Volume 151 — Pennsylvania State Reports

<p>Collateral inheritance tax—Liability of non-resident member of limited partnership—Act of May 6, 1887.</p> <p>Under the act of May 6, 1887, P. L. 79, the interest of a non-resident deceased member of a limited partnership association is liable to the collateral inheritance tax, where the real and personal property of the association is situated within the state.</p> <p>A limited partnership association consisted of three members, two of whom were residents of Pennsylvania, and one of Maryland. The capital of the association was made up of land in Pennsylvania valued at $190,500 and personal property valued at $240,300. The business consisted largely of buying and selling grain, flour, etc., in Pennsylvania and elsewhere. The non-resident member by his will bequeathed to his partners, who were also his brothers, all the interest in the association, including “ all the property real and personal, notes, stocks, bonds and accounts.”</p> <p>Held, that the interest of the deceased member was liable to the collateral inheritance tax.</p> <p> Widow’s election—Effect on collateral inheritance tax. </p> <p>Testator bequeathed all his interest in a limited partnership association to his brothers. His widow elected to take against his will, whereupon the executors and legatees paid to her a certain sum in full of all her claims against the estate.</p>

<p>Appeal No. 234, Jan. T., 1891, by-defendant, from judgment of C. P. Lehigh Co., Sept. T., 1888, No. 24, on verdict for plaintiffs, Sarah Hermany- et al.</p> <p>Assumpsit on policy of life insurance.</p> <p>On the trial before Albright, P. J., the evidence was to the following effect: Lewis Hermany, on Jan. 6, 1887, took out a life policy payable to plaintiffs his wife and children. Notice of death was given the president of defendant company in writing, as required by the by-laws of the company. Mrs. Her-many answered the questions in a blank furnished by defendant. Drs. Shade and Erb also answered questions propounded to them. The president of the company said to one of plaintiff’s attorneys that the company was satisfied with these proofs and might require some additional ones on a blank to be furnished him. In Mrs. Hermany’s answer she stated that decedent, in October, 1886, went to Buffalo to see Dr. Piéree.</p> <p>Defendant offered evidence which tended to prove that the assured, Lewis Hermany, made statements in his application for the policy which were false; that in his application he had stated that he had not consulted a physician during the preceding ten years, when in fact he had consulted Drs. Graver and Rowe, the latter a physician attached to Dr. Pierce’s Medical Institute; that he had stated that he was in good health when in fact he was suffering from disease of the urinary and genital organs.</p> <p>Defendant offered in evidence pension application of Lewis Hermany. Objected to as incompetent and irrelevant.</p> <p>By the Court: It appearing that the policy was issued on Jan. 6, 1887, and that the loss is payable to the wife of the insured and their children, and, in the event of their prior death, to revert to the insured; and it appearing that the wife and children survive the insured, and the contract, therefore, for all practicable purposes being between the company and the wife and children, the subsequent statement made by the insured when he applied for a pension in 1888, in other words, his subsequent declarations, cannot be received to affect the beneficiaries in the policy. Exception. [18, 14]</p> <p>Defendant also offered in evidence the pension examination by Dr. Shade. Objected to, objection sustained, for same reason as before, and exception. [15]</p> <p>The court charged in part as follows:</p> <p>“ Now, as I have said to you, that certain proofs were required to be furnished before the claimants had a right to sue, I instruct you, gentlemen, that the proofs that were furnished, and that are in evidence here, were sufficient to entitle the plaintiff to sue—it is in my opinion not a question for the jury to decide whether sufficient proofs had been furnished to entitle the plaintiffs to bring this suit. [16] ....</p> <p>“ There is an act of assembly of this state, which has a bearing upon life insurance policies, viz.: The act of 1885, which was in force at the time this insurarce was made, and so far as its terms apply to this contract and the controversy before you it governs. It provides that, when the application for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application made in good faith by the applicant, shall effect a forfeiture or be a ground of defence in any suit brought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relates to some matter material to the risk. In the contract of insurance in this case, it is provided that the insured waives the provisions of any statute which might affect the contract of insurance; in other words, the insured is made to say that he will stand by what he promised in his contract of insurance even although an act of assembly provides to the contrary—that he waives the act of assembly. In the opinion of the court, that stipulation is not binding. The court is of the opinion that it would be contrary to public policy to permit this statute, which was made for the benefit of the insured, and possibly also for insurance companies, to be disregarded by parties who enter into contracts of insurance, and so I instruct you, that that clause of the contract is invalid, and that the act of assembly is to govern. [17] ....</p> <p>“ It is alleged, as has already been alluded to, that he had the urinary disorder, ursesemia, which it is said consists of excessive acid in the urine; that he had local disorders, excoriations, and it is claimed that the statements of the deceased in that respect were not true as to these matters. Gentlemen, we instruct you that if they were made in good faith by the deceased, even although they were not true, that that alone cannot prevent a recovery here. While the policy and application say that all the answers of the insured shall bind him, whether made in good faith or not, I hold that the act of 1885, which says that the insured shall not be prejudiced by misstatements made by him in good faith, applies to the statements I am now referring to, and, if it is found by you that they were not material—and the question is referred to you whether they are material or not—then you can say that they do not prejudice these plaintiffs or prevent a recovery. [18] ....</p> <p>“ If Lewis Hermany, when he said he did suffer from these disorders which the defendant says he did suffer from, and you find that he was afflicted with them, and even although he answered untruthfully, still, if you find that he did it honestly, and not with any intention of concealing the truth, or of stating an untruth, and you further find that it did not affect his health, nor cause his death, then you can say that the plaintiffs may recover, and that notwithstanding the untrue statement. [19] ....</p> <p>“ In the original proofs of death there is a statement by Mrs. Hermany that within the last five years, that is, five years before the time the proof was made, from August, 1888, her husband bad consulted six or seven physicians, Shade, Graver, Erb, Pepper, DaCosta, etc. That answer in itself does not show that the statement of the insured about the physicians was untrue, because those five years include the one year and odd months, between the insurance and the death of the insured. He might have consulted those doctors after the insurance. She always says he went to Buffalo in October, 1886, to see Dr. Pierce. This statement of the widow is to be taken as a declaration made by her against interest. But she alone is not suing here. She and her children are suing here, and this statement is susceptible of explanation, and it is to be taken along with the other evidence in the case, and, if jrou find that this and the other evidence shows a breach of the policy, then the plaintiff cannot recover. If otherwise, it would not prevent the recovery by the plaintiffs.” [20]</p> <p>Defendant’s points were as follows, inter alia:</p> <p>“1. The insm*ed, the said Lewis Hermany, deceased, in his application to the defendant for the policy in suit, warranted that he had no usual medical attendant, and that he did not consult or obtain the advice of any other medical man within the ten years preceding the making of said application. The uncontradicted evidence shows that he, the said Lewis Hermany, consulted Dr. J. D. Graver, a medical man, within the ten years preceding the making of said application. The plaintiffs cannot, therefore, recover, and your verdict will be for the defendant. Answer: Negatived. It is referred to the jury whether he consulted a physician as explained in the general charge.” [1]</p> <p>“ 2. The uncontradicted evidence shows that the insured, the said Lewis Hermany, consulted Dr. G. A. Rowe, a medical man of Buffalo, N. Y., within ten years immediately preceding the making of his said application for the policy in suit. The plaintiffs cannot therefore recover, and your verdict will be for the defendant.” Negatived. [2]</p> <p>“ 3. The uncontradicted evidence shows that the said Lewis ' Hermany consulted Dr. D. S. Shade, a medical man, within the ten years preceding the making of his said application for .the policy in suit. The plaintiffs cannot, therefore, recover, and your verdict will be for the defendant.” Negatived. [3]</p> <p>“ 5. The policy sued upon provides, that satisfactory proof of the death of the insured, and of the just claim of the assured, or of any other person as executor, administrator, guardian or assign, be given to the defendant. This provision is a condition precedent, and must be fully complied with. The proofs presented to and filed with the defendant, show that the said Lewis Hermany had, within ten years before the making of his said application to the defendant for the policy in suit, consulted Dr. G-. A. Rowe. The said proofs are not, therefore, such as are required by the terms of the contract sued upon in that they do not show a just claim. The plaintiffs cannot, therefore, recover, and your verdict will be for the defendant.” Negatived. [4]</p> <p>“ 6. The said Lewis Hermany warranted in his said application that he had not had, since childhood, disease of the genital or urinary organs. The uncontradicted evidence shows that he had, prior to the making of said application, disease of the genital or urinary organs. The plaintiffs, therefore, cannot recover, and your verdict will be for the defendant.” Negatived. [5]</p> <p>“ 7. The insured, in his application, having waived the benefit of the Act of June 23, 1885, the said statute is therefore not applicable to this case.” Negatived. [6]</p> <p>“ 8. The parties having agreed that the statements and answers of the applicant should be material, the question of their materiality is removed from the consideration of the jury.” Negatived. [7]</p> <p>“ 10. Under all the evidence the verdict must be for the defendants.” Negatived. [8]</p> <p>The 12th and 13th points appear in the opinion of the Supreme Court. [9,10]</p> <p>“ 14. If you believe the statement made by Mrs. Sarah Her-many, one of the plaintiffs, and contained in the proofs of death presented to the defendant, then your verdict will be for the defendant. Answer: Negatived. The statements as to diseases before the date of application do not absolutely prevent a recovery—the questions of materiality and good faith are to be considered, as already set forth in the answer to these points. The statements as to consultation of physicians during the last five years of insured’s life, do not exclude the idea that he may have consulted the physicians named after the date of application.” [11]</p> <p>“ 15. Mrs. Sarah Hermany, one of the plaintiffs, having testified that said Lewis Hermany had, within one year prior to the making of said application, consulted a physician in Buffalo, New York, your verdict must therefore be for the defendant. Answer: If the fact is found to be as here stated, the plaintiffs cannot recover. Thus qualified the point is affirmed.” [12]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>JErrors assigned were (1-13) answers to defendant’s points, quoting points and answers; (13-15) rulings on evidence, quoting the bills of exception; (16-20) the portions of the charge as above, quoting them.</p>

