Volume 15 — Pennsylvania Superior Court Reports

<p>Appeal, No. 23, Feb. T., 1900, by plaintiff, in suit of Thomas E. Kennedy against La Porte township poor district, from judgment of C. P. Sullivan Co., Dec. T., 1898, No. 85, on nonsuit.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit. Before Dunham, P. J.</p> <p>It appears from the evidence that the overseers of the defendant district made a contract with plaintiff to board an alleged pauper under agreement to pay bim $10.50 per month out of the funds of the district.</p> <p>At the trial several offers of evidence were made to prove the contract between the plaintiff and the overseers. No evidence having been introduced to prove that an order of relief had been granted by two magistrates or that there was any emergency which required plaintiff to furnish the boarding to the party named, the court rejected the offers of evidence to prove the contract and entered a nonsuit. Plaintiff appealed.</p> <p>Errors assigned among others were to the rejection of plaintiff’s offers of evidence to prove the contract. (11) In discharging the rule to take off nonsuit.</p>

<p>Appeal, No. 234, Oct. T., 1899, by defendants, in suit of Commonwealth of Pennsylvania against Robert Beatty and John R. Beatty, from judgment of Q. S. Phila. Co., July Sess., 1899, No. 184, on demurrer.</p> <p>Opinion by Orlady, J.</p> <p>Demurrer to indictment. Before Biddle, P. J.</p> <p>It appears from the record that defendants were indicted for employing adult women more than twelve hours a day. Defendants demurred to the indictment, the grounds of demurrer being that neither count set out an offense known to the laws of the state of Pennsylvania; that the act of assembly, approved April 29, 1897, P. L. 30, in so far as it limited the right of adult women to work, was contrary to the constitution of the state of Pennsylvania and contrary to the constitution of the United States.</p> <p>The court overruled the demurrer, Biddle, P. J., filing the following opinion:</p> <p>The indictment in this case charges the defendants with the violation of the provisions of the act of assembly of April 29, 1897. The pertinent sections of this act which are charged to be violated are comprised in the 1st and 14th sections, to wit:</p> <p>“ Section 1. That no minor, male or female, or adult woman, shall be employed at labor or detained in any manufacturing establishment, mercantile industry, laundry, workshop, renovating works or printing office, for any longer period than twelve hours in any day, nor for a longer period than sixty hours in any week.”</p> <p>“ Section 14. Any person who violates any of the provisions of this act, or who suffers any child or female to be employed in violation of its provisions, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not more than $500.”</p> <p>■ To this the defendants have demurred, contending, inter alia, that the act, in so far as it applies to adult women, is contrary to the constitution of the state of Pennsylvania, because it is an unjust interference with her right of acquiring and possessing property and pursuing her own happiness; that it is also contrary to the constitution of the United States, because it is an attempt to deprive her of liberty and property Avithout due process of law.</p> <p>The title of the act of April 29,1897, is “ An act to regulate the employment and provide for the health and safety of men, women and children in manufacturing establishments, mercantile industries, laundries, renovating works and printing offices, and to provide for the appointment of inspectors, office clerks, and others to enforce the same.”</p> <p>So that the object of the enactment, as expressed by the legislature, is “ to provide for the health and safety of men, women and children ” in certain kinds of labor. This exercise of power, if it exists at all, must be derived from the police power of the state, and the 'real question here is whether it has been properly exercised.</p> <p>In the great manufacturing state of Massachusetts (see Commonwealth v. Hamilton Mfg. Co., 120 Mass. 883), in considering an almost identical statute, Mr. Justice Lord says: “ It does not forbid any person, firm or corporation from employing as many persons or as much labor as such person, firm or corporation may desire, nor does it forbid any person to Avork as many hours a day or week as he chooses. It merely provides that in an employment which the legislature has eArdently deemed to some extent dangerous to health, no person shall be engaged more than ten hours a day or sixty hours a week.”</p> <p>“ There can be no doubt that such legislation may be maintained, either as a health or police regulation, if it were necessary to resort to either of those sources for power. This principle has been so frequently recognized in this commonwealth that reference to the decisions is unnecessary.”</p> <p>Mr. Justice Brown, in the Supreme Court of the United States, says: “ This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly extended in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous, or so far detrimental to the health of employees as to demand special precautions for their well-being and protection or the safety of adjacent property, while this court has held, notably in the case of Davidson v. New Orleans, 96 U. S. 97; 24 L. ed. 616, and Yick Wo v. Hopkins, 118 U. S. 356; 30 L. ed. 230, that while-the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances ; and a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests: ” Lawton v. Steele, 152 U. S. 133; 38 L. ed. 385.</p> <p>In Pennsylvania the existence of the police power is recognized in numerous instances in our courts as a necessary function of government. Judge Rice, in Com. v. Brown, 8 Pa. Superior Ct. 339, says: “ In the exercise of the police power of the state, it may enact laws in the interest of public morals, and to protect the lives, health, and safety of persons following specified callings, and thus indirectly interfere with freedom of contract.” And our constitution specially provides, article 16, section 3, that “ the exercise of police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal right of individuals or the general well-being of the state.”</p> <p>Surely an act which prevents the mothers of our race from being tempted to endanger their life and health by exhaustive employment can be condemned by none save those who expect to profit by it. The complaint of violated constitutional rights, it will be observed, does not come from those who are employed, but from those who employ them.</p> <p>The legislature has spoken in no uncertain words on this subject, and our Supreme Court has declared that “ a statute will be declared unconstitutional by the court only when it violates the constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds: ” Sharpless v. Phila., 21 Pa. 147.</p> <p>We think that this act is clearly within the police power of the state, and the exercise of it in this case justified by the interests of the individual and the community.</p> <p>Other points of demurrer, in addition to those we have discussed, were also very ably argued before us, but we are unable to perceive their application to the case before us.</p> <p>The demurrer, therefore, to this bill of indictment is overruled.</p> <p>Judgment for commonwealth. Defendant appealed.</p> <p>Errors assigned were (1) in overruling the demurrer. (2) In entering judgment for the commonwealth. (3) In imposing sentence upon the defendants.</p>

<p>Surcharge of executor — Mingling of funds in private business — Rights of legatees.</p> <p>Where the business of an estate was designedly mingled with that of a bank of which the executor was cashier and part owner, the legatees should not suffer in their distributive- shares through the attempt of the executor as cashier to make money for the bank. A surcharge will be sustained which gives to the legatees just what they are entitled to receive, while at the same time fairly compensating the executor for all duties performed.</p>

Appeal, No. 13, April T., 1900, by defendant, in suit of Louise Reichenbach against Christian Hartlep, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1898, No. 183, making absolute rule to show cause why judgment should not be entered on an open warrant of attorney. Opinion by Orlady, J. Rule to show cause why judgment should not be entered on an open warrant of attorney.

<p>Street railways — Negligence—Passenger—Question for jury.</p> <p>Where a street car stops to receive a passenger, it is the duty of the company to allow a reasonable time iii which to get on the car in safety and in the event of injury resulting to such passenger by premature starting of the car, the question of negligence is properly for the jury.</p>

<p>Appeal, No. 122, April T., 1900, by defendant, in suit of Fred H. McCurdy, by his father and next friend, H. P. McCurdy, against United Traction Company, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 309, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Trespass. Before Evans, J.</p> <p>It appears from the record that this appeal and the one following are from judgments in favor of H. P. McCurdy, as the father of Fred H. McCurdy, a minor, and in favor of Fred H. McCurdy. Fred H. McCurdy is an infant and at the time of the accident was about nine months old. The accident happened in Allegheny city on the evening of October 11, 1898, about 9 o’clock, R. M.</p> <p>There was evidence tending to show that when the car reached the point where these parties were waiting to get on, it was so crowded with passengers that there were about eight people standing on the platform. Two ladies got on the car ahead of the McCurdys and one of them succeeded in getting up on to the platform, the other had to stand on the step. Mrs. Mc-Curdy with her infant in her arms, then got on the step of the car. Her husband did not get on the car. He made some remark to her about which there is some little difference in the testimony, but substantially that the car was too crowded, that he would not get on. The conductor at this time was inside of the car, about the middle of the car, collecting fares. He did not see Mrs. McCurdy get on the car at all. He called out, as is customary, to know if everything was all right. A passenger replied, “All right,” whereupon the conductor rang the bell and the car started.</p> <p>After the car had run about thirty or thirty-five feet, Mrs. Mc-Curdy in some way fell off the car, and the child was injured. She says she thinks she let go of the railing to which she was holding with her right hand, and lost her balance and fell. The court below submitted the case to the jury to find whether or not the car stopped a sufficient length of time to allow her to get to a place of reasonable safety.</p> <p>Verdict and judgment for plaintiff for $>500. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant. (2) Tn answer to defendant’s second point, which point and the answer thereto are as follows : “ 2. If the above point is refused, then the court is requested to charge: Under the pleadings and the evidence the verdict should be for the defendant as to H. P. McCurdy, the father. Anstuer: Refused.”</p>

<p>Appeal, No. 121, April T., 1900, by-defendant, in suit of Commonwealth against George Beldham, from sentence of Q. S. Armstrong Co., Sept. Sess., 1899, No. 41, on verdict of guilty.</p> <p>Opinion by Orlady, J.</p> <p>Indictment for keeping a tippling and disorderly house and selling liquor without a license. Before Rayburn, P. J.</p> <p>It appears from the record that the indictment was sent to the grand jury by the district attorney upon a constable’s return. Defendant moved to quash the indictment for the following reasons:</p> <p>[1. There is no information to support the indictment.] [1]</p> <p>[2. The return of the constable of Apollo borough, filed at the above number, is not sufficient to support the indictment.] [2]</p> <p>[3. The indictment does not charge the offense as being committed in Apollo borough, and within the jurisdiction or bailiwick of the constable of Apollo borough.] [3]</p> <p>[4. There was no arrest, hearing or binding over prior to the finding of the indictment by the grand jury; neither was the bill sent up by the direction of the court, or on a presentment of the grand jury.] [4] -....... - - -</p> <p>[5. The first count, charging a nuisance, is defective, because it does not fix the location of the alleged nuisance.</p> <p>[6. That by inspection of the indictment, it appears that one Frank N. Cuson was called and sworn by the grand jury without his name being first placed upon the indictment by the district attorney.] [5]</p> <p>[7. The second count is bad because of duplicity and uncertainty, and because it attempts to charge an offense that is not indictable, to wit: The sale of an intoxicating liquor called ambrosia.] [6]</p> <p>The court made the following order on the motion to quash the indictment:</p> <p>The Court: It being the practice of the court, upon receiving returns of the constables, when return of a violation of the law is made, an individual return is always referred by the court to the district attorney. And that being done in this case, we will overrule the motion to quash, and now make an order sanctioning a sending up of a bill to the grand jury by the district attorney. And upon request of defendant, exception allowed and sealed.</p> <p>December 20, 1899, exception granted defendant and bill sealed.</p> <p>Verdict of guilty and sentence thereon to paya fine of $500, pay the costs of prosecution and undergo imprisonment for three months. Defendant appealed.</p> <p>Errors assigned were (1-6) in refusing to quash the indictment for the reasons above recited.</p>

<p>Appeal, No. 123, April T., 1900, by defendant, in suit of H. P. McCurdy against United Traction Company, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 308, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>The facts sufficiently appear in the report of the preceding case.</p> <p>Verdict and judgment for plaintiff for $150. Defendant appealed.</p>

<p>Appeal, No. 73, April T., 1900, by defendant, in suit of Goebel Brewing Company, Limited, against George A. McLean, from judgment of C. P. No. 1, Allegheny County, Sept. T., 1897, No. 40, on verdict for plaintiff.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit. Before Slagle, J.</p> <p>It appears from the record that this action was upon a bond in the penal sum of $1,000, executed by one Nelson as principal and defendant as surety to plaintiff. It appears from the evidence that when the bond was presented, appellant said: “ Mr. Sapp, this is something I never did before in my life, and I dislike the idea of doing it.” Sapp said : “I assure you it is all right; Nelson has friends down there, and can dispose of the quantity of beer I have stated.”</p> <p>The appellant then said that he understood that Nelson was newly starting in business, and there being no dissent from that proposition, he inquired, “ Is this all right, Sapp ? ” To which Sapp replied, “ I think so.” Appellant then executed the bond.</p> <p>These facts were concealed from the appellant by Sapp and Nelson when appellants signed the bond.</p> <p>Defendant submitted the following points :</p> <p>[1. That under all the evidence the verdict must be for defendant. Answer: Refused, and bill sealed for defendant.] [1]</p> <p>[2. That if the jury find from the evidence that before the time when the defendant, George A. McLean, executed the bond sued on, J. M. Nelson was actually engaged in the business mentioned in said bond, and had become indebted to the plaintiffs several hundred dollars, and had allowed a check for $361.90 to go to protest; and that these facts were not made known to said George A. McLean by plaintiffs, and that said McLean had no knowledge of the same; then the said bond was a fraud on the said George A. McLean, and the verdict must be for defendant. Answer: Refused, and bill sealed for defendant.] [2]</p> <p>The court charged the jury in part as follows:</p> <p>[Under the evidence in this case, I instruct you that the plaintiff is entitled to recover the amount of its claim, $490.82, with interest from April 1, 1896, being $88.34, making in all $579.16. There is a question of law that will be considered hereafter, on a motion for new trial, if raised. You will find your verdict now for that amount.] [4]</p> <p>Verdict and judgment for plaintiff for $579.16. Defendant appealed.</p> <p>Errors assigned among others were (1, 2) in refusing defendant’s first and second points, reciting same. (4) To a portion of the judge’s charge, reciting same.</p>

Appeal, No. 162, April T., 1900, by defendants, in suit of Julius Hunt against W. R. Graham et al., trading as the Sharpsburg Sand Company, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1898, No. 519, on verdict for plaintiff. Opinion by Or-lady, J. Rice, P. J., dissents. Trespass.

Appeal, No. 223, April T., 1900, by defendant, in suit of the Burgess and Town Council of the Borough of Kittanning against Frank Mast, from judgment of C. P. Armstrong Co., Sept. T., 1899, No. 213, on verdict for plaintiff. Opinion by Orlady, J. Assumpsit.

<p>Criminal law — Fish law — Dam sold by commonwealth — Act of 1803.</p> <p>A dam on a navigable stream, a public highway, erected by the commonwealth and by it sold to private parties under the Act of April 9, 1849, P. L. 765, is exempted from the provisions of the act of March 21, 1803, 4 Bioren’s Laws, 20, as to the preservation of a passage for fish if the dam is maintained in the same manner as when sold to defendant’s predecessors by the commonwealth.</p>

Appeal, No. 101, April T., 1900, by plaintiff, in suit of First National Bank of North East, Penna., against Helen A. Short, from judgment of C. P. Erie Co., Sept. T., 1897, No. 27, on verdict for defendant. Opinion by Orlady, J. W. D. Porter, J., dissents. Assumpsit to recover the sum of $1,000, with interest, on a promissory note.

Appeal, No. 28, April T., 1900, by Ida Kashner Wood, from decree of O. C. Mercer Co., April T., 1898, No. 7, in the matter of the final account of Joseph Bush, Guardian of the Estate of Ida Kashner, a minor. Opinion by Orlady, J. Exceptions to auditor’s report. Before Miller, P. J. The facts sufficiently appear in the opinion of the court.

Appeal, No. 180, April T., 1900, by defendant, in suit of Frederick Kaechele against United Traction Company, from judgment of C. P. No. 2, Allegheny Co., April T., 1898, No. 941, on verdict for plaintiff. Opinion by Orlad y, J. Trespass for personal injuries. Before Shaeek, J. The facts sufficiently appear in the opinion of the court. The court below refused defendant’s point asking for binding instructions. Verdict and judgment for plaintiff for fl,362.75.

Appeal, No. 176, April T., 1900, by plaintiff, in suit of Louise Rafferty, administratrix of the estate of M. J. Rafferty, deceased, against the city of Pittsburg, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1897, No. 615, on verdict for defendant. Opinion by Orlady, J. Assumpsit. Before Kennedy, P. J. Material facts appear in the opinion of the court. The court below gave binding instructions in favor of defendant.

Appeal, No. 107, April T., 1900, by defendant, in a suit of Katharine S. Cornelius, executrix of Charles E. Cornelius, against Lincoln National Bank, from order of C. P. No. 2, Allegheny Co., Oct. T., 1899, No. 740, making absolute rule for judgment for want of a sufficient affidavit of defense. Opinion by W. D. Porter, J. Assumpsit. Before White, P. J. The following facts appear from the opinion of the court below.

Appeal, No. 41, April T., 1900, by-plaintiff, in suit of Peter Beecb against Elizabeth Kuder et al., from decree of C. P. No. 3, Allegheny Co., Aug. T., 1898, No. 524, dismissing bill in equity. Opinion by Rice, P. J. Hearing on bill and answer. Before Evans, J. The facts sufficiently appear from the opinion of the court below as follows: FINDINGS OF FACT.

Appeal, No. 231, April T., 1900, by defendant, in suit of Asa Hutcheson, use of E. K. Adams, against Isaac Reash, from order of C. P. Mercer Co., April T., 1900, No. 15, discharging rule to show cause why execution should not be set aside. Opinion by Rice, P. J. Rule to show cause why execution should not be set aside, Before Miller, P. J, ESSENTIAL FACTS FOUND BY THE SUPERIOR COURT.

Appeal, No. 230, April T., 1900, by defendant, in suit of M. J. Thompson, use of E. K. Adams against Isaac Reash, from order of C. P. Mercer Co., April T., 1900, No. 14, discharging rule to show cause why execution should not be set aside. Opinion by Rice, P. J.

