Volume 150 — Pennsylvania State Reports

<p> Partnership—Inventions of the firm,—Ownership. </p> <p>In the absence of an agreement or intent of the partners to the contrary, an invention which, in its nature, origin and progress, was directly witmn the line of the partnership enterprise and which was the product of the joint labor of the members of the firm, is partnership property.</p> <p> Partnership agreemen t—Invention—Ownership. </p> <p>A partnership agreement, providing that the tools, machinery, fixtures, stock and supplies now on hand and belonging to said firm shall be taken and deemed the capital of the firm, each owning the undivided one half thereof, will not prevent such invention from becoming partnership property, where the partners further agree not to “ exercise or follow^the said trade or any other to their private benefit or advantage, but do their endeavors as best they can to the utmost of their skill and ability for their mutual advantage, with the stock as aforesaid and the increase thereof; ” with a further provision, that “ should either of said parties die during ' the continuance of this agreement, his interest in said partnership shall pass to and become the property of the surviving partner, unless one of said parties shall many, in which case this clause in the contract shall become void.”</p> <p> Equity—Amendments —Partnership invention—Decree for account. </p> <p>Where a bill in equity averred that, in such a case, after the death of one of the partners, the administrator of the deceased partner, who was also his father, assigned his interest, as administrator and heir, to a third party who had notice of the claim of the surviving partner, and praying for a cancellation of the assignment, in such case an amendment praying an account will be allowed, after hearing before a master.</p>

<p> Fire Insurance—Release—Parol evidence to explain written agreement. </p> <p>The use plaintiff, under stress of suit by the nominal plaintiff, paid a fire loss resulting from alleged negligence of the defendant by which an explosion of natural gas occurred which damaged and set on fire the property of the nominal plaintiff. The nominal plaintiff, in consideration of a sum named, released the defendant “ from all claims of every kind arising out of the explosion, it being understood that the release did not affect the claim of the property owners against insurance companies for loss occasioned by fire, and which claim the property owner shall be entitled to receive in addition to and independently of the sum paid by the defendant.” Held that the release was no bar to an action by the use plaintiff to recover the amount of the fire damages from the defendant; and parol evidence was inadmissible to show that the intention of the parties was to bar a recovery for damages by fire as well as by explosion.</p> <p> Subrogation of insurer to rights of insured—Right to sue—Practice. </p> <p>An insurance company can, in such case, maintain a suit in the name, of the insured for the loss from fire paid by it, without an assignment of the claim or formal order of subrogation to its rights, against a party whose negligence it is alleged caused the fire.</p>

<p>Appeals, Nos. 343, 391, Jan. T., 1892, from decrees of C. P. Bedford Co., Sept. T., 1891, No. 79, ordering the satisfaction of a mortgage, under the Act of May 25, 1887, P. L. 270, on petition of creditors of the assigned estate embracing the mortgaged premises.</p> <p>The petition was filed by Geo. M. Brisbin et al., lately trading as the Houtzdale Bank, creditors of the assigned estates of Powel & Co. and Powell, Sons & Co., for the sum of $14,878.40, of which firms plaintiff was assignee. The petition alleged that, on May 1, 1883, Robert Hare Powell, deceased, executed a mortgage for $350,000 to the plaintiff as trustee; that, by the assignment of said firms and of the widow and heirs of Robert Hare Powell, to the plaintiff, the equity of redemption became vested in plaintiff as assignee for petitioners and other creditors; that a dispute had arisen between the parties concerning the amount due on the mortgage; that plaintiff declines to proceed by sci. fa.; praying the court to proceed under the Act of May 25, 1887, to foreclose said mortgage. The answer alleged, inter alia, that petitioners had no standing under the Act of 1887.</p> <p>The court, Baer, P. J., in an opinion filed, entered a decree directing plaintiff to issue writ; and, subsequently, it appearing that no sci. fa. had been issued, decreed that satisfaction be entered.</p> <p>Hrrors assigned were decrees (1) notifying defendant to issue sci. fa.; and (2) ordering satisfaction, quoting the decrees.</p>

<p>Appeal, No 124, Jan. T., 1892, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1889, No. 380, on verdict for defendant in assumpsit for percentage on profits of partnership under agreement with defendant’s testator.</p> <p>At the trial the evidence was to the effect, that, on Aug. 15, 1879, articles of partnership, for the term of ten years from July 1, 1879, “unless sooner dissolved by a majority in numbers and interest ” were entered into between defendant’s testator, Chas. Baeder, Thos. Williams, the plaintiff, and others.</p> <p>By these articles it was provided that Baeder was to receive thirty per centum of the profits and was to pay thirty per eertum of the losses. Williams was to receive five per centum of the profits and was to pay five per centum of the losses. It was stipulated that each of the partners, saving Baeder, should receive as a salary, in addition to his share of the profits, the sum of $2,000 per annum. The provisions as to termination of the partnership are immaterial under the decision of the Supreme Court.</p> <p>Williams, who was the son-in-law of Baeder, was engaged in another business at the time of the negotiations for the formation of the firm of Baeder, Adamson & Co. By the terms of the partnership agreement, he agreed not to engage in any other business during the partnership. Plaintiff’s wife testified, under objection, that her father told her husband he would try to get eight per cent for him out of the partnership, if he would go in, but if he could not get that, he would give the three per cent out of his own pocket.</p> <p>An agreement was entered into between Baeder and Williams, Sept. 24,1879, by which Baeder covenanted to pay to Williams, “ in addition to the salary and share of profits to which he is entitled as a partner in the firm of Baeder, Adamson & Co.,” as follows: “ Whenever under the provisions of the present articles of said copartnership the partners shall be entitled to receive a credit for their share of profits,.....Williams shall receive a credit to his account equal to three per cent on the amount thus ascertained from the books as the proper sum to be divided, and which amount so credited him on the books of Baeder, Adamson & Co. shall be charged on same books to the separate account of Charles Baeder......It is also understood and agreed that all sums credited in accordance with the foregoing provisions are to remain with the capital of the firm, and may not be drawn against during the continuance of this' contract.” Then followed a clause as to the duration of the agreement, quoted in the opinion of the Supreme Court.</p> <p>Baeder died Sept. 25,1886. His interest in Baeder, Adamson & Co. was allowed to continue until July 1, 1889. Thereafter it was withdrawn from the firm. For the year ending July 1, 1887, the firm declared profits to the amount of $117,546.52 •; for the year ending July 1, 1888, it declared profits to the amount of $142,541.25. The present suit was brought to recover the sum of three per centum upon these two annual sums declared as profits. Williams continued in the firm until July 1,1889, when the partnership was dissolved by limitation.</p> <p>The court directed a verdict for defendant, and judgment was entered thereon. Plaintiff thereupon appealed.</p> <p>Errors assigned were (1) direction of verdict, and (2) entry of judgment.</p>

<p> Promissory Notes—Visible and material alterations—Evidence—Indorser. </p> <p>A promissory note which shows on its face a material alteration, is not admissible in evidence without an explanation of the alteration showing that it was lawfully made.</p> <p>Plaintiff claimed to recover against an indorser on a renewal note for four months. The evidence showed that the note was changed, by reason of plaintiff’s refusal to accept it as at first written, and without the knowledge of the defendant, from four months to ninety days, the latter time being written over the former and both being plainly visible. Held, that plaintiff could not recover.</p>

Appeal, No. 146, Jan. T., 1892, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1888, No. 221, striking off liens for taxes and judgment thereon and quashing sci. fa. It appeared from the record that the city filed a lien Nov. 15, 1888, for registered taxes for 1888-7. Nov. 25,1890, a sci. fa. was issued to collect the lien. June 12,1891, judgment was obtained for want of an affidavit of defence.

Appeal No. 164, Jan. T., 1892, from judgment of C. P. No. 4, Phila. Co., March T., 1885, No. 31, M. L. D., making absolute a rule to strike off claim for taxes. It appeared from the record that the city filed a lien, on May 27, 1885, for taxes for the years 1880-84. On Nov. 25, 1889, a sci. fa. issued. No affidavit of defence was filed. On Jan. 31, 1891, a rule to strike off the claim was entered, which, on June 6, 1891, the court made absolute.

Appeal, No. 142, July T., 1891, from decree of C. P. Blair Co., No. 169, in equity, continuing injunction to restrain removal of telephone instrument.

Appeal, No. 8, Jan. T., 1892, from judgment of C. P. No. 3, Pbila. Co., Sept. T., 1890, M. L. D., discharging rule for judgment for want of sufficient affidavit of defence in sci. fa. sur. mechanics’ claim. Plaintiffs filed a claim in due form, as sub-contractors, for labor and material in painting and glazing, furnished from Jan. 7 to May 30, 1890.

Appeal, No. 139, Jan. T., 1892, from judgment of C. P. Lancaster Co., Sept. T., 1891, No. 58, entered for want of a sufficient affidavit of defence, in assumpsit, for rents accruing after an intestate’s death and collected by his administratrix. The facts are given in the opinion, as they appeared before the court below, Patterson, J. Brror assigned was decree entering judgment for want of sufficient affidavit of defence, quoting the decree.

<p>Appeal, No. 7, Jan. T., 1892, from judgment of C. P. No. 8, Phila. Co., discharging rule for judgment for want of sufficient affidavit of defence in sci. fa. sur mechanic’s claim. Argued with preceding case.</p>

<p>Appeal No. 49, Jan. T., 1892, from decree of O. C. Monroe Co., O. C. Account Book, yol. 6, page 855, sustaining exceptions to report of auditor to distribute proceeds of sale of real estate* under partition proceedings.</p> <p>The facts were found by the auditor, Cicero Gearhart, Esq., in effect, inter alia, as follows. James G. Powers & Co., the appellees, entered a judgment against Joel B. Krauter, the appellant, which became a lien on land held by him and the other heir of his father, Jacob Krauter, as.tenants in common. Nov. 22, 1886, a fi. fa. was issued on said judgment, and goods appraised at $254.05 were set apart to the defendant under his execution. Aug. 20, 1888, proceedings in partition were begun, on petition of the widow and heirs of Jacob Krauter, which resulted in á sale on April 5,1890. Before the auditor to distribute the funds, appellees claimed appellant’s share, which was less than $300, but the auditor awarded it to appellant, as heir.</p> <p>Exceptions were filed by appellees, alleging, inter alia, that the auditor erred, (1) in awarding the share to appellant, and (2) in not awarding it to appellees.</p> <p>The court sustained exceptions, in part, allowing appellant $45_.95, balance of exemption, in an opinion by Dreher, P. J.</p> <p>Errors assigned were, inter alia, (1, 2) sustaining exceptions, quoting them.</p>

<p> Joint tort-feasors—Right of action against—Highways—Obstruction. </p> <p>A party injured by the concurrent tort of two may sue either, and this right is not affected by any consideration of primary or secondary duties of the tort-feasors as between themselves.</p> <p>Any one negligently leaving an obstruction or creating a defect in the highway, is at once liable to a party injured. • The liability of the municipality after the defect has been brought to its notice, does not cancel the liability of the obstructor; and the injured party may, if he so elects, sue at once the wrong-doer who is ultimately liable.</p> <p> Highways—Obstructions—Bridges—Liability of railroads and, townships. </p> <p>Where a railroad appropriates a part of a public road and builds a bridge over its road-bed as a substitute for the part of the road appropriated, the railroad and the township do not stand in any relation to which the rule of respondeat superior applies. They are independent parties, each charged with a duty to the public involving liability to an individual specially injured by a neglect of such duty. Neither can escape liability by alleging the pi’imary liability of the other.</p> <p>If the railroad is charged with the duty of maintaining the approaches to the bridge in safe condition for public travel, it i.= the party ultimately liable. Its duty is absolute and may be enforced not only by the township, but also specially for his own relief by any person specially injured by neglect of it.</p> <p>If the railroad is not charged with the exclusive care and maintenance of such approaches, still, if it undertake'the duty, it is liable for negligence in its performance.</p>

<p>Appeal, No. 7, July T., 1892, from judgment of C. P. Fayette Co., Dec. T., 1890, No. 158, on verdict for plaintiff in ejectment.</p> <p>On the trial, before Ewing, J., plaintiff offered in evidence precipe and writ of ejectment, issued Oct. 16, 1890, for the property in dispute, a hotel property. The further facts appear by the opinion of the Supreme Court.</p> <p>The court affirmed the following point for plaintiff:</p> <p>“ Under all the evidence in this cause the verdict must be for the plaintiff for the premises described in the writ: ” [1]</p> <p>The court refused the following points for defendants:</p> <p>“ 1. If the jury find from the testimony that the defendant, prior to June 1,1890, notified the plaintiff verbally that he elected to extend the first term of five years, and thereupon the plaintiff by her acts and declarations gave defendant to understand that no further or other notice was required of him in regard thereto, then the plaintiff would be estopped from setting up want of written notice and their verdict should be for the defendant.” [2]</p> <p>“ 2. If the jury find from the testimony that the plaintiff waived the written notice required by the terms of the agreement, then their verdict should be for the defendant.” [8]</p> <p>“ 3. If the jury believe that the acts and declarations of the plaintiff prior to June 1, 1890, were such as to lead the defendant to believe that the lease had been extended for another period of five years, and that no further notice was necessary on his part, then the verdict should be for the defendant.” [4]</p> <p>“4. If the jury believe the testimony of defendant in regal'd to the extension of the lease, it would operate to create a tenancy from year to year, and this suit having been brought prior to the termination of the first year, the plaintiff is not entitled to recover.” [5]</p> <p>The court below charged the jury,infer alia, as follows :</p> <p>“ I am inclined to the view that the provisions of the Act of 1772 would prevent the defendant from retaining possession of this property under whatever agreement he may have had with the plaintiff prior to the first of June, 1890, and, entertaining that view, I instruct you that under all the evidence in this case the plaintiff is entitled to your verdict.” [6]</p> <p>The court below discharged a rule for a new trial, in an opinion, inter alia, as follows, by Ewing, J.:</p> <p>“ The lease calls for a ‘ notice in writing,’ and to substitute a verbal notice is to alter the written agreement of the parties by parol without even an allegation of fraud, accident or mistake in its execution and to make a new and parol agreement between the parties for a lease of real estate for five years. That is prohibited by the Act of March 21, 1772. This is shown very clearly by Justice Cooley in the case of Beller v. Robinson, 50 Mich. 264, and a careful study of that opinion has greatly influenced my own. The Michigan statute provides that ‘ every contract for. the leasing for a longer period than one year, or for the sale of any lands shall be void, unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing.’ The similarity of the statutes and the resemblance of the cases make the case referred to, in the absence of any ease in point in our own state, of decided wejght in this case.”</p> <p>Errors assigned were (1-5) answers to point, and (6) charge, quoting them respectively.</p>

<p>Corporation—Meaning of term “ organized ” under Act of 1874.</p> <p>Under the earlier statutes, a corporation was “organized” when its officers were appointed and took upon themselves the burden of their offices, after the incorporation; but the word “ organized,” as used in § 38, clause 4, of the General Corporation Act of April 29, 1874, P. L. 100, is used in a more comprehensive sense, as including incorporation. Under that Act the appointment of officers becomes effective eo imtanii with the incorporation and neither could take place without the other.</p> <p>Meaning of term “ organized” under Act of 18S9.</p> <p>Under the Act of June 1, 1889, P. L. 420, providing for the exemption from taxation of certain corporations organized exclusively for manufac taring purposes, the word “organized” refers to the incorporation ar d not to the exercise of its functions in business operations.</p> <p> Taxation—Exemption—Manufacturing corporations—Apportionment. </p> <p>Hence a corporation organized exclusively for manufacturing purposes and actually carrying on manufacturing within the state during the tax year, is exempt from state tax, under the Act of 1889, to the extent of its property so used, although also engaged in other business.</p> <p>But the property or capital stock used for purposes other than manufacturing is not exempt and an apportionment will be made for purposes of taxation.</p>

Appeal, No. 20, May T., 1892, from judgment of C. P. Dauphin Co., Jan. T., 1892, No. 307, for Commonwealth on trial before court without jury, on an appeal from tax settlement. Argued with preceding case.

<p> Railroads—Negligence—Rate of speed—Crossings—Warning. </p> <p>Railroad companies may move their trains in the open country at such rate of speed as the character of their machinery and road-bed may make practicable, and the maximum rate of speed under such circumstances is not a question for the jury. Nor is a high rate of speed negligence per se. Rut the greater the speed the greater the degree of care required in giving warning when approaching a road crossing at grade.</p> <p> Sufficiency of warning—Whistle or bell. </p> <p>If a train of cars is moving at such rate of speed that it would cover the distance between a point from which its bell could be heard at a crossing, and the place of crossing, in so short a time as to make the signal of little or no use to one in the act of crossing the track, then failure to give notice by the whistle from a longer distance would be negligence.</p>

Appeal No. 471, Jan. T., 1892, from decree of C. P. Erie Co., May T., 1892, No. '2, in equity, enjoining appellant from assuming position of principal of state normal school, etc. The bill, after setting forth the origin of the school, etc., alleged that defendant was not regularly employed as principal of the school because the yeas and nays had not been called by the board of trustees, and that he was dismissed, Feb. 5, 1891, by the action of the board, on account of…

Appeal, No. 140, Jan. T., 1892, from decree of O. C. Phila. Co., Oct. T., 1886, No. 194, adjudicating account of administratrix d. b. n. comprising proceeds of French spoliation claims. The origin of the fund for distribution, under Act of Congress making appropriation for French spoliation claims; is shown at length in the opinion of the Supreme Court.

<p> Liability of shop-keeper to customer—Implied contract. </p> <p>A shop-keeper by opening his store invites the public to come there for the transaction of business in the usual way, and from this invitation there arises an implied contract that no harm or damage that could reasonably be averted shall happen to the persons of those so coming or to such property as they necessarily or habitually, in pursuance of a universal custom, carry with them; and the consideration for such promise is the chance of profit from their patronage.</p> <p> Custody of property—Authority of salesman. </p> <p>Whatever a customer necessarily or, in common with people generally, habitually carries with him, and must necessarily lay aside in the store while making or examining his purchases, he is invited to lay aside by the invitation to come and purchase; and, having laid it aside upon such invitation and with the knowledge of the dealer, he has committed it to his custody. And this being a necessary incident of the business upon which the customer was invited to come to the store, the care of the property would be within the authority of the salesman assigned to wait upon the customer; it would be part of the transaction in which the salesman is authorized to represent his employer.</p> <p> Bailment for hire where no hire is paid—Degree of care. </p> <p>A bailment for hire, where no hire is paid, exists in such cases only where the bailment is a necessary incident of the business in which the bailee makes profit, as in the case of a customer and shop-keeper. The bailment in such case is reciprocally beneficial to both parties and the law requires ordinary diligence on the part of the bailee and makes him responsible for ordinary neglect.</p> <p> Facts to charge shop-keeper as bailee. </p> <p>The facts to charge a shop-keeper as bailee are for the jury, and if the jury should find that a watch worn by a customer was such a personal belonging as men usually carry with them, and that, in the selection of a suit of clothes, it is necessary or usual to remove it from the person, and lay it aside, and, further, that the customer, by direction of the shopkeeper’s salesman, placed the watch in a designated drawer preparatory to the selection of a suit of clothes, to purchase which he visited the place, the shop-keeper thereby became chargeable as bailee.</p> <p> Proof of loss—Failure to return—Burden of proof. </p> <p>While proof of failure of a bailee to return the property upon demand is not proof of loss, the absence of any such explanation of the neglect to restore the property as will enable the bailor to test his good faith, is sufficient to hold the bailee to prove that he has exercised ordinary diligence in the care of the property: Logan v. Matthews, 6 Pa. 417, applied.</p> <p> Defence by bailee—Theft—Care required of bailee. </p> <p>While the bailee is entitled to the benefit of inferences fairly dedueible from his conduct when a return of the property is demanded, such inferences are for the jury. If the jury find as an inference from the facts proved that the property was stolen, such finding would be a complete exculpation, if the bailee exercised ordinary care.</p>