<p>Appeal, No. 233, Jan. T., 1892, by the Fidelity, Insurance Trust & Safe Deposit Co., trustee under the will of Paltiall S. Rowland, deceased, from decree of O. C. Pliila. Co., April T., 1888, No. 364, dismissing exceptions to adjudication.</p> <p>From the adjudication it appeared tbat the testator died June 10, 1887. By his will he gave the residue of his estate, after payment of debts, to his wife for life, and after the death of his wife his residence was to go to his daughter Delia, for life, and the residue was directed to be held by his executor in trust for the following uses and purposes :</p> <p>“ In trust to keep invested all the personal estate and collect and realize all the rents, issues and profits both of my real and personal estate and to pay thereout to my daughter Delia above named the sum of $2,500 per annum during the whole term of her natural life : to my son Ephraim A. Rowland, and to mjr son, John I. Rowland, each the sum of $700 per annum during the whole term of the natural life of each: and the surplus of net income over and above what is requisite to be paid said annual amounts of $2,500, $700, and $700 I direct to be annually divided equally, per stirpes, and not per capita, between my five children, Delia, John, Ephraim, Rachel and Esther, and the issue of Sarah and Fanny, deceased, and the issue of any other of said children that may at any time have died leaving issue until the death of the last survivor of said children, and final distribution of my estate next hereinafter provided for. The principal of said real and personal estate to be held until the death of every one of my children, and upon the death of the last survivor of them to be divided equally, per stirpes and not per capita, between the issue then living of my seven children to wit: Delia R. Newhouse, Ephraim A. Rowland, John I. Rowland, Rachel Bomeisler, Esther Bomeisler, Sarah Jane Hart and Fanny Tobiason.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The auditing judge, Ferguson, J., awarded the share of Isabel to her administrator. The trustee filed the following exceptions to the adjudication, inter alia, alleging that the court erred (1) in deciding “ that there is a vested estate in the income in the issue of the children who were then deceased ; ” (2) in awarding a proportional share of the income of the said estate to the executors of Isabel, and in not awarding the said share to her son.</p> <p>The exceptions were dismissed, in an opinion by Ashman, J. The trustee appealed.</p> <p>Errors assigned were (1) dismissal of exceptions, quoting them ; (2) awarding to administrator of Isabel a share of the income; (3) not awarding share of income of Isabel to guardian of her minor child.</p>

<p> Railroads—Occupation of streets—Additional servitude.. </p> <p>When the commonwealth authorizes the construction of a railroad upon a line which makes it necessary to cross a public highway, the grant is subject to two limitations; one in favor of the public for the preservation of the way; the other in favor of the owner, which requires that no additional servitude shall be imposed upon the land covered by the public easement. The construction of the railroad over the street imposes a new servitude on the land occupied by the public easement, for which the owner is entitled to compensation.</p> <p> Railroad bridge over highway•—Measure of damages. </p> <p>A railroad company owned the diagonally opposite corner lots at the intersection of two public streets. It built abutments on its own land at each corner, and, with the consent of the city, threw a bridge from one abutment to the other, the height of the bridge above the street being twenty-three feet. The bridge overhung no land except what was included within the limits of the streets. The plaintiff owned a dwelling-house situated at one of the other cornel’s.</p> <p>Held, that the only element of damages was the additional servitude if any, imposed upon plaintiff’s property, such, for example, as the exclusion of light and air from his dwelling.</p> <p>The possibility of the vacation of the streets may be so remote as not to be worth considering: but the extent to which the new servitude really injures the property is a question for the consideration of the jury: Per Williams, J.</p> <p>The amount of the verdict in such a case is not to be fixed by a comparison of the value of the plaintiff’s property before the defendant’s railroad was built, and after. The mere proximity of a railroad may render dwelling-houses less desirable, and diminish their market value without imposing any liability on the railroad company for the loss sustained by their owners.</p> <p> Obstruction of access—Danger from fright by horses. </p> <p>It is not an obstruction of access to a property abutting on a street where there is an overhead railroad that persons with wagons or carriages might be deterred from approaching the property from fear that their horses would be frightened by the trains above them.</p> <p> Expert testimony as to value of property. </p> <p>Expert testimony is not necessary to determine the value of the property. All persons familiar with the property, who have formed an opinion, are competent to testify as to its value.</p>

<p>Appeal, No. 339, Jan. T., 1892, by W. E. Lane, administrator d. b. n. c. t. a. of James W. Mercur, deceased, from decree of O. C. Bradford Co., Feb. T., 1889, No. 63, dismissing petition for citation.</p> <p>The facts as they appeared before Sittser, P. J., of the 44th judicial district, specially presiding, are stated in the opinion of the Supreme Court.</p>