<p>Appeal, No. 45, April T., 1900, by defendant, in suit of William J. Kissock against Consolidated Traction Company, from judgment of C. P. No. 1, Allegheny Co., June Term, .1898, No. 737, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Trespass. Before Stowe, P. J.</p> <p>ESSENTIAL FACTS FOUND BY THE SUPEEIOE COUET.</p> <p>“ The accident out of which this suit arose occurred near the corner of Fifth avenue and Smithfield street in the city of Pittsburg. The plaintiff’s team in charge of a driver stood on Fifth avenue below Smithfield street and about ten feet behind one of the defendant’s cars. They were headed east and were waiting for the cars going in the same direction to move. About two feet to the rear of the plaintiff’s wagon stood another of the defendant’s cars and to the left on the other track was another. To the right the street was crowded with people. The driver being thus hemmed in and unable to avoid the collision by backing or moving to the right or to the left, the car immediately in front, suddenly and without warning, was propelled backwards into the team, thereby inflicting injuries from which they subsequently died.”</p> <p>Defendant submitted certain points, which points and answers are as follows:</p> <p>[1. There is no evidence that the injuries complained of were caused by any negligence on the part of the defendant and the verdict must be for the defendant. Answer: Refused.] [1]</p> <p>[2. Under all the evidence plaintiff cannot recover and the verdict must be for the defendant. Answer: Refused.] [2]</p> <p>Verdict and judgment for plaintiff for $473. Defendant appealed.</p> <p>Errors assigned were (1, 2) refusal of defendant’s points, reciting same.</p>

Appeal, No. 121, April T., 1900, by defendant, in suit of Louis DeGrazia in bis own right and as father and next friend of Bernard DeGrazia, his minor son, against B. Piccardo, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1899, No. 377, on verdicts for plaintiffs. Opinion by Rice, P. J. Trespass. Before McCltxng, J. It appears from the evidence that defendant was engaged in the business of manufacturing macaroni.

Appeal, No. 67, April T., 1900, by defendant, in suit of J. M. Hastings against D. R. Speer, trading as D. R. Speer & Company, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1898, No. 287, on verdict for plaintiff. Opinion by Rice, P. J. Assumpsit.

Appeal, No. 20, Jan. T., 1900, by James C. Reber, administrator of the estate of John Reber, deceased, and a creditor of said John Reber, deceased, from definitive decree of O. C. Union Co., Jan. T., 1898, No. 173, reversing report of the auditor upon distribution and awarding a dividend to T. A. Purdy out of the fund in the hands of the administrator of John Reber, deceased. Opinion by Beaver, J. Exceptions to auditor’s report.

<p>Appeal, No. 96, April T., 1900, by John H. Wilson in suit of Bair & Gazzam, Limited, against John H. Wilson, Walter S. Jarboe et al., from decree of C. P. No. 3, Allegheny Co., May T., 1892, No. 54, decreeing payment on unpaid subscriptions to corporate stock.</p> <p>Opinion by Beaver, J.</p> <p>Exceptions to master’s report. Before McClitng, J.</p> <p>Plaintiff’s bill set out that defendants, Jarboe, Warden, Wilson and Hathaway, were named as four of the subscribers to the charter of the National Wrapping Machine Company. Jarboe, Warden, Shields, Wilson and Hathaway certified that $30,000, being ten per cent of the capital of the intended corporation,' which was $300,000, had been paid in to Shields, the treasurer of the said corporation; that letters patent were duly issued to the corporation; that defendant recovered a judgment against the corporation in the sum of $4,281.66; that the application for the charter so certified to by defendants, the subscribers, was false in this: that it stated that the sum of $30,000 had been paid in cash to the treasurer of' the corporation, whereas in truth and fact, said sum had not been paid into the treasury and that no portion in excess of $5,000 had been so paid in. If the said sum of ten per cent, or $30,000, had been paid into the treasury, the corporation would have been enabled to pay its debts in full. That plaintiff exhibited this bill in behalf of themselves as well as for all creditors of. said corporation who may see fit to unite herein and pay their share of the costs of the proceeding.</p> <p>The prayer was for an accounting and that the unpaid balance of ten per cent, or so much thereof as may be necessary to pay the said judgment, and costs and debts of other creditors, etc., could be paid to said creditors or to a receive!’, for the use of oratoi's and such other creditors; general relief.</p> <p>To this bill defendants, John H. Wilson and Walter S. Jarboe, demurred, setting up, inter alia, that “ the bill does not show that the plaintiffs were misled by the alleged false statement or certificate referred to and set forth in the said bill to their injury,” whereupon plaintiffs by leave of court amended their, bill as follows:</p> <p>1. The defendants, Walter S. Jarboe, John H. Wilson, David R. Warden, John G. Hathaway and Thomas L. Shields, knew at the time of the making of such certificate that-ten per cent of the capital stock of the National Wrapping Machine Company, or $30,000, had been paid into the treasury of the corporation in cash.</p> <p>2. Plaintiffs knew that the capital stock of said corporation was $300,000 at the time they gave the credit, and believed that the law had been complied with and ten per cent paid in cash, as required, and gave their credit on faith thereof.</p> <p>3. Plaintiffs did not know that such was not the case until long after they had given such credit.</p> <p>An answer was filed and the case then went to an .examiner and master, and the master made the following findings of fact:</p> <p>1. That the National Wrapping Machine Company was organized as a corporation, and that letters patent were granted and duly recorded; that the application provided for a capital stock of $300,000, ten per cent of which was certified to having been paid into the treasury in cash.</p> <p>2. That the plaintiff in the case dealt with the defendants on the supposition and belief that the contents of the application as set forth were true; that there was $30,000 in the treasury of the company, and that they did so to their detriment from the fact that they obtained judgment against the corporation for the sum of $4,281.66, with interest from December 12, 1890, upon which said judgment a writ of fi. fa. issued at No-160, April term, 1890, and sheriff made return thereon; that the sum of $7.00 only was realized from the execution.</p> <p>3. That the $30,000 or ten per cent of the capital stock of the National Wrapping Machine Company certified to in the application for the charter as having been paid in cash into the hands of the treasurer was, as a matter of fact, not paid in in a bona fide manner at that time.</p> <p>4. That the only money that was paid in bn account of the said ten per cent at the time of the granting of the charter was $500 by O. S. Richardson, and $500 by D. R. Warden. Jarboe and Wilson admit that they did not pay their shares. While there is no evidence from Thomas L. Shields, it is apparent from the' testimony and exhibits, that he did not pay $27,500 into the treasury. The total credits in the bank book, ex-Mbit “ No. 1,” amounts to §9,062.80, of wMch amount §3,725.87 was made up of discounts. The balance was evidently from the sale of what is called the treasury stock.</p> <p>5. The master finds that there is a sum of §29,000 due the corporation on account of the said ten per cent.</p> <p>The master also found the following conclusions of law:</p> <p>1. That the defendants individually are liable for so much of the §29,000 unpaid of the ten per cent certified to have been paid as will pay the debts of the National Wrapping Machine Company.</p> <p>2. It is contended that as an action of deceit would lie, that therefore a court of equity has not jurisdiction of the case. The bill prays for discovery and an account of the ten per cent alleged to have been paid. There is no question as to the insolvency of the corporation and the exhaustion of its assets. It is necessary to ascertain how much of the ten percent was paid in, who all the creditors are, and the amount of the indebtedness.</p> <p>The master recommended the following form of decree:</p> <p>And now, to wit: the day of , 1896, it is ordered, adjudged and decreed that the defendants are respectively liable to the plaintiffs and such parties as are joined with them in the bill for the unpaid balance of the ten per cent of the capital stock of the National Wrapping Machine Company to the extent of the sum of §29,000. And it is further ordered and decreed that be appointed receiver of the National Wrapping Machine Company to receive said sums of money.</p> <p>It is further ordered that the defendants held liable by the master’s report do respectively pay unto the said receiver an amount of money sufficient to pay the debts of said • corporation not to exceed, however, the sum of §29,000. That upon said payment the defendant held liable in the master’s report be discharged from any and all further liability by reason of the nonpayment of the ten per cent of the capital stock of the National Wrapping Machine Company. The costs of these proceedings to be said by the defendants, including the master’s fee.</p> <p>Exceptions having been filed to the master’s report, the court, McCltjng-, J., filed the following opinion:</p> <p>There is abundant evidence to justify the finding of the master that of the $80,000 in cash certified to have been paid to the treasurer of the company, but fl,000 was actually paid, and it is also perfectly apparent, that the parties who made the certificate knew, at the time of making it, that it was false.</p> <p>This $29,000, if paid in, would have made this company a solvent one, amply able to pay its debts. This statement was made first to the executive department of the state government for the purpose of showing that the parties were entitled to a charter. “After letters patent have been issued, the statement, with all its indorsements, must be recorded in the proper county for the information of the public, in order that the fact of incorporation may be known and the credit to which the corporation is entitled may be intelligently judged of by all persons who may have occasion to do business with it.” Opinion of Whliams, J., in Patterson v. Franklin, 176 Pa. 612.</p> <p>Under these circumstances, if left to our own devices, we would have been disposed to hold that the parties knowingly and falsely certifying to the possession by the company of this means of paying its debts, should be compelled to make good their certificate so far as possible, by themselves assuming the liability. Just as if they had subscribed for stock on behalf of others whom they had no authority to represent, and that being so liable, creditors could in equity compel the payment of so much of the fund as would discharge their claims. We would thus have come to the same conclusion as the master, though possibly not by precisely the same course of reasoning.</p> <p>Since the case was urged, moreover, our attention has been called to the above case of Patterson v. Franklin, 176 Pa. 612, which seems to forbid such a conclusion.</p> <p>The doctrine of that case seems to be that persons so falsely certifying are only liable in actions for deceit, to the particular parties actually misled by the falsehood.</p> <p>That being the law these defendants cannot be held liable in the present proceedings for the $29,000 or any portion of it, because (1) none of the plaintiffs can testify that they actually examined the certificate and saw that the defendants had signed it; and (2) had they done so, the remedy of such creditors would have been each by an action at law (in deceit), and a bill in equity for their joint benefit cannot be maintained.</p> <p>The bill can, however, be maintained for the purpose of compelling the defendants to pay their unpaid subscriptions. Let a decree be prepared in accordance with this opinion.</p> <p>The' court made the following decree referring the case back to the master:</p> <p>[And now, to wit: February 20, 1897, this cause is referred back to George P. Hamilton, Esq., the master, to ascertain the amount of the unpaid stock subscriptions to the capital stock of the National Wrapping Machine Company and the amount-of its indebtedness, and to whom the same is due, and to report the same to the court in accordance with the opinion filed by the court.] [1]</p> <p>After which the following final decree was reported by the master and entered by the court:</p> <p>[And now, to wit: May 26,1899, this case came to be heard on the master’s supplemental report, under decree of re-reference, and, after argument by counsel, it is ordered, adjudged and decreed that the exceptions filed to the supplemental report of the master be and are overruled, and that John H. Wilson pay the sum of $500, with interest from March 18, 1888, and Walter S. Jarboe pay the sum of $500, with interest from March 18, 1888 ; that said sums of money be paid to Bair and Gazzam, Limited, and S. Hamilton in proportion to their respective claims; that John H. Wilson and Walter S. Jarboe pay the costs of this proceeding, including the master’s fee to be fixed hereafter.] [6]</p> <p>John H. Wilson appealed.</p> <p>Errors assigned among others were (1) in making the decree referring the case back to the master. (2) In holding that “ the bill can, however, be maintained for the purpose of compelling the defendants to pay their unpaid subscriptions.” (5) In adjudging and decreeing that John H. Wilson pay the sum of $500 and interest from March 18, 1888, and also in adjudging and decreeing that John H. Wilson pay any part of the costs of this proceeding. (6) In entering the final decree, reciting same.</p>

<p>Appeal, No. 226, April T., 1900, by plaintiffs, in a suit of Morse, Williams & Company, for use of J. J. Seelar, against M. Arnfield & Son, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1898, No. 816, on verdict for defendant.</p> <p>Opinion by Beaver, J.</p> <p>Assumpsit. Before Stowe, P. J.</p> <p>It appears from the record that the contract was made for the furnishing of an elevator for the price of $1,500 on which $750 was to be paid upon delivery of the material, and the remaining $750 when the contract was completed. That the time fixed in the contract was September 2,1898. On September 2,1898, defendants took possession and began to operate the elevator and have continued to use and operate the same ever since. The payment of the first instalment of $750 was admitted to be paid. The claim was for the balance due on the contract. Defendants claimed a set-off as to the cost of making the entire elevator conform to the guarantee under which it was sold.</p> <p>ESSENTIAL FACTS FOUND BY THE SUPERIOR COURT.</p> <p>“ Plaintiffs agreed to put in place in the store building of the defendants an elevator to be run by electricity according to certain specifications, the alleged material parts of which are contained in the appellants’ paper-book. Under these specifications, it was made the duty of the owners ‘ to prepare and enclose the hatchways, provide pit in lower floor to allow car to land level with same, prepare a place for the machine and do all cutting of walls necessary to get same in place, provide proper supports for guide posts and sheave beams and do all painting ; also provide sufficient head room to allow the car to travel to first landing and, if necessary, to put the sheaves and sheave beams on the roof; the owner shall protect them.’ It was also made the duty of the owners to bring the wiring for the necessary power to the machine. The plaintiffs, on their part, were to furnish the elevator complete with an electric motor and cables, drum, sheaves and safety appliances as specified. The specifications contained the following clause : ‘ The whole apparatus will be erected in a substantial manner, in accordance with these ■ specifications, of first-class material and workmanship, free from defects and, should any appear in a reasonable time, we will make the same good at our expense.’ The elevator was finished and ready for use on the day specified in the contract, according to the terms of which payment was to be made, ‘ one half when the machinery is delivered at the building, balance upon completion.’ The defendants took possession of it and operated it continuously from that day forward. On November 10, following, a new magnet connected with the electric motor was furnished by plaintiffs, as they allege, on the order of the defendants, not to take the place of one that was originally defective but of one which had, for some reason, been rendered useless. This, however, except as to the mere furnishing of the magnet, is specifically denied by defendants.</p> <p>“ On November 14,1898, the defendants’ architect gave notice in writing to the plaintiffs’ manager that the elevator was not satisfactory and that he would ‘ insist on the work being carried out in conformity with your specifications and details of agreement dated July 26, 1898.’ Plaintiffs claim that this notice was the first received by them of any dissatisfaction on the part of the defendants with the elevator. Defendants, on the other hand, allege that verbal notice was given by them to the plaintiffs or their manager soon after the plant was installed and before the written notice of November 14. It will be noticed that all preparation for receiving the elevator, for conveying the power to it, for the erection of the supports and roof for it, and indeed everything connected with the preparation of the building for its reception and running were made or to be made by the defendants and that plaintiffs were to furnish only the elevator proper complete, including power, equipment and all necessary safety appliances, as specified.</p> <p>“ Defendants paid the one half of the contract price of the elevator but failed to pay the balance upon completion, and now allege that the elevator was defective : first, in that there were but four cables instead of six; second, that the drum upon which the cables were wound was but twenty-four inches in diameter instead of thirty-four as specified; third, that the sheaves were not of as large diameter as could be used, and fourth, that the special speed governor provided for in the specifications was entirely omitted.”</p> <p>Plaintiff submitted certain points, which points and answers are as follows:</p> <p>[1. If the jury believe from the evidence that the plaintiffs, on September 2, 1898, being the time fixed in the contract, completed the elevator, and the defendants took possession thereof and began to operate the same, and continued for several months thereafter to use and operate said elevator, without making objection or complaint or requesting plaintiffs to make any changes, additions or corrections thereto, the defendants are liable for the remainder of the contract price remaining unpaid, with interest thereon from September 2, 1898. Answer: Refused.] [1]</p> <p>[2. The contract upon which this suit is based contains the following provisions, inter alia : “ Payment to be due and payable as follows : One half when the machinery is delivered to the building, balance upon completion,” and the contract also provides that “ Morse, Williams & Company will have all work in connection with the elevator completed, and have elevator in running order on September 2, 1898.” It was, therefore, the duty of the defendants when notified by the plaintiff that the elevator was complete and in running order on September 2, 1898, either to accept or reject the same immediately, or within a reasonable time thereafter, and if the jury believe from the evidence that the defendants took possession of said elevator and began to operate the same, and continued to use and operate the same for a period of over two months thereafter without objection, that was not a reasonable time, and defendants are, therefore, liable for the balance of the contract price, with interest thereon from September 2, 1898. Anmer: Refused.] [2] [8. If the jury believe from the evidence that the plaintiff substantially complied with the contract, and delivered to the defendants the elevator in complete running order at the time specified in the contract, the defendants, by taking possession thereof, and using and operating the same without objection or complaint, waived any minor defects therein, or any slight departure from the specifications. Answer : Refused. There is nothing shown by the evidence in the case justifying the legal conclusion that the defendants waived any defects or departure from the specifications.] [3]</p> <p>Defendants submitted among others the following point: 1. The defendants are entitled to a credit for such sum as would be reasonably required in making such material changes, corrections and alterations as are necessary to make5 the elevator conform to the specifications under which the plaintiffs agreed to construct the elevator. Answer: Affirmed.] [4]</p> <p>The court charged the jury in part as follows:</p> <p>[The law would hold that he had waived any objection to it in a case of this kind, but that does not apply to building contracts or to cases of complicated machinery, the effect and value of which and the operation of which can only be determined by its use.] [5]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1-3) refusal of plaintiffs’ points, reciting points and answers. (4) In affirming defendants’ first point, reciting point and answer. (5) To a portion of the judge’s charge, reciting same.</p>

Appeal, No. 177, April T., 1900, by plaintiff, in suit of John Sager against Wm. Helm and L. D. Patterson, from judgment of C. P. Warren Co., March T., 1898, No. 65, on verdict for defendants. Opinion by Beaver, J. Assumpsit. Before Lindsey, P. J. It appears from the record that this was an action to recover on an agreement for the sale of timber a balance of $300 with interest alleged to be due the plaintiff from the defendant as a deferred payment.