<p>Appeal, No. 226, Jan. T., 1892, from decree of C. P. Northampton Co., April T., 1889, No. 2, dismissing bill for cancellation of conveyance.</p> <p>The bill was filed by Jeremiah Gardner against Ellen MeConlogue and husband. After the death of the plaintiff, substitution was made of John B. Doran, executor of Jeremiah Gardner, deceased, in his own right and to the use of Mary Ann Nolan, late Mary Ann Gardner, wife of John Nolan, a legatee and devisee under the will of Jeremiah Gardner, deceased, as well as all other deviseés and legatees claiming under said will.</p> <p>The findings of fact by the auditor are given below. The evidence as to uudue influence was as follows:</p> <p>Ellen McConlogue testified: “ I talked about how he had changed the other deed, and now, if anything happened, I had nothing; and he said he knew that, that he had nothing fixed that I could claim, and I said now you have changed the other deed just a short time ago, and he said the best thing I could do was to send for John Kline, and he mentioned Mary Ann that day and I said how it was that he was making her something and how it was that he had changed his mind, and that he had deeded it to me before and why would he change his mind now and what reason did I give him now and he said that’s so ; he always said it was to be mine and he never mentioned anybody else; I think he said go and bring Mr. Kline up and I said wouldn’t it do if Jim brought him up and I told Jim, and Jim went down and brought him up.” Further evidence on this point appears in the master’s report below.</p> <p>Kline testified that he did not state to Gardner that there was neither power of revocation nor life estate reserved in the deed, and further testified that Gardner said he wanted the deed made just as before.</p> <p>The master, Frank Reeder, Esq., gave the following “HISTORY OP THE CASE.”</p> <p>“ Jeremiah Gardner, the plaintiff in the case, is a native of Ireland, and was at the time of the filing of his bill sixty-eight years of age. tie was a laboring man and was entirely unable either to read or write. He was addicted to the use of liquor, but was nevertheless of thrifty and saving habits. For the past twenty-five years he has lived in the borough of South Bethlehem, and during twenty-one years of that period has been employed at the blast furnace of the Bethlehem Iron Co. His wife and five children are all dead, his wife having died in 1879. Out of his earnings he accumulated enough to buy a lot of land in South Bethlehem upon which he built five tenement houses. Four of these were rented to tenants who paid rent aggregating on an average about twenty-eight dollars per month, the fifth he occupied himself. Ellen McConlogue, one of the defendants, was a niece of the plaintiff’s wife, her maiden name being Ellen Nolan. When she was fourteen 3’ears of age she went to live with her aunt, and since that time up to the commencement of this suit, being a period of about seventeen years, lived in the family of plaintiff or in his house with him. In September, 1885, she was married to James McConlogue, the other defendant. After the death of her aunt, Ellen McConlogue, then Ellen Nolan and about twenty-one years of age, became plaintiff’s housekeeper and performed all the labor connected with the management of the household affairs. It was the plaintiff’s habit during this period to deposit all the money earned by his labor as well as that derived from the rental of his houses in a drawer of the bureau in one of the rooms of his house. To this money the plaintiff and Ellen McConlogue had equal access and apparently equal control over its disbursement. Out of this fund taxes, insurance premiums, store bills and general household expenses were paid by both or either of them as it might happen, and out of its accretions plaintiff, after his wife’s death, built two of his houses. While these relations existed between them, plaintiff, oh March 10, 1883, made his will in which he left all his property to the said Ellen McConlogue, describing her as his ‘ esteemed adopted daughter.’ Two years later, on Eeb. 14, 1885, he made and delivered to the defendant Ellen McConlogue a fee simple deed of all his property above mentioned. It is explained by the plaintiff, and is doubtless, true primarily, that the deed of Feb. 14, 1885, was made by him because of a suit threatened to be brought against him as one of the trustees on the bond of a defaulting tax collector. In the following year, 1886, on August 10, Ellen McConlogue, then married to her co-defendant, reconveyed the said real estate to the plaintiff. Matters stood thus in July, 1887. Somewhere about the first of July, the exact date not being fixed by any of the witnesses, plaintiff had a stroke of paralysis. He was attended by a physician who paid him five visits, and who describes the attack as ‘ only a partial attack.’ In the first week of this illness, plaintiff went up and down stairs, dressed and undressed himself, and went once to church alone. About two or three weeks after this stroke plaintiff executed a deed bearing date July 19, 1887, conveying all his real estate to Ellen McConlogue. The consideration named in the deed is ‘five hundred dollars, and natural love and affection and services rendered me as my housekeeper from the death of my beloved wife,’ but no money was in point of fact paid to plaintiff by Ellen McConlogue. The deed was prepared by John Kline, Esq., an- attorney at law, its execution was witnessed by him, the only witness, and the acknowledgment taken by him as notary public. It is alleged on the part of the plaintiff that at the time of the execution of this deed he was not in the full possession of his mental faculties, and that, owing to the enfeebled condition of his mind and the fraud and imposition practiced on him by Ellen McConlogue, the deed was improperly obtained and that he did not know what he was doing. After the deed was executed and delivered to Ellen McConlogue, plaintiff continued—up to the time of the bringing of the suit and the taking of the testimony—to collect the rent of the houses conveyed by the deed and exercised all the rights of ownership. It is claimed on the part of the plaintiff that he did not know the contents of the deed executed by him on July 19, 1887, and did not discover its import until long after. This is denied by the defendants. On Jan. 28, 1889, after a conference with Ashton C. Borhek who was a creditor of plaintiff, plaintiff met the defendant Ellen McConlogue and A. C. Borhek, at the office of John Kline, Esq. At that interview Ellen' McConlogue executed and delivered to Mr. Borhek a mortgage on the premises in dispute to secure the payment of $681.75, a debt due Borhek from the plaintiff. This was done at plaintiff’s request. It is also asserted by the defendants, but denied by plaintiff, that at the same time the plaintiff stated that the deed in controversy was his voluntary act, and upon his acknowledging that the signature was his genuine signature or mark, Borhek added his name as a witness thereto. The bill in this suit was filed March 28, 1889.”</p> <p>The master made the following specific findings of fact:</p> <p>“ The master presents the following findings of fact, having in mind, in reaching his conclusions upon the disputed questions of fact, that the burden of proof is upon the plaintiff to establish, by clear and precise evidence, such matters of fact as are essential to the granting of the relief he invokes :</p> <p>“1. The master finds as facts the allegations made in the bill and admitted in the answer and which are hereinbefore specifically narrated in the ‘ History of the Case.’</p> <p>“ 2. That the premises in question are of the value of $4,500.</p> <p>“ 3. That [plaintiff, on July 19,1887, was of sufficient mental capacity to make a valid disposition of his property, although weaker of intellect than before the stroke of paralysis.] [1]</p> <p>“4. That the deed of July 19,1887, was not procured by defendants’ fraud and imposition and that no undue advantage was taken, by the grantee, of his enfeebled condition.</p> <p>“ 5. That [Jeremiah Gardner knew the purport of the deed of July 19, 1887, and that he was again fully informed of its contents and effect in the spring of 1888.] [2]</p> <p>“6. That [Jeremiah Gardner did, on Jan. 28, 1889, ratify and confirm the deed of July 19, 1887.] [8]</p> <p>“ 7. That [there was a valid consideration for the conveyance of July 19, 1887.] [5]</p> <p>“ 8. That during the lifetime of his wife Jeremiah Gardner made a will by the terms of which he left a life estate to his wife with the remainder to Ellen McConlogue.”</p> <p>On the subject of undue influence, the master reported:</p> <p>“ Of undue influence, strictly speaking, there is not a jot of evidence. Plaintiff himself, in his testimony, does not even mention any attempt to unduly influence his mind. There was a quasi family and confidential relation existing between the parties and the proof of undue or improper influence therefor need not be of the indubitable character which would be required if the relations were not close and confidential, but the master does not hesitate to say that he can perceive absolutely no evidence whatever of the exercise of any undue influence. The plaintiff says that a long time before the deed was actually made Ellen McConlogue asked him to deed this property to her and that he then announced to her his determination to give her half and his niece Mary Ann the other half. He says that Mrs. McConlogue then began to cry and he walked away. Under the decisions this is not undue influence. Mrs. McConlogue recites the same conversation substantially, but says that it was on the morning the deed was made and that it ended in plaintiff’s consenting to make the conveyance and directing her to send for the attorney to prepare the instrument. This, under the decisions is not influence. Fair argument and persuasion not carried to the point of importunity, has never been construed to be the exercise of undue influence, and it is not likely that it ever will.”</p> <p>After reviewing and discussing the evidence, which was conflicting, the auditor concluded:</p> <p>“ A number of authorities were cited by plaintiff’s counsel in support of the doctrine or theory that the burden of proof in this ease rested upon the defendants to show that the conveyance in question was not the result of any undue advantage taken by them of the plaintiff’s mental condition, and that the transaction was fair and equitable. The master is unable to see that the cases cited rule the one before him, and an analysis of them will, in his opinion, develop this fact. The following are the cases referred to :</p> <p>“ Springer’s Appeal, 111 Pa. 228. This was the case of an agreement between a woman of great age and impaired mind, by which she relinquished a testamentary charge upon her son’s farm, which was her sole support, in consideration of his payment to her annually of a sum of money which was about • one twelfth the amount she was entitled to receive, and which was insufficient to provide her with the bare necessaries of life. In that case there was no proof whatever that the mother had any well settled purpose to add to her son’s worldly situation which found expression in the agreement. There was the relationship of mother and son. There was a finding of fact that her mind was impaired. And most important and significant of all, to cite the language of Justice Sterrett, “the testimony discloses a case of gross misconduct on the part of the appellant, in attempting to overreach his mother by taking advantage of her weak and helpless condition, such as no court in equity can sanction and encourage.” In the case at bar, as the master has already pointed out, there is absolutely no testimony tending to show any misconduct on the part of Ellen McConlogue or her husband.</p> <p>“Worrall’s Appeal, 110 Pa. 349. In this case the court find that the grantee stood in the relation of parent to the grantor. The property conveyed was of the value of $13,000; the consideration was fifteen dollars. There was no other consideration. The conveyance was virtually a gift, and the court concludes its opinion in the case in the following language: ‘ Unless there is something suspicious in the circumstances, or the nature and amount of the gift is such that it ought not to have been accepted even if freely tendered, the donee will not be called upon to show that the transaction was in all respects fair and honest, and in no respect tainted by fraud or undue influence.’ It is also authority for the doctrine that ‘ where the question agitated is a gift, the rule would seem to be more stringent than where the advantage flows from a contract or mutual arrangement.’</p> <p>“ Miskey’s Appeal, 107 Pa. 611, is another ease of gift. The donor was a son, the donee was his father. The son was of grossly intemperate habits, and by his gift left his own wife wholly unprovided for. The case decides that ‘ in the case of a voluntary deed from a son to a father, who is a beneficiary under it, the burden of proof is upon the latter to show that he has taken no advantage of his influence or knowledge, and that the arrangement is fair and conscionable. A rule of law laid down to govern voluntary deeds or gifts, is not the proper rule to apply to a conveyance founded upon an adequate consideration.’</p> <p>“Russell’s Appeal, 75 Pa. 269, is another case of a voluntary gift. In this case the courts found as matter of fact that the conveyance in question was executed, by mistake.</p> <p>“ The utmost that can be contended from the above authorities is that they sustain the well, known principle that a court of equity may set aside a conveyance for inadequacy of price or because of the confidential relations subsisting between the parties to a transaction, if the transaction be otherwise open to suspicion, and that, in a voluntary deed or gift, which is suspicious in its appearance or unfair and unconscionable in its terms, the burden of proof is cast upon the donee to prove that the instrument has not been procured by any undue advantage. But those principles do not fit the facts in the case under discussion.”</p> <p>Plaintiff excepted, inter alia, to the findings of fact in brackets above. The 23 d exception alleged that the master erred in not finding the following facts :</p> <p>“ (a) That Ellen McConlogue by her importunities directed on the mind of a feeble paralytic aged 66 years, at a time when he believed himself in extremis, and when he was flighty and irrational, caused him to sign a deed conveying to her absolutely all he had in the world, valued at from five to seven thousand dollars.</p> <p>“ (5) That the grantee at the time stood in a confidential relation to the grantor as his housekeeper and nurse.</p> <p>“ (e) That the grantor, even if he had not paid her for her housekeeping, would not have been indebted to her more than five or six hundred dollars, and that the consideration was grossly inadequate.</p> <p>“ (d) That the scrivener was in the employ of the grantee and failed to make known to plaintiff the absence of a power of revocation, or to suggest his seeking independent advice.</p> <p>“ (e) That the concealment of the conveyance from the plaintiff, and of plaintiff’s illness from his relatives by defendant indicated that the transaction was not done fairly or eonscionably.</p> <p>“ (/) That the alleged confirmation was had through the same instruments as procured the deed, and was presumptively tainted with the same unfairness and fraud as the original transaction. [4]</p> <p>“ 24. The master erred in not holding that under the circumstances the law implied constructive fraud, and threw upon the defendants the burden of showing that the conveyance was not the result of any undue influence and that no undue advantage was taken of plaintiff’s mental condition and that the transaction was fair and equitable.” [6]</p> <p>The court dismissed the exceptions and confirmed the report, in an opinion, inter alia, as follows, by Schuyler, P. J.:</p> <p>“ If the master is right on the question of the location of the burden of proof, clearly the plaintiff has no standing in court. The ground on which the plaintiff relies as taking the present case out of the general rule followed by the master is, that there existed between the plaintiff and defendant a confidential relation. If this be so, we think the bill should have contained an averment to that effect; for how otherwise could the defendant be prepared to meet such a charge ? There are some relations, such as parent and child, guardian and ward, attorney and client, and the like, which the law presumes to be confidential, and hence it is unnecessary either to plead or prove their confidential character; but there is no fiduciary relation ipso faeto between a man. and his housekeeper, or between an uncle and his deceased wife’s niece: See 2 Pom. Eq. Jur., p. 496, note ; Audenreid’s Appeal, 89 Pa. 124.</p> <p>“ As has been seen, the allegation in the bill is that the deed in controversy was procured ‘ by fraud and imposition.’ The subject of confidential relations is not even hinted at, which distinguishes this case from Worrall’s Appeal, 110 Pa. 849, so much relied on by the plaintiff, where the existence of the confidential relation was the very issue raised by the pleadings. The plaintiff, I think, has made the mistake of confounding the distinction between actual fraud and that kind of constructive fraud which grows out of the relations of the parties. That there is such a distinction is clearly shown in 2 Pom. Eq. Jur., § 955, where the subject is fully discussed with the author’s usual intelligence. But it so happens that the omission to charge constructive fraud is immaterial, as [there is not the slightest evidence of a fiduciary or confidential relation existing between the plaintiff and defendant.] [7] Let it be conceded as claimed that the defendant stood towards the plaintiff as an adopted daughter and that the deed was without consideration. We then have presented the case of a gift from a parent to a child. This is not the kind of transaction which courts of equity regard with jealousy. Cases of this kind plainly turn upon the exercise of actual undue influence, and not upon any presumption of invalidity; a gift from parent to child is certainly not presumed to be invalid : 2 Pom. Eq. Jur., § 962.”</p> <p>Errors assigned were (1-6) dismissal of exceptions, quoting them; (7) holding as in brackets in the opinion, quoting it; and (8) dismissing exceptions and confirming report.</p>

Argued March 25,1892. Appeal, No. 122, Jan. T., 1892, from judgment of C. P. No. 1, Phila. Co., March T., 1889, No. 147, on verdict for plaintiffs, in assumpsit for damages for failure to give possession within the period limited by the contract of sale of real estate. The facts appear by the opinion.

Appeal, No. 420, Jan. T., 1892, from judgment of C. P. Luzerne Co., March T., 1892, No. 279, for plaintiff on case-stated for municipal assessments under covenant to pay taxes, etc. The case-stated agreed upon the following facts: “ Plaintiffs, residents of Wyoming, in Luzerne county, being the owners in fee simple of a tract of land in Scranton, Lackawanna county, containing 227£ acres conveyed by indenture of coal lease to William T. Smith, defendant, who was a resident of…

<p> Insurance—Accident—Loss of foot. </p> <p>An accident policy insuring against involuntary, external, violent and accidental injuries and not against disease of any kind, or against disabilities which are the result, wholly or in part, of disease or bodily infirmities, and providing for a stipulated indemnity for partial permanent disablement which is defined to be the loss of one hand or foot or both eyes, does not cover the case of indemnity for an injury, where the foot is not lost or injured and it may be used constantly by means of an appliance of a plaster jacket to the spine, although the foot could not be used if the appliance were removed.</p>

<p> Decedent’s estate—Contract to make will—Services. </p> <p>A promise on the part of a testatrix to let a legacy stand and remain for another’s benefit at her death, cannot be enforced against her estate, without clear proof, by direct and positive testimony, of a sufficient consideration . The evidence in this case of future services was held insufficient to establish a consideration.</p>

<p> Negligence—Proximate and remote cause. </p> <p>While one is responsible for such consequences of his fault as are natural and jjrobable and might therefore be foreseen by ordinary forecast, if his fault happen to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result. This rule applies in actions against municipal and quasi municipal corporations as well as to natural persons and private corporations.</p> <p> Townships—Defective highway—Concurring causes of injury.- </p> <p>Although a township be guilty of negligence in not remedying a defect in the highway, yet where an injury results from an extraordinary outside cause concurring with the defect in the highway, the township is not liable.</p> <p>But the concurrence of an ordinary outside cause, which should have been foreseen by the public authorities, will not relieve the township from responsibility for its negligence.</p> <p>It seems also that, if the injury would have occurred by the defect in the highway without regard to the extraordinary outside cause, the township would be liable.</p> <p>To render a township liable for an injury by a defect in the highway, it must have been the sole efficient cause of the injury: Chartiers Twp. v. Phillips, 122 Pa. 601; Herr v. Lebanon.</p> <p>In this case, a horse hitched to a vehicle took fright at a donkey drawing a cart loaded with tin cans, and ran away, wrecking one of the wheels, which dragged upon the ground until it came to a hole negligently left in the highway by the township, when the occupants were thrown out and injured: Held, that the proximate cause of the injury was the fright of the horse, and as this was not caused by any neglect of duty on the part of the authorities, the township was not liable.</p>

<p>Appeal, No. 191, Jan. T., 1892, from decree of C. P. No. 1, Phila. Co., Dec. T., 1890, No. 421, opening judgment, entered on bond and warrant of attorney against Henry C. Birchall and Sallie S. Birchall his wife, as to Sallie S. Birchall, said bond accompanying a purchase-money mortgage on real estate in Delaware, purchased by said wife while domiciled in Pennsylvania.</p> <p>The facts appear by the opinion of the Supreme Court. The bond did not name Mrs. Birchall as a married woman, and the warrant of attorney empowered “ any attorney or prothonotary of any court of record in the state of Delaware or elsewhere ” to confess judgment.</p> <p>Members of the bar of Delaware were called who testified that the universal interpretation of the laws of Delaware was that a married woman was generally liable on her contracts; that there had been no adjudications, as the correctness of the practice was unquestioned.</p> <p>The court made absolute the rule to open the judgment as to Mrs. Birchall, in an opinion by Allison, P. J., 1 Dist. R. 128, and plaintiff thereupon appealed.</p> <p>Errors assigned were (1) not discharging the rule, (2) making it absolute, and (3) opening the judgment.</p>

<p>Appeal, No. 41, Jan. T., 1892, from judgment of C. P. Clearfield Co., Sept. T., 1890, No. 356, on verdict for plaintiffs, in assumpsit for the value of goods damaged in transitu.</p> <p>On the trial, before Krebs, P. J., the evidence was to the effect that Orr, Painter & Co. had shipped to plaintiffs, from Reading, by defendant company, six stoves, among other things. The shipment was made under a general release which stipulated that, because of the fragile character of the goods, and, in consideration of the reduced rate, the carrier was released from liability for loss or damage by transportation, etc. After the stoves were loaded upon the cars at Reading, the car was sealed until it reached Columbia, when it was opened for the purpose of transferring the goods to another car. They were found to be broken. The warehouse foreman testified that to the best of his knowledge the stoves were properly stowed in the car and cleated, basing his knowledge upon the fact that he had inspected all the cars on the day shipment was made and that they cleated all stoves when shipping. He also testified that they could be broken even with careful handling. The car was identified by reference to papers and books, giving its number; and the conductors, from the conductor of the shifting engine, who received it from the warehouse foreman, to the conductor who delivered the car to Columbia, testified that it had been carefully handled. This testimony fixed the length of time that the car was actually in the hands of each conductor, as compared with the schedule time; the number of stops; the number of other cars in the train; and the absence of shock or wreck. The conductor of the shifting engine testified that the cars came to the station the day before he took them and that they were there during the afternoon, night and forenoon, until 12 o’clock, when he took them.</p> <p>The court charged the jury as follows, inter alia:</p> <p>“ Now, if the testimony on the part of the defendants showed how this accident occurred, how this breakage occurred, then the burden would be on the plaintiffs, A. C. Buck & Co., to show that it was through the negligence and want of ordinary care of the servants and employees of the railroad company; but that does not arise, and that burden is not cast on the plaintiffs, where they show that the goods were delivered to the company in good condition, and were found in their possession damaged and broken, until the railroad company show in some way and give some explanation of how the damage arose. [1] ....</p> <p>“ Where the company shows how the accident occurs, that is, how the loss occurs, the cause of the loss or damage, if any, it appearing also that thejr did not themselves show their own negligence and their own want of sufficient care, then the burden is cast upon the plaintiff claiming the damage to show that it was through the want of care, of ordinary care, and through the negligence of the servants and employees of the company into whose possession the goods were delivered. [2] ....</p> <p>“The presumption of negligence that arises against a bailee, such as the Pennsylvania railroad company was in this case, is where there is no explanation of how the accident, how the damage, occurred. Where that presumption arises in the first instance, after the railroad company has satisfied your minds as to how this accident occurred, then that presumption against them is overcome, and the burden would be cast upon the plaintiff to show that it was through the want of care and the negligence of the railroad company’s employees and servants. [3] ....</p> <p>“ So we take it, that is the law of Pennsylvania to-day, and we so instruct you, that if the defendant company in this case has not shown by the testimony how this accident occurred, in such a way that it appears to have been without fault on their part, the legal presumption that arises from the facts that the goods were put in their possession in good condition and found there broken, would make them liable for the damage resulting from this injury. Now what is the testimony on this subject ? On the part of the company they have called a number of witnesses here. There is no question about their credibility. Their testimony bears upon its face the impress that they are telling all they know about this transaction. But is the testimony satisfactory to you, as to how this accident occurred ? Has it shown how it occurred ? Because, in the view we take of the law, that is the turning point in this case.” [4]</p> <p>“. . . . Now, gentlemen of the jury,- does this testimony show you or satisfy you that it was through no fault of the defendant’s employees or agents or through no fault of the company or those who were doing its work ? Because that is the turning point in the case. If it does, then there can be no recovery on the part of the plaintiff in this - case. If it does not, then the plaintiff may recover for the amount of these stoves less the freight.”</p> <p>Defendant’s points, with answers, were as follows, inter alia:</p> <p>“ 2. In such case the burden of proof of negligence is upon the plaintiff, and unless the proof shows actual negligence there can be no recovery and the verdict must be for the defendant. Answer: I cannot affirm that point as stated without qualification. Should you find that these goods were delivered to the railroad company at its station in the city of Reading, and to its servants and employees there, in good condition, and were found in their possession broken and damaged, as I understand the law, the legal presumption from these facts requires, at the hands- of the defendants, that they show that the accident occurred through no accident of theirs. And if they cannot show this in such a way that it could not be attributed to their carelessness, or their negligence, as if somebody had broken into the car against their will while in the course of transit, and destroyed these goods, or, that there had been a collision by Avhich these stoves were broken, which was unavoidable on their part, or through no fault of their servants or employees, or that some other line which they might have heen crossing had run into them by another train, or that there had been something which threw these cars off the track, these things and anything like them would have cast upon the plaintiff the burden of shoAving that the breakage was caused by the negligence and default of the defendant. [5]</p> <p>“ 3. The facts that the goods were in good condition when received by the defendant at Reading, and were found to be broken when they arrived at Columbia, are not of themselves erddence sufficient to establish negligence on the part of the defendant; especially is this so in view of the fragile character of the goods as indicated by the testimony, and as recognized by the terms of the said release. Answer: We decline to so instruct you. [6]</p> <p>“ 4. There being no evidence of negligence on the part of the defendant, defendant is not liable and the verdict must be for it. Answer: We decline to so instruct you. The question whether or not they have satisfied the jury that this accident occurred through no fault of theirs is upon the defendant if the jury believe that- the goods were in good condition when delivered to them, and they have not accounted for this accident. [7]</p> <p>“ 5. If the court refuse to instruct as requested in fourth point, then: It appearing by such evidence as was in the power of defendant company to produce, that the car in which the goods were placed was inspected and found in safe condition and that the goods were safely stowed therein, and the ear was transported in the usual manner and with proper care to the point where the goods were found to be broken, and there being no contradiction of this proof, there can be no recovery, and the verdict must be for the defendant, if the jury believe this testimony. Answer: We decline to so instruct you, gentlemen of the jury. It was, we think, altogether in the power of the defendant to have shown whether or not other goods were in the car, how the car was loaded with reference to other goods and these stoves, and they might have furnished testimony upon that branch of the case, which is wanting here. The fact that conductors received the goods and transported them in the usual way does not relieve the company from accounting for this accident, that is, from showing how it occurred, and that it was through no fault of theirs.” [8]</p> <p>Errors assigned were (1-4) portions of charge as above, quoting them: and (5-8) answers to points, quoting points and answers.</p>