<p>Appeal, No. 290, Jan. T., 1891, by defendant, Henry Haas, from judgment of C. P. Schuylkill. Co., March T., 1885, No. 270, on verdict for plaintiff, Alexander S. Silliman.</p> <p>Ejectment to recover a tract of land in Ryon township.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial before Pershing, P. J., the court admitted in evidence under objection the testimony of Joseph Faust and Henry Mauger, the essential portions of which are quoted in the opinion of the Supreme Court. [3]</p> <p>Defendant presented the following point, among others:</p> <p>“ 7. Under all the evidence in the case the verdict must be for the defendant. Answer: We decline toso instruct you, but leave it to jrou as a question of fact. [8]</p> <p>Verdict for plaintiff. The court subsequently discharged a rule for judgment non obstante veredicto, and entered judgment on the verdict. Defendant appealed.</p> <p>Jtlrrors assigned were, inter alia, (3) rulings on the evidence; (6-8) answer to defendant’s point, quoting point and answer; (7) in discharging rule for judgment non obstante veredicto.</p>

Appeal, No. 171, Jan. T., 1892, by plaintiff, William Keller, from order of C. P. Cumberland Co., Sept. T., 1890, No. 76, dismissing petition for appointment of viewers. 0 The facts as they appeared before the court below, Sadler, P. J., are stated in the opinion of the Supreme Court.

<p>Appeal, No. 99, Jan. T., 1892, by judgment creditor, J. A. Hornet, from order of C. P. Sullivan Co., May T., 1888, No. 139, distributing fund arising from sheriff’s sale of real estate of Adam Sherman, on execution by Belinda Campbell.</p> <p>The material facts as they appeared before the auditor to distribute, Bryan S. Collins, are stated in the opinion of the Supremo Court.</p> <p>The condition of the bond, mentioned in the opinion of the Supreme Court, was as follows :</p> <p>“ That if the said Adam Sherman shall pay or cause to be paid unto the said J. A. Hornet the sum of $266.62 with interest from date of said bond one year from the date thereof, the same being money actually borrowed from the said J. A. Hornet, and if two certain judgments—Nos. 106 and 107, May term, 1884, in which the said Adam Sherman is plaintiff and A. R. Robbins is defendant, the same being in common pleas of Sullivan county, upon which two judgments there remain due and owing at this date (date of bond) an unpaid debt and interest in the sum of $592.88 which I, the said Adam Sherman, have this day assigned to the said J. A. Hornet—shall be paid in full by the said A. R. Robbins, his heirs or assigns, to the said J. A. Hornet, then this obligation to be void, otherwise to be and remain in full force and virtue. To recapitulate, this obligation is given to secure to the said Hornet the payment of the $266.62 this day actually borrowed in cash and to secure collaterally to the said J. A. Hornet the payment of the two judgments against A. R. Robbins, this day sold to said Hornet.”</p> <p>Exceptions to the auditor’s report were sustained by the court, in an opinion by Sittser, P. J.</p> <p>Errors assigned were (1, 2) dismissal of exceptions; (3) confirmation of report; and (4) distribution to junior lien creditors.</p>

<p> Master and servant—Railroads—Risk of employment. </p> <p>When an employee of a railroad company is fully aware of the risks which he runs in a particular service, and nevertheless continues to perform the same services without complaint, he will be deemed to have assumed the risks incident to his employment.</p> <p>A freight conductor employed for many years in switching trains on a short section of a railroad was killed while seated on the pilot of a shifting engine by collision of the engine with a wagon at a public crossing where no watchman was stationed by the railroad company. Held, that the accident was one of the risks assumed by the decedent, and that his representatives could not recover damages for his death.</p>

<p> Limited partnership—Schedule of property contributed—Lumping valuations—Oral evidence. </p> <p>Articles of association with accompanying schedule, required by the limited partnership act of June 2, 1874, are designed to furnish information to all who may be interested in or have dealings with such associations, and should therefore be self-sustaining. They cannot be supplemented or amended by oral testimony.</p> <p>Where the description of property contributed as cash is too -general to enable any one to form a correct estimate of the extent of the property or where a lumping valuation renders it difficult to judge of values, as a lumping valuation of material for a railroad at certain depositaries, estimated profits on certain contracts, subject to further expense for work, etc., and good will of one of the members in certain works, in such case the members are liable as general partners.</p> <p>Requirement of act of 1874 as to full names.</p> <p>The requirement of the act of 1874 as to full names of members is met by giving the names in the form habitually used by them in business and by which they are known in the community; in this case by the initials alone.</p>

<p>Appeal, No. 34, October T., 1891, by defendant, J. P. Philp, from judgment of C. P. Yenango Co., April T., 1888, No. 24, on verdict for plaintiff, Henry Mc-Clafferty.</p> <p>Trespass for malicious prosecution.</p> <p>The evidence on the trial before Taylor, P. J., was to the following effect: Plaintiff had given to defendant in part</p> <p>payment of purchase money of a sawmill and other property bought of Philp & Perry, a check and a note, aggregating $500, representing that he had money in the bank to meet the check and that the note would be paid at Robert’s bank, where he had money or would have money to meet it. Neither note nor check was paid, the plaintiff alleged, because title to part of the property was not good. Defendant consulted counsel, F. W. Hays of Oil City, and upon his advice instituted criminal prosecution for obtaining property on false pretences. Plaintiff after being arrested was discharged by a justice of the peace of Crawford county on the ground that he had no jurisdiction, the check being given in Yenango county. A new prosecution was instituted in Yenango county but was non-prossed, at request of counsel for prosecution, on the ground that the proper jurisdiction was Crawford county, that being the county in which the property acquired by the false representation was situated. Thereupon the present action was brought.</p> <p>Defendant asked his witness, Perry: “ Q. Before giving possession, what, if any, notice had you received in reference to the payment of the $500 by any one.” Objected to.</p> <p>The Court: Objection sustained. I cannot see how that possession there is going to affect this case.</p> <p>Defendant offered to show by Mr. Perry, that he (Philp) did notify him and that in pursuance of that notice, he (the witness) gave possession. Offer overruled; exception. [8]</p> <p>The court charged the jury in part as follows:</p> <p>“ In the issue now trying, there had been a prosecution instituted for a criminal offence before a magistrate in Crawford county, and the defendant was discharged by the magistrate on the ground of want of jurisdiction. A prosecution for the same offence was then instituted by the same prosecutor before a magistrate in this county; the defendant was arrested, gave bail for his appearance at the April Sessions, 1887; a true bill was found by the grand jury, when the cause was continued until the August Sessions, when, upon motion at the instance of the prosecutor, a nol pros was entered and the prosecution abandoned. Under such circumstances, we instruct you that the burden of proof showing probable cause is upon the defendant in this action.” [8]</p> <p>Plaintiff’s points were as follows, among others :</p> <p>“ 4. If the jury believe that, on the 27th of May, the payment of the five hundred dollars named in the contract was extended five days and that, in default of the payment thereof, the contract should be void and the note of two hundred dollars surrendered; and that pursuant thereto the defendants entered into the possession of the property on the 2d of June, it was a settlement of the matter and a discharge of the plaintiff’s obligation to pay the first payment of five hundred dollars or any part of it, and the retention after that by the defendant of the note and check is evidence of bad faith on his part. Answer: Affirmed, unless the jury further find that the defendant had other good and valid reasons for retaining the same.” [6]</p> <p>“ 5. If the jury believe that the defendant kept the check after the settlement of May 27th with the object and intent of coercing the plaintiff to pay the money on other pretended claims and the criminal prosecutions were instituted for such purpose, they were malicious, and the check having been previously paid by the surrender of the property, pursuant to the agreement of May 27, 1886, said prosecutions were without probable cause and the plaintiff is entitled to recover.” Affirmed. [7]</p> <p>“ 6. Advice of counsel does not rebut the presumption of malice arising from want of probable cause; it is evidence merely for the consideration of the jury. To be of any avail to the defendant, the jury must be satisfied from all the evidence in the case that it was sought in good faith for an honest purpose ; but if counsel was sought by defendant as a mere pretext to shield from the consequence of an unfounded prosecution, it is no protection whatever.” Affirmed. [1]</p> <p>Defendant’s points were as follows, among others:</p> <p>“If the jury find and believe, from the evidence, that the defendant, from all the facts and circumstances, had reason to believe, and did believe, that the plaintiff, by false representations, did procure the possession from the defendant of a large amount of valuable personal property, exceeding in value $3,000, and the defendant, under this belief and in good faith made the information on which the bill of indictment was found, he is not liable in damages to the plaintiff for false imprisonment or malicious prosecution, and the verdict of the jury should be for the defendant. Answer: Affirmed, if the jury further find that the facts and circumstances referred to were sufficient to warrant a cautious man in believing that the party was guilty of the offence charged.” [2]</p> <p>5. “ The law presumes all public prosecutions for crime to be instituted in good faith and with a probable cause, and in this action the burden of proof is on the plaintiff, McClafferty, to show both want of probable cause and malice on the part of defendant, Philp, in procuring the arrest of the plaintiff. Answer : Affirmed, as qualified by the charge.” [5]</p> <p>7. Recited in opinion of Supreme Court. Answered in the negative as qualified by the charge. [4]</p> <p>Verdict and judgment for plaintiff for $400. Defendant appealed.</p> <p>Errors assigned were (1-7) instructions, quoting points, answers and charge, as above; (8) ruling on evidence, quoting bill of exception.</p>