Appeal, No. 50, April T., 1900, by defendant, in suit of D. L. Nulton against Matilda Campbell, from judgment of C. P. Armstrong Co., Sept. T., 1898, No. 148, on verdict for plaintiff. Opinion by Beaver, J. Assumpsit.

Appeal, No. 211, April T., 1900, by plaintiff, in suit of J. F. Proper, now for use of A. M. Droutt, against S. J. Campbell, administrator of John L. Peters, deceased, and Martha L. Peters, from judgment of C. P. Forest County, Aug. T., 1896, No. 18, on verdict for defendants.

Appeal, No. 143, April Term, 1900, by plaintiff, in suit of Commonwealth of Pennsylvania against borough of New Bethlehem, from decree of Q. S. Clarion County, May Sessions 1899, No. 5, quashing indictment. Opinion by Rice, P. J. Motion to quash indictment. Before Greer, P. J., of the 50th judicial district, specially presiding.

<p>Road lato — Improvement of county roads— Constitutional law — Act of June 26, 1896.</p> <p>The Act of June 26, 1896, P. L. 336, providing for improvement of public roads is constitutional. The title is sufficient; it does not offend article 3, section 7, by being a local or special law, nor does it offend against article 9, section 1, providing for uniformity of taxation.</p> <p>Road improvement — Act of 1895 — Alternative proceedings invalid.</p> <p>There is no warrant in the act of J une 26,1895, for a decree which leaves the particular road to be improved to be determined afterwards by the county commissioners.</p> <p>Road law — Act of 1895 — Review by Superior Court.</p> <p>The appellate court is authorized to examine the proceedings of the court of quarter sessions, in any matter specially committed to it by statute so far as to inquire and determine the extent and limits of its power and the regularity of its exercises.</p> <p>This jurisdiction is confined to an examination of the record proper for the purpose of determining whether the court below has kept within the limits of the powers conferred upon it, and has exercised them in conformity to law.</p> <p>Appeals — Failure to except below — Exception to general rule.</p> <p>To the general rule that the court below will not be reversed unless errors complained of have been called to its attention, there are well recognized exceptions. When a jurisdictional defect is apparent on the face of the record, the fact that one interested in, and affected by, the invalid order under the act of June 26, 1895, did not except in the court below, does not preclude him from appealing and assigning the matter fqr error.</p> <p>Road law — Proceedings—Act of 1895 — Estoppel.</p> <p>A release “ of and from all claims for damages ” signed before the institution of proceedings, and the fact that a landowner joined in a petition for improvement of a road by a certain route, do not work an estoppel to prevent such, person from opposing an alternative application to improve by one of two routes, and if he is an abutting owner on the other route which the commissioners claim the right to improve, he has a standing to raise the question as to the validity of the proceedings.</p>

<p>Appeal, No. 100, April T., 1900, by-plaintiff, in suit of Homer L. McGaw against William J. Hamilton, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1896, No. 180, on verdict for defendant non obstante veredicto.</p> <p>Opinion by Rice, C. J. W. D; Porter, J., dissents.</p> <p>Trespass. Before McClung, J.</p> <p>This case was before the Supreme Court which reversed the order of the court below refusing to take off nonsuit. See report of the case of McGaw v. Hamilton, 184 Pa. 108.</p> <p>ESSENTIAL FACTS FOUND BY THE SUPERIOR COURT.</p> <p>[The plaintiff had a claim against the borough of Elliot, upon which he had brought suit before an alderman and obtained judgment. The borough appealed to the court of common pleas, and while the appeal was pending, at a regular meeting of the borough council, the president of the council, who was also chairman of the finance committee, made an oral report of his committee, who on the advice of the borough solicitor had taken up the plaintiff’s claim and investigated it, recommending payment. As it is of the highest importance in the discussion of the legal questions raised by the assignments of error to have as clear a view as possible of the precise circumstances under which the alleged defamatory words were uttered, we quote at some length from the testimony.</p> <p>The chairman, a witness called by the plaintiff, testified as follows:</p> <p>“ Q. You as chairman of the finance committee, reported to council that this case of McGaw against the borough, in the judgment of the finance committee, should be settled? A. That was the recommendation of the finance committee. Q. And you stated your reason and their reason for so recommending to council? A. Yes, sir. Q. The borough, or council, prior to that time, had refused, or it was stated there that the previous council had refused payment of that account ? A. They had. Q. You further stated at that time that you thought and the finance committee thought that the borough could not succeed _ in legally, or successfully, defending that suit ? A. That was the advice of our solicitor. Q. That was said at that time ? A. Yes, sir. Q. And that if you went on and fought the case, that the borough would finally lose it and have to pay additional costs. A. Yes, sir. Q. And that was the reason for the finance committee recommending the payment of that account? A. Yes, sir. Q. It was further stated at that time that the suit was pending in court? A. Yes, sir. Q. And that you recommend the settlement of that suit, and that was the matter under discussion ? A. That wus the matter under discussion, yes. Q. You not only made that report, but you also suggested reasons why it should be paid yourself, or why you thought it should be paid, the claim settled ? .... A. That is right, yes, sir. Q. You not only made this report, but you were debating to council and endeavoring to show why this matter should be settled and the money paid to the plaintiff here, Mr. McGaw? A. Yes, sir."</p> <p>Immediately after the chairman had presented the matter as above stated, and before any motion had been made, the defendant, a member of the borough council, arose and opposed payment of the bill. In the course of his remarks of as some of the witnesses testify, at the beginning of his remarks, he said, pointing directly at the plaintiff: “ That man swore to a lie down at the alderman’s office,” or “ that man McGaw there swore to a lie at the alderman’s office.” James Harrison, another member of council called as a witness by the plaintiff, described the'occurrence as follows: “ Yes, sir, that night the president of council got up and stated that the finance committee had been together, and through the advice of the borough solicitor, he had advised the finance committee to settle that case of McGaw against the borough, and that he had a good case. There was no motion or anything before council; Mr. Hamilton jumped up right at the spur of the moment, and pointing right direct at McGaw, he says, ‘That man swore to a lie down at the aider-man’s office.’ ”</p> <p>To show further the connection in which the words were uttered, we quote from the testimony of P. H. Dugan, another witness called by the plaintiff. On direct examination he said:</p> <p>“ Q. State what took place, who brought the subject up and what followed. A. Mr. McCullough brought the subject up. Q. In what form? A. Well, as I recollect it, it was a report of the finance committee to council, and he recommended the payment of the bill, he said at the advice of the borough solicitor, that McGaw would beat the borough in the suit, and he recommended the payment of the bill in order to stop any further costs in the matter. Q. What, if anything, did Mr. Hamilton then say? A. Well, Mr. Hamilton got up and talked against paying the bill and among the remarks he made, he pointed in the direction where Mr. McGaw sat and said, ‘ That man swore to a lie in the alderman’s office.’ ”</p> <p>On cross-examination he testified as follows:</p> <p>“ Q. Didn’t Capt. Hamilton rise and$ay that a prior borough solicitor had advised that that claim could not be recovered, and that they ought not to settle that case or pay the bill? A. I believe he did. Q. That a prior council had passed on that matter and determined not to pay it, and this council ought not to interfere in that matter ? A. I think so, I think there was something like that. Q. Didn’t he further say that that judgment before the alderman had been recovered on representation that council had ordered that printing to be done, and that council had not ordered any such thing ? A. I think there was some remark of that kind. Q. And didn’t he call for the reading of the minutes to show that no such motion as that had been made? A. Yes, sir. Q. And wasn’t this remark about the man swearing to a lie. made in connection with that matter, in connection with the statement that council had never authorized that printing to be done? A. Well, I couldn’t say just what connection it was made in. Q. Well, in the same general connection ? Q. Yes, sir, I think it was.”</p> <p>Some of the plaintiff’s witnesses were not as distinct in their recollection of the occurrences and did not go to the same extent into the details. It is not necessary to repeat their testimony, or, in the present aspect of the case, to refer to that of the defendant. The foregoing quotations fairly present 'the circumstances under which the defamatory words were uttered, as they were developed in the presentation of the plaintiff’s case.]</p> <p>Verdict for plaintiff for $200. The court subsequently entered judgment in favor of defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was in entering judgment in favor of defendant notwithstanding the verdict of the jury.</p>

<p>Appeal, No. 203, April T., 1900, by respondent, in suit of Catherine M. Roth, by her next friend William Frazier against John M. Roth, from judgment of c. P. Butler Co., Sept. T., 1899, No. 49, on verdict for plaintiff.</p> <p>Opinion by Rice, P. J.</p> <p>Libel for divorce. Before Greer, P. J.</p> <p>It appears from the record that on March 11, 1895, libellant applied for an absolute divorce on the ground of cruel and barbarous treatment. Her libel being amended December 11,1895, the litigation continued until adjudicated by Barker, P. J., specially presiding, who dismissed the petition on April 9, 1896. No appeal was taken from this adjudication. On July 15, 1899, libellant again presented a petition seeking divorce, alleging cruel and barbarous treatment, etc. There was evidence tending to show that libellant left her husband about February 1, 1895. There was evidence tending to show that subsequent to December 11, 1895, respondent several times visited the house of the father of libellant where she was residing. Libellant submitted testimony tending to show that such visits were objected to by her and caused her annoyance and fear, and that on one occasion he kicked her dress and called her a black bitch. Respondent in his evidence denied the assault and use of opprobrious epithet, and stated that his visits were for the purpose of inducing his wife to return and live with Mm.</p> <p>Defendant submitted, inter alia, certain points which, with their answers, are as follows:</p> <p>[1. That only two contingencies could arise that would entitle a wife to divorce under this statute as set forth in libellant’s libel: (a) where any husband shall have by cruel and barbarous treatment endangered his wife’s life; (i) where he offered such indignities to her person as rendered her condition intolerable and life burdensome, thereby forcing her to withdraw from his house and family. Answer: We affirm this with the qualification that where a man has no house and is not living with his family, that it would be impossible for his wife to leave Ms house and family, but on that account she would not be barred from her right to a divorce.] [1]</p> <p>[8. The evidence showing libellant and libelee did not live and cohabit together since the day of February, 1895, indignities to her person, cruel and barbarous treatment, if any, could not have had the effect of forcing her to withdraw from his house and family. Answer: That we affirm because he had no house and family with which he was living.] [2]</p> <p>[4. That a wife seeking divorce under the provisions of the second specification must have been an inhabitant of her husband’s home or enjoying conjugal embraces and association at the time the conduct complained of occurred, and said conduct forced her to withdraw from his home and family. Answer: We will not affirm that in that shape.] [3]</p> <p>[5. The uncontroverted evidence being that libellant was not a member of libelee’s home and family since February , 1895, she could not be forced to withdraw therefrom at a later date. Answer: It is true she could not be forced from the home which she did not have.] [4]</p> <p>[8. No sworn allegation having been made in the libel that complainant’s life was endangered, evidence as to such acts is not admissible. Answer: We refuse that.] [5]</p> <p>The court charged the jury in part as follows:</p> <p>Now, gentlemen, you will consider the evidence. This case was heard once before in this court; there was no demand for a jury trial; the testimony was taken by the court, and this court submitted the case to Judge Barker, of another county, who was at that time hearing cases here, and he made a decree refusing the divorce on the ground that the facts had not been made out by the weight of the testimony and on some other grounds, and now, gentlemen, that was an adjfidication of this case up until that time, the filing of the ]?ill, or rather up until the time the bill was amended. The petition in that case was filed on March 11, 1895, and it remained in that way until December 11, when the plaintiff, by her attorney, came into court and asked the court to allow an amendment, and the court allowed the amendment, and in that they laid other grounds, and to sustain their position they offered proof before the court and that was submitted to Judge Barker, and on it he determined the'case; whether Judge-Barker’s decision was right or wrong is not for us to decide, and I am sorry either of the attorneys commented upon it; it was out of place to try Judge Barker or his decision. . Now the plaintiff in this case took no appeal to the higher court from the decree of Judge Barker, therefore that is settled and fixed firmly, absolutely, and wre could not now turn the facts which he heard over to you as a jury to decide, so we have to throw that clear out of the question. Come down now to what occurred after the date of the’ amendment of the petition for divorce; all the other testimony and facts are to be entirely thrown out of your minds. [Before the plaintiff can get a verdict here she must convince you that the defendant here has, by cruel and barbarous treatment, endangered his wife’s life or has offered such indignities to her person as to render her condition intolerable and her life burdensome and thereby forced her to withdraw. The plaintiff is not bound to prove all these things; you will notice here there are two distinct charges ; the first charge is, by cruel and barbarous treatment endangering his wife’s life, and second, has he offered such indignities to her person as to render her condition intolerable and life burdensome; either one of these, if proven, would entitle the plaintiff to a divorce; she can prove either, and if you believe she has sustained either, then it would be your duty to find for the plaintiff, but should you come to the conclusion that she has proven neither, then your verdict must be for the defendant; if she has proven and has convinced you and proven both, then you should find for the plaintiff.] [6] You will have to take up what occurred after December 11, 1895; [sometime after that, in the spring of 1896, Mrs. Roth moved on the farm where she had lived; ] [7] She was the daughter and only child of David Frazier, who owned two farms; he lived on one himself and put Mr. Roth and his daughter on the other, and there is where she was living when the trouble first began. It seems that sometime in 1896, Mrs. Roth went to the house and was living in it after she had left him before and gone home to her father’s ; [she charges here that he came to that house when she was there at different times, annoying her, pounded on the windows, rapped at the door, went around the house, came at various times and in that way annoyed and disturbed her. We say to you, if you believe that, that would be an indignity, if kept up for any length of time, and if it was .a continued offense, kept up right along when he had an opportunity to do it, that would be treated as an indignity to her person and one which she would have a right to complain of here.] [8] [She alleges at one time he came there when she was cooking supper and came into the house, without any authority from her, and stepped in and when she was passing him he kicked np her clothes and called her a black bitch; she testifies to this and he denies it, and it is for you to say which of the two is telling the truth; if you believe her statement is right, and believe that after she had gone to her own home he followed her up and came into the house and kicked up her clothes rudely or revengefully or in an angry manner, then he was guilty of assault and battery on her person; it is for you to say whether or not he did so. There is an important point right there ; if he did that and did other indignities he would be guilty of assault and battery and was guilty of such violence on her person as to entitle her to a divorce; if you believe that transaction and other indignities connected with it, we say to you it is your duty to return a verdict for the plaintiff. The law requires the plaintiff to make out the case, puts the burden of proof on the plaintiff;] [9] if you believe her statement in preference to his and believe he committed these other indignities, then we say in the outstart you should render a verdict for the plaintiff; if you do not believe that, then comes the question as to the indignities followed up. The court has held that where'a'husband refuses to provide for his wife and has not provided clothing or provided the wife with food and has not done what a husband ought to do towards keeping the wife, that he is guilty of an indignity. [So far as that question before was concerned in the other case, Judge Barker heard what was done while John Roth lived on the farm and if he did not paj'- the rent that is not our business here; but after that time, after the wife went back to the house,- is there any proof here that John Roth furnished anything for these children ? Is there any proof that he furnished a necktie or pair of shoes ? Did he give her anything to eat from the day that the wife went on the farm in 1896 until this application ? If • he did not and has shown no good reason — of course, if he could show that he was sick or in distress, that would be an excuse or reason — but if he shows no good reason why he did not feed, them and clothe them, that is an indignity, so held by the courts, and such indignity that, if persisted in and continued, that the wife would have a right to ask a divorce.] [10] How was his conduct otherwise ? Did he come around the house at night? Was he a terror to the wife and children or was he a man whose visits were welcome by his wife and children ? These are matters you take into consideration in determining his behavior and his conduct. [Was he that kind and generous and liberal and careful father and husband that he ought to have been ? If he was and there was no assault and battery on the wife, then the verdict ought to be for the defendant. We say to you here that he had no business whatever at her house ; it is in evidence that he had been in this court before on account of violence and surety of the peace and that he was notified or asked not to go near her house. Now we say to you if in any case of all these he followed her up and taunted her and annoyed her and made her nervous and feel uncomfortable and feel unsafe, that he was guilty of violence towards her. Had she reasonable grounds to apprehend that he would commit violence ? If she had, then the verdict must be for the plaintiff. [11] You have the testimony here of his coming there on the day of the picnic; he was not invited to the picnic, but he came down and you heard Mr. Aiken’s testimony as to what the children did and where the singing went to and what was done. Was there such behavior on his part as to reasonably give her apprehensions ? You heard Mr. Aiken’s testimony that she was pale and nervous ; was she alarmed at his presence ? If she was every time he appears before her without something on his part to show that he was going to be kind, he is guilty of the continuance of such acts as would make her afraid. Another question is raised here, that she was not forced to withdraw from his home. Well, gentlemen, if a man has no house and has no family that he is living with, it is utterly impossible for the wife to withdraw from it; if a man married a wife and took her home to her father’s house and never provided a home, but abused her and went there and called her names and kicked up her clothing and called her bad names charged here, annoying her right along, I think there is no court in the world that would say she could not get a divorce because she did not withdraw from his house and family, but the courts have not held down to that ruling in any decisions I find. Has the defendant’s conduct been such kind and character that the wife can live and cohabit with him safely ? That is, can she be in the house with him without fear or distress, is she safe ? Has she reason to apprehend that she is not safe ? The home and family would really mean in law the association with the husband; if she tells him to go away from her and keep away and she insists on his going and has put a man in her house, it looks very much as though she has withdrawn from his association about as far as she can.</p> <p>[Take this case and if you find that he committed assault and battery upon her at the time she alleges he called her a black bitch, and said what she says he did, and pulled up her clothes or kicked up her clothes, and there were other acts following that would give her the right to reasonably be afraid, we say to you it is your duty to render a verdict for the plaintiff, but should you believe Mr. Roth’s statement, that he simply did it accidentally and he says, “ You are a black witch, Katie,” then of course the assault and battery would not be made out. Just there you have a right to take his own language and in weighing his testimony and hers, see from that whether or not his statement is true. Would lie call her a black witch? Was he in that condition to be joking, saying sweet, smart things to his wife ?] [12] These are matters you take into consideration in weighing his testimony and hers. Now take the whole case, throwing out, as 1 told you before, everything that was done before the amendment of the petition on December 11,1895.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-5) answers to certain points of defendant, reciting points and answers. (6-11) To portions of the judge’s charge, reciting same.</p>