<p>Appeal, No. 10, May T., 1892, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1892, No. 312, on verdict for plaintiff, in trespass for personal injuries, caused by the alleged negligence of defendant.</p> <p>The evidence was to the following effect, on the trial, before Simonton, P. J.: On the forenoon of a clear day in August, plaintiff was going down south Second street, Harrisburg, with his horse and wagon loaded with produce and truck. The electric street railway of defendant company was located on this street, and at that time extended to Hanna street, about a half mile below Mulberry street. About 800 feet below Mulberry street, the Reading railroad have an overhead bridge, and about 100 feet below the bridge the street railway makes a short curve to the west into Vine street. Immediately beyond this curve, crossing said Second street diagonally, are several tracks of the Pennsylvania railroad, over which were passing and repassing, at the time, two engines shifting cars into sidings. Plaintiff testified -that seeing that he could not go on with safety, that he might get caught between the shifting railroad cars and the street car at the curve, he determined to pass over the street car track immediately below the bridge, to the other side of the street, and there tie his horse. Before passing under the bridge he leaned out of the side of the front part of the wagon and looked up Second street as far as he could, which was as far as Mulberry street, a distance of about 800 feet (the foliage of the overhanging trees preventing a more distant view), and could see no car; none was in sight, nor could he hear anjr. Plaintiff testified that as there was but one ear running on that branch of the road at that time, he thought the car was beyond the curve, and might come out of Vine street at any moment, and therefore, having looked up, he now looked downward to the curve. After driving on about 60 feet he turned to cross the tracks obliquely. When his horse was fairly on the track he heard the gong but kept looking for the car towards Vine street, and before he got over he was struck and injured. Plaintiff’s witnesses estimated that the car was running from 12 to 20 miles per hour. The evidence was conflicting as to the distance plaintiff went after looking and listening before he tried to cross, whether he could have seen the car when he looked, how far he could see, and the rate of speed and the time within which the car ran any given distance.</p> <p>The court left the question of contributory negligence to the jury, saying, inter alia: “ If a man passing along a street railway track, looks up the track and does not see a car, and then drives along the track for such a length of time that in the ordinary course of events, with a car running at an ordinary rate, it would, reach the point where he does undertake to cross, before, or just at the time, he undertakes to cross, he is negligent, he is not acting as a man of ordinary prudence would act. If he looks up the track, however, and sees a certain distance, and does not spend, before he crosses the track, enough time for a car to reach that point, running at as high a rate as he is bound to assume it may be running, then the jury might say he was not negligent; and that is why the question of the rate of speed the car was running enters as one of the elements into this problem—the question of the rate of speed the car was running, the question of the time the plaintiff took after he did look before he undertook to cross; and those are matters that the jury must consider in arriving at a conclusion in this case.”</p> <p>Plaintiff presented the following points, inter alia:</p> <p>“ 1. If plaintiff was injured by reason of the reckless and too rapid running of defendant’s cars, and plaintiff acted as another ordinary prudent person would under the circumstance, the verdict must be for plaintiff. Answer: That is affirmed, gentlemen, with the qualification that is not stated here of another fact that would be necessary to be found, and that was that the injury resulted to him from the too rapid running of the defendant’s cars. [1]</p> <p>“ 4. All the circumstances and surroundings must be taken into consideration in determining whether there was contributory negligence. Answer: That is correct. [2]</p> <p>Defendant’s points, which were refused, were as follows:</p> <p>“ 1. It clearly appearing by the affirmative testimony of the plaintiff that he drove his wagon on the track of the defendant immediately in front of the moving car, he was guilty of contributory negligence, and cannot recover in this case. [3]</p> <p>“ 2. The plaintiff having testified that he did not look before driving across the railroad track (not a public crossing), was guilty of contributory negligence, and even if he did look when sixty feet away from the place he attempted to cross, would not be relieved from the negligence aforesaid, and the verdict must be for the defendant. [4]</p> <p>“ 3. The plaintiff was well acquainted with the locality and track at that place. He knew there was no public crossing there. Hence, the greater reason that he should exercise the utmost care and caution by looking and listening before undertaking to cross. His own evidence shows that he did not look for sixty feet before he made the turn, and that the street was free from all obstruction. If he had looked and listened, the accident could not have happened. It was his plain dutjto have done this before driving upon the track, and the defendant is entitled to an unqualified instruction that the plaint-, iff cannot recover in this case. [5]</p> <p>“ 4. The failure to stop, look and listen, before crossing a railroad track, is negligence in law. As the plaintiff’s evidence shows that he violated this unbending rule the verdict must be for the defendant. [6]</p> <p>“ 5. No circumstances have been proved in this case excusing the negligence by the plaintiff in omitting to obey the requirement of the law. His omission was not merely evidence of negligence, but negligence per se. [7]</p> <p>“ 6. The plaintiff having been warned of the approach of the car by the usual signals, and having neglected the warnings, cannot recover. [8]</p> <p>“ 7. Upon the uncontradicted evidence, and the whole evidence in the case, the verdict must be for the defendant.” [9]</p> <p>Verdict for plaintiff for $1,500. A motion for a new trial was overruled, in an opinion, by the court below, saying that the case was a close one. Judgment was entered on the verdict, whereupon defendant appealed.</p> <p>Errors assigned were (1-9) answers to points, -quoting them as above.</p>

<p>Appeal, No. 403, Jan. T., 1891, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1890, No. 180, on verdict for plaintiff in trespass for personal injuries caused by alleged negligence of defendant.</p> <p>The facts as they appeared at the trial, before Brjeg-y, J., are stated substantially in the opinion of the Supreme court. A witness for plaintiff testified that when plaintiff was fifteen or twenty feet from the track, the motor car was half a square away.</p> <p>The court refused to give binding instructions for defendant. Verdict for plaintiff for $368.75, and judgment thereon, whereupon defendant appealed.</p> <p>Error assigned was refusal of binding instructions, quoting the point.</p>

<p>Appeal, No. 2, July T., 1892, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1891, No. 352, on verdict for defendant, in assumpsit by sheriff against the county to recover for board of prisoners.</p> <p>The evidence was to the following effect, on the trial, before Ewing, J.: At the general election held in November, 1889, the plaintiff was elected sheriff of Fayette county, and entered upon the duties of his office the first Monday of January, 1890, to serve three years. Among his duties as sheriff was that of boarding the prisoners confined in the county jail. At the time of his election the compensation for this was fifty cents per day for each prisoner, having been fixed by order of court at that rate on May 31, 1889, under the Act of April 11, 1856, and the special Act of Feb. 14, 1867. The plaintiff was regularly paid by the county commissioners at the rate of fifty cents until June, 1891. At No. 139 of March sessions, 1891, the commissioners of Fayette county presented a petition to the quarter sessions praying for a reduction of the allowance to the sheriff for boarding prisoners. A rule was granted, testimony taken and, on June 20, 1891, an order was made, reducing the sheriff’s compensation for boarding prisoners to forty cents per day. The commissioners refusing to pay more than that thereafter, this suit was brought to recover the difference between forty and fifty cents.</p> <p>Defendant offered in evidence the record of the proceedings reducing the rate for boarding prisoners, being the petition above mentioned and the order. Objected to as incompetent and irrelevant. Objection overruled and bill sealed. [1]</p> <p>The court thereupon directed a verdict for defendant. [2]</p> <p>Verdict for defendant and judgment thereon; whereupon plaintiff appealed.</p> <p>Errors assigned were (1) admission of evidence, quoting the bill of exception and order of court but not the petition; and (2) the instruction for defendant, quoting it.</p>

Appeal, No. 52, July T., 1892, by defendant from decree of C. P. Perry Co., Jan. T., 1892, No. £2, in equity, authorizing plaintiff company to cross the tracks of defendant company at grade. The facts as found by the master, Alexander F. Thompson, sufficiently appear in the opinion of the Supreme Court.

Appeal, No. 817, Jan. T., 1892, of Hanover Borough, from decree of C. P. York Co., sustaining an appeal from an order appointing viewers to assess damages for the widening of Frederick street in said borough and quashing the proceedings.

Appeal, No. 135, Jan. T., 1892, by defendant, from decree of C. P. Lancaster Co., Dec. T., 1886, No. 21, discharging rule to set aside fi. fa. and ca. sa. to enforce payment of alimony. The facts as they appeared before the court below, Patterson, J., are stated, in substance, in the opinion of the Supreme Court. A decree of divorce a v. m. was entered March 3,1890, at which time the order for alimony was made.

<p>Appeal, No. 384, Jan. T., 1892, by ' plaintiff, from judgment of C. P. York Co., Aug. T., 1891, No 56, on verdict for plaintiff for less than the amount of his claim, in assumpsit for salary as city assessor.</p> <p>The evidence, at the trial, before Latimer, P. J., was to the following effect: Plaintiff was city assessor of defendant city, a city of the fifth class, under Act of May 24, 1887, art. 19, § 1, P. L. 204. March 80,1888, an ordinance was passed fixing the compensation of city assessor at three dollars per day. On Jan. 7,1889, that Act was declared unconstitutional, in Ayars’ Ap., 122 Pa. 266. The Act of May 8,1889, P. L. 133, re-classified the cities of the state and York fell into the third class. The Act of May 13, 1889, P. L. 196, declared the defacto councils of cities to be and to have been legally constituted, and validated and declared to be in full force all ordinances duly passed by them. On May 23, 1889, P. L. 277, a general Act for the government of cities of the third class was passed. Art. 15, § 1, provides for the election of city assessors. Art. 19, § 2, provides that “ all ordinances of any of said cities heretofore legally passed not inconsistent with such provisions are hereby made valid and shall be and remain in full force and virtue until altered or repealed.” In February, 1890, plaintiff was elected city assessor. On Oct. 14, 1890, an ordinance was passed fixing the salary of city assessor at $2.50 per day, the total compensation not to exceed $225 in any year. Plaintiff claimed for 201 days at $3 per day, but defendant refused to pay more than $225.</p> <p>Plaintiff offered statement and affidavit of defence to show admission of fact, as to classification of defendant as a city. Objected to, excluded and bill sealed. [2]</p> <p>Plaintiff offered ordinance of March 30, 1888, to fix compensation. Objected to as illegal, rejected and bill sealed. [1] Plaintiff’s points were as follows :</p> <p>“ 1. The ordinance of March 30,1888, was valid; and, being unrepealed at the time of plaintiff’s, election as one of the city assessors, the compensation therein fixed at $3 per day could not lawfully be increased or diminished during the term for which he was elected by the defendant. The verdict of the jury must be for the plaintiff for $3 for each day in which plaintiff was actually engaged in the duties of «his office. Answer: I answer that that point is not correct,—that the ordinance of March 30, 1888, was invalid and void. [3]</p> <p>“ 2. The plaintiff is entitled to interest from the termination of his services, which from the uncontradicted evidence was Feb. 25, 1891, upon such an amount as the jury shall say under the instructions of the court was due plaintiff. Answer: That point is not correct. The plaintiff is entitled to interest ■on the sum of $225, his annual salary, from the first Monday of April to the day of the date of the rendition of this verdict.”</p> <p>The court charged as follows, inter alia:</p> <p>“ As I have already stated in your hearing in ruling upon offers of evidence, I regard the ordinance of March 30,1888, as of no legal validity or effect. The result of that is that there was no ordinance of the city of York in force at the time when Mr. Devers was elected, nor at the time when he commenced the performance of his duties, fixing the compensation to be received therefor. _ But on Oct. 14, 1890, the city councils of the city of York passed and the mayor approved an ordinance fixing the compensation of the city assessors at two dollars and a half per day, the compensation for any one year, however, not to exceed $225. I regard that ordinance as a valid exercise of legislative powers by the defendant, the city of York, in this case, and that it did fix the compensation which this plaintiff is entitled to recover. The defendant concedes that under that ordinance the plaintiff is entitled to recover the sum of $225 with lawful interest from the first Monday of April, which was the terminus of the first year of his incumbency of the office.</p> <p>“ It will be your duty, therefore, to render a verdict for the plaintiff and against the defendant for the sum of $225, with interest from the first Monday of April to the day of the date of this verdict,—which amounts to $5.60. The total amount of the verdict proper to be rendered in favor of the plaintiff will be $230.62.” [5]</p> <p>Verdict and judgment accordingly, whereupon plaintiff appealed.</p> <p>¡Errors assigned were (1, 2) rulings on evidence, (3, 4) answers to points, and (5) charge; quoting bills of exception, points, answers and charge, as above.</p>

<p>Appeal, No. 30, Jan. T., 1892, by Jane G-. Bryan, legatee, from decree of O. C. Lancaster Co., adjudicating executor’s first account.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The auditor, A. F. Hostetter, after stating the facts, said, inter alia:</p> <p>“ It is strenuously contended on behalf of the pecuniary legatees under the will, that, even if the devisees can be made whole, it can be done only after ^hey have been first fully paid. Inasmuch as the election of the widow takes away half of the present fund for distribution, and the total of the legacies is far beyond the amount of the remaining half, they cannot be fully paid out of this fund. The disappointed devisees would in this way be ruled out of this distribution. This is the executor’s first account. There are yet personal assets in his hands, and also real estate, which is available, if necessary, to satisfy the claims of those whose rights are superior to the residuary legatees. But even as to these the devisees would be dependent on the contingency of there being a surplus above the legacies on the view taken by the legatees.</p> <p>“ This view proceeds upon the theory that the legacies stand upon higher ground than the devises. But the general rule is, that 1 equality is the highest equity.’ And while a pecuniary legacy may be exempt from abatement, as in the case of a wife or child destitute of other provision, or of a legacy given in lieu of dower, or of a preference manifestly intended, yet these are exceptions dependent on peculiar instances and attended with strong expressions of intention: Duncan v. Alt, 3 P. &. W. 382.</p> <p>“ The case of Bard’s Estate, 58 Pa. 398, which, according to its syllabus, would seem to sustain a preference of legacies as over devises, was really decided on the ground that there was a manifest preference expressed in the will for the pecuniary-legatees. The doctrine of our later Pennsylvania cases is, that the abatement of devises and legacies is always a question of intention to be gathered from the will. And this, we think, applies as well to abatement among each other as for the payment of debts: Hallowell’s Estate, 23 Pa. 223 ; Sandoe’s Ap., 65 Pa. 316 ; Grim’s Ap., 89 Pa. 333.</p> <p>“ In the present case there is no preference whatever to be deduced from the will in favor of the legatees, or any individual among them. They are all simply general pecuniary legacies, and there is nothing to show that the testator meant any more certainly that they should take without abatement, than that the devisees should take without encumbrance; hence the general rule must prevail.</p> <p>“ The specific devisees will, therefore, be permitted to come in upon the present fund. No more, however, is claimed for the devisees than that, to the extent of their just demand for relief, they shall he permitted to come in upon this fund pro rata with the legacies. In deciding upon the method to be employed to work out the equity of the devisees, the auditor has been unable to get help from any of the cases. It would seem that either of two methods could be employed. Mrs. Evans, the widow, is sixty-four years of age. The natural expectation of her life might be taken and a gross sum equal to the supposed future payment of dower to be made by the devisees on this basis might be awarded them. This, however, would, in the nature of the case, be more or less contingent and speculative. It seems to the auditor that it would be more equitable to all parties interested in the matter that a fund should be set apart, to remain in the executor’s hands, such as, at the ruling rate of interest, would produce the amount paid out as dower,—the income of such fund to be paid to the devisees in proportion to dower paid by them, and the arrangement to continue until further or otherwise ordered by the court. This fund would at all times be under the control of the court, and could be so handled as to work out the equities of the case; and by this plan it would seem that exact justice could be done to all parties in interest. It will, therefore, be adopted.</p> <p>“ The interest for which these devisees are liable to the widow on her dower is computed at six per cent. This would make the annual interest charged on the farms now vested in the daughters of John J. Evans, $313; on the lands devised to Wm. W. Evans’ family, $324; on the farm devised to Robert A. Evans, decedent’s nephew, $150; and the farm devised to Robert A. Evans, decedent’s grand-nephew, $270. As the ruling rate of interest now is about five per cent, the funds for the relief will for the present be computed on this basis ; so that they shall respectively produce at this rate the annual interest charged on the several devises.</p> <p>“ The several amounts required, and which will be set apart, are as follows:</p> <p>For the lands devised to John J. Evans and family, . $6,360</p> <p>For the lands devised to Wm. Evans and family, . . 6,480</p> <p>For the lands devised to Robert A. Evans’ nephew, . 3,000</p> <p>For the lands devised to Robert A. Evans’ grand-nephew, 5,400</p> <p>$21,240</p> <p>“ The devisees are, however, also entitled to be made whole for such loss as they have suffered between the time when the dower was fastened upon them and the period at which they will begin to reap the fruits of the arrangement made for their future protection. This part of their loss they will eventually be entitled to receive in cash. The amount thus due up to the present time could be definitely ascertained, and, following the principle adopted as to the rest of their claim, a dividend on this sum, pro raía with the legatees, out of the present fund, awarded them; leaving the rest to be made up in future distributions. In strictness, this would be their right now. Inasmuch, however, as it is impossible to foretell exactly when this present distribution, if confirmed, will actually be made, and hence to ascertain the precise period at which the benefits from the fund directed to be invested for these devisees will begin to come, there would still remain a period, running from the present time up to that time, to be provided for in the next distribution. . Since this question would, therefore, in any event, have to come up again, we think it better, as a matter of convenience, to leave the whole subject to be disposed of at that time, when the amount due them can be precisely ascertained. The only loss to them would be that of interest, which, along with all other equities, can then be provided for. The present fund will, therefore, be distributed without reference to this part of the devisee’s claim, without prejudice, however, to their right to demand it in full at a future distribution.”</p> <p>Distribution was recommended accordingly, making a dividend of 46.681 per cent to the legatees. Appellant excepted to the award made to compensate the devisees. The court, Patterson, J., dismissed the exception and confirmed the report.</p> <p>Errors assigned were (1) dismissal of exception and confirmation of report, without quoting exception or decree; (2) auditor’s adoption of orphans’ court decree fixing amount of widow’s dower ; his failure to apply the property provided for widow by will to relief of devisees; his premature distribution to devisees; and his omission, from the distribution, of the rents and profits of the devised real estate, and the value of the devises.</p>

Appeal, No. 269, Jan. T., 1892, by defendant, from decree of C. P. Cameron Co., Nov. T., 1888, No. 1, perpetually enjoining collection of special school tax. The facts, as found by the master, Jesse Merrill, are stated in substance in the opinion of the Supreme Court.

<p>Appeal, No. 174, Jan. T., 1892, by defendants from judgment of C. P. Lackawanna Co., Jan. T., 1889, No. 801, on verdict for plaintiffs, in ejectment, for one-fourth interest in land described in writ and mesne profits.</p> <p>Suit was brought Dec. 24, 1888, by A. D. Dean et al., children of Polly S. Dean, a child of Henry Heermans, claiming as devisees of a one-quarter interest in the land, under the will of Henry Heermans, against Catherine Winton et ah, grantees of Henry C. Heermans, who claimed as devisee of the land under said will.</p> <p>The evidence, on the trial before Archbald, P. J., was to the following effect: Henry Heermans died Oct 20,1848, seized of the land in dispute, leaving a will, dated Dec. 17, 1842, which contained the follow provisions, inter alia:</p> <p>“ Secondly. I give and bequeath unto my dear wife Sarah Ann, one-third part of all my personal property after the payment of my debts, together with the interest of one-third part of all my real estate, to be ascertained by the appraisement hereinafter mentioned and to be charged upon the land.</p> <p>“ I also bequeath to my said wife two acres and a half of land on the west side of the public highway, embracing my mansion house during her natural life, and no longer; the said two acres and a half of land to be set off as follows: [describing it;] this last bequest is made, however, on the following conditions : That my said wife shall pay over to my executor hereinafter mentioned, five hundred dollars out of her share of my personal property, within one year after my death, which said sum is to be distributed equally among my devisees hereinafter mentioned, and in case my said wife shall neglect or refuse within the period aforesaid to accede to the foregoing condition, then this last bequest is to be null and void.</p> <p>“ Thirdly. I give and bequeath unto my beloved children Catherine, intermarried with W. W. Winton, Polly, Mahala, Olive, Caroline, Henry Clay, Harriet and Ruth Ann, all the residue of my estate, real, personal and mixed, to be divided equally among them, subject, nevertheless, to the payment of the legacy hereinafter mentioned; and in the case of the death of either of the above mentioned eight children without issue, my will and desire is that the portion or portions that such child or children would be entitled to if alive, should be equally divided among those of my foregoing mentioned children who survive, and the issue of such as may die leaving issue.</p> <p>“ In others words, my will is, that such of my eight children above mentioned as shall survive, together with the issue of such of them that may die, leaving issue, shall take the whole of my real and personal estate, except which is hereby devised to my said wife, and a legacy hereafter to be mentioned. . . .</p> <p>“ In case my wife shall take my mansion house and the two acres and a half of land under the foregoing provisions of this will, my desire and will is that at her decease the same shall be equally divided among my eight children specially mentioned in item third, or among the survivors of them at that time, and the issue of such as may he dead. As the said mansion house and two acres and a half of land is not susceptible of division, my will and desire is that immediately after the death of my wife that the said premises shall be appraised by three judicious and disinterested men, and that the same shall be taken by such of my devisee or devisees as shall take the farm now attached to the same, securing the respective portions to those interested by bond and mortgage, payable in five equal, annual payments with interest; but, in case my said wife should die before this will shall take effect, then my desire is that my said mansion house and land should be appraised with my other real estate under the provision hereinbefore mentioned. ...”</p> <p>The widow took the mansion under the terms of the will, and died Aug. 23, 1868, leaving to survive her three children, and the issue of a deceased child, Polly S. Dean, minors, plaintiffs in this case. On Nov. 24, 1868, W. W. Winton was appointed guardian for these minors.</p> <p>Plaintiffs offered, inter alia, the above evidence and rested.</p> <p>Defendants then offered in evidence proceedings in partition in the estate of Henry Heermans and a special Act of Assembly of March 16,1847, making this record evidence. Also the election of the guardian of Henry C. Heermans to take, as his ward’s share, a purpart, being the farm from which the mansion house and two and a half acres had been cut off.</p> <p>On Oct. 19, 1868, appraisers, chosen by the surviving children and Isaac Dean, for the estate of his wife, met and appraised the mansion house and two and one half acres at $4,400. This appraisment was not recorded in the orphans’ court, and it did not appear that it was reduced to writing.</p> <p>On Oct. 20, 1868, Henry C. Heermans conveyed the land in question to W. W. Winton, the consideration named m the deed being $1,100.</p> <p>Defendants then offered to prove by W. W. Winton “ that he and Catherine, one of the defendants in this case, went into possession of the land in dispute immediately after the execution of the deed of Henry 0. Heermans to W. W. Winton, now given in evidence, and that they have occupied it ever since. That the deed was made in pursuance of the appraisement with the assent of the parties at that time in interest, A. B. Dunning and wife, W. W. Winton and Catherine Winton, Henry C. Heermans, Isaac Dean, executor of the last will and testament of Polly S. Dean dec’d, and the father of these plaintiffs. That the money was paid by W. W. Winton to the respective parties, to wit: Mrs. Dunning and Henry C. Heermans, and Isaac Dean, executor of the last will and testament of Polly S. Dean, dec’d. This is for the purpose of showing an acquiescence in the appraisement, and payment of the money and transfer of the land in dispute, from that time until the commencement of this suit.”</p> <p>Objected to “ for the reason that the conveyance from Henry C. Heermans to W. W. Winton is a conveyance simply of the one-fourth interest in this property, as shown by the consideration named in the deed. That the parties plaintiff were nearly all minors, under the age of twenty-one years, at the time ' this appraisement took place ;■ and this witness, who was a party interested, was their legal guardian at that time, and took advantage of his situation. That the right claimed in this case by the plaintiffs is a strictly legal right, and that no legal appraisement was made; and that the other interest, that of Mrs. Dunning, was conveyed by a deed separately to the witness prior to the time when the appraisement was held. That the testimony is irrelevant and immaterial.” Objection sustained and bill sealed. [1]</p> <p>Defendants then offered to prove bjr the same witness that he paid to Isaac Dean the one fourth of the appraisement of the mansion house and lot.</p> <p>Objected to “ for the reason that the plaintiffs were minors. Isaac Dean had no power or authority to bargain away the interest of the children of Polly S. Dean; had no authority to receive the money paid to him in behalf of the children, and that in fact the witness himself was the guardian of the minor children, and not Isaac Dean, and that the testimony is immaterial and irrelevant.” Objection sustained, and bill sealed. [2]</p> <p>Defendants further offered in evidence deed of A. B. Stevens, sheriff, dated Nov. 5, 1881, for lands sold as the land of W. W. Winton to Catherine Winton, inter alia, for the land in dispute. Objected to as immaterial and irrelevant. Objection sustained, and bill sealed. [8]</p> <p>Defendants asked for binding instructions, which were refused. [4]</p> <p>The court charged:</p> <p>“ My best judgment in regard to it now—and it is certainly a most difficult case, gentlemen—is that the plaintiffs are entitled to your verdict; and I therefore give you binding instructions to find in favor of the plaintiffs.</p> <p>[“ The position of the defendants is, that, under the will of old Mr. Heermans, these two and a half acres, which he left to the widow during her lifetime, went to Henry Clay Heermans upon the election by his guardian -to take the adjoining farm; and that thereupon the interests of the other children and devisees of Mr. Heermans were merely personal property. I do not so construe the will.] [5]</p> <p>[ “ The interests of all the parties remain contingent until the death of the widow. Who were to take, was to be determined by who were living or the issue of those who were dead. So that, at the death of Mrs. Heermans, my judgment is that the title to this land passed as real estate under the will to the parties in interest—the parties who were then entitled to take —and not as personalty, subject to be changed, possibly, into personalty, upon a valid carrying out of the appraisement provided for in the will. And without a showing that there has been any such valid carrying out of the appraisement mentioned in the will, the plaintiffs are entitled to their one-fourth interest.] [6] . . . .”</p> <p>Verdict for plaintiffs for one-fourth interest in land described in writ, and $469.20, mesne profits, and judgment thereon; whereupon defendants took this appeal.</p> <p>Errors assigned were (1-6) rulings on evidence, answer to point, and charge in brackets, quoting them as above.</p>