<p>Appeal, No. 143, Jan. T., 1892, by defendant, David Byers, from judgment of C. P. Clearfield Co., Sept. T., 1890, No. 540, on verdict for plaintiff, F. E. Mahaffey.</p> <p>Trespass for false imprisonment.</p> <p>The facts as they appeared at the trial, before Krebs, P. J., are stated in the opinion of the Supreme Court.</p> <p>Plaintiff’s point was as follows:</p> <p>“ 1. When one accused of crime has been discharged by the examining magistrate, the burden of showing probable cause is thrown on the prosecutor, in an action against him for malicious prosecution. Answer: That is a correct abstract statement of the law, but in the trial of causes we must bear in mind what the facts in each particular case are, that we are trying. In this case it appears that the plaintiff in this action was discharged from custody by ’Squire Fry. It is alleged on the part of the defendant that he did not appear there to prosecute because he was advised by a lawyer, one who was supposed to be competent to advise him, that a magistrate had no power to discharge him, having once committed him, and that was the reason why he did not appear. Now, gentlemen of the jury, if that is true, the mere fact that the defendant was discharged would not be sufficient of itself to throw upon him the burden of showing probable cause. That would be a good ground for not appearing if he was acting honestly; but a man who goes before counsel to advise in cases of this kind, must lay his whole case before counsel, and he must act honestly, and he must not do that for any purpose of obtaining advice which is not correct or not applicable to the facts. His prosecution must be such as bears the impress of a desire to be advised correctly, and if he so acts and is advised, although the advice may be a mistake, yet nevertheless he would not have cast upon him the burden of showing probable cause.” [3] Defendant’s points were as follows, among others :</p> <p>“ 1. There is no such absence of probable cause and existence of malice shown as would sustain a verdict for plaintiff, and your verdict must be for the defendant. Answer: We decline to instruct you that this is true as a matter of law in this case, but shall endeavor to give to you what we deem to be probable cause, or the want of probable cause, and submit the facts to you to determine whether or not probable cause existed for this arrest, or whether there was such action on the part of the defendant as a man of cautiousness, and a reasonably prudent man, would not have taken without further inquiry.” [1]</p> <p>“ 3. If the jury believe the following facts to be proven, to wit: That defendant on his way to Hastings, without any purpose or intent to prefer any charge against the plaintiff, saw him twice pull out of his pocket a quantity of small change corresponding to what he had lost from his money drawer, and upon seeing defendant at once returned it to his pocket, and at Hastings discovered that plaintiff had passed a five dollar bill corresponding to the one taken from defendant’s safe, and that at the time when there was apparently no necessity in passing it, he having more change already than was needed; and further learned that immediately upon hearing of defendant’s presence at the Hastings House plaintiff left that hotel after having registered and ordered dinner, and at dinner time, and went to another hotel, these facts in connection with the other undisputed facts in the case were sufficient in law to constitute probable cause. Answer: I do not find myself able to agree with that point as stated. The reasons for that are briefly these: There is a conflict of testimony between the plaintiff and defendant as to the amount of change. There is also a conflict in the defendant’s own testimony as to the amount of money that was taken from his safe, that is, the denominations and kinds of money. And it would be requiring the court to invade, we think, the province of the jury too far to affirm this point without any qualifications. We submit the facts to you as we have already done. All these facts and circumstances are for you to consider upon the question of whether or not there was, and there existed at that time, such facts as would cause a man of ordinary caution and prudence to entertain an honest belief, or a strong suspicion that the plaintiff had committed this felony; if he did it would constitute probable cause and your verdict would have to be for the defendant. If in your judgment it did not, if there was not such a condition of facts and circumstances at that time, then you will have to inquire as to another stage of this case, whether or not there was malice.” [2]</p> <p>Verdict and judgment for plaintiff for $450. Defendant appealed.</p> <p>Errors assigned were (1, 3) answers to points, quoting points and answers.</p>

<p>Appeal, No. 283, Oct. T., 1891, by plaintiffs, Samuel Dickson and wife, from judgment of O. P. No. 1, Allegheny Co., June- T., 1890, No. 800, on verdict for defendants, McGraw Bros.</p> <p>Ejectment. The facts appear by the opinion of the court.</p> <p>Plaintiff offered to prove by Candis M. Dickson and Henry Dickson, her husband, that the sheriff’s sale under which defendants claimed title was fraudulent. Objected to and excluded. [1, 6]</p> <p>Verdict for defendant and judgment. Plaintiff appealed.</p> <p>Errors assigned were, among others, (1, 6) rulings on evidence, quoting bills of exception; (2-5) excluding declarations of the Dicksons and John A. McGraw as to the fraud.</p>