<p>Appeal, No. 21, April T., 1900, by D. T. Watson, executor and trustee under the will of D. T. Morgan, deceased, from decree of O. G. Washington County, Feb. T., 1898, No. 36, in distribution.</p> <p>Opinion by Rice, P. J.</p> <p>Exceptions to citation to compel executor to pay balance of an annuity alleged to be due and unpaid to Nancy A. Morgan under the terms of the will of D. T. Morgan, deceased. Before Taylor, J.</p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The court decreed that the executor of the estate of D. T. Morgan pay to the executor of the estate of Nancy A. Morgan, deceased, the sum of $65.00 with interest and costs of this proceeding. D. T. Watson, executor, appealed.</p> <p>Error assigned among others was (2) in not finding that the full amount of money due to Nancy A. Morgan, or her estate, under the provisions of the will of D. T. Morgan, deceased, bequeathing her, during her natural lifetime, the yearly sum of $600 has been paid.</p>

<p>Appeal, No. 206, April T., 1900, by plaintiff in suit of Josiah Specht, administrator of David Speclit, deceased, against Jonas Sipe, executor of the last will and testament of Michael Sipe, deceased, and Emanuel Lape, terretenant, from judgment of C. P.. Somerset Co., Sept. T., 1896, No. 18, in favor of defendant non obstante veredicto.</p> <p>Opinion by Rice, P. J.</p> <p>Sci. fa. to revive judgment. Before Long-enecker, P. J.</p> <p>The following facts appear from the record and are found by the Superior Court:</p> <p>On March 17, 1886, to No. 118, May term, 1886, judgment was entered against Isaiah Sipe and Michael Sipe; on July 23, 1889, Michael Sipe died testate; on January 22, 1891, a scire facias “with notice to Jonas Sipe, executor of Michael Sipe, deceased,” to revive the foregoing judgment issued to No. 219, February term, 1891, which was duly returned-served on the executor on February 6,1891, and on January 24,1895, Emanuel Lape took a deed from the widow and heirs of Michael Sipe for the land bound by the lien of the original judgment. To recapitulate, the scire facias issued and was served on the executor within five years from the date of the original judgment and Lape took title within five years after the issuing of the writ. . . . Defendant alleges, and against objection was permitted to show, that at the time he purchased, the following entry appeared on the continuance docket in No. 219, February term, 1891: “ June 11, 1891, Scott & Ogle, Esqs., appear for the defendants Isaiah Sipe and Michael Sipe, and confess judgment against them in default of an appearance sec. reg.,” which, after his purchase, was altered by some one unknown, so as to read: “ June 11, 1891, Scott & Ogle, Esqs., appear for the defendant, Jonas Sipe, executor of Michael. Sipe, deceased, and confess judgment against him in default of an appearance, sec. reg. . . He admits that he knew of the existence of the original judgment; he knew also from an examination of the record that a scire facias to revive the same, “ with notice to Jonas Sipe, executor of Michael Sipe, deceased,” had been issued and duly served on the executor within five years after the date of the judgment.</p> <p>The court directed a verdict for plaintiff for $226.66 and subsequently on motion entered judgment in favor of defendant non obstante veredicto, reducing the judgment for plaintiff from $226.66, the amount claimed, to the sum of $59.15, the amount of purchase money still remaining in the hands of the defendant Lape, with accrued interest thereon, the verdict to be modified accordingly. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto and modifying and reducing the verdict to the sum of $50.00 with interest thereon.</p>

<p>Appeal, No. 99, April T., 1900, by defendant, in suit of Sarah Ann Ramsey against S. C. Ramsey, from judgment of C. P. Butler Co., Sept. T., 1898, No. 45, on verdict for plaintiff.</p> <p>Opinion • by W. W. Porter, J.</p> <p>Sci. fa. to continue lien of judgment et quare executionem non. Before Greer, P. J.</p> <p>It appears from the evidence that Alexander Ramsey executed a deed to his son, Samuel C. Ramsey, for a farm, but in order to secure the maintenance of himself and wife, Sarah Ramsey or the survivor of them, he took from his son, Samuel C. Ramsey, a judgment bond bearing date January 81, 1890, in the penal sum of 15,000, conditioned as follows:</p> <p>“That if the said Samuel C. Ramsey shall truly pay or caused to be paid unto the above-named, Sarah A. Ramsey the sum of $25.00 per annum, payable semi-annually, during the time of her natural life ; also will further pay and furnish to the said Alexander Ramsey and Sarah Ann Ramsey, and the survivor of them, a comfortable maintenance and support, such as \ they and the survivor of them may need and demand, not to / exceed the sum of $2,500 in the aggregate.”</p> <p>On February 3, 1891, judgment was confessed on this bond in the penal sum of $5,000. On August 17,1898, a scire facias to continue the lien of the confessed judgment was issued and at the same time a rule was issued on defendant to file an affidavit of defense in fifteen days. An affidavit was filed and jury sworn in the case.</p> <p>On the trial, defendant contended, inter alia, that the amount in said bond was a penalty and that there was no debt due, until a demand was made and support needed, as provided in the bond.</p> <p>Defendants presented, among others, the following points :</p> <p>[1. The scire facias in this case having been issued as shown by the praecipe and writ to revive and continue the lien of a judgment that does not expire until January 3, 1901, this proceeding cannot be maintained. Answer: Refused.] [1]</p> <p>[2. The scire facias in this case having been issued from a judgment confessed by virtue of a power of attorney contained in the bond for maintenance and support offered in evidence, this proceeding cannot be maintained because said sci. fa. does not apply to judgments for breach of performance entered by confession under a warrant of attorney, and does not come within the meaning of. the Act of June 14, 1836, P. L. 637, relative to actions on bonds for nonperformance. Answer: Refused.] [2]</p> <p>[3. The bond offered in evidence being conditioned for the comfortable support and maintenance of Alexander and Sarah Ramsey as they “ may need and demand,” and plaintiff having failed to show that she ever made a demand for support or maintenance on defendant other than she had been receiving, there can be no recovery in this case. Answer: Affirmed, unless you believe from the evidence that Samuel Ramsey told his mother that he would pay her no more or furnish her no support after January 31, 1898.] [3]</p> <p>[4. The defense set up in this case having originated long after the confession of the judgment, and the sci. fa. not having been issued by order and direction of the court to determine the breach of coyenant contained in the bond upon which judgment was confessed, this proceeding cannot be maintained. Answer: Refused.] [4]</p> <p>[8. The court must construe the bond offered in evidence in this case, and say to the jury that it is a bond with a penalty in the sum of f5,000 conditioned for the maintenance and support of Alexander and Sarah Ramsey, or the survivor of them, as they “ may need and demand; ” that the amount named in said bond is a penalty and not liquidated damages, and therefore no debt was due until a demand was made, support needed and neglect and refusal of defendant to furnish it. Answer: Affirmed, unless you believe from the evidence that Samuel Ramsey told his mother that he would pay no more or that he would furnish her no more support after January 31, 1898; if he told her so she would not be required to make further demand, as the bond provides that the maintenance shall be in money payments or otherwise as they may require.] [5]</p> <p>Under the direction of the court the jury entered the following verdict: [That there was due to the -plaintiff $142.50; that the defendant has satisfied the bond to the anount of $1,661.36. On this verdict judgment was entered for $838.64.] [6] De-r fendant appealed.</p> <p>Errors assigned were (1-5) in refusing defendant’s points, reciting points and answers. (6) In directing judgment to be entered upon the verdict.</p>

Appeal, No. 226, Oct. T., 1899, by plaintiffs, in suit of Mary T. Walsh, William Gorman and Edward H. Brennan, trustees of the estate of Philip J. Walsh, deceased, trading as Phil. J. Walsh’s Estate, against the Philadelphia Bourse, from judgment C. P. No. 4, Phila. Co., March T., 1899, No. 1008, discharging rule for judgment for want of a sufficient affidavit of defense. Per Curiam. Rule for judgment for want of sufficient affidavit of defense in an action of assumpsit.

<p>Distribution of assigned estate — Assignee no standing to appeal.</p> <p>An assignee for the benefit of creditors has no beneficial interest in the funds reported for distribution, and no standing as assignee to appeal from the decree distributing the funds.</p>

Appeal, No. 117, Oct. T., 1899, by W. Vernon Phillips, assignee for the benefit of creditors of F. R. Phillips, individually, and trading as the Phillips Tin Plate Company, from decree of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 1437, sustaining exceptions to auditor’s report. Per Curiam. Exceptions to auditor’s report. Before the court in banc.

Appeal, No. 118, Oct. T., 1900, by defendant, in suit of Commonwealth of Pennsylvania against James Hooper, from sentence of Q. S. Delaware Co., March Sessions, 1900, No. 117, on verdict of guilty. Per Curiam. Selling liquor without a license. Before Johnson, P. J. The facts sufficiently appear from the charge of the court below and its opinion overruling motion to quash.

<p>Landlord and tenant — Application of payments on account — Presumption.</p> <p>No specific appropriation having been made by a tenant in payment of rent, the law gives the landlord the right to apply it to arrears that had accrued prior to the month in which it was made. There is no authority for the proposition that where a receipt is given for rent “ on account" it is presumed that it was for the rent of the particular month in which the payment was made.</p> <p>Evidence — Testimony as to legal conclusions.</p> <p>Where a plaintiff was permitted to testify to all the facts and circumstances connected with a question in issue, the court committed no error in refusing to permit him to testify to the legal conclusions which he drew therefrom.</p>

<p>Promissory note — Affidavit to defense — Set-off.</p> <p>In an action against the maker of a promissory note the allegation that the note was transferred to the plaintiff for the purpose of defrauding payee’s creditors is, standing alone, no defense; nor coupled with the averment that at the time of filing the affidavit the payee was indebted to the defendant, is it a defense.</p>

Appeal No. 225, Oct. T., 1899, by Benjamin D. Sbreve and A. Lewis Smith, executors and trustees of William Jackson, deceased, from decree of O. C. Phila. County, April T., 1893, No. 585, dismissing exceptions to adjudication. Per Curiam. Exceptions to adjudication by Penrose, J. Before the court in banc. The facts sufficiently appear from the following adjudication of the auditing judge: The decedent died May 16, 1892.

<p>Infant — Attorney employed by prochein ami — Authority to satisfy judgment.</p> <p>An attorney employed by the prochein ami of an infant, where there is no guardian, is clothed with authority to receive and receipt for money due upon a judgment entered upon a verdict in suit for damages suffered by an infant; and the payment by the defendant to the attorney of record is binding upon the infant.</p>

Appeal, No. 89, Oct. T., 1900, by defendant, in suit of Robert J. Aikins against Thackara Manufacturing Company, from judgment of C. P. No. 8, Phila. Co., Dec. Term, 1897, No. 323, on verdict for plaintiff. Opinion by W. D. Porter, J. Assumpsit. Before McCarthy, J. It appears from the record and evidence that under a verbal contract plaintiff claimed commissions for sales made through him.

Appeal, No. 28, Oct. T., 1900, by defendant, in suit of Collins & Woods against Clarence M. Busch, from judgment of C. P. No. 4, Phila. County, Dec. T., 1891, No. 874, on verdict for plaintiff. Per Curiam. Assumpsit.

<p>Province of court and jury — Charge of court — Assumption of material fact by the court.</p> <p>It is error for the trial judge to withhold from the jury the determination of a material fact, although the evidence certainly would have warranted the finding of fact as assumed by the court.</p> <p>Gas well — Contract to drill and case well— Questionfor jury.</p> <p>Where the effect of a contract was to require plaintiffs to case the well and shut off all water which came in above any known gas-bearing sand before drilling into that stratum, and after all known gas-bearing sand had been passed to continue the drilling until the contract depth had been reached, but in case of discovery of a new gas-bearing sand to recase the well so as to shut off all water coming in above the newly discovered sand, the question is for the jury whether the last known gas-bearing sand had been passed when the plaintiff ceased work because of the refusal of defendants to pay without casing the well below that sand, and before the contract depth was reached, water having come in.</p>

Appeal, No. 209, April T., 1900, by defendant, in suit of city of Pittsburg against James Friel, owner or reputed owner or whoever may be owner, with notice to Jane W. Magee, registered owner, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1899, No. 62, delinquent tax docket, on verdict for plaintiff. Opinion by Rice, P. J. Sci. fa. sur tax lien.

Appeal, No. 237, April T., 1900, by defendant, in suit of Commonwealth of Pennsylvania against Daniel S. Hanley, from judgment of Q. S. Erie Co., Feb. T., 1900, No. 12, on verdict of guilty. Opinion by Rice, P. J. Indictment charging practicing the business of undertaking unlawfully.

Appeal, No. 140, Oct. T., 1900, by Jewish Orphans’ Guardians Society, from decree of O. C. Phila. Co., July T., 1899, No. 291, in distribution of the estate of Sarah H. Socks, deceased. Per Curiam. Exceptions to adjudication. Before Ferguson, J. It appears from the adjudication that decedent died August 10, 1899. On July 11, 1899, she had made her last will in which she bequeathed $500 to the Jewish Orphans’ Guardians Society.

Appeal, No. 132, Oct. T., 1900, by defendants, in suit of Joseph L. Sweigard, trading as Joseph L. Sweigard & Company against Consumers’ Ice Manufacturing and Coal Company, from order of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 1373, making absolute rule for judgment for want of a sufficient affidavit of defense. Per Curiam. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

<p>Assumpsit — Liability of owner to mortgagee for taxes paid out of proceeds of sheriff's sale.</p> <p>A mortgagee may maintain assumpsit against the grantee of the mortgagor for the amount of taxes assessed upon the land during the grantee’s ownership and paid out of the proceeds of a sheriif’s sale under a judgment on the bond accompanying the mortgage, when the effect of such distribution of the fund is to reduce the sum which otherwise would be distributable to the mortgagee.</p> <p>Affidavit of defense — Set-off—Appeal—Discretion as to supplemental affidavit.</p> <p>A set-off alleged in an affidavit of defense must not only be stated with exactness as to source, character and amount, but must also be alleged to have been in existence and owned by the defendant at the institution of the action. Where the affidavit does not come up to these requirements and the court enters judgment, the appellate court will not reverse. It is discretionary with the court below to permit a supplemental affidavit to be filed.</p>

<p>Appeal, No. 31, Oct. T., 1900, by plaintiff, in suit of Mary T. Walsh et al., trading as Phil J. Walsh Estate, against Adams Express Company, from judgment of C. P. No. 2, Phila. Co., discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Per Curiam.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.</p> <p>. It appears from the record that plaintiff brought an action to recover the sum of $17.25 with interest from May 10, 1898, to recover the value of certain goods delivered to the defendant, company with directions to deliver same to the “ Herman Cloak Company, 31 East Broadway, New York,” alleging that the same were neither delivered nor returned to the consignors in time to be of any value.</p> <p>Defendant filed the following affidavit of defense:</p> <p>That it is true that this company received on May 10,1898, from the plaintiffs, a package for shipment to the city of New York, addressed to the Herman Cloak Company, 31 East Broadway, though defendant has no knowledge of the contents of said package. That the said defendant duly received in the city of New York said package and took the same for delivery to the said address, 31 East Broadway, New York, but said defendant failed to find at said address the Herman Cloak Company, and although diligent search was made in the vicinity for such a company, no company bearing such a name was discovered ; that thereupon the said defendant sent through the United States mails a notice addressed to the said Herman Cloak Company, at 31 East Broadway, New York, requesting them to call for said package, but no response was made thereto; that defendant further examined a directory of the city of New York for the purpose of ascertaining the address of said Herman Cloak Company, but the name of no such company or address appeared in said directory.</p> <p>Upon its failure to discover the address of the said Herman Cloak Company, or to deliver the goods as aforesaid, the defendant would have been' prepared to notify the consignor to take back the same, but there was no address upon the package, and in spite of diligent inquiry, the said defendant was unable to discover who the consignor was.</p> <p>The court below discharged the rule for judgment. Plaintiff appealed.</p> <p>Error assigned was in discharging the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal — Beview of discretion.</p> <p>The appellate court will not revise the exercise of the discretion of the court below where there is no manifest abuse thereof.</p> <p>Charge of court — Concise statement of respective contentions.</p> <p>A clear and concise statement in untechnical language by the trial judge, of the respective contentions of the parties, is of great aid to the jury and often absolutely essential, even though it be not accompanied by a review and an analysis of the evidence adduced in support of them.</p> <p>Appeal — Technical but trifling error not reversible.</p> <p>Where evidence admitted under objection is of such trifling importance that it could not have affected the result, the appellate court will not reverse even if there were technical error in the ruling.</p>

Appeal, No. 25, Oct. T., 1900, by Henry K. Wampole, in suit of tbe Real Estate Title Insurance & Trust Company, trustee, etc., against Charles Hodges and Henry K. Wampole, terre-tenant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 619, for want of a sufficient affidavit of defense. Opinion by W. D. Porter, J. W. W. Porter, J., dissents. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 223, Oct. T., 1899, by defendants in suit of Thomas Roberts & Company against J. B. Andrews & Company, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 57, for want of a sufficient affidavit of defense. Opinion by W. D. Porter, J. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

<p>Principal and agent — Factor's commissions — Contract—Revocation of naked authority.</p> <p>Where a contract confers simply a naked authority to sell upon commission, such authority is revocable before any steps have been taken to carry it into execution and prior to the consignment of the goods.</p> <p>Judgment is properly refused where the affidavit discloses simply a case of withdrawal from a factor of his power to sell before he had taken any steps to execute that power or acquired any interest in the goods with regard to which the power was to be exercised, or been involved in any expense or liability, and while the goods still remained in possession of the principal.</p>

Appeal, No. 72, Oct. T., 1900, by defendant, in suit of Edward K. Mesick against the United Collieries Company, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1899, No. 158, in favor of plaintiff, for want of a sufficient affidavit of defense. Opinion by Beaver, J. Rice, P. J., and W. W. Porter, J., dissent. Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.