<p>Appeal, No. 261, Jan. T., 1892, by plaintiff, from judgment of C. P. Union Co., March T, 1889, No. 24, for defendant in trespass for breaking plaintiff’s close and carrying off his goods.</p> <p>At the trial the evidence was to the effect that plaintiff was lessee in possession of a farm under a lease dated April 1,1887, from one Ziegler and wife with covenant to pay one half the crop as rent. T. S. Lewis, one of the defendants, on Dec. 31, 1888, demanded of plaintiff one fourth of the year’s crop which had been stored in the granary but had not been divided or set apart, alleging that he was co-tenant with Ziegler and wife for a moiety of the farm. Plaintiff denied Lewis’s right and declared that he held under Ziegler and wife and was accountable to them only; but informed Lewis how many bushels he had raised. Thereupon Lewis, with the other defendants, against the protest of plaintiff, broke open the granary and counted out and took away one fourth of the crop. Ziegler and wife had been in exclusive possession of the farm for twenty-five years under claim of title, and plaintiff had occupied it as their tenant under divers leases for eight years, and accounted to them alone.</p> <p>Defendants offered in evidence a deed dated April 1,1856, between the executors of one Mensch and Thomas S. Lewis, and John Lewis, (from the latter of whom Ziegler and wife derived title) for the premises occupied by plaintiff under his lease, for the purpose of showing title in Thomas S. Lewis, one of the defendants, for the undivided half of the premises, and in justification.</p> <p>Plaintiff objected: (1) That the title to the property cannot be tried in this action, this being an action de bonis asportatis. (2) Even if he was the owner, he was not the landlord of this tenant, and it is not offered to be proved that he was the landlord of this tenant. (8) If he was the landlord he has no right to enter upon these premises to take this property. Notice of non-payment of rent gave right of distress, and not of forcible entry and seizure of these goods. This being an action de bonis asportatis, the title to land cannot come in question.</p> <p>By the Court: The writ in this case is .in trespass that the defendant with force and arms broke and entered the close of plaintiff and then and there carried away certain grain, the property of plaintiff. The declaration following the writ charges that defendant did enter and break the barn of plaintiff and carried away the property of plaintiff. Plaintiff having averred in his declaration that defendant broke and entered his barn and there carried away his grain, defendant may show that the barn was not the barn of plaintiff, as is alleged in the declaration, but, on the contrary, that he had as much right to enter the barn as plaintiff himself had, because it is proposed to show by the conveyance offered in evidence that Thomas S. Lewis, one of the defendants, was an owner in common of the land with the party under whom plaintiff claims. This being so, as the action now stands, we think that it is proper evidence to give to the jury to enable them to determine whether the entry of defendant was unlawful or not, and for these reasons we overrule the objections and admit the evidence. Exception, and bill sealed. [1]</p> <p>Plaintiff offered writ of ejectment dated Nov. 20, 1888, by Thomas Lewis, for the purpose of showing that Thomas S. Lewis, has confessed himself out of possession prior to the time that he went on the premises and took these goods by force.</p> <p>Defendant objected: (1) Because it is not true that this ejectment was brought before the facts in this controversy occurred. No. 66, Dec. T., 1888. (2) Because defendant was entitled to the possession of the undivided half of the estate under the evidence and this action of ejectment cannot in any wise be used as evidence to show that he was out of possession of it or of his right to enter and take possession.</p> <p>By the Court: The first objection is overruled, because, on an inspection of the writ in the action of ejectment offered, it discloses that it was brought prior to Dec. 31, 1888, or the time of the commission of the alleged trespass, but we reject the evidence for the reasons given in the second objection. The mere fact that Lewis’s co-tenant brought ejectment does not establish the evidence that he had no right to enter. On the contrary, it is an assertion of his right to do so, and we therefore reject the evidence. Exception and bill sealed. [2]</p> <p>It is stated that the record in the ejectment showed a recovery by plaintiff, but the record is not given.</p> <p>Plaintiff’s point was as follows :</p> <p>“ Notwithstanding the fact that Thomas S. Lewis was the co-tenant of this land, or tenant in common, when he made a demand for his share, as claimed, of one fourth of the grain, and the tenant made reply, he was there under a lease from the Zieglers, and would have to account to them; Thos. S. Lewis had no right to get into the barn, the premises being in the possession of the tenant, and break open the granary, and take away the grain by force. Answer: The point is refused, for there is no evidence that there was any disturbance of the public peace or any violence used, further than the breaking of the lock and taking away the grain.” [3]</p> <p>The court instructed the jury to find for defendants. [4]</p> <p>Verdict and judgment for defendants, whereupon plaintiff appealed.</p> <p>Errors assigned were (1-4) rulings and instructions, quoting them as above.</p>

<p> Will—Devisavit vel non—Witness—Opinion on sanity, foundation for. </p> <p>Where a witness had frequent intercourse with decedent and abundant opportunity to observe his condition and note the changes in it during the last years of his life, and testified to specific acts and conversations which foi’med a basis for an inference that decedent was of unsound mind, a sufficient foundation has been laid to permit the witness to give his opinion respecting the sanity of the decedent at the time of the execution of the alleged will.</p> <p>The admissibility of such evidence is a matter for the court, its effect exclusively for the jury.</p> <p> Assignment of error—Practice in Supreme Court. </p> <p>An assignment of error to the admission of evidence which does not quote the evidence admitted, is not in compliance with the rules of the Supreme Court or in proper form to be considered.</p> <p>„ Exception to evidence—Becord.</p> <p>Where the record shows that a deposition was read, that objection was made to opinions therein expi’essed as to testamentary capacity which was overruled by the court, and that an exception was taken to the ruling of the court, the record is sufficient to warrant its consideration by the Supreme Court, although the exception, from its position on the record, might have referred to the admission of another question.</p> <p> Admission of deposition•—Infirm witness. </p> <p>The deposition of an infirm witness taken in the orphans’ corn-t on an application for an issue to determine the validity of a will, was admitted in this case on the trial of the issue in the common pleas.</p> <p> Evidence, refusal to admit, when no cause for reversal. </p> <p>The refusal to allow a question which, in view of the subsequent testimony of the witness, did .not injure the party complaining, is no cause for reversal.</p>

<p>Appeal, No. 48, July T., 1892, by Ebert et al., administrators of Ebert, deceased guardian of Roth, from decree of O. C. York Co., dismissing exceptions to auditor’s report adjudicating guardian’s account.</p> <p>Roth, the ward, filed a petition alleging a failure on the part of his guardian to file an account and pay over all moneys due, praying for a citation. An answer filed by the guardian’s administrators, appellants, set up a release signed by the ward. A replication asserted that the release was not binding because signed without knowledge of the particular errors which were specified as a gift of $266.67 by the ward’s step-father to the guardian for the ward, not included in the account; and $100 charged twice against the ward. After depositions, including those of the ward, the court ordered an account to be filed, in an opinion, to the following- effect, by Bittenger, J.:</p> <p>The ward is competent to testify to the discovery of the receipt for the $266.67 after the death of the guardian: Porter v. Nelson, 121 Pa. 628, and cases cited. He is also competent as to what occurred at the settlement, in the presence of Moore who was called as a witness against him : Act of June 11,1891, P. L. 287.</p> <p>This gift was an executed trust: 1 Lewin, Trusts, p. Ill; 1 Perry, Trusts, p. 104; Ritter’s Ap., 59 Pa. 9; Rick’s Ap., 105 Pa. 536; Dennison v. Goehring, 7 Pa. 179 ; Fellow’s Ap., '93 Pa. 470.</p> <p>“ The cases of Russell’s Appeal, 75 Pa. 281; Miskey’s Appeal, 107 Pa. 611; Rick’s Appeal, 105 Pa. 536, and Bristol’ v. Tasker, 135 Pa. 110, cited by counsel for the respondents, are cases in which no present interest was passed to others; and there the gift or grant was held to be revocable; in several of them, for the additional reason that they are proved to have been created through fraud, misrepresentation, or undue influence—mistakes of law and fact. In Rick’s Appeal, Paxson, J., in delivering the opinion of the court says: ‘ The later decisions carefully distinguish the cases when a present beneficial interest is given to a third person. Thus in Ritter’s Appeal, 59 Pa. 9, Frederick’s Appeal was held not to apply, for the reason that a present interest was vested in the wife. The same distinction was observed in Fellow’s Appeal, 12 Norris, 470.’</p> <p>“ Agnew, C. J., in Russell’s Appeal, 75 Pa. 288, in the opinion, says : ‘ That the law of the land permits any one to dispose of his property, gratuitously, if he pleases, when not prejudicial to the interest of creditors, and that his voluntary gifts made with full intention and knowledge of the act are irrevocable, in equity as well as in law, when the power to revoke is not reserved, may be conceded.’</p> <p>“ The remaining case bearing on this point, cited by the counsel for the respondents, Lyon v. Marclay, 1 W. 271, is a case in which an assignment was made by a mother, to her father, of a bond and judgment, to be held in trust for the illegitimate child of the donor, and it was held that this was a revocable gift: first, because it was only security for money not collected at the time of the gift: and, second, because the father of donor was only the natural, and not the legal guardian of the child, and that no present interest vested in cestui que trust. The court uses the following language on page 277: ‘As I understand the law the natural guardian had no power to receive the minor’s money ; nor can he release any claim the minor may have. If T. Lyon did receive any money for her, no doubt he would be considered as holding in trust.’ The court then, in halting, uncertain terms, proceeds to hold the gift revocable. We have been unable to find any case following the last mentioned case, in the many years which have intervened. It does not rule this case. It is inapplicable, in this proceeding, to justify the re-payment to John Upman, the donor, of the money he added to the trust fund of his stepson, in the hands of the guardian. When the money was once in the hands of the legal guardian, as part of the trust fund, it was an executed, complete trust which could not, while the ward was a minor, be revoked.”</p> <p>The court held that the settlement and release was no bar to an account, citing Hawkins’s Ap., 32 Pa. 263; Stanley’s Ap., 8 Pa. 433; Lukens’s Ap., 7 W. & S. 48; Will’s Ap., 22 Pa. 325, 332; Eberts v. Eberts, 55 Pa. 110, 119, and Lewis v. Browning, 111 Pa. 493, 504.</p> <p>An account was filed by the guardian’s administrators and exceptions filed by the ward to the items above mentioned. George E. Neff was appointed auditor and found the following facts, inter alia:</p> <p>“ The evidence fails to show that John Upman was not responsible for his actions when he gave the money, to wit, $266.67 to George D. Ebert; but, on the contrary, Mr. Upman knew what he was doing at the time.” [4]</p> <p>The auditor also held that “ when this money was once in the hands of the legal guardian as part of the trust fund, it was an executed complete trust, which could not, while the ward was a minor, be revoked.” [5]</p> <p>The auditor also found that the ward did not know, at the time of the settlement, that this money had been received or ■returned. [3]</p> <p>Exceptions to the auditor’s reports alleged that the auditor erred (1) in adjudicating upon any matters not specified in the petition for an account; (2) in not rejecting the ward’s testimony as to matters occurring in the guardian’s lifetime; (3-5) in finding as above; (6) in holding that the $266.67 was a part of the trust fund; (7) in surcharging the guardian with that sum and interest; (8) in surcharging the guardian with the $100 and interest; (9) in disallowing guardian’s commissions; (10) in imposing costs of audit on guardian; (11) in not finding laches; (12) and estoppel by release; (13) and by receipt of money; and (14) in not holding that the presumption from delay was that the ward had no cause of complaint.</p> <p>The court dismissed the exceptions and confirmed the report, citing, as to the effect of the finding covered by the fourth exception, Harman & Hassert’s Ap., 23 W. N. 550.</p> <p>Errors assigned were (1-14) dismissal of exceptions, quoting them; and (15) continuance of report.</p>

Appeal, No. 140, July T., 1891, by plaintiff, from judgment of C. P. Lancaster Co., March T., 1889, No. 16, nonsuit, in assumpsit on fire insurance policy.

<p> Will—Separate use—Intention—Surrounding circumstances. </p> <p>The creation of a separate use is always a question of intention to be gathered from the will, the surrounding circumstances, and the condition of the estate and family.</p> <p> Burden of proof to estdblisft separate use. </p> <p>The burden of proof is upon those claiming the creation of a separate use to show it by language clearly indicating such intent.</p> <p> Provisions of will and surrounding circumstances. </p> <p>Testatrix by her will gave to her adopted daughter the bulk of her personal property, valued at about $70,000, and “ all the rest and residue of my estate, real, personal and mixed, absolutely and in fee,” and including therein possible lapsed legacies, “ free from the control of her present or future husband, and without liability for his debts, but wholly for her own use and benefit and subject to her own control.” She also devised to her daughter a mansion house property containing about ten acres, with the “ request that she shall retain and occupy the same as a homestead for herself and family as long as she possibly can, and I direct that the homestead shall not be sold or in any manner made liable for the payment of my debts, legacies,” etc. This homestead she afterwards conveyed to her daughter in fee, whom she made executrix with power of sale of realty, except the homestead, for payment of debts and legacies. The residuary estate consisted of some forty-two acres of unimproved city lots, which testatrix had laid'out and placed on the market. Streets were being opened and municipal improvements made at the time of her death. Her personal estate was appraised at about $86,000, her real estate at $207,000. Her legacies and debts, including municipal improvements and collateral inheritance tax, amounted to about $75,000. The income from the real estate was less than $1,800, the tax over $3,000.</p> <p>Held, that, from the will and the surrounding circumstances, the intent to create a separate use trust did not appear, and the estate granted was a fee.</p> <p>While the provision as to use and control, standing alone, might create a separate use trust, when it is preceded by a devise of the estate “ absolutely and in fee simple,” and by a further clause giving an absolute power of sale, with the provision that the purchasers shall not be bound to look to the application of the purchase money, the intention of the testatrix to create a separate use may be more than doubted: Per Paxson, C. J.</p> <p>MacConnell v. Lindsay, 131 Pa. 476, qualified.</p>

<p>Appeal, No. 29, Jan. T., 1892, by the Commonwealth, from the decree of C. P. No. 1, Phila. Co., March T., 1886, No. 659, dismissing exceptions to the disallowance of tax claims and confirming report of auditor distributing assigned estate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The auditor, Frank M. Wirgman, found (1) that the rights of the Commonwealth were governed by the Act of April 14, 1827, § 4; and (2), because no certified copy of the tax lien was filed, the Commonwealth had no lien; (3) he accordingly disallowed the claim.</p> <p>Exceptions were dismissed; this appeal was then taken.</p> <p>Errors assigned were (1-3) dismissal of exceptions, quoting them ; and.(4) confirmation of report.</p>

<p> Gambling life insurance—Distribution—Devolution—Recovery. </p> <p>The right to recover on the part of the legal representatives of the assured from a person who has received the proceeds of a speculative or gambling policy of life insurance ends with the first devolution.</p> <p>After an executor or administrator of a speculative assignee has received money under such circumstances and in good faith distributed it, there can be no recovery against the distributee.</p> <p> Reserved point—^Exception to form—Practice. </p> <p>It seems that the Supreme Court will not consider the form in which a question of law was reserved in the court below unless proper exception was taken to the reservation at the time the reservation was made.</p>

<p> Decedent's estates—Debt due by executor —Interest—Commissions. </p> <p>An executor who owed a balance of purchase money, upon real estate purchased from his testator but never conveyed to him, allowed the same to stand as security for a fund directed to be invested for the benefit of the widow, and paid her interest thereon regularly during her life, and charged himself in his account with principal and interest to date of filing account, and claimed commissions on the same, as accountant.</p> <p>Held, that the existence of the fund in that form did not involve a breach of duty, that it was not a debt in the ordinary sense, and the general rules as to charge of interest upon debts of executors down to time of actual payment, and the allowance of commissions on debts of executors, did not apply, the accountant here acting as trustee as well as executor.</p> <p> Beimbursement of'executor for advance to heir. </p> <p>Where, by written agreement duly executed, the executor was requested to expend certain moneys in advance of distribution, for the benefit of one of the heirs, he is entitled to l’eimbursement out of her share, as provided by the terms of the agreement.</p>

<p>Appeal, No. 870, Jan. T., 1892, by John Good, executor of George Good, deceased, from decree of O. G. Lycoming Co., dismissing exceptions to report of auditor on exceptions and to distribute executor’s account.</p> <p>The facts of this case are partially set forth in Abram Good’s Appeal, and Ault’s Appeal, above. It further appeared from the auditor’s report that in 1881, the appellant, John Good, as executor of George Good, deceased, was ordered by the orphans’ court to insure his mill property for $5,000, and keep such insurance at his individual expense, as additional security for the moneys in his hands, the interest of which was payable to testator’s widow; or file a bond in like sum, with sureties, for the faithful performance of his duties as executor and trustee. In obedience to. said order, he insured his property, and in his third account claimed credit as against the estate for the premiums paid. The auditor rejected the claim and surcharged him accordingly. [1]</p> <p>There was also a surcharge for $3,000 and interest, for property purchased from the estate (see Abram Good’s Appeal, above). [2]</p> <p>Credit was claimed in the account for $263.75 for counsel fees.' There had been an allowance of $300 in the prior accounts, and $303 as special services. The auditor held that the services of an attorney were not necessary in the management of the trust fund from the time of filing the second account to the filing of the present account. The only evidence as to advice given during this period related to the question of insurance mentioned above. The auditor held that this was not properly chargeable to the fund, and accordingly reduced the allowance to $150, and charged the accountant with the difference. [3]</p> <p>The executor also claimed $305.92 advanced by him to pay for personal property on the farm which was the subject of the agreement of 1877, given in Ault’s Appeal, above, sold on execution against Mrs. Ault’s husband. The executor testified : “ The pressure of the heirs was very heavy for me to pay off the debt—there was three or four of them—and thereby save or secure her a home. . . . The personal property of John Ault was sold by the constable and I purchased it and gave the property over to Hettie M. Ault. That was why the receipt for $305.92 was given. ... I was called on afterwards to advance money to clear off the farm.” The auditor allowed the claim without making any specific finding of fact as to the transaction.</p> <p>The executor filed exceptions (1-3) to the above findings of the auditor. The court, Metzger, P. J., dismissed the exceptions but modified the decree by striking out the allowance for $305.92, on the ground that it was not covered by the agreement. [4]</p> <p>Errors assigned were (1-8) the dismissal of exceptions as to surcharges, quoting them; and (4) modifying the distribution as above.</p>

<p>Income tax on corporate loans—Act of 1885.</p> <p>The income tax on corporate bonds or loans, imposed by the Act oi June 30, 1885, is not a tax laid on the company nor on the bondholders as a body, but upon each resident bondholder as an individual.</p> <p> Proof as to residence of bondholders, and liability. </p> <p>Proof as to what bonds were held by resident bondholders in one year is not proof as to the holding for a subsequent year, even though it be shown that the aggregate amount was fairly constant, and there is no authority in law to deduct the tax for one year from the holders for another year.</p> <p> Collection of tax—Agents of state. </p> <p>In the collection of the tax on corporate loans under the Act of 1885, the corporation or its treasurer is merely the agent or instrument of collection for the convenience of the state.</p> <p> Measure of liability for collection. </p> <p>The question is not whether the company has in effect and through its agencies paid the interest, but whether it paid at such time and in such, manner that the treasurer could perform the duty imposed upon him by the Act of 1885 of deducting the tax from each shareholder’s interest; or whether the omission to collect the tax was such a default as to make the company directly liable for the amount.</p> <p> Tax on interest funded by insolvent corporation. </p> <p>Where bonds of a practically insolvent corporation, with interest in default, are in good faith exchanged for bonds which fund the arrears of interest, the funding of the interest is not such payment as will render the company liable for tax on such interest, under the Act of 1885. The payment contemplated by the Act is payment in money.</p> <p>A solvent corporation, it seems, may not pay its interest in. stock or scrip, or other equivalent of money, and thereby escape the tax.</p> <p> Tax on interest advanced by agent of creditors. </p> <p>A corporation finding itself unable to meet the interest on a large body of its obligations, was, by the joint action of stockholders and creditors, representing a large amount of indebtedness, placed in the hands of a receiver, and a plan of re-organization effected. In pursuance of such plan, certain of the bondholders deposited their bonds, bearing six per cent interest, with an agent of the creditors, who gave therefor negotiable certificates bearing four per cent, and interest on these certificates was advanced, to be treated as interest if the re-organization went through, but, if not, as advances to be repaid.</p> <p>The reconstruction trustees also made payment of interest with monev voluntarily subscribed by certain stock and junior loan holders, the trustees taking an assignment of coupons as means of reimbursement.</p> <p>Held, that, as the payment was a voluntary advance’ of money by parties not liable therefor, and not as agents for the corporation, it was not a payment of interest by the corporation, liable to tax under the Act of 1885. Com. v. Beading Coal & Iron Co., 137 Pa. 481, distinguished.</p> <p> Ratification and repayment of interest advanced. </p> <p>A subsequent deposit by the corporation to repay the advances for preceding years, although a ratification and adoption of what had been done as having been done on behalf as well as for the benefit of the company, is not such a payment of the interest that the company is bound to account for the tax under the Act of 1885. The settlement was between separate parties dealing at arm’s length, and was the acceptance of a completed act, not as it might have been, nor even necessarily as it ought to have been, but as it actually was at that time. And as the tax was to be deducted at the time of payment from the then holders, it could not be done afterwards.</p> <p> Payment by agent subsequent to ratification. </p> <p>Such ratification and deposit constitutes an agency as to future payment of interest and binds the corporation for the tax on such payments, in the absence of sufficient excuse for failure to deduct the same.</p> <p> Tax on overdue interest subsequently paid. </p> <p>Such deposit by the corporation with the agent to be paid by the agent to the bondholders to make up the full amount of the back interest due on their bonds is a payment of interest by the corporation subject to the tax under the Act of 1885.</p> <p> Apportionment of tax. </p> <p>Where the payment of interest is for a portion of a year only, the tax will be apportioned.</p>