<p>Appeal, No. 91, Jan. T., 1891, by-plaintiff, Marietta Heller, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1888, No. 551, for defendant, on demurrer.</p> <p>Assumpsit on policy of fire insurance insuring plaintiff’s interest as lessee from damages by fire.</p> <p>Plaintiff’s original statement set out lease of premises; insurance by defendant, indemnifying plaintiff for loss by reason of payment of rent during such times as the building may be untenantable by reason of fire; the destruction of the premises by fire; [negotiations with defendant, by letter, to consent to permit the landlord to rebuild; refusal by defendant, by letter; agreement between plaintiff and landlord for rebuilding, saving all rights, especially of eviction or surrender; payment by de-fendant of $3,096.50, rent up to July 24, 1888, date of entry of landlord to rebuild;} payment of rent by plaintiff during time insured by defendant; by means whereof defendant became liable to pay plaintiff $3,000. The lease, with receipt for payment indorsed, and the letters referred to, were made part of the statement.</p> <p>An affidavit of defence alleged in substance a fraudulent agreement between plaintiff, the landlord and insurers of the landlord to shift the burden of insurance from the landlord’s insurers to defendant. Judgment for want of sufficient affidavit of defence was reversed and a procedendo 'awarded: 133 Pa. 152.</p> <p>After remittitur, plaintiff took a rule to file an amended statement, similar to the original, except that it omitted the parts in brackets and claimed $6,000. This - rule was discharged. [1} i</p> <p>A rule to plead having been entered, defendant demurred to the original statement, because (1) statement showed payment by defendant to date of re-entry by landlord, when liability for rent ceased; (2) subsequent payment of rent was voluntary and not covered by defendant’s policy; (3) agreement to pajr rent by plaintiff would not continue defendant’s liability. The court entered judgment for defendant on demurrer. [2]</p> <p>Errors assigned were (1) discharge of rule to amend; (2) entry of judgment for defendant on demurrer; (3) failure to enter judgment for plaintiff on demurrer; (4) discharge of rule to amend, setting forth proposed amendment.</p>

<p>Appeal, No. 225, Jan. T., 1892, by plaintiff, Mary Ann Rosenagie, from judgment of C. P. Lackawanna Co., June T., 1887, No. 281, on verdict for defendant, John Handley.</p> <p>Trespass to recover money invested through alleged fraudulent representations of defendant.</p> <p>The evidence on the trial before Connolly, J., was to the following effect: Defendant was counsel for plaintiff in an action on an insurance policy, but before the claim was collected defendant was elected additional law judge of Luzerne county, and the suit was concluded by J. H. Campbell. When the money was paid plaintiff gave it to defendant to invest in stock of the Wyoming Mfg. Co., of which he was president. Plaintiff alleged that she was induced to make the investment by fraudulent representations of defendant, which representations were denied by defendant.</p> <p>Defendant, called as if upon cross-examination, was asked:</p> <p>“ Q. At the time this suit was brought was the company in a solvent condition?” Objected to; objection sustained and exception. [10]</p> <p>Defendant offered in evidence the power of attorney from Mrs. Rosenagie to J. H. Campbell, which had already been identified and read; also agreement between plaintiff and defendant for collection of insurance money. Objected to as immaterial and irrelevant; objection overruled, evidence admitted and exceptions. [11, 12]</p> <p>The court charged in part as follows:</p> <p>“ Before Judge Handley was able to enforce the collection of that claim according to due process of law, the people of this county saw fit to elevate him to the honorable and dignified position of additional law judge of Luzerne county, and subsequently, through the mutations of politics and time, he necessarily, by the seniority of his commission, became the president judge of Lackawanna county, which was cut off from the parent county of Luzerne. [1] ....</p> <p>“ Mrs. Rosenagle alleges that on this 18th day of December, she being desirous of investing her money, that Judge Handley requested her to put it either in United States bonds, in bonds of the county of Lackawanna, in bank stock, or invest it in the stock of the Wyoming Manufacturing Co. [2] ....</p> <p>“ Here is a man, the defendant in this case, who has held a high and honorable position in this community. He is charged with being the perpetrator of a fraud. He comes into this court, and upon his solemn oath declares the facts are not as stated by the plaintiff. In his statements and in his denials he is highly corroborated. [3] ....</p> <p>“ It is for you to say, by your verdict, whether or not, in the transactions and negotiations that took place between Judge Handley and this lady, in the settlement of her insurance claim with him, she was practised upon by him, or’ whether or not Judge Handley’s actions and conduct have been honorable and honest throughout.” [4] ....</p> <p>“This lady’s memory is defective in reference to several facts. In the first place, when questioned as to whether or not she had employed J. H. Campbell as her attorney, she denied it. We say to you now, as a matter of law, and we take judicial notice of it, that at the time this case was settled, Judge Handley was not, and could not be attorney-at-law for this lady; whether he was attorney-in-fact, we do not propose to say ; but as attorney-at-law he Gould not be, under the laws of this commonwealth, and under the constitution of this state, because no judge in commission can be attorney-at-law for any litigant on the one side or the other of any case. • He might, however, have been her attorney-in-fact for the purpose of a settlement of this claim. [5] ....</p> <p>“ Outside of the matters upon which we have been called upon to charge you specifically, which we will do further on, we say to you, gentlemen of the jury, as a matter of law, if on the 18th day of December, 1883, you find that this company was an insolvent company, and that Judge Handley, through fraud and misrepresentation, and by reason of the confidential relations which existed between himself and this lady, induced her to part with her three thousand dollars, and invest it in this concern, and he knew this company was insolvent and unable to pay dividends, or that it was liable to become insolvent immediately thereafter, its condition at the time being such as to warrant him in that belief, then this plaintiff is entitled to recover the sum of three thousand dollars, with interest from the 18th of December, 1883, less the amount of dividends paid by him to her thereupon. But, if you find, from the evidence in this case, that, on the 18th day of December, 1883, this company was solvent, and that Judge Handley had every reason to believe that it was solvent, and that he was in that company in good faith, and in good faith recommended it to this lady under her own testimony, under his testimony, and under the testimony of Mr. Evans, that she went into this with her eyes wide open, and that Judge Handley told her, after having handed her a prospectus and told her to think it over, over night, to come back and let him know the next morning, which Mi-. Evans testifies she did, and that he did that in good faith, then there can be no recovery. [6]</p> <p>“ There is a principle underlying this case, gentlemen of the jury, which, perhaps, is more precious to a man than bonds and gold; it is a man’s reputation. In this case the reputation of the defendant is at stake. [7]</p> <p>“ But it makes no difference to you nor to me, gentlemen of the jury, how much a man’s reputation is at stake. If you find that a fraud has been committed, or a fraud has been practiced, then both you and I are bound, under our oaths, to say so. But you must not presume that a fraud has been committed; you must not presume it; you must find it, and you must, under your oaths, find it from the evidence. Fraud is never to be presumed ; it is always to be proven.” [8]</p> <p>Plaintiff’s point was as follows, among others:</p> <p>“ 4. If the jury believe that the defendant undertook to act as the attorney and legal adviser of the plaintiff, and that the plaintiff relied upon the representations made to her by defendant as such, to the damage of the plaintiff, she is entitled to recover, though the jury should find that the defendant was not a practicing attorney at the time. Answer: If you find from the evidence that the defendant intended to practice a fraud on the plaintiff, then this point is affirmed.” [9]</p> <p>Verdict and judgment for defendant. Plaintiff appealed. Errors assigned were (1-9) instructions, quoting them; (10-12) rulings on evidence, quoting bills of exceptions.</p>

<p> Landlord and tenant—Jurisdiction of aldermen and city recorder in proceedings to recover possession—Act, 1772. </p> <p>An alderman and city recorder have jurisdiction as justices of the peace under the act of March 21, 1772, of proceedings by landlord to obtain possession of demised premises.</p> <p> Certiorari to magistrate's judgment—Review—Depositions—Practice. </p> <p>In reviewing, upon certiorari, a judgment of a magistrate, on proceedings to obtain possession of demised premises, only the regularity of the proceedings as it appears by the record can be examined. The court cannot consider the terms of the lease, not part of the record.</p> <p>It is improper practice to allow depositions to be taken in the common pleas to be read upon a hearing of exceptions on certiorari from the judgment of a magistrate.</p>