Appeal, No. 87, Oct. T., 1900, by defendants, in suit of Carrie B. Stoy against John Dobson et ah, trading as John and James Dobson, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1898, No. 1078, on verdict for plaintiff. Opinion by Beaver, J. Sheriff’s interpleader under the Act of May 26, 1897, P. L. 95, for household goods claimed by plaintiff.

Appeal, No. 90, Oct. T., 1900, by plaintiffs in suit of Southwark Mortar Company against John Henry Cassell, now or late owner or reputed owner, and Pascoe Apartment House Company, present owner, and Mark P. Wells, trading as M. P. Wells & Company, contractors, from judgment of C. P. No. 1, Phila. Co., March T., 1898, No. 9, M. L. D. on verdict for defendant. Opinion by Beaver, J. Sci. fa. sur mechanic’s lien for $651.40.

Appeal, No. 68, Oct. T., 1900, by defendant, in suit of James Peters & Son, to use of the Industrial Trust, Title and Savings Company, against Ellen M. Whalen, owner, etc., Appellant, who was sued with Archibald Neill,- Contractor, from judgment of C. P. No. 8, Phila. Co., Dec. T., 1893, No. 48, M. L. D., on verdict for plaintiff. Opinion by Beaver, J. Sci. fa. sur judgment.

Appeal, No. 69, Oct. T., 1900, by defendant, in suit of A. Hazlett to use of the Industrial Trust, Title & Savings Company against Ellen M. Whalen, owner, etc., appellant, who was sued with Archibald Neill, contractor, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1893, No. 49, M. L. D., on verdict for plaintiff. Opinion by Beaver, J. Sci. fa. sur judgment.

Appeal, No. 208, Oct. T., 1899, by plaintiff, in suit of W. A. E. Henrici, trading as the W. A. E. Henrici Laundry Machinery Company, against August G. Fromuth, from judgment of C. P.No. 1, Phila. Co., Dec. T., 1895,. Nos. 476 and 477, on verdicts for defendant. Opinion by Orlady, J. Feigned issue. Before Beitler, J. The facts sufficiently appear in the opinion of the court. The court below directed verdict for defendant. Plaintiff appealed.

<p>Appeal, No. 40, Oct. T., 1900, by defendants, in suit of Commonwealth of Pennsylvania to use of Daniel Meyers against Edward A. Price and Petera B. Worrall, trading as Fred Butterfield & Company and City Trust, Safe Deposit and Surety Company, from judgment of C. P. No. 2, Sept. T., 1897, No. 802, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Opinion by Orlady, J.</p> <p>It appears from the record that this cause arises out of a suit upon a bond given by Fred Butterfield & Company, claimants and appellants, to Daniel Meyers, appellee, the execution creditor below, conditioned to return the goods claimed, and was for $1,100.</p> <p>ESSENTIAL FACTS STATED BY THE SUPERIOR COURT.</p> <p>On October 29, 1897, a judgment was entered in the court of common pleas in favor of Isaac Lawler against Daniel Meyers, trading as D. Meyers & Company, and an execution was issued thereon, under which the sheriff levied upon certain merchandise which was claimed by Fred Butterfield & Company, as their property. This claim was resisted by the execution creditor of Meyers and, under the Act of May 26,1897, P. L. 95, a sheriff’s interpleader issue was framed. A bond of the claimants was filed on January 7, 1898, with the City Trust Safe Deposit & Surety Company as surety. On the trial of the interpleader issue (February 3, 1899), a judgment of nonsuit was entered against Fred Butterfield & Company. On November 15,1897, a rule was entered, upon the petition of Fred Butterfield & Company, to show cause why the proceeds of the sheriff’s sale of the property of D. Meyers should not be paid into court; and feigned issues awarded to test the validity of the judgments on which the executions were issued and under which the property had been sold. This petition recited, inter alia, “ that the said judgments were confessed for the purpose of hindering,. delaying and defrauding the creditors of D. Meyers & Company, and particularly your petitioners,”-and was subsequently .withdrawn by the petitioners by leave of'court. This presentad-., tion was brought against Fred Butterfield & Company, and the surety to recover on the bond for use of David Meyers (not the defendant) an execution creditor. For want of a sufficient affidavit of defense, which was filed by each of the defendants, a rule for judgment was made absolute by the court, from which action this appeal was taken.</p> <p>Judgment for plaintiff for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 211, April T., 1900, by plaintiff, in suit of State Bank of Sherman, New York, against M. P. Carr and Harry Herring, from judgment of C. P; Warren Co., Dec. T., 1899, No. 1, refusing to take off compulsory non-suit. Opinion by Oblady, J. Motion to take off compulsory nonsuit. Before Lindsey, P. J. The facts sufficiently appear in the opinion of the court. The court below entered a peremptory nonsuit which it subsequently on motion refused to take off.

Appeal, No. 127, Oct. T., 1900, by defendant, in suit of Alfred W. Dix against Ridge Avenue Passenger Railway Company, from judgment of C. P. No. 3, Phila. Co., March T., 1898, No. 196, on verdict for plaintiff. Opinion by Orlady, J, Trespass. Before McMichael, J. It appears from the undisputed evidence that plaintiff’s horse cast a shoe while driving west on the north street car track of Arch street between Eighth and Ninth streets, in the city of Philadelphia.

<p>Appeal, No. 147, Oct. T., 1900, by defendants, in suit of Charles S. Schofield, Receiver of the iEtna Mutual Live Stock Insurance Company, against Lucien Y. Leach, trading as A. S. Leach & Company, from judgment of C. P. No. 1, Phila. Co., March T., 1900, No. 949, in favor of plaintiff for want of a sufficient affidavit of defense.</p> <p>Opinion by Oblady, J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before the court in banc.</p> <p>It appears from the record that this was an action brought by the receiver of a mutual insurance company to recover certain assessments amounting to $252.70, which had been levied by the receiver under authority of the court of common pleas of Dauphin county. The policies were issued to the defendant in May and June of 1898, and were held by him until February 13,1895, during which time he paid several assessments thereon.</p> <p>Defendant filed an affidavit of defense in which he alleged, inter alia, that “before the period of time when he surrendered the policies he had learned from reliable sources that plaintiff corporation was a swindle and a fraud, and that they had been induced to go into the company and become members thereof from statements made to them by the plaintiff’s agent who induced them and persuaded them to sign applications for these policies by false, fraudulent and deceitful representations to them that plaintiff corporation was a first-class company in good financial standing. . . .- That the deponent denies that the assessments upon defendants’ policies ‘are for the purpose of paying losses incurred while the defendants were members of said company,’ and that while reference is made in plaintiff’s statement to its charter no copy of same whatever is attached to and made part thereof. It does not appear from the statement of plaintiff corporation that they have observed special condition three upon the back of the policies as issued, and if they have, the same does not appear as part of the plaintiff’s statement. That deponent denies that the said assessments so levied as is set out in plaintiff’s statement is necessary to pay necessary losses and expenses of said company under the mortuary calls.”</p> <p>The court below made the rule for the judgment absolute. Defendants appealed.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 12, March T., 1900, by Jacob Livingston, in suit of Central School Supply House, for use of Jacob Livingston against the School Board of the Township of South Middleton, from judgment of C. P. Cumberland Co., on verdict for defendant.</p> <p>Opinion by Orlady, J.</p> <p>Assumpsit to recover $456 for maps sold to defendant. Before Biddle, P. J.</p> <p>The facts sufficiently appear in the opinion of the Superior Court on appeal from a former trial of this case as reported in 9 Pa. Superior Ct. 110.</p> <p>After the return of the record to the court below, the defendant filed a supplemental affidavit of defense in which it was alleged, first, that the order sued on was fraudulently obtained, second, that it had been altered in a material part to the prejudice of the defendant, and third, that the maps and cases delivered had not the value claimed.</p> <p>[At the second trial of the case the trial judge admitted testimony of defendants in accordance with the offer of defendant’s counsel, over objection made by counsel for plaintiff, which offer and objection are as follows:</p> <p>Mr. Beltzhoover: It is proposed to prove by the witness on the stand and others who will follow him, and by papers and documentary evidence in the case, that on July 16, 1896, the school board of South Middleton township made a written contract with the Central School Supply House, of Chicago, through A. D. Meloy, who purported to be their agent, for the purchase of relief maps; that after the contract for the purchase of said maps had been signed in duplicate and one copy given to Mr. Meloy and the other retained by the board, Mr. Meloy stated to them that it was necessary for him to have an order for the goods sold to induce the house to ship the goods ; that he then presented a paper, upon which the present action is alleged to be founded, marked R. B. “ A,” and stated that this was an order for the goods, and upon that assurance the officers of the board signed the paper; that the paper so signed did not have the words “ per A. D. Meloy ” in the body of the paper; that this paper was not asked for, nor given as any evidence of payment, or of contract, or of liability, but simply as stated, as an order for the goods; that a draft could not have been given as an evidence of debt or payment, because nothing had been done under the contract and would not be until the maps were delivered and approved; that on August 7, 1896, following, the goods were received by the board with a bill for 1760, the contract having called for the payment of only $456; that one of the officials of the board saw Mr. Meloy and asked him how it came that the cases were charged $804, telling Mr. Meloy that they had received the goods and were about to send a warrant for their payment, to wit: for the amount agreed upon, $456; that Mr. Meloy then wrote across the back of the bill then rendered, a statement that the cases were not to be charged, and also stated that he had sent his check to.the Central School Supply House in payment of the cases, and showed him the stub of his check; that the bill rendered, as all the papers in the negotiation show, stated that no payment was to be made to any one but the Central School Supply House, and the official of the board who saw Mr. Meloy about this bill stated to him that they were now about to send their warrant for $456 to the Central School Supply House; that Mr. Meloy made no protest nor objection; that on July 24,1896, Mr. Meloy wrote to the Central School Supply House stating that he would send them the order for $456 of the South Middleton township school board for the maps which had been ordered, and enclosed his check for $300 for the cases which were included; that subsequently, on August 7, 1896, the school board sent their school warrant to the Central School Supply House for $456 in payment of these relief maps; that this warrant was subsequently sued upon by the Central School Supply House, and the action on it against the school board of South Middleton township is now pending; that some time later in the fall the school board were informed that Mr. Livingston had their warrant for $456 ; that the Central School Supply House never received from Mr. Meloy, nor from any one else, the amount due them on this contract.</p> <p>This for the purpose of showing that the alleged warrant in suit was not issued by the school board as warrant, but was surreptitiously obtained by Mr. Meloy, and was transferred without authority, and by the perpetration of forgery; that the money was not appropriated to the payment of the relief maps, but in payment of his own debt with the Central School Supply House for cases, and that Mr. Livingston, the use plaintiff, has no right to recover in this action.</p> <p>It is also proposed to show that the warrant was materially altered by the interlineation of the words “ per A. D. Meloy ” after it had been written, in order to allow Mr. Meloy to perpetrate the fraud by the negotiation of the warrant, which he did negotiate, and which fraud he did in fact perpetrate.</p> <p>Mr. Hays : Objected to (1) that the evidence offered has all been passed upon by the Superior Court in its opinion, and has been decided by that court to the effect that it will not amount to a defense. (2) It is not competent for the defendant in this case to try any matters that may be in dispute between Mr. Meloy and the Central School Supply House. (3) The evidence proposed to be given by the witnesses cannot be given to alter, vary or modify the terms of the written paper in evidence. (4) No such defense is raised by the affidavit of defense and pleadings, and under the rule of court where the facts in the declaration are not denied by the affidavit of defense, the facts as stated in the declaration may be taken as admitted. (5) The evidence is incompetent, irrelevant and inadmissible for any purpose in this case.</p> <p>The Court: The proposed evidence will be admitted and its legal effects in relation to the questions at issue in this case will be disposed of later. The objections are overruled and an exception noted for the plaintiff.] [1]</p> <p>Plaintiff submitted among others the following points:</p> <p>8. If the jury believe that the Central School Supply House and A. D. Meloy have received from the use plaintiff payment in full of all their interest in the contract, then their verdict must be for the use plaintiff for the full amount claimed, and no formal assignment of the claim on the contract is necessary, because equity presumes that to have been done which ought to have been done. Answer: This point is affirmed.</p> <p>[5. Under all the evidence and the law in the case, the verdict of the jury should be for the plaintiff for the full amount of the claim. Answer: This point is refused.] [11] Defendant submitted, inter alia, the following point:</p> <p>[1. If the jury are not satisfied under all the evidence in the case that the Central School Supply House has received all the money due it on its sale of maps and cases to the South Middleton School District, but that there is money still due said school supply house, then the plaintiff is not entitled to recover. Answer : This point is affirmed.] [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1) to rulings on evidence, reciting offer, objection and evidence thereto and rulings thereon. (5) In affirming defendant’s first point, reciting point and answer. (11) In refusing to affirm plaintiff’s fifth point, reciting point and answer.</p>

Appeal, No. 178, April T., 1900, by respondent, in suit of William D. Smith against Flora Smith, from decree of C. P. Lawrence Co., Dec. T., 1899, No. 95, granting a divorce a vinculo matrimonii. Opinion by Orlady, J. Action for divorce a vinculo matrimonii. Before Wallace, P. J. It appears from the record that the first libel was filed and subpoena issued on February 17, 1899.

Appeal, No. 150, April T., 1900, by plaintiffs, in suit of Robert M. Green & Sons against Andrew Bauer, from judgment of C. P. No. 3, Allegheny Co., May T., 1897, No. 528, on verdict for defendant. Opinion by Oblady, J. Replevin. Before Evans, J. It appears from the record that plaintiff brought replevin to recover a soda water apparatus of the declared value of $125. Defendant gave a counter property bond, pleaded non cepit and retained the goods.

Appeal, No. 33, Oct. T., 1900, by defendant, in suit of City of Philadelphia to use of David France against Andrew M. Yautier, Trustee for Passyunk Baptist Church, from order of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 100, M. L. D., refusing petition to apportion municipal lien. Opinion by W. W. Poetee, J. Petition to apportion a sewer claim for 1199.80. Before the court in banc. ABSTRACT OF THE PETITION AND ANSWER.

Appeal, No. 98, Oct. T., 1900, by plaintiff, in suit of the Lengert Company against the Bellevue Building & Loan Association and James H. McFarland, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1898, No. 171, refusing to take off nonsuit. Opinion by W. W. Porter, J. Trespass against a landlord and his bailiff for unlawfully seizing property belonging to plaintiff.

Appeal, No. 138, April T., 1900, by defendants, in suit of the Toledo Tinware Manufacturing Company against R. P. Duff and Edward A. Kitzmiller, partners as P. Duff & Sons, and John Sweeney, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1898, No. 525, on verdict for plaintiff. Opinion by W. W. Pobteb, J. Trespass claiming damages in the sum of $609 for the selling on a landlord’s warrant of goods averred to have been placed with a tenant for sale on commission.

Appeal, No. 79, Oct. T., 1900, by plaintiff, in suit of Wildwood Pavilion Company against M. F. Hamilton, from judgment of O. P. No. 1, Pbila. Co., Sept. T., 1897, No. 721, on peremptory nonsuit. Opinion by W. W. Porter, J. Petition to strike off nonsuit. Before the court in banc.

Appeal, No. 213, Oct. T., 1899, by-defendants, in suit of People’s Building, Loan and Savings Association against George T. Berlin and Sarab E. Berlin, from judgment of G. P. McKean Co., Feb. T., 1896, No. 193, in favor of plaintiff, in a case tried before the court without a jury. Opinion by W. W. Porter, J. Beaver, J., dissents. Sci. fa. sur mortgage. Before Morrison, J. ESSENTIAL FACTS STATED BY THE SUPERIOR COURT.

Appeal, No. 214, Oct. T., 1899, by defendant, in suit of the People’s Building, Loan and Savings Association against Martha Neal, from judgment of O. P. Mc-Kean Co., Feb. T., 1896, No. 202, in favor of plaintiff, in a case tried before the court without a jury. Opinion by W. W. Poetee, J. Beavee, J., dissents. Sci. fa. sur mortgage.