<p>Appeal, No. 147, July T., 1891, by plaintiffs, from judgment of C. P. No. 4, Pbila. Co., Dee. T., 1887, No. 52, for legal plaintiff and refusal of judgment for use plaintiffs for want of sufficient affidavit of defence, in assumpsit on appeal bond for mesne profits in partition proceedings.</p> <p>The facts appear by the opinion of the Supreme Court. After the affirmance of the proceedings in partition covered by the appeal bond, the master stated an account of the mesne profits, finding Anthony Lynch indebted individual^ $546.43 to the widow, the legal plaintiff in this suit, and to the other heirs, the use plaintiffs, including the other obligors in the appeal bond, stating the amount due to each. This action was brought against Anthony Lynch alone, and his sureties, in the name of the widow, for the use of herself and the other heirs. The plaintiffs’ statement recited these proceedings and claimed to recover a pro rata share for the use of each plaintiff. The affidavit of defence alleged that as the widow was the only adverse party in the partition proceedings and the only obligee named in the bond, there could be a recovery for no more than her share. The court made absolute a rule for judgment for want of a sufficient affidavit of defence as to the widow, the legal plaintiff, only. This appeal was then taken by Virginia Reed Lynch for use, etc.</p> <p>■ JSrror assigned was refusal of judgment for $500 with interest.</p>

<p>Appeal, No. 212, Jan. T., 1892, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1891, No. 871, for plaintiff, in sheriff’s interpleader to try title to personal property levied on by defendant as the property of one Kelly and claimed by plaintiff.</p> <p>The facts appear by the opinion of the Supreme Court. The evidence was conflicting as to the date of the bill of sale. Defendant offered evidence to prove that it was May 21 originally and that'it had been changed to May 25. It was admitted that on May 23, plaintiff sent to defendant an order for horse feed in Kelly’s name, but plaintiff denied that the date on the bill of sale had been changed. It was also admitted that Kelly’s name was still on the stable and the wagons at the date of the levy, May 29. The lease continued in Kelly’s name, but the rent was paid by plaintiff. Plaintiff put in charge of the business the same man who had been in charge under Kelly. The business was teaming or hauling.</p> <p>The court, Wilson, J., charged as quoted in the opinion of the Supreme Court; and, on the question as to the change of the name on the wagons, as follows: [“ There should be, I should say, in such case, a reasonable time which the purchaser ought to have to make such subsequent changes as were appropriate to the change of ownership.”] [4] But the court left it to the jury.</p> <p>After reviewing the evidence, the court continued:'</p> <p>“ Was that under the circumstances such a change of possession as was reasonable ? Was it such a change as, considering the nature of the articles, amounted to an actual change of possession and notice of such change to those who had been in the habit of dealing with Kelly ? If so, then so far as that question is concerned you are to regard it as a change. If upon the other hand it was not, if it did not practically give notice to those who had been dealing with Kelly that there was a change, if everything went on just as before, if the indications, of the business were the same as before, if so far as outsiders were concerned everybody would suppose that Kelly was still in possession, then you can and ought to infer that there was no such change of possession as would protect Janney, and in that event, notwithstanding his intentions may have been entirely honest, the law would stand in the way, and he could not retain the possession and ownership against a judgment creditor.”</p> <p>Defendant’s points, inter alia, as follows, were refused by the court,because they asked for binding instructions:</p> <p>“1. There was no such change of possession of the horses and wagons in controversy from Kelly to Janney as will protect the said horses and wagons from Kelly’s creditors and your verdict must be for the defendant. [5] ,</p> <p>“ 2. The fact that the vendee, Janney, allowed the horses and wagons to continue to remain in the stable of the vender, Kelly, after the alleged sale, and the fact that Kelly’s name was allowed to remain on the stable and wagons after the alleged sale and the fact that Kelly and his men remained in possession of said stable, horses and wagons after the time of alleged sale, renders the said sale fraudulent in law' and void without reference to the intent of the parties, and your verdict must be for the defendant. [6]</p> <p>“ 3. The delivery of these horses and wagons by Kelly to Janney under the bill of sale was merely formal and constructive and is void in law as against the defendant Howard, the execution creditor of Kelly. [7]</p> <p>“ 4. The horses and wagons were capable of actual delivery. It was the duty of Janney to have at once taken actual possession, of the horses and wagons at the time of sale and to have removed them from Kelly’s stable and Kelly’s possession, and to have done all things in his power to render the change of possession complete, open and notorious. Under the evidence no actual delivery took place and the alleged sale by Kelly to Janney is void as to Kelly’s creditors, independent of the question as to whether the sale by Kelly to Janney was Iona fide and for value. [8]</p> <p>“ 7. Under all the evidence your verdict must be for the defendant. [9]</p> <p>“ 8. Concurrent possession is such as will lead persons to infer that there has been no actual change. The fact that Janney left the horses in Kelly’s stable and permitted Kelly and his men to use the horses and wagons marked in Kelly’s name, and permitted and authorized Kelly to obtain feed for the horses in his name after the alleged sale, is concurrent possession and renders the alleged sale void in law.” [10]</p> <p>Verdict for plaintiff and judgment thereon, whereupon defendant appealed.</p> <p>Errors assigned, inter alia, were (4) portion of charge in brackets, quoting it; (5-10) refusal of points, quoting them. At the argument, an additional assignment, covering the portion of the charge quoted in the opinion of the Supreme Court, was filed by leave of court.</p>

<p>Appeal, No. 69, July T., 1891, by Frey’s Exrs., claimants, from decree of O. C. Lancaster Co., dismissing exceptions to report of auditor distributing balance in executor’s account, in Hess’s estate.</p> <p>Frey’s executors presented to the auditor, L. Ellmaker, a claim on a bond signed by Hess as surety, in 1876 or 1877, without any seal opposite his name. The bond was signed by the principal with a seal after his name in 1874 and recited that it was “sealed with my seal.” In 1879 suit was brought on the bond. The auditor held, inter alia, (1) that decedent did not adopt the seal when he signed the bond, and (2) that there was no consideration. Exceptions to these findings were dismissed by the court, Patterson, J, whereupon this appeal was taken.</p> <p>JErorrs assigned, inter alia, were (8,11) overruling above exceptions, quoting them.</p>

<p>Appeal, No. 149, Jan. T., 1892, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1885, No. 703, on verdict for plaintiff, in assumpsit on covenant in bond to secure the faithful performance of the duties of cashier of state bank.</p> <p>The action was brought by the Shackamaxon Bank, for the use of its assignees,- against Yard, executrix of Murphy, deceased, who was a surety on the bond of a cashier in said bank.</p> <p>The evidence, on the trial before Hare, P. J., was to the following effect: On May 1, 1873, Thomas L. Huggard and C. S. Murphy gave to the Shackamaxon bank a bond in the sum of |5,000, conditioned for the faithful performance of Huggard’s duties as cashier. Under the Act of March 29, 1851, P. L. 295, the cashier is to be elected annually. Huggard was never re-elected. On June 8, 1876, Murphy died. At that time he was a depositor in and stockholder of the bank. About ten days after his death, defendant, as his executrix, lodged with the bank a short certificate of her appointment; and the account and stock were both transferred to her as executrix.</p> <p>From the organization of the bank to Oct. 18,1878, Huggard had acted simply as cashier. A Mr. Wolf had been individual book-keeper. The duty of the individual book-keeper is to keep the discount books and all the individual accounts of the depositors, and to report overdrafts, etc., to the board. On June 18, 1878, the minute-book of the board shows that the cashier offered to dispense with the individual book-keeper and to assume the duties of that office as well as his own, if he were paid $500 additional. His offer was accepted, and thereafter Huggard also did the work' formerly done by the individual book-keeper.</p> <p>In May, 1885, the bank failed and made an assignment to the use plaintiffs. It was then discovered for the first time that Huggard had permitted overdrafts, and had falsified the accounts of the bank in order to cover up a defalcation of the president. The first falsification was made June 26, 1883; and they continued until the bank failed. This suit was brought Jan. 30, 1886.</p> <p>The bond upon which suit was brought bound the obligors and each of them, their and each of their -heirs, executors and administrators. The condition of the obligation was “ that if the said Thomas L. Huggard shall, for and during the time of his employment as cashier by the bank, whether under his present election, or under any subsequent election, to the said position, or whether under its present organization or charter, or under any renewals or extension thereof, discharge and fulfil with integrity and fidelity the trust thereby reposed in him, and faithfully and honestly execute the duties that may be assigned to him, then the above obligation to be void, or else to be and remain in full force and virtue.”</p> <p>The court refused defendant’s offer to prove by Adam A. Stull that he was secretary and treasurer of the Commonwealth Title & Trust Co. and had filled that position for many years, and that he had also filled that position in. a number of other banking institutions, and that he was acquainted with the method of book-keeping and business carried on in and by such institutions, to be followed by the following question: “ Q. Please state as a bank expert whether or not the fact that the individual ledger was kept by a separate and distinct person from the cashier would be a check upon the cashier in the performance of his duties tending to prevent any wrong-doing by him?” [4]</p> <p>Plaintiff’s points, refused by the court, were as follows, inter alia:</p> <p>“ 1. Under all the evidence in the case the verdict should be for the defendant. [7]</p> <p>“ 2. It being proven by the plaintiff’s books, and not contradicted, that, after the bond in this case was given, and after the surety had died, the duties of the cashier had been increased, and that he received an increased salary therefor, the verdict should be for the defendant. [1]</p> <p>“ 6. If the jury believe that new duties were imposed upon the cashier after the bond sued on was given, and without the consent of the surety, their verdict should be for the defendant. [2]</p> <p>“ 7. If the jury believe that after the bank had knowledge of the surety’s death, the then current year of the cashier’s term expired before any default occurred, the verdict should be for the defendant. [5]</p> <p>“ 8. Any permanent material alteration in the cashier’s duty without the consent of the surety, discharges him from liability- [3] „</p> <p>_ _ “ 10. If the jury believe that there was no breach of the condition of the bond until after the death of the surety and that the bank’s officers had actual notice of the death of the surety at or near the time when his death occurred, and before the breach of said bond, then the plaintiff cannot recover, and your verdict should be for the defendant.” [6]</p> <p>. Verdict for plaintiff for |5,000. Judgment was afterward entered for defendant on a reserved point, which on appeal was reversed (143 Pa. 129) and judgment entered for plaintiff on the reserved point. Defendant then took this appeal.</p> <p>Errors assigned were (1-3, 5-7) refusal of points, quoting them; and (4) ruling on evidence, quoting offer as above.</p>

Appeal, No. 82, Oct. T., 1890, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1889, No. 514, on verdict for plaintiff. Trespass for criminal conversation. The facts appear by the opinion of the Supreme Court and the charge of the court below. At the time of trial, plaintiff had applied for a divorce and was not then living with his wife.

<p> Assigned estates—Distribution—Claim due. </p> <p>In the distribution of an assigned estate those only are entitled to share ■who have a definite demand or cause of action capable of adjustment or liquidation at the time of the assignment.</p> <p> Landlord and tenant—Insolvency of tenant—Lease. </p> <p>A prospective landlord, at the request and for the accommodation of a prospective tenant, purchased a lot and erected a building for the tenant, under an agreement that the tenant should lease the premises for a term of years, to compensate the landlord .for his investment. A lease was executed, binding upon successors, executors, administrators and assigns, with covenants to pay rent, and to terminate the lease for breach of covenants or conditions, without release of damages for such breach. The tenant made an assignment for benefit of creditors prior to the termination of the lease and the assignee abandoned the premises.</p> <p>Held, that the landlord had a present cause of action against the tenant, for damages for failure to compensate the landlord for his investment under the agreement.</p> <p> Lease—Prior parol agreement. </p> <p>A lease must be read in the light of the previous agreement out of which it arose, in order if practicable to give effect to the actual understanding and agreement of the parties. Cadwallader v. Express Co., applied.</p> <p> Lease—Breach of covenant to pay rent. </p> <p>Query, whether a lessee’s assignment for creditors and abandonment of the premises during the term amount to a breach of the covenant to pay rent so that the lessor may have a present cause of action for damages for rent not yet accrued.</p> <p> Auditor's finding of fact—Inferences. </p> <p>An auditor’s finding of fact which does not rest on the testimony but is merely an inference drawn by him from other facts, has not the value to which his finding of fact is ordinarily entitled before the court.</p>

Appeal, No. 71, Jau. T., 1892, from judgment of C. P. Clearfield Co., May T., 1891, No. 400, on verdict for plaintiff. Trespass for sale by sheriff of two horses belonging to plaintiff as property of another.

<p> Negligence—Railroads—Stop, look and listen. </p> <p>The rule that a traveler approaching a railroad crossing must stop, look and listen is imperative. If he disregards it, the presumption of negligence on his part is a presumption juris et de jure.</p> <p>If one complies with the rule and sees or hears an approaching train, he must wait for it to pass. If he cross before the train, unless compelled by an imperious necessity, his negligence is a presumption of law. Tail</p> <p> Legal presumption where train is plainly visible. </p> <p>One who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop, look and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence, and to have gone negligently into an obvious danger.</p>

Appeal, No. 79, July T., 1891, by plaintiff, from judgment of C. P. Bedford Co., April T., 1889, No. 135, on verdict for defendant. Assumpsit for services in procuring purchaser for real estate. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 2, Jan. T., 1892, by plaintiff, from judgment of C. P. Northumberland Co., Sept. T., 1889, No. 368, on verdict for defendant.</p> <p>Assumpsit for services in procuring purchaser of real estate.</p> <p>The facts as they appeared on the trial before Rockefeller, P. J., are sufficiently stated in the opinion.</p>

<p>Appeal, No. 36, July T., 1891, by defendants, from judgment of C. P. Fayette Co., March T., 1887, No. 55, on verdict for plaintiffs in ejectment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court rejected defendant’s offer to prove declarations of the grantor as to title, not made in the presence of the grantee. [1, 6]</p> <p>Also declarations “ concerning the ownership of the property at the time he was in possession of it after the deed was recorded.” [2-4]</p> <p>The court also rejected the following question : “ Plow did John P. Ingles occupy the property?” [5]</p> <p>Subsequently evidence was admitted, under objection by plaintiff, as to the manner of the occupancy.</p> <p>Plaintiff’s request for binding instructions was affirmed. [7]</p> <p>Verdict and judgment for plaintiff, whereupon defendant appealed.</p> <p>Errors assigned were (1-6) rejection of evidence, and (7) instruction, quoting bills of exception and instruction.</p>

<p>Appeal, No. 166, Jan. T., 1892, by plaintiff, from judgment of C. P. Berks Co., Oct. T., 1890, No. 88, on verdict for defendant.</p> <p>Appeal from report of viewers assessing damages for opening street, on petition of councils.</p> <p>The facts as they appeared at the trial before Ermentrout, P. J., are chiefly stated in the opinion of the Supreme Court.</p> <p>The habendum and tenendum clause of the lease contained the following: “ To deliver up peaceable possession of the demised premises to the party of the first part, at any time after the first day of November, 1888, upon receiving three months’ written notice so to do from the said party of the first part, notwithstanding the fact that the said party of the second part may have been paying rent after the expiration of the term hereinabove created, and but for this covenant would be in the position of a tenant from year to year.”</p> <p>On March 14, 1888, councils of the city of Reading passed an ordinance authorizing the opening of Fifth street. About Feb. 8, 1889, the highway commissioner of the city notified the plaintiff to remove his ice house or refrigerator situate within the lines of Fifth street within thirty days. On June 29, 1889, the city tendered plaintiff a bond securing damages to him, if any, which he refused, whereupon the court of common pleas, on July 1, 1889, approved the same and ordered it to be filed.</p> <p>Plaintiff proposed to prove by George D. Stitzel, who was in the employ of the Phila. & Reading R. R. Co., having charge of their real estate in and about the city of Reading, and employed to make leases of their property, that it was the invariable custom of the Phila. & Reading R. R. Co. not to terminate the tenancy of their tenants so long as the tenants paid the rent punctually, and so long as the company did not need the land for railroad purposes ; that this custom was well known to the plaintiff, and was fully explained to him by the witness when the lease was made; that, relying thereon, the plaintiff expended a large amount of money in making valuable improvements in erecting a large building on the property; that said custom was well known in the community and greatly added to the market value of the tenants’ interests, and that the railroad company faithfully observed that custom in the case of the plaintiff and permitted him to remain in possession of the property up to the time the street was opened, and that the company did not need the land for railroad purposes.</p> <p>Objected to as irrelevant, immaterial and inadmissible, and in contradiction of the written lease.</p> <p>The Court: You may show that the plaintiff was permitted to remain in possession of the premises up to the time of the removal or the opening of this street. It -is alleged here in the argument that there was a three months’ written notice given by the party of the first part to deliver up peaceable possession of the demised premises previous to the opening of this street. We will permit the counsel for plaintiff to show that he, the plaintiff, was permitted to remain in possession. As far as the balance of the pffer is concerned we will sustain the objection and give the plaintiff an exception. [1]</p> <p>Plaintiff proposed to prove by the general real estate agent of the railroad, that the tenancy of Daniel Shaaber from the railroad company up to the time of these proceedings was and continued to be entirely satisfactory to the company in all its particulars; that the tenancy was considered to be of special advantage to the company by reason of the freights which the company derived from the business; that the company was not needing any of the leased property for railroad or other purposes, and that there was no intention on the part of the company to terminate the tenancy as it existed; this for the purpose of raising and strengthening the presumption of a continuance of the tenancy for an indefinite time if the city had not appropriated the property for this street.</p> <p>Objected to as irrelevant, incompetent, secondary evidence, in contradiction of the lease, and including advantages subsequent to the lease. Objection sustained and exception. [2]</p> <p>Plaintiff proposed to prove by Byron Kauffman that the notice which Mr. Shaaber testified was served upon him by the witness was given in pursuance of a suggestion made in a conversation between the witness and the city clerk, which came about in the following manner : That the witness having a notice from the city to the railroad company to> clear the ground referred to him, he went to the office of the city clerk to ascertain what was expected from the railroad company and was informed by the city clerk that the only thing expected from the railroad company was to notify their tenants to quit, and that, in pursuance of this conversation, the witness had the notice signed by Mr. Loomis and served upon the plaintiff; this for the purpose of showing that the notice was served on account of the proceedings begun by the city to open the street, and not from any desire of the railroad company to repossess the property which Mr. Shaaber leased.</p> <p>Objected to as irrelevant, incompetent and immaterial, as the clerk could not act for the city. Objection sustained and exception. [3]</p> <p>Plaintiff offered to testify that when the notice was served upon him by the agent of the company the agent explained to him that this notice was served simply because of the proceeding to open the street, because the company felt it their duty to notify their tenants on account of the notice which was served upon them to clear the street.</p> <p>Defendant objected, that the inquiry was irrelevant, incompetent and immaterial, for the reason that no matter under what circumstances the notice to quit was served upon the plaintiff in this case, upon the expiration of 90 days after the service of the said notice, under the terms of the lease, the interest or estate of the plaintiff in the lease ceased. Objection sustained; exception. [4]</p> <p>The court directed a verdict for defendant, which was rendered accordingly and judgment entered thereon. Plaintiff then appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, and (5) binding instructions, quoting bills of exception and instruction.</p>

<p> Accommodation paper—New note to indorser- </p> <p>Where an accommodation note fell due and the maker, with the knowledge of the accommodation indorser, procured from a stranger, without consideration, a note to the firm of which both the original maker and indorser are members, which new note, being indorsed by the firm and again by the original indorser, is discounted and the proceeds applied to the payment of the original note, such new note is not prima, facie accommodation paper as between the maker and indorser, although it is as to the maker of the old note.</p> <p> Security for accommodation paper—Belease—Evidence. </p> <p>The new note was an independent security for the original accommodation note and no dealings between the accommodation indorser and the original maker, short of payment or release, would affect the claim against the maker of the new note. A mortgage given to the indorser as security for the new note, is inadmissible as a defence to the note.</p> <p> Evidence as to accommodation paper—Demand. </p> <p>Evidence of the indorser’s failure to demand payment of the maker before suit brought is not competent in a suit by him against the maker to show that the note was given for the accommodation of the indorser.</p> <p> Agreement of remaining partners to pay debts. </p> <p>The agreement of two remaining partners to pay firm debts is not an assumption by one of the remaining partners of anote on which he became indorser for the accommodation of the retiring partner.</p>

<p>Foreign attachment—Assignment for benefit of creditors by non-resident— Priority of lien—Comity.</p> <p>A resident of a foreign state cannot, by a writ of foreign attachment in this state, obtain a preference over an assignment or sequestration for the benefit of creditors of the estate of a citizen of another foreign state. The rule rests on comity between states and the only exception is in favor of our own citizens.</p> <p>Notice of assignment by recording—Act o/1855.</p> <p>Pailure to record the assignment in this state as provided by the Act of May 3, 1855, P. L. 415, will not give priority to such foreign attachment, as the Act was passed for the protection of domestic creditors alone: Bacon v. Horne, 123 Pa. 452, applied; Warner’s Ap., 13 W. N. 505, distinguished.</p> <p> Proof of foreign assignment—Striking out evidence. </p> <p>Where proof of the fact of sequestration or assignment for benefit of creditors in a foreign state consists of a certified copy of the act and warrant of confirmation of the trustee of the sequestered estate, showing that the trustee bad power to recover the effects of the estate, and the eertificate of the consul stating that the act and warrant was evidence of the title of the trustee to the property wherever situate, admitted by agreement of counsel, it is not error for the court to refuse to strike it out.</p> <p> Fraud on attaching creditor—Evidence. </p> <p>In foreign attachment, where the question is whether properly which had been previously assigned for the benefit of creditors, was attachable, evidence as to fraud on the attaching creditor, in the inception of the debt, is inadmissible.</p>