<p>Appeal, No. 239, Jan. T., 1892, by defendant, Geo. DeB. Keim, receiver of the P. & R. 0. & I. R. R. Co., from judgment of C. P. Northumberland Co., Sept. T., 1885, No. 478, on verdict for plaintiff, Barbara E. Haley.</p> <p>Trespass for damages for death of plaintiff’s husband while working in defendant’s colliery by reason of alleged negligence of defendant.</p> <p>On the trial before Rockefeller, P. J., the evidence was to the following effect: Greenback colliery, in which plaintiff’s husband lost his life, had been sold to defendant, who took possession on Aug. 20, 1884, the day of the accident. Luther, chief mining engineer, came to take possession; with him was Booth, division superintendent. One White had been mine boss for the previous owner. The adjoining mine of Buck Ridge, owned by defendant, was found to be on fire, and all the surface openings were' closed so as to smother the fire. Booth directed White to send men down in the Greenback colliery to drive a hole through the pillar separating the two collieries for the purpose of turning a stream of water through the Greenback into Buck Ridge to flood the latter colliery. White sent plaintiff’s husband, and others, who lost their lives by inhaling gas which escaped from the Buck Ridge mine into the Greenback mine through openings which had been negligently left unclosed in the Greenback mine. Further facts appear by the opinion of the Supreme Court.</p> <p>The court charged the jury in part as follows :</p> <p>“ I have come to the conclusion, gentlemen of the jury, to hold, and so instruct you, that William Booth, the division superintendent, was not a fellow servant and that his act was binding upon his principal, the company, or party defendant in this case; and if the injury or accident, that caused the death of Patrick Haley, was in consequence of the negligence of William Booth, the division superintendent, then the defendant would be liable; and in that case your verdict should be in favor of the plaintiff, and I will presently call your attention to the rule that is to govern you in fixing the amount of damages in case you should find in favor of the plaintiff. [8] ....</p> <p>“ Now you will determine whether or not it was negligence on the part of Mr. Booth, the division superintendent, in sending Patrick Haley down into the mine, knowing that the fire was raging and that gases were being generated and liable to come through from the Buck Ridge colliery into the Greenback colliery at the place where Patrick Haley was sent to do work. You must, of course, take into consideration all the facts and circumstances in evidence in relation to this matter. That there were three holes from the Buck Ridge colliery into the Greenback colliery at the line pillar, as it was called by the witnesses, there is no doubt. It has been proven by several witnesses and is undisputed, and some of the witnesses testified that Mr. Booth knew of these holes—that there were such communications between the two mines—that he had been there on former occasions and he seems to have known all about it, and I leave it to you to determine from all the evidence in the case whether he was guilty of negligence whilst he was so acting as the agent, or division superintendent, of the defendant, at the defendant’s two collieries. [9] ....</p> <p>“ It is also alleged on the part of the defendant, that any air or gases that might have gotten in or through from the Buck Ridge workings into the first lift gangway were also stopped off and could not have gotten into the air way that was used to carry fresh air down into the mines at the place where Patrick Haley lost his life. And that is a question for you to determine, whether that is so or not. You heard the testimony in regard to the door that it is alleged was placed in that first lift gangway for the purpose of turning the air, or preventing the air and gases from going through into the mines at the place where they were being worked. You have the testimony, in regard to that, of Mr. Schreffler and Mr. Jefferson, as to their having closed that door on the 21st of August, at the time they were making an effort to get the men, who had been suffocated, up out of the mine. [10] ....</p> <p>“Now this door referred to by Mr. Shreffler and others was not closed, it was not tight, and doubtless if you believe their evidence, the gases came through that door. Who made that door or how it came to be there is not in evidence, but you have the fact that it was there, if you believe the testimony of Mr. Shreffler and Mr. Johnson, and you will determine whether it is not plain that if it was there it was put there by the defendant company. [11] ....</p> <p>“Now another very important question in this case is as to whether the injury, that is, the loss of life of the plaintiff’s husband, was in consequence of the negligence of the mining boss. That is one of the principal contentions in this case. The Greenback colliery had been in possession of and worked by Mr. Toudy for some time; several years, perhaps, prior to the 20th of August, 1884, the time of the accident. He had in his employment one Andrew G. White, as inside foreman, or mine boss. Mr. White had been engaged in mining, as he states, nearly all his life and had been underground mining boss at the Greenback colliery several years just previous to the taking possession by the defendant. He was Mr. Toudy’s mine boss up to the time that the defendant, the company, took possession, on the afternoon of the 20th of August. About that there seems to be no dispute. Then Mr. Booth, the division superintendent, came there on the premises at the Greenback colliery for the purpose of taking possession; o,r rather Mr. Luther. At least the agents of the defendant came there on that afternoon for the purpose of taking possession between two and three o’clock. Now the plaintiff alleges that Mr. White did not become, at that time, the mining boss of the defendant, but that he was employed by the defendant and went to work for the defendant shortly afterwards, and the contention is, on the part of the plaintiff, that Mr. White was not acting in the capacity of mining boss on the afternoon that Patrick Haley and the others were sent down in the mines to do the work that I have referred to. That is a question that I leave to you to determine from the evidence in the case. You will recollect the testimony of several witnesses, and I need not refer to them by name, indeed Mr. White is one of them who stated that in the afternoon of the 20th of August, Mr. Booth came there,' and after talking over matters, authorized Mr. White, who the defendant claims from that time became the mining boss or underground foreman, at that time, to employ hands for the purpose of going down into the second lift at the face for the purpose of doing the work. [12] ....