<p>Appeal, No. 120, Oct. T., 1900, by Charles Hunsicker, administrator of the estate of Frank Sauer, deceased, in suit of W. Frederick Snyder, assignee of John Meighan, against Frank S. Zane, from decree of C. P. No. 1, Phila. Co., March T., 1899, No. 753, dismissing exceptions to auditor’s report.</p> <p>Opinion of W. W. Porter, J.</p> <p>Exceptions to report of the auditor appointed to distribute the fund arising from a sheriff’s sale under a purchase money mortgage. Before Biddle, P. J.</p> <p>ESSENTIAL FACTS STATED BY THE SUPERIOR COURT.</p> <p>The controversy in this case arises upon the distribution by an auditor of a fund produced by a sale of certain real estate by the sheriff. The sale was had upon an advance money mortgage. Under the act of June 8, 1881, the value of the land is distributable to the mortgagee. The overplus of the fund is claimed to be applicable, in part, to the payment of what is asserted to be a valid mechanic’s lien for work done on the houses erected. We have not been supplied with the notes of testimony. From the findings of the auditor, confirmed by the court below, and the uncontradicted statements of the paper-books, the following facts appear: One, Zane, was desirous of entering upon a building operation in the city of Philadelphia, and interested one, Meighan, in the enterprise. Meighan agreed to advance money for the construction of sixty-four houses. Thereupon,- Zane, on January 17, 1898, before he had any title to the land, entered into a contract with one, Applegate, to do the carpentry work on the houses. In this contract a stipulation was inserted forbidding the filing of mechanics’ liens. Applegate executed, on January 21, 1898, a paper with Frank Sauer. This is called an agreement. It is rather, in terms, a bid. By it Sauer agreed with Applegate to do the carpentry work on sixty-four houses for 140.00 per house. The location of the houses is not named, no particular houses are indicated and no time for beginning or completing the work is fixed. Thus, at the time Applegate executed his contract with Zane and at the time he took the bid of Sauer, Zane had no title to the land. Applegate could acquire no right of lien because of the absence of title in Zane. Sauer could acquire no right of lien because the source of such right must have been in the contract of Applegate with Zane, who did not own the land. This first contract between Zane and Applegate was not filed in the prothonotary’s office within ten days after execution as required by the act of June 26,1895. Finally, Zane took title to the land and, on April 26, 1898, a trust company was procured to issue their policy to the mortgagee for the completion and against liens. Thereupon, it became necessary to re-execute the contract between Zane and Applegate, so that it might be filed under the provisions of the act of 1895, and operate to bar the filing of liens against the property. Instead of rewriting the document, the re-execution was effected by simply changing the date in the original contract by interlineation and by a notation of the change at the bottom with the signatures of the contracting parties reaffixed. It is asserted that Sauer, who subsequently did the carpentry work upon the houses, was entitled to a lien and participation in the distribution of the fund.</p> <p>The auditor disallowed the mechanic’s claim and the following exceptions, among others to his ruling, were dismissed by the court below:</p> <p>[1. The learned auditor erred in deciding that although the contract between T. S. Applegate, Sauer’s principal contractor, and Frank Zane, owner, was dated January 17, 1898, and was not recorded within ten days there after as required by the Act of June 26, 1895, P. L. 369, and although Applegate’s contract with Sauer was dated January 21, 1898, Applegate and Zane could alter their contract by striking out the original date and inserting April 18,1898, without notice to Sauer, and then file and record said contract as of the new date and thus deprive Sauer of his right to a mechanic’s lien.] [4]</p> <p>[2. The learned auditor erred in deciding that although the contest before him was between exceptant and an advance money mortgage creditor, the Act of June 8, 1881, P. L. 56, did not apply.] [5]</p> <p>[4. The learned auditor erred in deciding that the words “ all mechanics’ liens ” in the act of June 8, 1881, meant only such mechanics’ liens as might be filed or maintained under the act of June 26,1895.] [7]</p> <p>The lien creditor appealed.</p> <p>Errors assigned among others were (2) in confirming the auditor’s report, disallowing appellant’s claim. (3) In not awarding to appellant 1502.92, being the amount of his claim of 1495.56, besides interest thereon from March 18,1899, to June 5, 1899. (4, 5, 7) In dismissing exceptions to auditor’s report, reciting same.</p>

<p>Appeal, No. 126, Oct. T., 1900, by National Wall Paper Conpany, in suit of W. Frederick Snyder, assignee of John Meighan, against Frank S. Zane, from decree of C. P. No. 1, Phila. Co., March T., 1899, No. 753, dismissing exceptions to auditor’s report.</p> <p>Opinion by W. W. Porter, J.</p> <p>Exceptions to report of auditor appointed to make distribution of the fund arising from a sheriff’s sale on the foreclosure of a purchase money mortgage. Before Biddle, P. J.</p> <p>It appears from the record that the essential facts were the same as those in Snyder v. Zane, ante, p. 403, except that in addition to those facts the auditor found as a fact that claimants did not furnish the goods as subcontractors, but on the credit of the equity in the operation.</p> <p>It also further appears that the claimants were a foreign corporation ; that they have more than one branch store located in the city of Philadelphia; that these are separately organized and managed as independent business houses; that the company has filed a statement under the provisions of the act of 1874, giving the name of one of its agents and of one of its places of business ; that this agency or branch did not furnish the goods used in the building operation of Zane; that neither the agent nor the agency furnishing the goods was registered, and no certificate of the secretary of the commonwealth was exhibited at this place where the business was conducted.. The auditor disallowed the claim of the mechanic.</p> <p>The following exceptions among others were filed, which were dismissed by the court below:</p> <p>[1. The learned auditor erred in finding that the National Wall Paper Company, the claimant, was bound by the act of Charles Kantrowich, the contractor, in consenting to the alteration of the date of the building contract which he, the said Kantrowich, made with Frank S. Zane, the owner of the operation.] [1]</p> <p>[2. The learned auditor erred in finding that the said building contract had been filed with the prothonotary within ten days after its execution as required by the Act of J une 26, 1895, P. L. 369, sec. 1.] [2]</p> <p>[3. The learned auditor erred in finding that the claimant supplied all materials to the operation upon the credit of the equities in the houses, and not upon the credit of the houses themselves.] [3]</p> <p>[6. The learned auditor erred in finding that the National Wall Paper Company had not complied with the Act of April 22, 1874, P. L. 108, sec. 2, in that it'did not have more than one of its agents in the state of Pennsylvania registered.] [6]</p> <p>[7. The learned auditor erred in not finding that the registration of an agent residing in the county of Philadelphia was a full compliance with the requirements of the said Act of April 22, 1874, P. L. 108, sec. 2.] [7]</p> <p>[8. The learned auditor erred in finding that the claimant could not recover because it had not registered with the auditor general in compliance with the Act of June 1, 1889, P. L. 420, sec. 19.] [8]</p> <p>[9. .The learned auditor erred in finding that the claimant had no right of action unless it had first complied with the said act.] [9]</p> <p>Mechanic’s lien creditor appealed.</p> <p>Errors assigned among others were (1-3, 6-9) dismissing certain exceptions to auditor’s report, reciting said exceptions.</p>

<p>Opening judgment — Proof of an open account as set-off or payment.</p> <p>No court should open a judgment merely on proof that the defendant had an account against plaintiff equal to the amount of the judgment. It follows therefore that it was error to open a judgment on allegation of board due the obligor by the obligee where there is nothing proven in the case which would support the contention that there was an agreement that the board should be credited on the bond or the judgment entered thereon.</p>

<p>Liens — Waiver of exemption — Election, after sale, by junior creditor not to enforce.</p> <p>The waiver of exemption in a junior judgment inures to the benefit of a senior judgment, and the election of the junior creditor made after the sale not to enforce her waiver of exemption cannot interfere with the distribution as it was fixed by the law under the state of the record at the time of sale, so as to prejudice the senior creditor.</p>

<p>Evidence — Record of assigned estate to show precedent insolvency.</p> <p>The record of an appraisement, showing the condition of an estate u.1 the time of an assignment, is some evidence of the solvency of the assignor at the time when sale was made on representations of solvency at a period not greatly remote from the assignment.</p> <p>Representations of solvency were made January 27, and an assignment in May of the same year; held, that the record of the assigned estate was admissible in evidence as an aid to the jury in determining the issue as to insolvency at the date when the representations of solvency were made.</p> <p>Evidence — Inferences need not be disproved.</p> <p>A mere inference as to the existence of notes imposes no obligation on plaintiff, seeking to rescind a sale of goods levied upon, to return such notes or file same in court, or to disprove a status which may never have existed, in order to enable it to rescind.</p> <p>Contract — Lex loci.</p> <p>An order for goods accepted in New York where the goods were delivered to the purchaser, establishes a New York contract governed by the lex loci.</p> <p>Evidence — Foreign law must be proved — Charge of court.</p> <p>Where a crucial question of the case is whether the law of New York is that, if a vendor would rescind a sale, he must show the purchaser of the goods one knowingly insolvent and having a present intention not to pay for them, it is necessary either that the law of the foreign state shall be stipulated as admitted, or it must be proved what that law is.</p> <p>There being no evidence before the court below as to what the law of New York was. it was error for the trial judge to charge that it was thus or so.</p>

<p>Ground rent — Grantee's liability — Act of 1878— Under and subject.</p> <p>There can be no doubt of the application of the Act of June 12, 1878, P. L. 205, to the case of a grantee of land subject to a ground rent reserved in a deed executed since the passage of the act; and it is equally well settled that the act does not apply to the case of such grantee whose deed was executed before the passage of the act. But, there is nothing in the words of the act to warrant the conclusion that, in an action by the ground rent owner against the owner of the land, the “ under and subject” clause in a future grantee’s deed was intended to be interpreted one way, if the ground rent was created before the passage of the act and another way if created afterward.</p> <p>Ground rent — Subsequent to aclofl&lS — Creation by prior conveyance— Grantee's liability.</p> <p>The provision of the act of 1878 that the grantee of real estate which is subject to ground rent shall not be personally liable for the payment thereof, unless he shall, by an agreement in writing, have expressly assumed a personal liability therefor, or there shall be express words in the deed of conveyance stating that the grant is made on condition of the grantee assuming such personal liability, was intended to be prospective only; therefore it does not apply to grantees, after the date of the act, of real estate subject to ground rent reserved before the act.</p>

<p>Appeal, No. 204, Oct. T., 1900, by plaintiff, in suit of D. S, Seibert & Hugh J. Miller, trading as Seibert & Miller, against the Philadelphia and Reading Railway Company, from judgment of C. P. Berks Co., Aug. T., 1898, No. 83, on verdict for defendant.</p> <p>Opinion by W. W. Porter, J.</p> <p>Assumpsit. Before Ermentrout, P. J.</p> <p>The facts sufficiently appear from the charge of the court below which is as follows :</p> <p>Messrs. Seibert & Miller bring a claim against the Philadelphia and Reading Railway Company for the payment of damages amounting to #295 which they allege they sustained though the negligence of the defendant in the shipment of cigars to one A. W. Bell. It would appear from the evidence that the order to Seibert & Miller came from A. W. Bell of Liberty street; that the plaintiffs shipped the goods to A. W. Bell, 55 Liberty street, New York; that those goods reached New York, and that they, having shipped them, sent a bill of lading to A. W. Bell, 55 Liberty street, New York. The person who received that bill of lading presented it to the Jersey Central office and received the goods. [There is no evidence here of any stopping of these goods, or that any notice was given by the plaintiffs which would make it incumbent upon the Jersey Central Railroad not to deliver the goods to the party who held the shipping receipt. These goods were delivered in due course of time without any notice whatever that would affect, in the judgment of the court, the integrity of the contract on their part, and for that reason there could be no recovery.] [1]</p> <p>[There could be no recovery for the further reason that by virtue of the contract made at the time of shipment, the Philadelphia and Reading Railway Company were not liable for any negligence or misdelivery of the goods by the Jersey Central-Railroad to whom they were given when they left the line of the Philadelphia and Reading Railway at Allentown.] [2] Under this contract the goods were “ to be transported to and delivered at the regular freight station of the company at destination, if the same is on this carrier’s line, or if the property is destined to a point beyond this carrier’s lines, theri at the point of junction with the connecting line, subject to all the conditions following and upon the back of this receipt.” On the back of the receipt is the following: “ No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee.”</p> <p>[Now, under that contract, if the evidence is to be believed— and there is nothing to the contrary, in the judgment of the court — these goods were taken to the Allentown Terminal by the Philadelphia and Reading and delivered to the Jersey Central, so that they fulfilled their duty in that respect, and, under their contract, they would not be liable though there had been a misdelivery of the goods by the Jersey Central Railroad to whom they had delivered them to be carried to ultimate destination.</p> <p>If you believe the evidence submitted, it will be your duty to render a verdict in favor of the defendant.] [3]</p> <p>Defendant submitted the following point:</p> <p>[Under all the evidence in this case, the verdict must be for the defendant. Answer: Affirmed.] [4]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1-3) to portions of the judge’s charge, reciting same. (4) In affirming defendant’s point, reciting point and answer.</p>

<p>Appeal, No. 121, Oct. T., 1900, by defendant, in suit of James B. Enyard and Thomas B. Hall against Harry Weinmann, from decree of O. P. No. 4, Phila. County, Dec. T., 1898, No. 265, dismissing exceptions to adjudication.</p> <p>Opinion by W. W. Porter, J.</p> <p>Adjudication on bill, answer and proof. Before Willson, J.</p> <p>ESSENTIAL EA.CTS STATED BY THE SUPERIOR COURT.</p> <p>The bill in this case is for a partition of a ground rent which was conveyed to Charles Enyard by deed, dated January 29, 1859, duly recorded. Charles Enyard died May 28,1883. By his will he devised his estate to his three sons, Edward, Albert and William. Albert died intestate January 29, 1891. On October 6, 1893, Edward and William, in ignorance of the fact that Albert had left a son to survive him, conveyed the ground rent, involved in this proceeding, to Henry Weinmann, the defendant. The plaintiff, James B. Enyard, is the son of Albert and claims (with his coplaintiff, to whom he assigned an interest) title to one third of the ground rent. The defense to the claim is based upon the allegation that the title to the ground rent, although absolute on its face, was held by Charles Enyard in trust for his son Edward, and that, therefore, the conveyance to Weinmann by Edward (and his brother) passed a good title. The court below filed a first adjudication, sustaining the defendant’s title. After rehearing, however, a second adjudication was filed and a decree entered in favor of the plaintiffs.</p> <p>The only question involved is whether the proofs adduced by the defendant were sufficient to charge a trust upon the title of Charles Enyard. The court below has found that they were not.</p> <p>The trial judge found that plaintiff had an interest in the ground rent in question and exceptions to his adjudication were dismissed by the court in banc. Defendant appealed.</p> <p>Errors assigned were (1) in dismissing appellant’s first exception, which is as follows: “1. Because the learned court erred in finding that the plaintiff had an interest in the ground rent in question.” (2) In dismissing appellant’s second exception which is as follows: “2. Because the learned court erred in finding that the plaintiff was entitled to partition of the ground rent mentioned in plaintiff’s bill.”</p>

<p>Will — Conversion—Election to take as real estate not imputed from action of creditor of distributee.</p> <p>A direction to the executors to sell, works a conversion, although the parties interested may agree to take the land itself without a sale; but the act of a creditor who elects to treat the interest of a distributee in land of decedent which has been converted under such decedent’s will as real estate, will not be imputed to the distributee as an election by him to treat as land an interest in the estate where the terms of the will converts such interest into personalty.</p>

<p>Appeal — Costs—Discretion of court.</p> <p>There is no fixed rule which controls the apportionment of cost arising from an audit of an executor’s account to which exceptions have been filed.</p> <p>Where the auditor’s report and the testimony are not before the appellate court, it is not in a position to say that the court below erred in its disposition as to costs.</p>

<p>Charge of court — Reference to inconsistent evidence.</p> <p>The credibility of the plaintiff being very prominently in- the ease, it is entirely proper for the trial judge to call the attention of the jury to inconsistencies in his testimony.</p> <p>Practice, Superior Court — Assignments of error — Excerpts from charge.</p> <p>Excerpts from a charge are to be considered with the charge, and excerpts which ignore the parts of the charge immediately preceding and following them, are not reliable without inspection of the charge in its entirety. Flicker v. Bridge Co., 197 Pa. 443.</p> <p>In assigning error to the charge of the court it is contrary to good practice after quoting one sentence and part of the succeeding to skip to another, take an excerpt from that and pass on to dismember another. Such a course is both unsafe and unfair to the trial judge, and has received the frequent condemnation of the appellate courts.</p>

<p>Voidable judgment — Expiration of time of appeal — Motion to strike off.</p> <p>If a judgment be erroneously entered by a court having jurisdiction of the person and. subject-matter, it is voidable and not void; and an order refusing to strike it from the record on a motion made after the time allowed for an appeal has expired, will not be reversed by the appellate court. Clarion, etc., R. R. Co. v. Hamilton, 127 Pa. 1, followed.</p> <p>Practice, Superior Court — Appeals-^-Act of 1891.</p> <p>The Act of May 20,1891, P. L. 101, was not intended to give a party aggrieved by a judgment obtained in an adverse proceeding, which at the worst is only erroneous and not void, two opportunities to obtain a reversal.</p>

<p>Appeal, No. 183, Oct. T., 1900, by defendants, in suit of John F. Brimmer against Israel P. Mayer, agent, and H. K. Baumgardner, from judgment of C. P. Lancaster Co., April T., 1900, No. 47, making absolute rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense.</p> <p>Per Curiam.</p>

<p>Partnership — Dissolution—Liquidating partner.</p> <p>Under an agreement for dissolution of a partnership when one partner agreed to permit the other to collect the outstanding debts due the firm, a resumption of business relations or even forming of a new partnership would not reinvest the renouncing partner with the right to collect outstanding debts due the first partnership.</p>

<p>Assignment of mortgage — Fraud in procurement — Equitable defense by defendant who is part owner and mortgagee.</p> <p>An assignor of a mortgage who is also part owner of the mortgaged premises, in a suit brought by the assignee, may set up as a defense fraud alleged to have been committed in the procurement of the assignment upon which the plaintiff’s right to sue is founded. A resort to equity will not be required where the common-law machinery has been set in motion by the plaintiff, and furnishes adequate opportunity for a determination of the pending dispute.</p>

<p>Appeal — Proceedings in desertion — Limited jurisdiction of appellate courts.</p> <p>Proceedings under the Act of April 13, 1867, P. L. 78, which provides for relief of wives and children deserted by husband and father are not reviewable on the merits. The revisory jurisdiction of the appellate courts was not enlarged by the Acts of May 9, 1889, P. L. 158, or June 24,1895, P. L. 212.</p> <p>The evidence cannot be brought upon the record and the appellate court will not decide that a reason given by the court below was illegal when it would be improper to do so without examining the facts developed on the hearing, and reviewing the case on its merits.</p>

<p>Practice, Superior Court — Defective assignment — Rule 17.</p> <p>An assignment alleging error in admitting a certain offer of evidence reciting the offer but failing to set out the evidence, offends against Rule 17.</p> <p>Province of court and jury — Question of fact — Refusal of binding instructions.</p> <p>Where the question is one of fact, and a verdict for defendant is warranted if the jury believed the testimony of the defendant and her witnesses, the trial judge correctly refused binding instructions for the plaintiff; he would have usurped the functions of the jury had he declared these witnesses unworthy of belief.</p> <p>Charge of court — Immaterial inaccuracy — Appeal.</p> <p>The appellate court will not reverse by reason of an alleged misleading charge where taken as whole the instructions were neither unfair nor misleading, and the inaccuracy referred to was not a misstatement on a pivotal fact, and ought to have been called to the attention of the court at the conclusion of the charge, if deemed material by counsel.</p>

Appeal, No. 180, Oct. T., 1900, by Lavinia T, Davison, from order and decree of Q. S. Delaware County, discharging rule to show cause why the decree made by the said court on June 6,1898, incorporating the town of Morton into a borough should not be vacated. Per Curiam. Rule to show cause why the decree incorporating the town of Morton into the borough of Morton should not be vacated.