<p> Way—Adverse user—Concurrent use. </p> <p>Whether the use of a way has been open and adverse for twenty-one years is a question for the jury, although concurrently used by the owner of the servient tenement: Bennett v. Biddle, 140 Pa. 396.</p> <p> Admissions of predecessor in title—Evidence. </p> <p>An admission of a predecessor in title during his ownership that he had no right to close a way is competent evidence against a subsequent owner of the servient tenement.</p> <p> Wilful obstruction—Notice—Evidence—Damages. </p> <p>A conversation occurring before the obstruction of a way, between the owner of the servient tenement and her lessee in which the lessee expressed his opinion, in answer to her inquiry, that the way could not be closed, is competent evidence upon the question of damages, although not competent upon the character of the way.</p> <p> Excessive verdict—Judicial discretion—Review—Practice. </p> <p>If in the opinion of tl^e trial judge a verdict for plaintiff in trespass is excessive considering only the damages suffered up to the time of the impetration of the writ, he may in his discretion permit it to stand by imposing terms on the plaintiff to file a release of all damages up to the date of the verdict; and the Supreme Court will not reverse unless satisfied that injustice has been done.</p>

<p>Appeal, No. 120, Jan. T., 1892, by defendants, from judgment of C. P. York Co., Oct. T., 1889, No.' 26, on verdict for plaintiffs.</p> <p>Trespass for tearing down line fence.</p> <p>Plaintiff’s statement contained three counts, the first and second for obstructing an alleged right of way. The third was as follows“And the plaintiff further states and avers that heretofore, to wit on the day and year aforesaid and on divers others days and times between that day and the day of the commencement of .this suit, he the said defendant, with force and arms, etc., wrongfully and unlawfully broke and entered into the said messuage, tenement and tract of land of said plaintiff, and tore down, pulled up, demolished, removed and carried away a large number, to wit, about one thousand panels of post and rail fence, and about one thousand panels of worm fence of the said plaintiff there situate and with their feet and those of their horses, mules and cattle, trampled down and destroyed the grain, grass and corn of said plaintiff there growing, to the damage of said plaintiff, five hundred dollars, and therefore he brings suit.” Defendants pleaded not guilty, and, after the amendment stated in the opinion of the Supreme Court, David Baughman pleaded not guilty.</p> <p>Offers of evidence were made as follows, on the trial before Latimer, P. J.:</p> <p>Plaintiff’s counsel proposes to prove by a witness that he heard Mr. Daniel Geiselman ask Erdman and Baughman, or Erdman in Baughman’s hearing and presence, what they were doing there, and that Erdman said they were going to tear down this fence ; and Mr. Geiselman asked them by what authority, and Erdman answered by his own authority; that they were remonstrated with by both Kennedy and Geiselman, an adjoining land owner, and that Erdman said, in the presence of Baughman, that he was determined to do it. For the purpose of showing malice and ill-will on the part of the defendants; that the trespass was wanton and aggravated; for the purpose of endíancing the damages.</p> <p>Objected to, that it is not evidence for the purpose offered; that it is not evidence under the plaintiff’s statement, there being no allegation of wantonness, malice or ill-will, which are substantive grounds for damages; what Geiselman, the witness, said to Erdman is not evidence for any purpose; that it is an attempt to introduce new parties and a new claim of right to this alley by other adjoining land owners.</p> <p>The Court: I have some doubt about the admissibility of the offer, but I will admit it. Exception. [2]</p> <p>The witness on the stand, Daniel Kennedy, testified yesterday that Karl Erdman and David Baughman, the defendants, threw rails over on his corn. We have examined him with reference to whether or not the cows had been in his corn prior to the removal of this fence. We now propose to ask him, on this cross-examination, whether or not, prior to removal of this fence in 1889, Edward Parr’s heifer was not in his corn on a Sunday, and whether or not he, the plaintiff, and one William Grove, did not, together with other people, put her out. For the purpose of contradicting the plaintiff, if he denies it, laying the ground of contradiction, and in mitigation of damages.</p> <p>Objected to as irrelevant and not proper cross-examination ; not legal evidence for the purpose offered; and not evidence for the purpose of contradicting. Offer rejected and exception. [3]</p> <p>The defendant proposes to prove by Franklin Zinn, the witness on the stand, and others, that about 1870 he was living on the property of the plaintiff, which was then owned by his father, George Zinn. That his father, George Zinn, procured Jesse D. Keller, a surveyor of the neighborhood, to come there and make a survey of the property now claimed by the plaintiff. That the witness was one of the chain carriers at that survey. That they started to survey at the line between Parr and Geo. Zinn, and ran down to the pike south to the lane in controversy. That they ran this line twice and drove a stake, which was about 18 inches or 2 feet inside of the fence on the property now claimed by Kennedy. That his father, Geo. Zinn, said to Mr. Keller, the surveyor, is this a straight line ?—(referring to the line along the lane) and Mr. Keller, after examination, said it was. That bis father then looked out along the line and shook his head, and with an oath said, “ It is an awful crooked one,” or words to that effect. That Karl Erdman, the defendant, was present. Erdman then said to George Zinn, “ This fence (referring to the fence along the property now claimed by Kennedy) is not on the line.” That his father turned around and said to Erdman, “ Well, shall I set her in ? ” Mr. Erdman said no, not now but when we make a new fence, then put it back on the line, or words to that effect. To be followed by evidence that the plaintiff, Daniel Kennedy, had full notice of this prior to his purchase of his property. And to be followed further that removal of the fence by the defendant was in pursuance of this arrangement. For the purpose of sustaining the defendant’s plea of not guilty, and showing a right to removal of fence in controversy.</p> <p>Objected to as irrelevant, not legal evidence for the purpose. Offer overruled, exception. [4]</p> <p>The defendant now proposes to prove the facts stated in the last preceding offer, that in connection therewith Jesse D. Keller, the surveyor, mentioned in the last offer, did run a line along this lane back as far as the rear of the property claimed by the plaintiff, and that line fell north of all the fence torn down by the defendant. That, when the surveyor and the chain carriers reached the rear end of the property now claimed by the plaintiff, he sent John M. Zinn, who was one of the chain carriers, to the eastern end of the line at the pike, and had directed him to set stakes over there to the western end of the property claimed by the plaintiff, where the surveyor then was. That Geo. Zinn looked through the instrument and sighted the poles, and that the fence torn down by the plaintiff fell south of that line. That at that point at the western end of the property now claimed by the plaintiff, Geo. Zinn again said to surveyor Keller, “ Does it call for a straight line ? ” That the parties, the surveyor, Keller, Geo. Zinn and John M. Zinn, the chain carrier, went back to the corner of Geiselman’s woods. That Mr. Keller said, “ We will get a straight line pretty soon.” That Mr. Keller took his compass and sighted through. That John M. Zinn then went up and sighted through the instrument and he saw the two stakes in line with the instrument. George Zinn, the predecessor in title of the plaintiff, then looked through the instrument. That he scratched his head and said, “ Stop a minute, is that a straight line ? ” Keller said, “ Look again.” Then he looked the second time and said, “ Is my fence so crooked?” Then he said to Erdman, “Do you want me to tear up my fence and set it on the line ? ” Erdman said, “ No, we are good friends, let us remain good friends; leave it until the fence gets worse and then we will make it right.” That the fence at the rear was about 2 feet on Erdman’s land, and that in front at the pike it was about 2 feet on Erdman’s land. To be followed by evidence that the defendant tore down no more fence than what fell south of this line, (line run by Keller that day,) and from which Geo. Zinn and John M. Zinn sighted the poles. To be followed by evidence that Kennedy, the plaintiff, knew these facts before his purchase. For the purpose of sustaining the defendant’s plea of not guilty, and showing that there was a compromise line and the location of it agreed upon by Karl Erdman and Geo. Zinn, the then adjoining owners, and in mitigation of damages. Offer overruled and exception. [5]</p> <p>The defendant now proposes to prove the facts stated in the last two preceding offers, and in addition that a short time subsequent to this survey made by Keller, Karl Erdman, the defendant, and Jefferson Bollinger, were driving down the Baltimore pike, past Mount Olivet cemetery, where Geo. Zinn was then living. That Zinn came out on the pike and hailed them and stopped them, and that there was a conversation between Erdman and Zinn, which was begun by Zinn, in reference to the line and fence in controversy. Zinn in that conversation asked Erdman if he wanted him to tear the fence down right away and make a new one, or words to that effect, and Mr. Erdman said, “ No,” he could wait until the fence got worse and then they would put up a new fence. That Mr. Zinn would make half of the fence and Mr. Erdman the other half. That there was a chestnut tree that stood on Erdman’s land near to this fence, and that Zinn asked Erdman if he would allow him to have this tree for the purpose of temporarily repairing the fence, and that Erdman told him he could have it for that purpose. That in this conversation they also spoke about a lane, and that they agreed that when they made the fence they would also close up the lane.</p> <p>To be followed by evidence that the lane and the fence which George Zinn and Karl Erdman were talking about, was the lane and fence in controversy. For the purpose of showing that there was at that time a controversy about the lane and fence in question between the defendant and Geo. Zinn, the plaintiff’s predecessor in title. That a new and compromised line was agreed upon between Geo'. Zinn and the defendant, which line fell north of the fence torn down by the defendant. For the purpose of showing a breach of the continuity of the plaintiff’s alleged prescriptive right to use the lane in controversy, and for the purpose of sustaining the defendant’s plea of not guilty, and that the fence was allowed to remain as it stood, and the lane to be used thereafter under license of Karl Erdman, and for all the purposes mentioned in the two preceding offers, and that the plaintiff, Daniel Kennedy, had notice of all these facts prior to his purchase.</p> <p>The Court: I think the offer must be overruled for the reasons stated in overruling the former offers. For the further reason that this offer involves an attempt to prove a parol surrender of alleged right of way, and for those reasons I overrule the offer. Exception. [6]</p> <p>The evidence showed that the way was obstructed by Erdman and Jacob Baughman, and that the fence was torn down by Erdman and David Baughman. The court for this reason directed a verdict for defendants on the first and second counts and for plaintiff on the third count.</p> <p>Defendant’s points were as follows, inter alia :</p> <p>“ 1. Under the statement of the plaintiff filed in this case, and the evidence admitted thereunder, the jury cannot find a general verdict for the plaintiff against the defendant. Answer: For the reasons I have already given, your verdict in the case will be for the defendants on the first two counts of the statement, and for the plaintiff on the third count of the statement, in such sum of money as you shall assess as damages, under the general instructions we have given you. [7]</p> <p>“ 2. There being no evidence in the case to justify the jury in finding punitive damages against David Baughman, one of the defendants, therefore there cannot be a verdict for any vindictive or punitive damages against the defendants. Answer: If the jury shall find the fact to be stated in this point, that David Baughman is not the proper subject for punitive or vindictive damages, then the point is correct, because then you cannot assess punitive damages against the other.” [8</p> <p>Verdict for $504, reduced by the court to $500, and judgment thereon, whereupon defendant appealed.</p> <p>Errors assigned were (1) order of court directing service of certified copy of record, as set out in opinion of Supreme Court, quoting the order; (2) admission of evidence, quoting the bill of exception, but not the evidence; (3-6) rejection of evidence, quoting the bills of exception ; (7, 8) answers to points, quoting the points and answers.</p>

<p>Appeal, No. 16, July T., 1891, by petitioners, from decree of O. C. Phila. Co., July T., 1890, No. 214, sustaining the city’s demurrers to appellant’s petitions for citation.</p> <p>The petitions of Elizabeth D. Gillespie and Albert D. Bache set forth that Benjamin Franklin died, domiciled in the city of Phila., on April 17, 1790, leaving a will dated July 17, 1788, and a codicil thereto dated June 23, 1789, which, on April 23, 1790, were duly probated. By the codicil the testator made the following provisions:</p> <p>“ It having long been a fixed political opinion of mine, that, in a democratical state, there', ought to be no offices of profit, for the reasons I had given in an article of my drawing in our Constitution, it was my intention when I accepted the office of President, to devote the appointed salary to some public uses. Accordingly, I had already, before I made my will in July last, given large sums of it to colleges, schools, building of churches, etc.; and in that will I bequeathed two thousand pounds more to the state for the purpose of making the Schuylkill navigable. But, understanding since, that such a sum will do but little towards accomplishing such a work, and that the project is not likely to be undertaken for many years to come, and having entertained another idea, that I hope may be more extensively useful, I do hereby revoke and annul that bequest, and direct that the certificates that I have for what remains due to me of that salary be sold, towards raising the sum of two thousand pounds sterling, to be disposed of as I am now about to order.....</p> <p>“I have considered that, among artisans, good apprentices are most likely to make good citizens, and, having myself been bred to a manual art, printing, in my native town, and afterwards assisted to set up my business in Philadelphia, by kind loans of money from two friends there, which was the foundation of my fortune, and of all the utility in life that may be ascribed to me, I wish to be useful even after my death, if possible, informing and advancing other young men, that may be serviceable to their country in both those towns. To this end I devote two thousand pounds sterling, of which I give one thousand thereof to the inhabitants of the town of Boston, in Massachusetts, and the other thousand to the inhabitants of the city of Philadelphia, in trust, to and for the uses, intents and purposes hereinafter mentioned and declared.</p> <p>“ The said sum of one thousand pounds sterling, if accepted by the inhabitants of the town of Boston, shall be managed under the direction of the selectmen, united with the ministers of the oldest Episcopalian, Congregational and Presbyterian churches in that town, who are to let out the same upon interest, at five per cent per annum, to such young married artificers, under the age of twenty-five years, as have served an apprenticeship in the said town, and faithfully fulfilled the duties required in their indentures, so as to obtain a good moral character from'at least two respectable citizens, who are willing to become their sureties, in a bond with the applicants, for the repayment of the moneys so lent, with interest, according to the terms hereinafter prescribed ; all of which bonds are to be taken for Spanish milled dollars, or the value thereof in current gold coin; and the managers shall keep a bound book or books, wherein shall be entered the names of those who shall apply for and receive the benefits of this institution, and of their sureties, together with the sums lent, the dates, and other necessary and proper record respecting the business and concerns of this institution. And, as these loans are intended to assist young married artificers in setting up their business, they are to be proportioned by the discretion of the managers, so as not to exceed sixty pounds sterling to one person, nor to be less than fifteen pounds, and, if the number of appliers so entitled should be so large that the sum will not suffice to afford to each as much as might otherwise not be improper, the proportion to each shall be diminished so as to afford to every one some assistance. These aids may, therefore, be small at first, but, as the capital increases by the accumulated interest, they will be more ample. And, in order to serve as many as possible in their turn, as well as to make the repayment of the principal borrowed more easy, each borrower shall be obliged to pay, with the yearly interest, one-tenth part of the principal, which sums of principal and interest so paid in, shall be again let out to fresh borrowers.</p> <p>“ And, as it is presumed that there will always be found in Boston virtuous and benevolent citizens willing to bestow a part of their time in doing good to the rising generation, by superintending and managing this institution gratis, it is hoped, that no part of the money will at any time be dead, or be diverted to other purposes, but be continually augmenting by the interest, in which case there may, in time, be more than the occasions in Boston shall require, and then some may be spared to the neighboring or other towns in the said state of Massachusetts, who may desire to have it; such towns engaging to pay punctually the interest and the portions of the principal, annually, to the inhabitants of the town of Boston.</p> <p>“If this plan is executed, and succeeds as projected without interruption for one hundred years, the sum will then be one hundred and thirty-one thousand pounds, of which I would have the managers of the donation to the town of Boston then lay out, at their discretion, one hundred thousand pounds in public works, which may be judged of most general utility to the inhabitants, such as fortifications, bridges, aqueducts, public buildings, baths, pavements, or whatever may make living in the town more convenient to its people, and render it more agreeable to strangers resorting thither for health or a temporary residence. The remaining thirty-one thousand pounds I would have continued to be let out on interest, in the manner above directed, for another hundred years, as I hope that it will have been found that the institution has had a good effect on the conduct of youth, and been of service to many worthy characters and useful citizens. At the end of this second term, if no unfortunate accident has prevented the operation, the sum will be four millions and sixty-one thousand pounds sterling, of which I leave one million sixty-one thousand pounds to the disposition of the inhabitants of the town of Boston, and three millions to the disposition of the government of the state, not presuming to carry my views farther.</p> <p>“ All the directions herein given respecting the disposition and management'of the donation to the inhabitants of Boston, I would have observed respecting that to the inhabitants of Philadelphia, only, as Philadelphia is incorporated, I request the corporation of that city to undertake the management agreeably to the said direction, and I do hereby vest them with full and ample powers for that purpose. And having considered that the covering a ground plat with buildings and pavements, which carry off most of the rain, and prevent its soaking into the earth and renewing and purifying the springs, whence the waters of the wells must gradually grow worse, and in time be unfit for use, as I find has happened in all old cities, I recommend that at the end of the first hundred years, if not done before, the corporation of the city employ a part of the one hundred thousand pounds in bringing, by pipes, the water of Wissahickon creek into the town, so as to supply the inhabitants, which I apprehend may be done without great difficulty, the level of that peak being much above that of the city, and may be made higher by a dam. I also recommend making the Schuylkill completely navigable. At the end of the second hundred years I would have the disposition of the four million and sixty-one thousand pounds divided between the inhabitants of the city of Philadelphia and the government of Pennsylvania, in the same manner as herein directed with respect to that of the inhabitants of Boston and the government of Massachusetts.</p> <p>“ It is my desire that this institution should take place and begin to operate within one year after my decease, for which purpose due notice should be publicly given previous to the expiration of that year, that those for whose benefit this establishment is intended may make their respective applications. And I hereby direct my executors, the survivors or survivor of them, within six months after my decease, to pay over the said sum of two thousand pounds sterling to such persons as shall be duly appointed by the selectmen of Boston and the corporation of Philadelphia to receive and take charge of their respective sums, of one thousand pounds each, for the purposes aforesaid.</p> <p>“ Considering the accidents to which all human affairs and projects are subject in such a length of time, I have, perhaps, too much flattered myself with a vain fancy that these dispositions, if carried into execution, will be continued without interruption and have the effects proposed. I hope, however, that if the inhabitants of the two cities should not think fit to undertake the execution, they will, at least, accept the offer of these donations as a mark of my good will, a token of my gratitude, and a testimony of my earnest desire to be useful to them after my departure. I wish, indeed, that they may both undertake to endeavor the execution of the project, because I think that, though unforeseen difficulties may arise, expedients will be found to remove them, and the scheme be found practicable. If one of them accepts the money, with the conditions, and the other refuses, my will then is that both sums be given to the inhabitants of the city accepting the whole, to be applied to the same purposes, and under the same regulations directed for the separate parts; and, if both refuse, the money, of course, remains in the mass of my estate and is to be disposed of therewith according to my will made the seventeenth day of July, 1788.”</p> <p>The petitions further alleged that testator’s residuary legatees were Richard and Sarah Bache, and deduced the title of Albert D. Bache, one of the petitioners, as their great-grandson and as claimant through intermediate wills. The petitions set forth the payment of the above-mentioned sum of $1,000 to the city; averred that the said sum and its accretions had even since been held by the city as trustee ; recited the grant of letters c. t. a. on Franklin’s estate to the other petitioner, Elizabeth D. Gillespie; charged that less than one sixth of the sum anticipated by the testator had been realized, owing, to the negligence of the trustee ; and averred that the provisions of the codicil were void for the following among other reasons: (а) Because an accumulation is hereby directed for a longer period than is allowed by the common law of this state. (б) Because the legacy to the city and state vests at a period after the testator’s death beyond that which is allowed for the vesting of any legacy or devise by the law of this state, (c) Because the use of the said funds during the first hundred years after the testator’s death is not a charitable use and is not one which is allowed by law. (d) Because the purpose contemplated by the testator has become impossible on account of the dereliction and negligence of the trustees in not realizing the anticipated sum. There was the further averment that, in consequence of this invalidity, the fund was due and payable to the petitioners for distribution among the persons entitled; and, after setting forth that the fund is at present held under the Act of June 30, 1869, by the board of city trusts, the petitions concluded with prayers as follows: That a citation may issue to the mayor of the city of Philadelphia and to the president and members of the board of city trusts, directing them (1) to answer the averments of this petition; (2) to file an account of the said fund and to hold the same subject to the decree of this court; (3) to make no disposition of the fund in violation of petitioners’ rights, and (4) further relief.</p> <p>The city, as trustee under the will of Benjamin Franklin, through its agents, the board of city trusts, demurred to the petitions, assigning inter alia the following reasons : That the claim of Richard Bache was barred by the lapse of more than twenty-one years between the death of Benjamin Franklin and the death of Richard Bache, and if the latter was barred then the petitioners are barred; that the petitioner was not lawfully entitled to sue as administratrix, because letters of administration were unlawfully granted by the register of wills; that the petitioners are not entitled to the relief claimed; and that the orphans’ court lacks jurisdiction.</p> <p>The orphans’ court sustained the demurrers and dismissed the petitions, in an opinion by Penrose, J., 27 W. N. 545, 48 Leg. Int. 136, whereupon the petitioners appealed.</p> <p>JErrors assigned were (1) sustaining demurrer, and (2) not overruling them.</p>

<p> Municipalities—Control of streets—Private drains. </p> <p>Where a borough council has power to build sewers and drains, it has power to grant.permission to a citizen to lay a drain pipe in the streets to lead off the surplus or refuse water from his building. Smith v. Simmons, 103 Pa. 32, and Susquehanna Depot v. Simmons, 112 Pa. 384, applied.</p> <p> Rights of private abutting landowner. </p> <p>An abutting landowner has not an unqualified ownership of the subsoil of the street, so as to entitle him to compensation or to demand that his consent shall be obtained before any of the authorized uses of the subsoil of the streets can be made.</p> <p> Nuisance—■Injunction—Establishing right at law. </p> <p>A private drain laid under a public street, by permission of borough councils, is not a nuisance per se. An injunction for its removal cannot be granted until after the right has been established in an action at law, where the evidence is conflicting as to whether it is a nuisance in fact.</p>

<p>Appeal, No. 268, Jan. T., 1892, by plaintiff, Erie City, to use of Barber Asphalt Paving Co., from judgment of C. P. Erie Co., Feb. T., 1887, No. 21, on verdict for defendant, John C. Brady, assignee, owner or reputed owner.</p> <p>Sci. fa. sur municipal claim or street improvements.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Gurtruson, P. J., refused plaintiff’s request to charge that (1) as the Act of 1876 was repealed, an estimate by the engineer was not required, and (2) the estimate made complied with the Act of 1876; and affirmed defendant’s points that (3) as the Act had not been complied with the ordinance was void, and the verdict should be for defendant, and (4) the estimate, reciting it, was not in compliance with the Act, the ordinance was void and plaintiff could not recover.</p> <p>Verdict and judgment for defendant. Plaintiff then appealed.</p> <p>Frrors assigned were (1-4) rulings on points, quoting them, and (5) taking case from jury and instructions for defendant.</p>