</p> <p>“ Now I leave it to you to determine for yourselves from the evidence in the case, whether, at the time of the accident, or at the time Patrick Haley was employed to go down into the mines, Mr. Andrew G. White was the mining boss or underground foreman in that mine.” [13] ....</p> <p>Plaintiff’s points were as follows:</p> <p>“ 1. If the jury believe that Patrick Haley was killed in the course of his employment by or through the negligence of the defendant, and that such negligence was the direct and proximate cause of his death, the defendant is responsible, whether such employment was hazardous or not. Answer : This point is affirmed. That is, when I say affirmed I mean I charge you as requested.” [14]</p> <p>“ 2. If the jury believe that the defendant ‘ voluntarily subjected ’ Patrick Haley, his servant, to dangers, such as in good faith defendant ought to have provided against, defendant is liable for the accident which caused his death.” Affirmed. [15]</p> <p>“ 3. It was the duty of defendant not to subject Patrick Haley, its servant, to extraordinary dangers which the defendant ought to have foreseen and prevented.” Affirmed. [16]</p> <p>“ 4. If the jury find that the defendants were negligent in this, that they did not notify Patrick Haley that the shafts and openings of the Buck Ridge colliery were closed and that the poisonous and deadly vapors and gases engendered by the fire raging therein were liable to pass into the workings of the Greenback mines through holes and openings existing between the two mines and of which the defendants had knowledge, then the defendants failed in their duty to the said Patrick Haley and the plaintiff is entitled to recover in this case. Answer: This point is affirmed, but I refer the jury to the evidence and what 1 have said in the general charge in relation as to whether the injury was occasioned by the negligence of the defendant; that is, by the division superintendent acting as agent of the defendant in this branch of the business; and whether the plaintiff is entitled to recover or not must depend on the other questions of fact which I have submitted to the jury.” [17]</p> <p>“ 5. It is for the jury to say whether Andrew G. White was the inside foreman for the defendants at the time of the accident.” Affirmed. [18]</p> <p>“ 6. It was the duty of the defendants to provide for Patrick Haley ‘a reasonably safe place in which to work.’ ‘ That this was a direct personal and absolute obligation ’ which the defendant owed the said Plaley, and if the defendant delegated this duty to William Booth and Andrew G. White, or either of them, then the person or persons to whom such duty was delegated stood in the place of the defendant, and the defendant is responsible for his or their acts, and if the said Booth or White performed their duty carelessly or negligently it was the negligence of the defendant. Answer: This point is affirmed, except that I charge you that if Andrew G. White was the duly appointed mining boss, and there being no evidence of his incompeteney, the defendant is not responsible for his acts, and if he performed his duty carelessly or negligently it was not the negligence of the defendant.” [19]</p> <p>“ 7. Defendant was in duty bound to provide a reasonably safe place, appliance and machinery around about which deceased was employed to work at the time he was injured; and if defendant voluntarily subjected deceased to dangers which defendant ought to have provided against, and the death of the deceased on August 20, 1884, was a result of a want of a proper provision against such danger, the defendant may be held liable in this action.” Affirmed. [20]</p> <p>“ 8. Even though the jury should find that Andrew G. White was the inside foreman, yet if they believe that defendant knew of the openings connecting the two mines, and that said White had no knowledge of them or of the closing up of the shafts and other surface openings to the Buck Ridge mines, then it is for the jury to say whether the defendant was not guilty of negligence in failing to inform said White of the existence of the said openings connecting said mines and of the fact that the outlets to the Buck Ridge mines had been closed up.” Affirmed. [21]</p> <p>“ 9. Even if the jury believe that Andrew G. White knew of the communications existing between the workings of the two mines, yet if they find that defendant failed to inform him of the fact that the outlets to the Buck Ridge mines had been closed up, it is for the jury to say whether the defendant was not guilty of negligence in failing so to do.” Affirmed. [22]</p> <p>“ 10. Even though the jury believe that Andrew G. White was inside foreman for the defendant at the time of the accident and was negligent in the performance of his duties, yet if they find that the defendant was also negligent and that defendant’s negligence concurred, with that of White in causing the accident, the defendant would be liable and the plaintiff would be entitled to recover in this action.” Affirmed. [23] Defendant’s points were as follows, among others :</p> <p>“ 1. That under all the evidence in this case the plaintiff cannot recover and the verdict should be in favor of the defendant. Answer: I do not answer this point as requested. Whether the plaintiff is entitled to recover or not must depend on how the jury find upon the questions of fact submitted to them under the evidence in the case.” [24]</p> <p>“ 4. The evidence of plaintiff and defendant shows that the inside foreman or mine boss, their assistants and the men selected by them to work in Greenback colliery on the 20th day of August, 1884, including the plaintiff’s husband, were all engaged in the same common .work and performed duties and services to effect the same general object, and each had his branch of work to perform, but, being engaged in the same common business, were servants or fellow-workmen, seeking to reach the same common object and accomplish one common purpose, and, if Patrick Haley, the plaintiff’s husband, lost his life through the negligence of any one or more of those persons so employed and engaged, he and they were fellow servants, and the plaintiff cannot recover for any damages sustained by reason of such loss of life of the deceased, because the deceased, when he entered the service of the defendant took on himself all the ordinary risks of the employment in which he engaged, and injuries resulting from the negligent acts of the inside foreman or other fellow-workmen in the general course of his employment are within the ordinary risks for which the employer, the defendant, is not liable. Answer: This point is correct provided you find Andrew G. White was the mining boss of the defendants at the time the plaintiff’s husband was sent into the mine to work.” [25]</p> <p>'Verdict and judgment for plaintiff for $4,000. Defendant appealed.</p> <p>Errors assigned were (1-7) rulings on evidence as to character of mines, etc., not considered; and (8-25) instructions, quoting them as above.</p>