Appeal, No. 158, Oct. T., 1900, by W. S. Harris, from decree of C. P. Chester Co., for the benefit of the insolvent laws. Per Curiam. Petition of Willian S. Harris for discharge under the insolvent laws of the commonwealth.

<p>Petition of W. P. White, appellant, that an appeal be certified to the Supreme Court for hearing and decision under the provisions of the act of June 24, 1895, filed November 20, 1900.</p> <p>The petition was as follows:</p> <p>“ That your petitioner at the above number and term of this honorable court appealed from the judgment of the court of common pleas of Fayette county in the case of Robert Hog-sett v. Columbia Iron & Steel Co., at No. 51, ex December term, 1893, of said lower court.</p> <p>“ That since taking such appeal your petitioner finds that the said appeal was erroneously taken to this court, for the reason that the amount of appellant’s claim in the court below and disallowed by said court and on account of which he so appealed, amounts to the sum of $7,890.36, with interest thereon from November 6, 1893, and the said amount thus involved exceeds the jurisdiction of your said court and is therefore appealable directly to the Supreme Court of Pennsylvania.</p> <p>“ That petitioner has attached hereto and made part of this petition the certified records of said lower court showing the taking of said appeal and the amount and character of appellant’s said claim.</p> <p>“Wherefore your petitioner showing.the above recited facts prays that said appeal be not quashed, but the said case be certified at the cost of appellant to the said Supreme Court for hearing and decision according to the provisions of the act of the general assembly of this commonwealth in such case made and provided, approved June 24, 1895.”</p> <p>The certified records of the lower court referred to in the above petition were a copy of the execution docket entries, which did not disclose the amount really in controversy.</p>

<p>Appeal, No. 113, Oct. T., 1900, by plaintiff, in suit of Jobn W. B. Carson against West Branch Hosiery Company, from judgment of C. P. Northumberland County, Sept. T., 1897, No. 478, on verdict for defendant.</p> <p>Opinion by W. D. Porter, J.</p> <p>Assumpsit. Before Savidge, P. J.</p> <p>It appears from the record that plaintiff was employed by defendant company as salesman under a contract in writing, and was discharged from his employment before the expiration of the term agreed upon, and subsequently brought this action for 1625.</p> <p>It appears from the evidence that the contract, which was in the form of a letter from plaintiff to defendant, contained the following language:</p> <p>“ I am to call on the jobbing or wholesale trade and such retail trade as in my judgment will not conflict with my wholesale customers, and as often as deemed necessary to advance the interests of the West Branch Hosiery Company; and I further agree to call at any time upon any customers in my territory that said company may desire without any expense to said company.”</p> <p>The contract was for two years, and after having been in effect one year, plaintiff received a letter from defendant as follows :</p> <p>“We want you to go to Albany, New York, leaving Philadelphia so that you will be in Albany sometime Monday, the 24th inst. We want you to notify us when you leave Philadelphia and also advise us of your arrival at Albany, as we want to send you special instructions upon your arrival there. While there see all the trade, and from there go as follows: Albany to Utica, Utica to Oswego, Oswego to Gourtlandt, Courtlandt to Ithaca, Ithaca to Elmira, Elmira to Milton. Our haste in this matter is due to correspondence which may lead to considerable business, and we want you there.”</p> <p>Plaintiff having refused to comply with this order, he was discharged by defendant company.</p> <p>[At the trial the court instructed the jury to find for the defendant.] [1]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned among others was in instructing the jury to find a verdict in favor of defendant.</p>

<p>Appeal, No. 57, Oct. T., 1900, by Benjamin O. Wilson, terre-tenant, in suit of the city of Philadelphia to the use of Emanuel Peters, against- Jokn Q. Adams, owner, etc., from order of O. P. No. 1, Phila. Go., March T., 1876, No. 57, M. L. D., discharging rule to open judgment.</p> <p>Opinion by W. D. Porter, J.</p> <p>Rule to open judgment sur a city to use paving claim, and also rule to quash scire facias and strike off judgment.</p> <p>It appears from the record that in his petition to open the judgment, defendant alleged that the street on which the property in question was situated had never been opened. An answer filed alleged that the street had been an open public street for at least twenty-five years before the paving was done.</p> <p>The court below discharged the rule to open the judgment and to strike off the same. Defendant appealed.</p> <p>Errors assigned were (1) in discharging the rule to open the judgment. (2) In discharging the rule to strike off judgment.</p>

<p>Taxes — Personal liability when paid by another — Implied promise.</p> <p>One who has been compelled to pay taxes, for which another is legally and personally liable, may recover the amount so paid from him whose duty it was to pay such taxes.</p> <p>Taxes — Liability of owner of naked legal title.</p> <p>A person who held a naked legal title to property for which he had given an unrecorded declaration of trust of which plaintiff, however, had knowledge, will not be held liable for taxes accruing pending his legal title; the defendant is under no liability for those taxes to the plaintiff who had been legally compelled to pay them; plaintiff’s remedy is against the real owner.</p>

Appeal, No. 23, Oct. T., 1900, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1898, No. 849, on verdict for plaintiff in case of Kate F. Harrison v. Frederick Yan Gunten. Trespass for injuries to property, and for wrongful distress. Before Wiltbanic, J. At tbe trial it appeared that defendant was the agent of Mrs. Caroline Benzinger for a small house leased by plaintiff, Kate F. Harrison.

Appeal, No. 41, Oct. T., 1900, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 1021, on verdict for plaintiff in case of John Rodgers, Receiver, v. Edgar N. Black and The Merchants’ Trust Company. Assumpsit on a bond. Before Bregy, Jr From the record it appeared that the bond in suit was between Edgar N. Black and the Merchants’ Trust Company, obligors, and John Rodgers, receiver, obligee.

Appeal, No. 96, Oct. T., 1900, by defendant, from- decree of C. P. No. 1, Piula. Co., March T., 1894, No. 594, on bill in equity, in case of George C. Wetzel, executor of Theresa Loeffler, v. Eugene T. Linnard and Joseph H. Linnard. Bill in equity to cancel and set aside a bond and mortgage. The case was referred by agreement of the parties to Charles E. Morgan, Jr., Esq., as referee, who found the facts to be as follows: 1.

Appeal, No. 130, Oct. T., 1900, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 926, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of John B. Lennig v. Cboctaw, Oklahoma and Gulf Railroad Company. Assumpsit on a certificate of scrip.

Appeal, No. 131, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1898, No. 262, on verdict for defendant in case of Charles H. Stewart v. James Trimble. Assumpsit on a due bill.

Appeal, No. 112, April T., 1900, by Commonwealth, from judgment of Q. S. Westmoreland Co., Aug. T., 1899, No. 160, quashing indictment in case of Commonwealth v. D. B. Sober. Motion to quash indictment.

Appeal, No. 164, Oct. T., 1900, by defendants, from judgment of C. P. No. 2, Phila. Held: and rightly held, to be merely collateral. That which is merely collateral is differentiated from this by the fact that when the terms are made by this instrument — the very body of the obligation is altered — these things cannot be collateral one with another, because their coexistence is inconsistent.

Appeal, No. 145, Oct. T., 1900, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1885, No. 131, M. L. D., discharging rule to strike off tax lien in case of City of Philadelphia v. William S. Reeves, defendant, and J. Bolton Winpenny, terre-tenant. Rule to strike off tax lien. From the record it appeared that the lien was as follows: “ The City oe Philadelphia v. William S. Reeves, Owner or Reputed Owner or whoever may be Owner.

Appeal, No. 30, Oct. T., 1900, by defendant, from order of C. P. McKean Co., Oct. T., 1897, No. 1, confirming report of referee, in case of William Chambers v. Homber Chatley. Scire facias sur mortgage. By agreement of the parties the case was referred to J. M. McClure, Esq., as referee. Before the referee the defendant claimed that the mortgage failed for want of consideration, that it was procured by duress, and that it was paid.

Appeal, No. 77, Oct. T., 1900, by defendant, from order of O. P. Potter Co., Dec. T., 1888, No. 237, sustaining exceptions to referee’s report in case of Alfred Baxter v. Henry Hurlburt. Assumpsit on a promise to pay a promissory note of a third person. The case was referred to Hon. A. G. Olmstead, as referee, under the special act of assembly for Tioga and Potter counties. The facts found by the referee are sufficiently stated in the opinion of the Superior Court.

Appeal, No. 220, Oct. T., 1899, by defendant, from judgment of C. P. Berks Co., Dec. T., 1893, No. 7, on verdict for plaintiff in case of Frank P. Lauer v. Elizabeth Posey. Assumpsit on two promissory notes by indorsee against maker. Before Endlich, J. The defense was that the notes had been raised from $100 to $400.

Appeal, No. 50, Oct. T., 1900, by Catharine C. Kerper, executrix of William Kerper, deceased, from decree of O. C. Berks Co., refusing distribution to a creditor in the estate of Caroline Rastaetter, deceased. Petition by creditor for distribution. Bland, P. J., found the facts to be as follows: 1.

Appeal, No. 31, Oct. T., 1900, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket No. 3, page 301, dissolving preliminary injunction in ease of Penn Iron Company, Limited, v. City of Lancaster et al. Bill in equity for an injunction. Landis, J., found the facts to be as follows : FINDINGS OE EA The city of Lancaster is a municipal corporation, first duly incorporated as a city under the Act of March 20, 1818, P. L. 207.

Appeal, No. 169, Oct. T., 1900, by Henry S. Royer, administrator, from decree of O. C. Lancaster County, overruling exceptions to auditor’s report in estate of Nancy Betz, deceased. Exceptions to auditor’s report. The facts are fully stated in the opinion of the Superior Court. Error assigned was the decree of the court.

Appeal, No. 212, April T., 1900, by defendants, from judgment of C. P. Butler Co., Sept. T., 1899, No. 25, on trial by the court without a jury, in case of Henry Lefever v. J. T. Armstrong and J. S. Campbell. Ejectment for a one-fourth interest in a mining lease of land in Marion township. The case was tried by Greer, P. J., without a jury, under the Act of April 22, 1874.

<p>Negligence — Contributory negligence — Conflicting testimony of plaintiff and one of his own witnesses.</p> <p>Where a plaintiff’s own testimony makes out a clear case, the contradictory testimony of one of his own witnesses will not destroy it. Possibly the jury might believe the plaintiff’s own account rather than that of his witness, and he is entitled to have them do so if they will. The court cannot weigh the discrepancies and gauge the contradictions, — that is the specific function of the jury.</p> <p>Negligence — Contributory negligence — Province of court and jury.</p> <p>In order to justify the court in treating a question of contributory negligence as one of law, not only the facts but the inferences from them, must be free from doubt. If there is doubt as to either, the case must go to the jury.</p> <p>Negligence— Street railways — Crossings—“ Stop, look and listen."</p> <p>Where a person approaching a grade crossing of a railway adopts a safe and prudent place to stop for the purpose of looking and listening, and does not see a car, it is Ms imperative duty to cross the track at reasonable speed. To loiter or stop at a less favorable position would increase his hazard and be convincing evidence of Ms contributory negligence.</p> <p>In an action to recover damages for personal injuries against a street railway company, the plaintiff testified that when about twelve or fifteen feet away (from which place he could distinctly see both east and west along the track a distance of about 200 feet) he stopped his horse and looked in both directions, and there being no car in view, he then started forward on a good walk at the rate of about four miles an hour over a properly lighted street, and where he was well acquainted with his surroundings. After the horse and forward part of the wagon had cleared the track, a rapidly moving car collided with the rear or hind wheel. There were marked contradictions in the evidence as to the distance the plaintiff was from the crossing when he stopped, whether he stopped at all, the speed of the car, the sounding of a gong, the presence of lights and the location of intervening objects. In some respects plaintiff’s own testimony was contradicted by his own witnesses. The defendant’s negligence was shown by the testimony of the motorman, who could have easily brought the car to a standstill within the distance he had to control it, if it had been moving at the speed mentioned. Held, that the case was for the jury, and that a judgment and verdict for plaintiff should be sustained.</p>

Appeals, Nos. 258 and 259, Oct. T., 1900. Rules to show cause why defendant’s appeals from order of Quarter Sessions of Philadelphia County overruling defendant’s motions for bill of particulars should not be quashed. Rule to quash appeals.

Appeal, No. 156, Oct. T., 1900, by plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 199, refusing to take off nonsuit in case of the Wissahickon Mutual Fire Insurance Company in the hands of the Commonwealth Title Insurance and Trust Company, Receiver, v. Charles R. Wannemacher and Robert Wannemacher, trading as Wannemacher and Company. Assumpsit to recover premiums collected by agents. The plaintiff’s statement was as follows. STATEMENT OE CLAIM.

Appeal, No. 187, Oct. T., 1899, by-plaintiff, from order of C. P. Clearfield Co., Dec T., 1894, No. 246, making absolute rules to rescind amendment and to enter nonsuit in case of W. Z. Sener v. C. S. McCormick. Assumpsit on two checks. Before Gordon, P. J. . Rule to rescind allowance of amendment and rule for compulsory nonsuit. At the trial on September 12, 1898, plaintiff moved to amend the statement.

<p>Ejectment — Partition—Orphans' court — Bes adjudicata.</p> <p>In an action of ejectment where the plaintiff claims title under partition proceedings in the orphans’ court, and the defendant claims title under a deed executed by the decedent in her lifetime, the defendant is not bound by the decree in partition, although she had notice of the proceedings, and may set up her independent title, where it appears that she was not required to appear and plead in the partition proceedings or to take any definite action therein, and that the plaintiff had knowledge of defendant’s possession, had made several ineffectual attempts to purchase the property in which defendant resided, which in part covered the land in controversy, and that he was in no way misled by defendant’s silence.</p>

<p>Appeal, No. 71, Oct. T., 1900, by defendants, from judgment of O. P. Clearfield Co., Dec. T., 1895, No. 85, on verdict for plaintiff in case of Quaker City Mutual Fire Insurance Company v. Notter, McCullough & Company.</p> <p>Assumpsit to recover assessments on a policy of fire insurance. Before Gordon, P. J.</p> <p>At the trial it appeared that the policy contained a provision that “premium and assessments on this policy shall not exceed four per cent tariff.” The defendant claimed that the assessments levied on their policy were in excess of the stipulated limit. They also claimed that after the first assessment had been made they wrote to the company directing them to cancel the policy. This letter was not produced, and, as a matter of fact, the policy never was canceled.</p> <p>The court charged in part as follows :</p> <p>[As to the representation that the assessments, including the premium, would not likely exceed one half of what the insurance in stock companies would cost, that was a mere representation, and it does not pretend to have been made as a binding stipulation or agreement; on the contrary, the representation the agent made as to the maximum assessments not exceeding four per cent is conclusive evidence that no binding contract was made, but that it was a mere representation made during the dickering for the insurance, and that there is no pretense of any intention on his part or on the part of the defendant to make any oral change in the contract itself.</p> <p>Further, the representation, even if made, and false, would not constitute fraud in view of the contract which was mutually entered in by the parties.] [1]</p> <p>As to the stipulation that in no event should the premium and assessments exceed four per cent per annum of the sum insured, it is made a part of the contract of the insurance. This contract consists of the policy and the application. The application, which is signed by the defendants, is incorporated into and made a part of the policy of insurance which was signed by the insurance company, and, as we read in your hearing, this contract contains a clause which limits the right of the agent to in any manner change the stipulations or the contracts of the company, unless the stipulation be in writing and be made a part of the contract itself. That is to say, it prohibits him from making any oral stipulation contemporaneous with the written contract entered into between the parties. Now here the stipulation in question is incorporated into the contract itself, is made a part of the application which is the foundation of the insurance.</p> <p>[Next, as to the oral agreement alleged by the defendant to have been made by the agent of the company, that if the assessments exceeded four per cent the insured could cancel the policy. Our view thereon is this: That the evidence is not sufficient, in the first place, to work a change in the contract itself. There is no such evidence of fraud, accident or mistake as to justify the court in submitting the question to the jury of whether or not the contract between the parties is anything other than the writing which has been signed by them. If we submitted that question to the jury, in the view we take of the matter now, it would be error, and if that be not a part of the contract then there is no evidence in this case of any breach of the contract. Further, neither is there evidence of fraud in view of the fact that this very stipulation is set out in the contract and is binding upon the company; that is to say, that the contract between the parties contains the stipulation that the company cannot under any circumstances make assessments exceeding four per cent. Now, if the company cannot make assessments exceeding that amount, why authorize the defendants to cancel the policy if they should do it, when in the very teeth of their contract they are prohibited from doing it — they cannot do it legally ? Again, the agent had no right to make any such oral stipulation. The contract itself prohibited him from doing so. The application which was incorporated into and became a part of the policy was signed by the defendants, and they are presumed to have known its contents, and knowing the agent’s lack of authority, they had no right to permit themselves to be deceived by any representations upon that point which the agent might make. Again, the defendants, as we said, could not be defrauded or injured by the alleged oral stipulation, even if made, because the company, if so disposed, could not assess more than four per cent. There is no possibility of injury to them from violation of such stipulation. Here the evidence shows the company tried to collect more, but finding itself unable to do so, reduced its claim so as not to exceed the four per cent.] [2]</p> <p>[And, in addition to all of this is the evidence upon the following points: 1. That the defendant was legally insured and had the protection afforded by the policy, at least up to the time when they learned of the assessment in excess of four per cent. 2. That in the mean time other members joined this mutual association and became obligated with the defendants. Accordingly they had the right to assume that the defendants were liable as comembers with them according to the terms of their respective policies, and a serious question arises whether the defendants are not estopped on account of that.] [3]</p> <p>[Still further is the question whether there has been a legal rescission of the contract, even if the defendants were entitled to rescind. The evidence shows that the policy was not surrendered ; the only thing done by the defendants was to write the letter in question upon receipt of the first instalment, first assessment, to the effect that they would rescind, or words to that effect. There is no evidence in the case that the insurance company received this letter, or even of its having been mailed by the defendants, no evidence that they ever deposited it in the post office.] [4]</p> <p>[Now, as we said before, the legal questions are not clear, but as we are at present advised our view of the law is as stated, and we can scarcely see any questions of fact in it for the jury; and under the evidence we deem it to be our duty to direct a verdict for the plaintiff for the amount of its claim as reduced and without the twenty-five per cent penalty mentioned in the policy, and will reserve the legal question as before stated. The plaintiff’s calculation, as thus reduced, makes the claim up to this time, with interest, but without the penalty, $207.40, and we will instruct the clerk to take your Amrdict accordingly for that amount.] [5]</p> <p>The jury returned a verdict of $207.40, the court reserving the question whether the plaintiff was entitled to recover. Subsequently judgment was entered on the verdict. Defendants appealed.</p> <p>Errors assigned among others were (1-5) above instructions, quoting them.</p>