<p> Conflict of laws—Lex loci contractus—Performance. </p> <p>Matters connected with, the performance of a contract are governed by the law prevailing at the place of performance.</p> <p>Where a contract for the loan of money to a person about to embark in business in consideration of a share of the profits was made in Pennsylvania but the business was to be conducted in New York, the question whether there was under the contract a liability as partners as to third persons was a matter connected with the performance of the contract, and consequently to be determined by the law of New York.</p> <p> Partnership—Sharing in profits. </p> <p>In New York, one who has no interest in the business of a firm or in the capital invested save that he is to receive a share of the profits as a compensation for services, or for money loaned for the benefit of the business, is not a partner and cannot be held liable as such by a creditor of the firm: Richardson v. Hughitt, 76 N. Y. 55; Curry v. Fowler, 87 N. Y. 38; Cassidy v. Hall, 97 N. Y. 159.</p> <p>Defendants agreed to furnish to a third party, in consideration of a share of profits, a certain sum of money from time to time as he might need it, to be used in a business established by him, its repayment to be secured by chattel mortgage, with option to repay it before the expiration of the full term for which he had the right to demand it. Defendants were to have access to the books, but no control of the business, and it was expressly agreed that there was to be no partnership except as to the profits; with agreement to arbitrate; also to continue business on death of any party.</p> <p>Held that the agreement, under the decisions of New York, did not ere-' ate a partnership as to third persons, but that the relation was that of lender and borrower.</p> <p>In Pennsylvania such contract would have been construed in the same way, under Act of April 6, 1870, P. L. 56, and Hart v. Kelly, 83 Pa. 286.</p>

<p>Appeal, No. 412, Jan. T., 1891, by plaintiffs, Harrison, Frazier & Co., from judgment of C. P. No. 4, Phila. Co., Sept. T., 1889, No. 57, on verdict for garnishees, Perkins & Welsh, for goods and money attached as the property of defendants, Mora, Ona & Co.</p> <p>Foreign attachment for goods and money, claimed by garnishees on lien for advances.</p> <p>. On the trial before Willson, J., the evidence was to the following effect: Defendants were dealers in sugar in Cuba. Perkins & Welsh, in New York, were their general factors. Plaintiffs were manufacturers of sugar in Philadelphia. In the spring of 1889, defendants sold plaintiffs through Perkins & Welsh, property described as “about twenty-five hundred tons of sugar.” Sugar advanced soon after a cent and a half a pound. Deliveries were made which were paid for, except $1,830.48. This mipaid balance was the difference between the estimated and the actual weight delivered on the Wylo’s cargo. Then a dispute arose as to whether the deliveries were in compliance with the contract in respect of quantity. Defendants contended that, under a usage that defines the meaning of the word “ about,”- they had an option to deliver only ninety per cent .of the quantity named in the contract. After some correspondence they informed plaintiffs, through Perkins & Welsh, that they would send seventy tons to complete the delivery. This quantity was the exact shortage if their view of the meaning of the word “ about ” was correct; if it was not, the shortage was three hundred and twenty tons. At the time they sent the seventy tons, by the brig Sagua, they instructed Perkins & Welsh not to deliver the bill of lading unless plaintiffs accepted a draft from Perkins & Welsh for the balance due on the sugar delivered, and the price of the seventy tons delivered. The seventy tons were shipped invoiced to plaintiffs but the hill of lading was indorsed to Perkins & Welsh or order. They offered to deliver this on compliance with the conditions exacted by defendants but plaintiffs refused to make the payment, and began suit by foreign attachment, under which they seized the seventy tons on board the brig Sagua, and also the balance in their own hands. Perkins & Welsh claimed the property attached on a general lien, for advances made from time to tiriie, on all sugars sent and on all the proceeds of sugar sold. The advances theretofore made exceeded the value of the property attached.</p> <p>The letter of August, 1889, from defendants to Perkins & Welsh notifying the latter of shipment of sugar to complete contract with plaintiffs, also notified them of shipment of molasses by same vessel which they authorized to be sold at best obtainable prices.</p> <p>Mr. Welsh, one of the garnishees, testified to the uniform dealings between his firm and defendants by which they furnished the latter advances on general account to be protected by subsequent consignments. This testimony and further correspondence between the parties appear by the opinion of the Supreme Court.</p> <p>The court charged, as follows, inter alia:</p> <p>“ The evidence of Mr. Welsh was uncontradicted, and if you believe it I do not see very well how you could avoid coming to the conclusion that there was such an arrangement between his firm and this Cuban firm as constituted them the pledgees of the cargoes of sugar which came in fulfillment of this contract generally. I do not regard the law as requiring that there should have been an advance by Perkins & Welsh to Mora, Ona & Co. specifically upon the different cargoes, in order to establish the relation of pledgor and pledgee between the two. [5] ....</p> <p>“ If the fact be as Mr. Welsh testified, that the dealings between his firm and this Cuban firm were that Perkins & Welsh advanced from time to time money to the Cuban house to enable them, I presume, to carry on their operations of manufacturing sugar, or of buying sugar, and that the cargoes of sugar were sent by the Cuban house, consigned to Perkins & Welsh, for the purpose of enabling them to protect themselves out of the proceeds of the sale, they having the right to collect that money and to put it to the credit of the Cuban house as a discharge to that extent of the obligations which the Cuban house owed them for the money which had been advanced—if that was the nature of the transaction between them,—that constituted a pledge as between the two that gave Perkins & Welsh a lien, as the law calls it, a hold upon the sugar, to the extent of the reimbursements, which were necessary in order to make the accounts between the two good. It did not make Perkins & Welsh the absolute owners of the sugar. That was not necessary. [6] ....</p> <p>“ That question need not arise in the case. Not as full owners, but for the purpose of giving them the right of full possession of the cargoes which were embraced in the bills of lading. If that was the case, and these sugars were shipped in that way, under the arrangements which Mr. Welsh testified about, that they were to be security to Perkins & Welsh for the payment of the money which had been advanced to Mora, Ona & Co., if all these transactions were embraced under such a class as that, then I have no doubt in my own mind at all, and you ought to have no doubt in your minds, that Perkins & Welsh are to be regarded as pledgees of that sugar, as having a lien upon it, which would enable them to hold the proceeds of the sugar as their own property up to the extent of what was due to them by the Cuban firm. [7]</p> <p>“ If you are of the opinion, in view of what I have said to you, that Perkins & Welsh held these sugars, had the right of possession to this sugar under their contract, their dealings with Mora, Ona & Co., and the bill of lading, in order that they might get from it the money which was still due them, and they presented their accounts to you, and they say they show there was still a balance due to them, if you believe that the arrangement was such as I have just stated, then you would only be justified in finding that there was no money in the hands of Perkins & Welsh which was due to Mora, Ona & Co., and this cargo of sugar, which was the thing specifically attached, as between the parties in this case, should be regarded as the property of Perkins & Welsh. Your verdict would then be in favor of Perkins & Welsh, whatever might be your opinion upon the other questions in this case.” [8]</p> <p>Plaintiff’s points, refused, were as follows, inter alia:</p> <p>“14. There is no evidence that the cargo of the Sagua, which was attached on the 16th August, 1889, had ceased to be the property of the defendants Mora, Ona & Co. The correspondence shows they owned it and shipped it to the plaintiffs, and that the bill of lading was indorsed to, Perkins & Welsh, not for the purpose of giving them an ownership of the goods or of pledging them to them, but to enable them to compel payment before delivery. [1]</p> <p>“ 15. Their own letter admits that they were acting in this matter as the agents and under the instructions of Mora, Ona & Go. Answer: That is true ; they were undoubtedly acting as agents in or under instructions from Mora, Ona & Co., but that would not deprive them of the right although they were agents; if they were pledgees to hold the property until they were paid the money which represented its value or represented the contract price. [2, 3]</p> <p>“ 16. There is nothing in the parol evidence on the part of Perkins & Welsh to vary the effect of these letters as evidence of the title to the sugar being in Mora, Ona & Co.” [4]</p> <p>Several points were submitted to the jury for specific findings, among them the following:</p> <p>“ What right or lien, if any, on or upon the moneys in the hands of plaintiffs, and in or upon the cargo of the brig Sagua was possessed by Perkins & Welsh?” The Court said: “I understand that it is intended for the purpose of eliciting from you a finding as to the nature of the claim which Perkins & Welsh had upon that cargo, if you believe they had any. You would probably state that it was by reason of the advances which had been made by Perkins & Welsh to Mora, Ona & Co. upon the faith of shipments of sugar to them, the balances at that time being in favor of Perkins & Welsh.” [9]</p> <p>The verdict was: “ The jury find for the plaintiffs in the sum of $10,756.39. They find that there was no property in the hands of Perkins & Welsh, the garnishees, and that the cargo of the Sagua was held by them to secure debts due them by Mora, Ona & Co. for advances. They find that the funds in the hands of the plaintiffs, $1,830.43, belonged to Perkins & Welsh as pledgees of Mora, Ona & Co. for advances made to Mora, Ona & Co.”</p> <p>Judgments were entered accordingly for plaintiffs and for garnishees. Plaintiffs then appealed.</p> <p>Errors assigned were (1-9) instructions, quoting points, answers and charge.</p>

<p> Assigned estate —Occupancy of premises by assignor. </p> <p>An assignee for benefit of creditors may permit the assignor to occupy and farm a part of the premises until sale^ithout being surcharged either with rent or value of crops made by assignor. Detwiler’s Ap., 96 Pa. 323, applied.</p> <p> Surcharging ássf-gnee—Sale below appraisement. </p> <p>Where the assignee put the property up at public sale without success, and afterwards sold the same at private sale at a price less than the appraised value, the fact that the purchaser resold the property at a profit affords no ground for surcharging the assignee with the profits of the resale, whére the assignee acted in good faith.</p> <p> Judgment confessed to wife for debts assumed by tier. </p> <p>A judgment confessed by the assignor to his wife a few days before the assignment may be allowed 'where such judgment was confessed bona fide to secure a debt due from the assignor to the wife and also debts of the husband assumed by her.</p> <p> Distribution—Marshaling assets—Subrogation. </p> <p>A subsequent lien creditor whose lien is not reached in the distribution of the real estate fund, is entitled to be subrogated to the rights of file orior lien creditors to a dividend out of the personal fund and the assets will be so marshaled.</p> <p> O.ammissions to accountant. </p> <p>Where the personal estate is about $3,300, and real estate $30,000, five per cent on the personalty and two and a half on the realty is not excessive, especially where the assignee managed the estate for a year at a considerable profit.</p>

Appeal, No. 129, Jan. T., 1892, by creditor, Jos. A. Stuart, from decree of C. P. Cumberland Co., dismissing appellant’s exceptions to auditor’s report. C. P. Humrich was appointed auditor “to make distribution, after passing upon the matters in controversy,” of $800, proceeds of sheriff’s sale of defendant’s property paid into court, said $800 being the amount of attorney’s commissions included in a judgment entered on sci. fa. sur mortgage for $24,696.

<p> Bes adjudicatet—Trust—Assigned estate. </p> <p>A creditor who conducts proceedings for an account against an assignee in trust for benefit of creditors and is held by his acts to be estopped from setting up or enforcing the assignment, cannot in another proceeding establish a trust between himself and the assignee as regards the same property.</p>

<p>Appeal, No. 15, July T., 1891, by land-owners, Samuel Beatty et al., from decree of Q. S. Fayette Co., Sept. T., 1886, No. 6, setting aside order of confirmation of report of road viewers and dismissing all proceedings.</p> <p>The record showed the following among other facts : Sept. 18, 1886, the petition for the road was presented. The report of viewers laying out the road, filed Dec. 11, 1886, stated among other things that “ no one appeared and claimed damages, we have assessed no damages ; ” also that “ before the said view, public notice of the time and place of meeting of the viewers was given by advertisement put up according to law at the most public places in the vicinity, ten days before said meeting.” The report was confirmed absolutely at March Sessions, 1887. June 27,1887, order to open issued.</p> <p>May 30, 1890, S. E. Ewing presented a petition representing that the above road runs through lands of Col. S. Evans’s heirs ; that petitioner had leased said lands at the time the petition for the road was presented and had possession of the same ; that the road will be very injurious to said lands ; that no notice whatever of said proceedings was given to petitioner or to Col. Evans; and that petitioner was also agent of Col. Evans, attending to all matters of this kind; and praying for a rule to set aside, etc. The rule was granted, proceedings to open the road to stay in the meantime.</p> <p>On the hearing the evidence was to the effect that Ewing in 1878 had leased the Evans property for ten years, and that Evans died in 1887.</p> <p>The court, Inghram, P. J., made the following decree:' “ The proceedings in this case are fatally defective in this, that it does not appear in the report of viewers or otherwise that application was made to the owners of the land through which the road passes for release of damages, nor does it appear that notice was given to such owners of the time and place fixed for the assessment of damages ; nor does it appear that the viewers considered the question of damages at all, although the road passes for a considerable distance through the lands of exceptant and may, as he claims, have been a damage to him. We would refer to Act of May 14,1874, P. L. 164: Appeal of Central R. R. Co. of New Jersey, 102 Pa. 38. For the reasons given above the order of confirmation is set aside and all the proceedings dismissed.”</p> <p>JSrror assigned was above order, quoting it.</p>

<p> Ejectment—Divided verdict—Disclaimer—Costs. </p> <p>In an action of ejectment for land in the possession of the defendant, where the jury find a verdict for the plaintiff for a part and for the defendant for a part, and no disclaimer was filed by defendant, plaintiff is entitled to full costs.</p> <p>Frivolous appeal—Penalty—Act of May 25, 1874.</p> <p>An appeal in such ease is of such a trifling nature that the penalty of $20 counsel’s fee will be imposed under the Act of May 25,1874, P. L. 227.</p>

<p>Appeal, No. 8, May T., 1892, by James J. Dull, executor of Andrew P. Lusk, deceased, from decree of O. C. Dauphin Co., placing costs of audit on distribution on estate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The auditors, H. M. Graydon and George J. Kunkle, differed as to the proper disposition to make of the costs, and, as the appointment was made at the instance of the accountant, placed them upon the estate. The accountant excepted. The court, Simonton, P. J., dismissed the exception and confirmed the report.</p> <p>Frror assigned, inter alia, was this disposition of the costs.</p>

Appeal, No. 56, July T., 1892, by Jacob L. Markel, assignee for benefit of creditors of Jacob H. Kleckner’s Estate, from decree of C. P. Perry Co., Jan T., 1892, No. 299, refusing order of sale. The facts appear by tbe opinion of tbe Supreme Court.

<p> Surplusage —Pecuniary verdict for defendant. </p> <p>Where in an action of assumpsit defendant pleads non assumpsit, and the verdict is for defendant for a sum named, there is nothing for the pecuniary verdict to stand upon and that part of the verdict will be rejected as surplusage. Where this is not done in the court below it will be done in the Supreme Court.</p>

<p> Will—Devise—Valuation—Charge on land. </p> <p>A charge on land can arise only from the express language of a will or by necessary implication. A will contained certain charges on the real estate fór testator’s wife and a bequest to her of the yearly interest of one third of the real estate “of the valuation hereinafter made thereof.” Testator then gave his grandson the real estate, charged with the gifts to the wife, and valued and appraised at a certain sum, providing that in case the grandson sold the property he should give his brothers and sisters the first offer to buy the same, upon the same conditions and for the same price at which it was valued and devised to him. The residue of the estate was given to his brothers and sisters, share and share alike, and it was further provided that if their respective shares should be greater than his share, the excess over his share should be equally divided between them all. Held, that the amount of the appraisement was not intended by the testator as a charge upon the real estate but merely as a valuation.</p>

<p> Opening judgments—Amount admitted to be due by affidavit. </p> <p>The refusal of the court below to open a judgment taken for the amount admitted to be due in defendant’s affidavit of defence, in open court, after notice to counsel of record, will not be reversed by the Supreme Court.</p>

<p>Appeal, No. 39, July T., 1892, by Jacob E. Becker, grandson and heir of John Becker, deceased, from decree of O. C. Lancaster Co., April T., 1888, dismissing appellant’s exceptions to auditor’s report.</p> <p>Testator by his will gave farms to two sons, John and Solomon, and to a daughter, and then provided for an appraisement, and directed that they should take at such valuations. He then charged $2,800 on these farms for the widow, during widowhood, apportioning the charge, and then provided that the balance of the valuation should be divided between his four children. He then provided as follows:</p> <p>“ I do order that my hereinafter named executors shall with the one-fourth part, or the said Elias’ share, purchase a property at some convenient place, for the use of said Elias during his natural life, and after his death to go to his lawful heirs.” Testator further ordered that, at the death or termination of widowhood of his wife, the $2,800 should be paid and divided among his four children. He then provided: “ I do further order my hereinafter named executors to put Elias’ share to interest or purchase some property for his use, subject to the same conditions as above.”</p> <p>A codicil was added as follows: “ To explain- more fully respecting of son Elias’s inheritance. It is my will, and I do order that my said son, Elias, is to have equal share, as above stated, and that executors are to be and act as trustees of him, the said Elias, he only to receive the income of the premises (yearly and every year during his natural lifetime), which the said executors are to purchase for his use, and, after his decease, to go to his lawful heirs.”</p> <p>The widow refused to take under the will, and her statutory dower was fixed and charged on the land by agreement of the parties. Elias died before the widow. This dower is the fund for distribution.</p> <p>The auditor, William D. Weaver, distributed the fund as personalty, to the whole and half blood. Jacob E. Becker, appellant, the only heir of the whole blood, excepted that it should have been distributed to him as realty. The court, Livingston, P. J., dismissed the exceptions and confirmed the report. Exceptant then appealed.</p> <p>Errors assigned were to such distribution.</p>

<p> Commissions and costs to accountant. </p> <p>Where a trustee is administrator of the estate out of which the trust arises and receives commissions as administrator and claims unsuccessfully not to be liable for the interest of the trust estate, he may be deprived of all commissions, and one half of the costs of the audit on exceptions to his account as trustee may be imposed upon him.</p>

<p>Appeal, No. 441, Jan. T., 1892, by defendant, Wm. J. Cooper, from judgment of C. P. Lancaster Co., Feb. T., 1889, 'No. 27, on verdict for plaintiff.</p> <p>Assumpsit for balance of price of steam heating apparatus.</p> <p>The evidence, on the trial, before Livingston, P. J., was to the following effect: Plaintiff agreed to'supply defendant’s hotel with a steam heating apparatus necessary to heat certain rooms and all the halls and entries on all the floors, guaranteeing seventy degrees of heat in zero weather, except in the entries, which were to have no less than sixty degrees. Plaintiff testified that the apparatus would furnish the heat required if properly managed, that he had estimated the heating surface and that it was sufficient, and had made a test in January and found heat enough, but he did not try the thermometer to see what it was outside. Plaintiff further testified that he put no radiator on the fourth floor, but that the plant would furnish sufficient heat there as he had arranged it. Defendant gave evidence to show insufficient heat.</p> <p>Defendant’s points were as follows :</p> <p>“1. The contract on which suit was brought having provided that all the apartments to which heat is furnished are to have automatic air valves, nickel plated, and the hall or entry on the fourth story of the back building being one of the said apartments, and to which plaintiff admitted heat was to be furnished, and plaintiff having admitted that he put no air valves or heating apparatus of any kind in the s.aid hall or entry, he cannot recover in this action, and the verdict must be for the defendant. If the jury find from the evidence that there was a hall or entry on the fourth floor, necessary under this contract to be heated by a radiator, pipes, valves, etc., and the required heat was not produced therein, the plaintiff having testified that he put no heating apparatus there to heat it, there can be no recovery. [1]</p> <p>“ 2. The plaintiff, in the contract upon which this suit is brought, having guaranteed that with a pressure at no time greater than five pounds to the square inch on the boiler the apparatus that he put in the property of defendant would furnish to the rooms seventy degrees of heat in zero weather, and to the entries not less than sixty degrees of heat in zero weather, and the plaintiff not only having failed to prove that the said apparatus did so furnish to the rooms seventy degrees of heat in zero weather, and to the halls or entries not less than sixty degrees of heat in zero weather, but the defendant having proven that the said apparatus did not furnish to the rooms seventy degrees of heat in zero weather, and did not furnish sixty degrees of heat to the halls in zero weather, the verdict of the jury must be in favor of the defendant. Answer: If the jury find from the evidence that plaintiff has failed to furnish heating apparatus, boilers, radiators, etc., which did or would in zero weather furnish in the halls and places mentioned in the contract, in halls sixty degrees and in rooms seventy degrees, as by his contract he guaranteed to furnish, he cannot recover. [2]</p> <p>“ 8. Under the law and the evidence, the verdict of the jury in this case must be in favor of the defendant. Answer: The facts are for the jury.” [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-3) instructions, quoting them.</p>

<p> Costs in orphans' court—Discretion of court. </p> <p>The allowance of costs in the orphans’ court is in the discretion of the court, and in this case the costs of witnesses of unsuccessful claimant were placed upon claimant, and costs of accountant’s witnesses allowed out of the fund.</p> <p>Evidence—Witnesses—Party to contract dead—Act, 1887.</p> <p>Query, whether the heirs of a decedent, and distributees of his estate, are competent, under the Act of May 23, 1887, § 5, to testify that a paper, alleged to be signed by decedent, offered to establish a claim against the estate, was a forgery.</p>

<p>Appeal, No. 72, July T., 1891, by defendant, D. Rhine Hertz, from judgment of G. P. Lancaster Go., Aug. T., 1890, No. 8, on verdict for plaintiff, Jacob Gorgas, admr. of Elizabeth Muckle, deceased.</p> <p>Assumpsit for unpaid purchase money charged on land.</p> <p>On the trial, before Patterson, J., there was evidence to the effect that about April 1, 1868, Elizabeth Muckle sold to Elizabeth Norton a house and lot for $900, of which $450 was to remain charged on the land during the grantor’s life. In 1879 the property was sold by the sheriff and was bought by the defendant. Notice of the lien was given at the sheriff’s sale. Mrs. Muckle died April 8, 1889, and plaintiff administered, and brought this suit. Plaintiff testified in substance that he heard the deed read by the justice who took the acknowledgment, that he had since searched for the deed, inquired of the sheriff, examined the public offices, looked among the papers of Mrs? Muckle and Mrs. Norton, had a few other persons make search, but never found it. Plaintiff then, under objection and exceptions, testified as to its contents. [1]</p> <p>Norton, called by plaintiff, testified that the last time he saw the deed and had it to read it was in the Spring of 1880. At that time he put it away in his mother’s desk. He was not asked if he had searched for it or if he knew where it was, but on cross-examination he testified that he told plaintiff three or four times after Mrs. Muckle’s death that he did not have the deed. This witness also testified, under objection and exception, as to the contents of the deed. [2]</p> <p>The evidence as to the contents of the deed varied somewhat, plaintiff testifying that the principal was, at Mrs. Muckle’s death, to be paid to her legal representatives. Norton testified that it was to be paid to her legal heirs or assigns, or words to that effect.</p> <p>The court charged as follows, inter alia :</p> <p>“ Therefore, in this case, the jury must be satisfied, from the evidence, that there was such a deed as the evidence furnished by the plaintiff shows, such a deed for that one acre and six perches, conveyed from Elizabeth Muckle to Elizabeth Norton —that property, for the purchase money of nine hundred dollars, upon which one half of the sa?d purchase money was charged in the deed, namely: four hundred and fifty dollars, and for which the vendee, that is Mrs. Norton, was to pay five per cent interest yearly during Mrs. Muckle’s lifetime, and at her death to pay the principal, the four hundred and fifty dollars, to her representatives or heirs. If you find and determine from the evidence that which we have just stated to have been the case, then if you find that deed was delivered to the vendee, Mrs. Norton, and that notice was given at the sheriff’s sale of the lien on this property, of this charge of four hundred and fifty dollars, when the defendant, Dr. Hertz, bought the same, then you should find for the plaintiff.” [3]</p> <p>Defendant’s point, refused, was as follows:</p> <p>“ 2. The evidence is insufficient to warrant the jury in finding for the plaintiff, and their verdict should, therefore, be in favor of the defendant.” [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned, were (1, 2) admission of evidence, quoting bills of exception and evidence; (3, 4) instructions, quoting charge and point.</p>

<p> Auditor'1 s findings as to partnership affirmed by court. </p> <p>The finding of fact by an auditor that a party sought to be charged as a partner was not a partner, either in fact or as to third parties, being approved by the court below, will not be reversed in the Supreme Court except for clear error.</p>

Appeal, No. 419, Jan. T., 1892, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1889, No. 69, on verdict for plaintiff for less than full amount of claim.

