testator; orjto an indefinite failure of issue, in which casé he took a fee tail which the act of April 27,1855, enlarged to a fee simple.</p> <p> Life estate—Lístate tail—Lee simple—Trust. </p> <p>A testator directed his executors to pay one of his daughters the interest arising from two-fifths of his estate during her natural life, and that at her death the principal should be equally divided between her “ children, share and share alike; ” but if she died “ without leaving issue, then the said interest hereby deviled to her shall revert to my estate.” By the same will he gave three-fifths of his estate to his son. He further provided that if either of his said children “ should die without issue, then their share .... shall revert to my estate, and the surviving child shall take the share of the deceased one, the interest or right in or to such share, shall be the same as the three-fifths and two-fifths heretofore devised, if to my son, then absolutely; if to my daughter, .... then the interest for life, the principal to her children,’^but that in no event should any of it go to another daughter named. Held, that the daughter-took an estate tail in the two-fifths of the estate, which became a fee simple under the act of assembly; and that she was entitled to the two-fifths free of any trust.</p>

<p> Stoclc—Contract to purchase—Measure of damages. </p> <p>Where defendant agrees with plaintiffs that, if they will subscribe to certain stock and do not want it and cannot pay their subscription therefor, he will take it off their hands, he is responsible to them for whatever loss they sustain by reason of his subsequent failure to comply with his agreement ; and the measure of damages is the difference between what they were obliged to pay for the stock and what they subsequently sold it for.</p>

Appeal, No. 333, Jan. T., 1892, by Joshua M. Dushane, assignee in bankruptcy, a defendant, from judgment of C. P. Fayette Co., Sept. T., 1888, No. 28, for plaintiff, Alpheus Beall, on case stated. Case stated.

<p> Practice C. P.—Points—Charge. </p> <p>A judge is not bound to answer in detail every point put to him, nor even to affirm correct legal propositions in the exact phrase asked for. It is not error for him to refuse points without reading them to the jury, if his charge contains nothing erroneous and omits nothing favorable to the party presenting them which the points properly call for.</p> <p> Invention—License to use—Patent. </p> <p>Where one has agreed to pay for the use of an invention, it is immaterial whether or not the invention is patented, although of a kind that would entitle it to a patent; that there is no patent is no defence in an action on the agreement to pay.</p> <p>A licensee of a patent is liable for the stipulated royalty if he uses any part of the invention: Hubbard v. Allen, 123 Pa. 198.</p> <p> Variance—Time to take advantage of—Amendment. </p> <p>Where, in his statement, plaintiff claims for an “ exclusive” use of his invention under an agreement to pay therefor, and the evidence fails to show that the use granted was exclusive but is admitted without objection, and the defendant does not plead surprise nor ask for a continuance but defends on the ground that there was no contract at all, after a verdict against him he cannot take advantage of the variance, although he has moved for a nonsuit on that ground, and also presented points covering it; but plaintiff will be allowed, in the Supreme Court, to amend his statement to conform to the evidence.</p>

Appeal, No. 138, Jan T., 1892, by defendants, John C. Lynch and Elizabeth J. Lynch, from decree of C. P. Phila. Co., June T., 1887, No. 1197, enjoining defendants at the suit of Robert Miller, plaintiff. Bill for an injunction to restrain defendants from building over an alley. An answer having been filed, the case was referred to George F. Munce, first as examiner and then as master.

Appeal, No. 456, Jan. T., 1892, by-defendant, Theodore P. Kelly, from judgment of C. P. Fayette Co., June T., 1890, No. 399, on verdict for plaintiff, George D. Howell. Assumpsit to recover share of contingent profits arising from sale of land.