<p>Appeal, No. 100, Oct. T., 1900, by defendant, from judgment of C. P. Clearfield Co., May T., 1895, No. 810, on verdict for plaintiff in case of M. M. Wise, cashier to use of Hugh McCullough, Receiver of the Bank of DuBois, v. Norman Loeb.</p> <p>Issue to determine the validity entered upon a judgment note. Before Gordon, P. J.</p> <p>The court directed a verdict in favor of the plaintiff, reserving the following question:</p> <p>Now, May 23, 1898, the jury are directed to render verdict in favor of plaintiff against defendant for debt, $ , attorney’s commission, $ , total $325.22, being amount of note, with interest and attorney’s commission, subject to the opinion of the court on the legal questions raised by the foregoing points which are reserved, to wit: whether under the evidence plaintiff is entitled to recover, it showing:</p> <p>1. That defendant was born May 23; 1872, and consequently was a minor on February 12, 1891, the date when the note in suit was given, and that in his proceeding to open the judgment he did not plead his minority, and first pleaded it at the trial.</p> <p>2. That at the time the arrangement was -made between M. W. Wise, cashier, and defendant and Harry Loeb, when the cashier surrendered to defendant the stock held by the bank as collateral security on the note, and agreed to charge the note up to Harry Loeb, (a) no new consideration passed, (6) the note was not so charged, (c) Harry Loeb was at that time in debt to the bank, but, (d) his checks and notes drawn upon and maturing at the bank were being honored at that period.</p> <p>The court in an opinion by Gordon, P. J., directed judgment to be entered upon the verdict.</p> <p>Error assigned was in directing judgment on the verdict.</p>

<p>Appeal, No. 162, Oct. T., 1900, by-defendants, from judgment of C. P. Lebanon Co., March T., 1898, No. 87, on verdict for plaintiff, in case of Morris P. Ketner v. Charles Donten, Robert Donten and Charlotte Donten, by their guardian ad litem, Levi W. Donten.</p> <p>Ejectment for land in Bethel township. Before Ehrgood, P. J.</p> <p>At the trial it appeared that the plaintiff claimed as a sheriff’s vendee, at a sale where the property was sold as the property of Levi W. Donten. The defendants claimed title under a deed from Levi W. Donten to themselves. The evidence tended to show that at the time Donten made the deed to defendants, who were his children, he was largely in debt, that the consideration for the deed, $85.00, alleged to have been paid by the defendant’s grandmother, was grossly inadequate as the property was worth $300, and that Donten had declared at the time he made the deed and before, that his purpose was to give the property to his children so that the creditors could not collect their claims.</p> <p>The court refused binding instructions for defendants, and submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

<p>Liquor law — Sale of liquor to minors — Acts of May 13, 1887, P. L. 108 and May 25, 1897, P. L. 93.</p> <p>The acts of May 25,1897 “ relating to the prosecution of licensed dealers and their employees on the charge of furnishing intoxicating liquors to minors and prescribing the penalty therefor” does not repeal the 17th section of the Act of May 13,1887. On the contrary it is a distinct recognition of the offense prescribed in that section.</p> <p>Where a liquor dealer indicted for selling liquor to minors chooses to avail himself of the provision of the Act of May 25,1897, and “ offers by way of defense evidence of the circumstances under which the liquor was furnished,” he assumes with the privilege conferred by the act the burden imposed by the proviso of the Act that ‘ ‘ the burden of proof shall rest upon the defendant to show that the intoxicating liquor was not furnished to a minor either knowingly or negligently.” This casts upon the defendant no burden except what he voluntarily assumes.</p> <p>If a liquor dealer furnishes liquor to persons whose appearance indicates that they are minors, without inquiring as to their ages, he is guilty of neglience under the act. It is for the jury however to determine whether the appearance of such persons indicated their minority.</p>

<p>Appeal, No. 236, April T., 1900, by defendant, from judgment of C. P. Lawrence Co., June T., 1899, No. 55, on case stated in suit of New Castle v. F. W. Cutler.</p> <p>Case stated to determine the validity of a license tax which the plaintiff claimed the defendant was liable to pay.</p> <p>The case originated in a proceeding before Charles L. Warnock, Esq., mayor of the city of New Castle, which resulted in the conviction of the defendant for doing business without paying a license tax provided by the city ordinance. A petition for an appeal was presented to the court of common pleas by the defendant, and the appeal was allowed. Subsequently a motion to quash the appeal was made on the ground that the conviction of the defendant was by summary conviction and was appealable only to the court of quarter sessions. Subsequently the following stipulation was entered of record:</p> <p>“ On the motion to quash the appeal to the common pleas it was agreed by counsel that if the court should be of opinion that the appeal should have been taken to the quarter sessions, the appeal should be so amended and the case considered as pending in the quarter sessions court of Lawrence county.”</p> <p>On June 6, 1899, a case stated was filed which was as follows :</p> <p>Now, June 6, 1899, in the above stated case pending in said court, it is hereby agreed by and between the parties that the following is a true statement of the facts and that the case be heard thereon:</p> <p>1. E. C. Harley & Company, is a copartnership located and doing business as grocers in Dayton, in the state of Ohio, of which state the members of said firm are citizens. In conducting said business, E. C. Harley & Company employ agents who, under the direction of said firm, solicit orders for groceries in the state of Pennsylvania by going personally to residents and citizens of said state and, when necessary, from house to house in said state.</p> <p>2. F. W. Cutler, the defendant, is a resident of the state of Pennsylvania, and was employed as an agent by E. C. Harley & Company, to travel and solicit orders for groceries by said firm in manner stated, upon a compensation by a fixed commission on the amount of the orders taken. Some time during the month of February, 1899, the said F. W. Cutler, as the agent of E. C. Harley & Company, came to the city of New Castle in the state of Pennsylvania, for the purpose of soliciting orders to be filled by his principals, E. C. Harley & Company, at Dayton, Ohio. The instructions from his house were to sell to purchasers in packages of not less than two pounds of coffee, five pounds of prunes, twenty-five bars of soap, three brooms, and similar regulations as to other goods as to the quantity to be sold to each purchaser. The said F. W. Cutler, in the city of New Castle during the said month of February, went from house to house and from place to place in said city and took orders for goods in the manner aforementioned, to wit: for coffees, teas, sugar, prunes, soap, brooms, raisins, and such other goods as are usually kept by grocers. That after he had taken a large number of orders for goods he forwarded all of said orders to the said E. C. Harley & Company, at Dayton, Ohio, whereupon the said E. C. Harley & Company, filled the said orders as follows: by putting up in packages the groceries ordered, viz : coffee in two-pound packages marked “ two pounds coffee,” prunes in five-pound packages marked “ five pounds prunes,” soaps in boxes of fifty bars each, some of the soap being in pound bars in the manufacturer’s wrapper and not boxed, and brooms tied together, and other articles in similar manner. The goods were all shipped in one car, the small packages standing together in boxes without lids, and none of the packages was marked or labeled with the name of the purchaser. The goods were consigned to E. C. Harley & Company at New Castle, where said firm received them and paid the freight.</p> <p>8. The orders taken by said F. W. Cutler had indorsed upon them respectively the name of the purchaser, with the street and number of the purchaser’s residence, and five per cent was added to amount of each order to cover freight, drayage and packing. A copy of the order was left with each purchaser. Under the contract, the goods were shipped at the risk of E. C. Harley & Company, and each purchaser had the right to examine the goods when delivered and, if the same were not equal to sample shown at the time order was taken, could refuse to accept them.</p> <p>4. A member of the firm of E. C. Harley & Company came to New Castle and received the car of goods and brought with him the orders upon which the car was packed and shipped as above stated. When the car arrived at New Castle, F. W. Cutler, the defendant, with a wagon and two horses drove to the car and received such packages of “ two pounds coffee,” “five pounds prunes,” bunches of brooms, etc., and soap in boxes of fifty bars each or, for small orders, bars in manufacturer’s wrappers without boxes, as would fill the orders taken on a selected street or streets and also the original orders therefor taken by him. Having the goods placed on the wagon, the defendant then drove to the selected streets on which such orders had been taken and where such goods were to be delivered by E. C. Harley & Company, and stopped at the houses of such purchasers. Here he took from the stock of goods in the wagon such packages of two pounds coffee, five pounds prunes, and such number of brooms and boxes or bars of soap and other articles in like manner as would fill the respective orders as he arrived at the dwelling houses of the several purchasers; e. g. where a purchaser had ordered “ two pounds coffee,” “ five pounds prunes,” “ five pounds sugar,” and twenty-five bars of soap, the said Cutler would take from the stock of goods on the wagon a package of two pounds coffee, a package of five pounds prunes, a package of five pounds sugar and twenty-five bars of soap, taking the latter from a box containing fifty bars in certain cases. In making such deliveries the packages of “ two pounds coffee,” “ five pounds sugar,” or “ five pounds prunes,” were not opened, the bunches of brooms were untied to fill small orders, and the soap was delivered in boxes of fifty bars each, except in case of orders for twenty-five bars, when a box would be opened and twenty-five bars in the manufacturer’s wrappers would be used to fill such order.</p> <p>5. Under the contract between E. C. Harley & Company, and F. W. Cutler, the said Cutler became responsible to E. C. Harley & Company, to account for the said goods, and if any of the goods were not received at delivery, the same were to be returned by Cutler to E. C. Harley & Company. Under the orders taken as aforesaid, the purchasers were not to pay for the goods ordered until delivered, and E. C. Harley & Company retained the custody and control of said goods until actual delivery. The purchase price was paid to F. W. Cutler by the respective purchasers upon delivery, and the money was sent to E. C. Harley & Company.</p> <p>6. F. W. Cutler, the defendant, was engaged in delivering the goods as herein set out in the said city of New Castle with two horses and a wagon on April 20, 1899, at the time of his arrest. The amount of goods carried by Cutler in his wagon exceeded $10.00 in value. Said Cutler at the time of Ms arrest and before, was not otherwise employed than as stated, and while so engaged was acting solely for E. C. Harley & Company.</p> <p>7. The city of New Castle is a municipal corporation of the State of Pennsylvania, a city of the third class, and had enacted an ordinance, in force at date of the arrest of said Cutler, approved August 25,1890, and a true copy of the same is hereto annexed, made a part hereof, and marked Exhibit “ A.”</p> <p>8. At the time of his arrest the defendant, F. W. Cutler, was not and had not been selling or offering for sale any goods, wares or merchandise in any other mode or manner than making the deliveries of goods and securing the purchase money as herein stated; and in making such deliveries he did not offer or deliver any goods, except those ordered, nor to any other person or persons than those who had ordered goods as aforesaid, and, to them, delivered only the goods ordered.</p> <p>9. That the defendant, F. W. Cutler, at the time he solicited the orders aforesaid, and at the time he delivered the goods aforesaid, and at the time of his arrest, did not have a license as a hawker or peddler or any other license to carry on, or continue, or transact in the said city of New Castle any of the businesses mentioned in said ordinance.</p> <p>10. If the court should be of opinion, upon the facts stated, that the defendant, F. W. Cutler, was liable to take out a license and pay the license fee or tax prescribed by said ordinance then judgment to be entered for the plaintiff, the city of New Castle, for $24.00. If the court should be of opinion that said F. W. Cutler was not so liable, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue out a writ of error or take other appeal therein.</p> <p>The eleventh and thirteenth sections of the ordinance in question are as follows:</p> <p>“ Sec. 11. All peddlers, hucksters and persons traveling from house to house with goods, wares, merchandise or produce of any kind for sale, shall be classified, and pay as follows :</p> <p>“ Class 1, having goods, wares, merchandise or produce of the value of $10.00 or over shall pay $20.00; class 2, having goods, wares, merchandise or produce of the value of $7.00 and under $10.00 shall pay $15.00; class 3, having goods, wares, merchandise or produce of the value of $4.00 and under $7.00 shall pay $10-00; class 4, having goods, wares, merchandise or produce of less value than $4.00 shall pay $7.00; provided, however, that any person using a horse and wagon in said business shall pay twenty per cent additional, and provided further that this section shall not apply to farmers, gardeners or other persons, who raise, market and sell their own produce.”</p> <p>“ Sec. 13. All persons selling or leasing goods, wares or merchandise upon instalments shall pay $25.00. All persons soliciting orders for goods, wares, merchandise, works of art or any other kind of article for sale, shall pay $20.00, provided however that this shall not apply to traveling salesmen selling to dealers.”</p> <p>The court in an opinion by Wallace, P. J., entered judgment for plaintiff for $24.00 on case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Foreign attachment — Answer of garnishee — Judgment.</p> <p>The answer of a garnishee is not to be construed with the same strictness as an affidavit of defense, but where such answer contains either a distinct admission of funds in possession, or of such facts as leave the possession of such funds a mere inference of law, the proper course is to enter judgment against the garnishee upon his answer.</p> <p>Attorney at law — Attachment execution — Counsel fee — Costs.</p> <p>An attorney at law who has collected a fund for a client, and has been summoned as a garnishee in a suit against his client, has the right to retain out of the money in his hands compensation for the services rendered by him as counsel in the particular proceeding in which he received that fund, together with the amount of the costs by him in that proceeding expended.</p> <p>An attorney at law who has in any proceeding collected money for his client cannot set off against his client’s claim for that money a claim due him for services as counsel in any proceeding other than that out of which the money came, unless the client has expressly agreed that the fund shall be so appropriated; nor can he retain out of money collected for his client as an individual compensation for his services rendered to the client as a trustee without establishing an agreement upon the part of the client that the money, should be so retained.</p> <p>Where an attorney at law has collected a fund for a client, and has been summoned as garnishee in a suit against the client, he cannot claim out of the fund in his hand for services in other proceedings than that out of which the money came, or for services rendered to the client acting as a trustee, unless he shows by his answer that his client had so agreed. If his answer fails to set forth such an agreement, judgment will be entered against him.</p> <p>Foreign attachment — Payment after service of writ.</p> <p>A claim by a garnishee that a payment which he had made to the defendant after service of the attachment was made with plaintiff’s consent, is not sustained by a letter of the plaintiff’s attorney, which simply said : “I do not object to your making payment to the defendant if you think proper, as long as you have funds to meet the attachment if sustained.”</p>

<p>Affidavit of defense — Contract—Damages—Set-off.</p> <p>An affidavit of defense which does not deny the debt claimed, but sets off damages alleged to have been caused by the failure of the plaintiff to deliver goods contracted to be sold to defendant in another transaction, is insufficient where the defendant states that he received part of the goods, but in such language as not to indicate what proportion the goods received were to the whole order, and fails to state the price at which the goods were ordered, or in what market other goods had been purchased in place of those ordered.</p> <p>Where an affidavit of defense sets up a breach of a contract other than the contract sued upon, and it appears that such contract was made by correspondence, copies of the letters constituting the contract should be attached to the affidavit of defense. Merely stating the alleged substance of the letters is not a proper way to state the contract.</p>

Appeal, No. 91, Oct. T., 1900, by defendant, from judgment of C. P. Chester Co., Oct. T., 1899, No. 35, on verdict for plaintiffs in case of George S. Harris & Sons v. P. M. Sharpless. Assumpsit on a contract for catalogue covers.

<p>Road law — Defective report — Noting improvements — Act of June 13,1836, sec. 3, P. L. 551.</p> <p>The provisions of the act of assembly of June 13, 1836, sec. 3, -which require the report of viewers relating to the opening of a road to note “ briefly the improvements through which it may pass,” are not complied with by merely writing the words “ improved land” in various places in the draft accompanying the report, so as practically to include each separate tract through or alongwhioh the road is laid out. Mere boundary lines are not improvements, but fences, buildings and clearings are improvements, and these should be noted.</p> <p>Where a report of viewers is defective because it fails to note the improvements on the lands through which the road passes, the defect cannot be taken advantage of after confirmation and in the appellate court, when no exceptions were taken thereto in the court below.</p>