<p>State reporter—Functus officio—TJnreported cases—Act of 1878.</p> <p>The decisions of the Supreme Court left unreported at the end of the term of an outgoing reporter must be reported by his successor, as the outgoing reporter is functus officio.</p> <p>Section 6 of the Act of June 12, 1878, P. L. 201, which provides that the salary of the reporter for the last quarter shall not be paid until the decisions of that year shall have been reported, does not apply to a reporter whose term of office has expired. Its effect is to prod the incumbent and keep him up to his work.</p> <p>Bemovalfor delay in reporting—Implied repeal—Acts, 1887, 1889.</p> <p>Section 2 of the Act of May 19, 1887, P. L. 127, requiring all reports to be placed in the hands of the publishers within twenty days after the decisions have been handed down, under penalty of removal from office, is repealed by implication by the Act of March 28, 1889, P. L. 22, requiring all cases to be reported, the former act being inconsistent with the latter, as it cannot be assumed that the legislature intended to impose duties upon the reporter impossible to be performed..</p> <p> Salary for last quarter of term. </p> <p>A reporter who has faithfully performed his duty and kept up with the business of the court as far as practicable is entitled to his last quarter’s salary, notwithstanding there are a large number of arrears of unreported cases.</p>

<p> Manufacture and sale—Delivery—Conflicting evidence—Charge. </p> <p>Where, in an action of replevin, the testimony was conflicting as to when title to property manufactured on order was to pass, the court properly left the question to the jury.</p> <p> Assignments of error■—Exclusion of evidence—Practice. </p> <p>An assignment of error which specifies that the court erred in disallowing defendant’s question, quoting the question but not the bill of exception, is not in compliance with the rule of court.</p>

Appeal, No. 241, Jan. T., 1892, by-defendant, from judgment of C. P. No. 1, Pbila. Co., Dee. T., 1888, No. 604, on verdict for plaintiff, Thomas C. Smith. Trespass for failure to deliver money promptly. The material facts appear by the opinion of the Supreme Court. Plaintiff testified that he told the clerk, who took the message between ten and eleven- o’clock on Sept. 17, in New York, that he wanted to send on $100 to the Phila. Nat.

<p> Purely public charity—Denominational schools. </p> <p>Whatever is done or given gratuitously in relief of the public burdens or for the advancement of the public good is a public charity. Where the public is the beneficiary the charity is public, and where no private or pecuniary return is reserved to the giver or to any particular person, but all the benefit resulting from the gift or act goes to the public, it is a purely public charity, the word “ purely ” being equivalent to wholly.</p> <p>A denominational school property, vested in trustees, for the purpose of affording encouragement to the education of youth, is a purely public charity, although the school is not open in the same way to the general public as to persons connected with the religious denomination, but the general public are admitted as vacancies occur, and, when admitted, upon the same terms with all other pupils.</p> <p> Maintenance of charity—Tuition fees—Taxation. </p> <p>An institution founded and endowed as a purely public charity, does not lose its character as such, under the tax laws, if it receives a revenue from the recipients of its bounty sufficient to keep it in operation. It must not go beyond self-support, but so long as the trustees of the school manage it as a charity, giving the benefit of what might otherwise be profit to the reduction of tuition fees or the increase of the number of free scholars, their school buildings are entitled to exemption under the Act of May 24, 1874.</p>

<p>Appeal, No. 92, July. T., 1891, by Samuel W. Cooper, executor of the will of Emily W. Cooper, deceased, from a decree of O. C. Phila. Co., sustaining exceptions to adjudication of executor’s account.</p> <p>Claim to receive devise free from trust.</p> <p>The facts appear by the following opinion of the auditing judge, by Hanna, P. J.:</p> <p>“ The testatrix left seven children, all still living and sui juris, and all but one are satisfied with the trusts declared in the will, and wish the same to be sustained. The eldest son, William B. Cooper, however, as before stated, seeks to set aside the trusts and have his share awarded to him absolutely.</p> <p>“ The material parts of the will of testatrix are as follows:</p> <p>“ ‘ I give, devise and bequeath all my property, real, personal or mixed, of whatever nature or description, to my children, who may be living at my death, share and share alike; if any one of my children now living shall have died before me, leaving children, then the share of such a one shall go to such children; all the said property to be subject to the control of my executor and trustee as hereinafter set forth.</p> <p>“ ‘ I nominate, constitute and appoint my son, Samuel W. Cooper (or in event of his death my son Colin C. Cooper), to be the executor of this my last will and testament and as trustee of all my property real, personal or mixed.</p> <p>“ ‘ I authorize, empower and direct my said executor and trustee to manage the said property committed to his charge as far as possible after the manner in which it has been conducted by my husband, Colin C. Cooper. I authorize him to receive the rents, profits and issues of whatever nature and character and apply them to the payment of the debts which may be or arise against the said propert3r, in such manner and under such circumstances as may seem to him fit and proper. The money which may come into his hands after the payment of such debts or incumbrances, I direct shall be equally divided, from time to time, among the persons entitled under the previous provisions of this will, in such manner as shall seem proper to him. This direction shall apply to the rents, issues and profits of my estate and also to the money arising from the sale or sales of real estate which may be made by my executor from time to time under the provisions of this will.</p> <p>“ ‘ I hereby give to my said executor and trustee full power and authority to do everything whatsoever which may be requisite and necessary to be done in reference to the management and direction of all business relating to my property, real, personal or mixed, and, for this purpose, I hereby authorize and empower him to rent or mortgage, or to sell and dispose of all or any part of my real or personal estate at public or private sale or sales, for such price or prices, and upon such terms and conditions as to him may seem best, and to grant •and convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns, free from all liability for or ■on account of the application of the purchase money.</p> <p>“ ‘ When demanded by a majority of, those interested in my 'estate, but not oftener than once a year, my said executor and trustee shall file in the register’s office of the city of Philadelphia, an account showing the manner in which he has conducted the estate.</p> <p>“ ‘ In regard to the final distribution of my estate, I direct my said executor and trustee, when two-thirds of the persons interested in my estate shall so demand, to sell all my property real, or personal and divide the proceeds among those interested under the provisions of this will.’</p> <p>“ At first glance the will is seen to be inartificially prepared, and, as constructed, imperfectly expresses the intention of testatrix. But a careful examination of the instrument and a transposition of its provisions, which is always allowed in order to ascertain the true meaning of a testator; and thus, if it is examined from ‘ its four corners,’ it will not be difficult to ascertain the full and legal intention of the testatrix. And this intention, the auditing judge, from a careful study of the entire testamentary paper, concludes to be as follows :</p> <p>“ While she bequeaths and devises all her estate unto her children living at her death, and the children of any who were dead leaving children, yet she did not intend to give them an absolute vested interest payable to them and to the possession of which they shall be immediately entitled upon her death.. But this vesting in possession she postponed until two thirds of the persons interested in her estate shall demand a final distribution, in which event the executor and trustee shall convert all her estate into cash and divide among those interested under the will. Until this event occurs, however, she placed all her propertj'- under the control of her executor, whom she expressly appoints ‘ as trustee.’</p> <p>“ Testatrix then proceeded to fully and specifically define the powers and duties of the trustee. • These beyond all question are of such a nature and character as to constitute a well defined ‘ active trust.’ And in order to enable the trustee to perform these duties, he must be considered as having a legal estate in the trust property. ■ He is not only to manage the property, colléct the rents and profits and pay debts, etc., but also to divide not only the income but also money arising from the sale of real estate, made by him under the power contained in the will.</p> <p>“ There could not well be a better and more explicit active trust: Barnett’s Ap., 46 Pa. 892; Earp’s Ap., 75 Pa. 119; Groehring’s Ap., 81* Pa. 283; Briggs v. Davis, 81* Pa. 470; Stambaugh’s Est., 135 Pa. 585.</p> <p>“ The intention of testatrix is therefore evident, and this was to create a trust for the benefit of her children, and the children of any deceased, until two thirds of their number request a final distribution. Then the parties are entitled in possession to their shares, the whole estate being converted into personalty. The trust is consequently liable to be destroyed and ended at any moment. Nor can it be said to create a perpetuity. The children of testatrix have now a vested estate, payment only being postponed. Without further discussion, the auditing judge is of opinion a valid active trust is created by the will.”</p> <p>Exceptions by William B. Cooper were sustained by the court, in the following opinion by Ashman, J.:</p> <p>“It is quite apparent that the purpose of the trust was what the auditing judge, assigned to it—to «effect a division of the estate at the smallest sacrifice of values. It is also clear that powers which, to this end, were conferred upon the trustee, and the duties which were required of him were such as rendered the trust active; Barnett’s Ap., 46 Pa. 392; Earp’s Ap., 75 Pa. 119; Lightner’s Ap., 11 W. N. 181. The purpose was entirely legitimate and the cestuis que trust, with one exception, appear to be willing that it shall be carried out on the lines indicated by the testatrix. The way is stopped, however, by two legal principles. One is that the gift of an absolute estate carries with it every incident of ownership. The testatrix infringed 'this principle when she gave such an interest to the donees and then tied up their hands from exercising any proprietary rights. She might have cut down the absolute estate to a life interest by a simple direction that the donees were to have the use and income for life, as in Urich v. Merkel, 81 Pa. 332 ; or by a formal trust, as in Sheet’s Estate, 52 Pa. 257. Her intent, however, was not to reduce the original estate, but to fetter it; and to fetter it moreover with a trust of indefinite duration. On this point, Strong, J., said in Sheet’s Estate, supra, ‘ No principle is better settled than that if a testator in one part of his will give to a person an estate of an inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. ' Subsequent provisions will not avail to take from an estate, previously given, qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right.’ And he adds what seems directly applicable here : ‘ It is difficult to see how the executor could convert an estate into money which had been absolutely and unconditionally given to the testator’s children. It is more than difficult, it is impossible.’ The rule is concisely stated by Mr. Gray, in his work on Perpetuities, § 120: ‘ When a person is entitled absolutely to property, any provision postponing its transfer or payment to him is void; ’ and it has but one exception, in separate use trusts for married women. That the testatrix intended simply to postpone the enjoyment of the estate taken by the first takers and not to substitute a lesser interest, is evident not only from the absence of any limitations over, but from her direction to the trustee to pay over all moneys, principal as well as income, from time to time, to the parties to whom she had given the absolute estate. The trust was therefore directly in conflict with the principle which forbids the non-alienability of such an estate, and it was also obnoxious to the rule against perpetuities. The trustee was at liberty to exercise his functions until two thirds of the persons interested under the will should see fit to order a sale. These were not necessarily children of the testatrix, but might be remote descendants who were not living at her death. But until that demand was made, there was a mere power to sell; nothing short of an imperative direction to sell, irrespective of contingencies and independent of discretion, being able to work a conversion: Peterson’s Ap., 7 Nor. 403. Hence the power might have continued to subsist beyond a life or lives in being and twenty-one years thereafter. It is not necessary to inquire whether or how an effective trust might have been created which would have subserved the purpose which was contemplated by this will. Mr. Gray says: ‘If a term is given to trustees to pay debts and, subject to the term, the property is devised to A, the interest of A is vested, and, like all vested interests, is not obnoxious to the rule against perpetuities: ’ Sec. 415. In such case the payment of debts is not a condition precedent, but the vesting is immediate, and the trustees will be regarded as holding in trust for A, subject to the payment of debts. Nothing of the kind was attempted by this testatrix, and we are of opinion that the trust was void, and that the exceptant is entitled to immediate payment.”</p> <p>Errors assigned Were (1) sustaining exceptions; (2) holding trusts invalid; (3) because of their imposition after the devise ; (4) by reason of establishing a perpetuity.</p>

Appeal, No. 404, Jan. T., 1892, by plaintiffs, Belle M. Armstrong et al., legatees and devisees of John W. Walker, deceased, from decree of C. P. Erie Co., Nov. T., 1889, No. 1, for defendants, in partition, against Jobn W. Walker, and the Marine National Bank, vendee of Thomas Bill for partition praying for allotment of purparts, subject to the condition that defendants pay indebtedness to estate before acquiring title; or decree of sale, and general relief.

<p>Appeal, No. 355, Jan. T., 1892, by defendant, from judgment of O. P. No. 1, Phila. Co., March T., 1891, No. 971, on verdict for plaintiff.</p> <p>Trespass for change of grade of street.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were (1) entering judgment for plaintiff, and (2) not entering judgment for defendant on the point reserved.</p>

Appeal, No. 290, Jan. T., 1892, by-defendant, from judgment of 0. P..No. 1, Phila. Co., March T., 1891, No. 974, on verdict for plaintiff, Hicks N. Groff. -Trespass for change of grade of street. The facts appear by the opinion of the Supreme Court. Errors assigned were same as in preceding case.

<p>Appeal, No. 449, Jan. T., 1892, by-defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1891, No. 154, on verdict for plaintiff, Jos. Hobson.</p> <p>Trespass for change of grade of street.</p> <p>The facts as they appeared on the trial before Arnold, J., are stated in the opinion of the Supreme Court.</p> <p>Defendant’s points were as follows :</p> <p>“ 1. The jury must find for the defendant.” Refused. [1]</p> <p>“ 2. In no view of plaintiff’s case, as presented by his statement, can he recover more than the injury which he may have suffered in his property during the period which intervened between the doing of the work complained of and the institution of this suit.” Refused. [2]</p> <p>“ 3. The plaintiff’s evidence having been exclusively as to the injury to the principal value of plaintiff’s property through the grading of Wood street to the present level, and the said evidence furnishing no information enabling the jury to estimate the current damages during the period intervening between the doing of the work and the institution of this suit, the jury must find for the defendant.” Refused. [3]</p> <p>“ 4. The plaintiff cannot recover damages, save in the amount of the difference between the value of his property without a highway to reach it upon, and with Wood street in its present condition. Answer: That is true. It amounts to this. He cannot recover more damages than the difference between tbe value of the property before the grading and after it.” [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4) refusing points, quoting them, and (5) entering judgment for plaintiff.</p>

<p> Bisk of employment—Negligence—Evidence—Presumption—Master and servant—Eellow-servant. </p> <p>In an action by an employee against his employer, in the absence of definite proof of some negligence which directly or naturally results in injury to the employee, the accident is regarded as one of the hazards of the employment of which the servant takes the risk and for which there can be no recovery.</p> <p>While a railroad company employer is bound to furnish its employees with ordinarily safe tools and machinery, the mere fact that a car which was the cause of the employee’s injury was in an unsafe and dangerous condition is not prima facie evidence of negligence on the part of the employer. To warrant a jury in finding negligence the evidence should show that the employer had previous knowledge of the condition of the car or ought to have had such knowledge, and failed to repair the defect within a reasonable time.</p> <p>To warrant an inference of negligence on the part of the employer, there must be proof of the existence of the defect at some timé prior to the accident or of a failure to properly inspect. Where the evidence showed that, about a week before the accident, the car was taken out of a yard where there was a thorough system of inspection and none of the train hands afterwards saw the defect prior to the accident, the jury cannot be permitted to find that defendant ought to have had knowledge of the defect.</p> <p>Any defect which may become apparent in tools or machinery it is the duty of the servant to observe and report to his employer, and the employer is not liable to an employee for the negligence of a fellow-servant in the same employment.</p>

<p> Negligence—Highways—Municipalities—Custom. </p> <p>No usage or custom will justify an encroachment on a public highway, or the presence therein of an obstruction which renders it unsafe for the uses to which it is dedicated.</p> <p> Unguarded openings in sidewalk—Public nuisance. </p> <p>An unguarded opening, four feet and nine inches in width in a pavement, and extending from the building line into the street five feet and six inches, is, if located in a much frequented street, a public nuisance, and neither lapse of time nor the existence of like nuisance elsewhere, with the consent of the'municipality, will legalize it: King v. Thompson, 87 Pa. 365, distinguished.</p> <p> Evidence— Witness—Opinion. </p> <p>In an action to recover damages for injuries sustained by falling into an unguarded area-way, it is proper to permit a witness who is familiar with the place where the accident occurred, to express the opinion that it y/Was a dangerous place.</p> <p>Unwilling witness— Cross-examination.</p> <p>. Where a witness proves unwilling, and gives evidence that is a surprise to the party by whom he is called, it is within the sound discretion of the court to permit a cross-examination of the witness by the party calling him, to show that his previous statements and conduct were at variance with his testimony.</p> <p> Evidence—Ordinance—Dangerous sidewalks. </p> <p>In an action against a municipality to recover damages for injuries sustained by falling into an unguarded area-way, it is proper to admit in evidence an ordinance of the city requiring such openings to be properly guarded.</p>

<p> Heed to lands bounded by public roads. </p> <p>Where a street or road is called for as a boundary in a contract for the sale of land, the middle line of the street is always intended unless the contrary plainly appears; and a purchaser who agrees to buy a certain tract of'land at a certain price per acre, the same to be surveyed, is bound to pay at that price for the parts of the beds of boundary roads included within the lines of the tract so described.</p>

<p>Railroads—Duty to fence—Local act of 1868.</p> <p>Where a railroad was located and damages assessed to a prior properly owner before the passage,of the local Act of March 28, 1868, P. L. 514, which requires railroad companies in certain counties to construct and keep in repair fences along their tracks, in such case the railroad company is not subject to the burden of fencing, as the presumption is the assessment of damages included that burden.</p> <p> Constitutional law—Debt of another. </p> <p>If the local Act of March 28, 1868, P. L. 514, was intended to require a railroad company to bear the burden of fencing on land where damages have been assessed, it is open to the constitutional objection of requiring one to pay the private debt of another.</p>

Appeal, No. 224, Jan. T., 1892, by-defendants, Granville P. Quinn et. al., sued as trading as E. & G. A. Fruh, from judgment of C. P. No. 3, Phila. Go., March T., 1891, No. 485, on a verdict for plaintiff, W. Reiter. Assumpsit on promissory note signed “ E. & G. A. Fruh.” The facts appear by the opinion of the Supreme Court. Rule I. of the rules of court was as follows: “ Sec. 1.

<p> Replevin—Parties defendant—Right to intervene. </p> <p>A party who is in actual possession of goods at the impetration and execution of a writ of replevin, should be named as codefendant.</p> <p>Where this has not been done, and such person filed a petition, supported by depositions, averring a joint interest in the goods replevied, and that the defendant named in the writ was her husband, who had deserted her, and that he, acting in collusion with plaintiff, would not defend the suit, and praying to be allowed to intervene and defend pro inter esse sua, such petitioner should be allowed to intervene.</p> <p> F'aud by husband against wife—Bill of sale—•Evidence. </p> <p>In such case, the intervening defendant can show that her husband deserted her willfully without just cause, that plaintiff was aware of the husband’s intention when the latter executed and delivered a bill of sale to plaintiff of the household goods, that plaintiff aided and abetted the desertion, that the husband left no property or means of support of his wife and that she had no means herself and no separate estate; for the purpose of showing that the bill of sale to plaintiff, was made by the husband with the intent of defrauding the _wife of the support she might have had from bis property if he had not disposed of it.</p> <p>There was no error for the court to charge in such case that if the property belonged to the husband he has a right to sell it or to give it away, if the transaction is an honest one.</p>

<p> Duty of bank to appropriate deposit to pay note. </p> <p>While a bank which has discounted a promissory note, may appropriate funds in its hands belonging to any party to the note, to the payment of the note, when payment is not made at the time and place named, yet it is not bound to do so as to any party except the maker.</p> <p>As the maker is liable to the indorser, he cannot require the bank to appropriate the indorser’s funds to the payment of his own note, nor complain if the bank refuses to do so.</p> <p>But where the bank holds funds of the maker when the note matures, it is bound to appropriate his deposit to the payment of the note in relief of the sureties, and a failure to do so to the loss of the sureties renders the bank liable.</p> <p> Effect of unauthorized charge by clerk—Equities. </p> <p>The payee of a promissory note, a corporation, indorsed it to its president as an individual, who had it discounted by his bank before maturity, without notice of defence to the bank; on being returned protested, a clerk charged the note up to the account of the president, but afterwards corrected this, by direction of the cashier, by entry of a credit, so as to let the account stand as before.</p> <p>Held, that the act of the clerk in charging up the note was not payment in fact that divested the title of the bank, so that the subsequent credit made under the direction of the cashier was a new purchase of the note made after protest and subject to the equities between the maker and payee.</p>

<p>Appeal, No. 61, July T., 1891, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1885, No. 466, on verdict for plaintiff, Hugh McCool.</p> <p>Assumpsit for damages for death of minor child by alleged negligence of defendant.</p> <p>The evidence on the trial, before Gunster, J., was to the following effect: Plaintiff’s son, about ten years of age, was, with his father’s knowledge, employed in defendant’s coal breaker as a slate-picker. While so engaged a pair of rolls in one of the shutes became blocked with coal, and it was necessary to stop the engine promptly. The signal was usually given by the oiler, but he was at this time in another part of the breaker. It was the duty of the picker-boss to give the order to stop the engine, but he could not leave his place where he held up the coal to keep it from getting into the rolls to prevent injury to the belts and machinery. He accordingly “ told some of the boys to go out and stop the engine.” Plaintiff’s son volunteered to go. The most convenient method was to go to the shaft, through which the cars loaded with coal were carried to the top of the breaker, and shout through an open door to the engineer on the next floor below. This door was some two and a half feet above the floor. Soon after the child was sent, he was found lying across the door-sill with his feet on the floor and his head crushed in. In order to be injured by the carriage and machinery in the shaft it would be necessary for him to put his head through the door six to eighteen inches; but there was testimony that, owing to the noise of the machinery, he could not have made the engineer hear him without putting his head into the shaft. There were steps leading from the place where the boys were at work to the outside, and a person could go down the steps and around, a distance of 300 or 400 feet, into the engine room without danger. This would have taken probably three or four minutes, during which time the belts might come off the wheels. The usual way of calling was down the shaft above described. There was evidence that it was customary, in some breakers, to have a bell in the engineer’s room connected with a wire running into the picking room in order to notify the engineer when the rolls were clogged. The superintendent had asked for a signal bell, but it was not put in until after the accident.</p> <p>Binding instructions for defendant were refused. [1]</p> <p>Error assigned was such instruction, quoting it.</p>