<p>Appeal, No. 164, July T., 1891, by defendant, from decree of C. P. No. 4, Phila. Co., March T., 1891,' No. 841, awarding injunction.</p> <p>Bill in equity to restrain laying of street railway tracks.</p> <p>The bill, after reciting statutes and ordinances incorporating defendant company and authorizing the location of its railway, averred that defendant company threatened and intended to extend its line along Germantown Avenue, as it claimed it had authority to do, as stated in the opinion of the Supreme Court. The bill averred that defendant had no authority to so lay its tracks, and that it had not obtained the ‘ consent of councils, and prayed for an injunction (1) to restrain the laying of the proposed tracks and (2) general relief. The answer asserted authority to lay the tracks and that consent of councils was not required. It also averred that the board of surveys and regulations had been required by mandamus from C. P. No. 1, Sept. T., 1890, No. 487, to approve the plan proposed by defendant. Germantown avenue leaves the line of Tenth street at Indiana street and crosses Eleventh street in the next square above.</p> <p>The court granted the injunction, in the following opinion, after reviewing the facts, by Arnold, J.:</p> <p>“ It is well to observe here that these ordinances [of 1860 and 1869, recited in opinion of Supreme Court] to prevent the removal of cobblestones, have no restraining force and do not apply to the streets in which a railway company is authorized to lay its tracks by its charter (Philadelphia v. Empire Passenger By. Co., 3 Brewster, 547,1869), and that, while constr icting a railway in a street is not a nuisance, when the cha ter authorizes the occupation of the streets (Faust v. Second and Third Streets P. By. Co., 3 Phila. 164, 1858), it is a nuisance per se when it is constructed without' authority (Attorney-General v. Lombard and South Street P. By. Co., 1 W. N. 489, 1875). The graded and paved streets of the city are artificial roads. The city is the owner of them and the paving materials in them, so far as they may be said to have an owner, and the consent of the city must be obtained by passenger railway companies when their charters require them to do so (Commonwealth v. Central Passenger By. Co., 52 Pa. 506, 1866), but a street passenger railway company, incorporated prior to 1874, with nothing in its charter making the consent of the city councils a prerequisite to the exercise of its powers in the extension of its road, may make such extension, without the ■consent of councils, neither the constitutional amendment of 1857, the constitution of 1874, nor the act of May 23, 1878, P. L. Ill, repealing the unrestricted right of the company to lay its tracks in the streets named in its charter (Williams-port Passenger By. Co. v. Williamsport, 120 Pa. 1, 1888).</p> <p>“ This statement of the facts and law leads to these inquiries: Has the defendant the right to occupy Germantown avenue for an extension of'its road, or as a connection between its tracks from Tenth to Eleventh streets—-and is it under an obligation to obtain the consent of the city councils to the occupation of the public streets hereafter ?</p> <p>“ Germantown avenue, at its junction with Tenth street, which at a point about two hundred and fifty feet north of Cumberland street runs almost due north, occupies a part of the ground which would be taken for Tenth street, were it opened. But as the necessity for opening Tenth street was avoided by the existence of Germantown road in its place, the legislature, by the act of April 6, 1848, P. L. 359, vacated Tenth street, as the same is laid down in the plan of the city of Philadelphia, from its intersection with the Germantown road northward to Indiana street, running along the edge of the said Germantown road. Germantown avenue or road was formerly a part of the Germantown and Perkiomen turnpike road. At the time the defendant’s charter was obtained (1858) and the date of its supplements (1863 and 1865) Germantown road was a turnpike owned by a company having a right to demand tolls for using it. It was not freed from tolls until 1869, when it became a public street, subject to municipal control. When the defendant company obtained its last grant of a right to extend its road in 1865, we may presume that the legislation conferring the power to extend its road was draughted by its own agents, for its own benefit, and with a view to give it further privileges without any expense which might be avoided. Any attempt to occupy Germantown road in 1865 would have been met with a demand by the turnpike company for compensation; for, while the legislature might authorize a railway company to occupy a turnpike road, it would have been subject to the constitutional terms of making compensation. Hence the grant was of authority ‘ to extend the road northwardly on Tenth and Eleventh streets, between Montgomery street and the Germantown road, with the right to connect the same on any street between these two points, subject to all the limitations and restrictions, and with all the privileges granted to the said company under their act of incorporation.’ The right was to be exercised between German-town road and Montgomery street.</p> <p>“ This word ‘ between ’ has different meanings, according to the use to which it is applied. In measuring space it excludes the objects which bound it. Webster describes it in this application as ‘ the intermediate space of, without regard to distance,’ and gives, as an instance, the phrase, ‘ New York is between Boston and Philadelphia.’ So Pennsylvania is between New Jersey and Ohio, and the Delaware river is between New Jersey and Pennsylvania, but neither is part of the other. In Revere v. Leonard, 1 Mass. 91, there was a grant of a right to convey water through any dams, gates, etc., between a mill and a dam, and it was contended if the grant could not be otherwise satisfied, it would be reasonable and equitable to construe the word between so as to include the dam, but the court said that the words of the deed were necessarily exclusive of the termini, and that it was against all legal principles to go out of the deed to inquire into the meaning of those and like words, there being no ambiguity in them. In case of State v. Godfrey, 12 Maine, 861, an act of the legislature authorized the construction of a dam between the foot of Rose’s or Treat’s Falls and McMahon’s Falls, and it was contended that the words of the charter included McMahon’s Falls, but the court said, ‘that which lies between a given place and another is quite distinct from the place given on either side. Perhaps no word in our language has a more precise and definite meaning than between. It indicates an intermediate space, which excludes, and cannot include that to which it refers. If land is granted between one township and another, both are excluded from the grant. If land is conveyed lying between lots number one and number three, it could not be pretended that either of those lots passed by the deed.’ The word ‘ between ’ in the charter of a railroad company confines the road to the point from which it is authorized to be constructed. It cannot be carried beyond that point (Plymouth R. R. Co. v. Colwell, 89 Pa. 837, 1861). It has the same effect as a combination of the words ‘ from ’ and ‘ to,’ as in the case of the Commonwealth v. Erie & Northeast R. R. Co., 27 Pa. 839, in which they were held to prevent the company from constructing its. road into the place from which it was to be built. The same interpretation on similar words was given in the case of Rex v. Inhabitants of Upton-on-Severn, 6 C. & P. 133. A like rule applies in proceedings to lay out roads, in which it is necessary for the viewers to follow the petition and designate the termini of the road as therein fixed. ‘ To go beyond them,’ said the court, ‘ is to exceed the authority. ... If they can go beyond one terminus, they may disregard the other: ’ Road in Lower Merion, 58 Pa. 66, 1868. It has been held that the right to construct a railroad across a street does not give the right to construct it diagonally across, for that would be along the street: Pennsylvania R. R. Co.’s Appeal, 93 Pa. 150, 1880. Other cases show how strict is the construction put on this word 1 between.’ It has been said that it must be the most direct line and straight as it is possible to run it: Leigh v. Hind, 9 B. & C. 774; Mouflet v. Cole, 42 L. J. Ex. 8; Brown v. Brown, 6 Watts, 54; Beale v. Patterson, 3 W. & S. 379.</p> <p>“ It is contended on behalf of the defendant that it can go upon Germantown avenue to make a connection between its Tenth and Eleventh street tracks. Its charter authorizes it to connect on any street between two points, that is, between Montgomery street and Germantown road. Now it is undoubtedly true that the words street, road and avenue are synonymous, and are included in the more general designation of highway; wherefore the fact that Germantown avenue was never called a street, would Hot be of much importance, if it had been a public highway in 1865; but as all charters are to be construed as of the date of their enactment (Commonwealth v. Erie & Northeast R. R. Co., 27 Pa. 339), when we consider that Germantown road was a turnpike road in 1865, that the legislature could not authorize the defendant to enter upon and lay its tracks on that turnpike without compensation, and that the defendant was looking for a public street or streets between Montgomery street and Germantown road, on which it could connect its road without further expense than the cost of construction, it is not giving the charter too strict an interpretation to say that what the defendant wanted, and what the legislature gave it, was a public street without cost or delay, and not a turnpike road for which it would have been compelled to pay damages. That Germantown avenue has since become a public street, does not bring it within the view of the legislature at the time of making the grant in 1865, when it was not a public street. Besides, a street cannot be between itself and another street or point.</p> <p>“ The order of the Court of Common Pleas, No. 1, upon the board of supervisors, to approve the plan of the defendant for laying its tracks on Germantown avenue, settled no rights. It was merely an order to approve the plan of constructing the road, the board having no power to determine whether the charter of the defendant gave it the right to occupy the avenue or not.</p> <p>“ On the other point we are of opinion that the defendant is bound by its agreement with the city, made in compliance with the ordiance of April 16, 1858, to obtain the consent of the city councils to all future extensions of its road, as required by the ordinances of February 28, 1860, and May 7, 1869. This is in accordance, also, with the spirit of the constitution of 1874, which provides that ‘ no street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of its local authorities.’ The power to dispose of rights in the few remaining streets has been taken away from the legislature, and is now vested in the municipal authorities. Independent of this, a correct construction of the charter of the defendant, and its supplements, requires the defendant to have the municipal consent before occupying any more of the public streets. When a charter requires the consent of the city councils, and a supplement authorizes the extension of its road without consent, a second supplement, which is silent as to consent, is to be taken subject to the requirement of the charter that consent shall be obtained: City of Philadelphia v. Lombard & South Street Pass. Ry. Co., 4 Brewster, 14, 1866. This decision was made on a state of facts almost identical with those of the present case.”</p> <p>Errors assigned were action of court in holding (1) appellant not authorized to lay the track on Germantown avenue; and (2) that consent of council had not been given.</p>

Appeal, No. 163, July T., 1891, by defendant, from decree of C. P. No. 4, of Pbila. Co., March T., 1891, No. 407, awarding injunction at suit of Germantown Pass. Ry. Co. and Peoples Pass. Ry. Co. Bill in equity to restrain laying of street railway tracks.

<p> Promissory notes—Payment—Forged note. </p> <p>An attempted renewal of a promissory note by giving in lieu of it a forged note, is not a payment of the first note which will discharge the liability of the maker.</p> <p> Evidence—Handwriting. </p> <p>Where a witness has testified that he saw a signature of the defendant, which the defendant admitted to be genuine, he will be permitted to give his opinion as to the genuineness of the signature of the defendant upon a promissory note in suit.</p> <p> .Forged note—Admissions—Fstoppel. </p> <p>Where a person is shown a promissory note held by a bank, and admits that his signature as maker thereof is genuine, although he knows at the time that it is a forgery, he will not be estopped in a suit upon the note from setting up the fact that the note was forged.</p>

<p> Mechanics' lien—Apportionment—Prospective street. </p> <p>An apportioned mechanics’ lien for material may be filed against houses in the same block separated by a prospective street, which was not dedicated at the time the contract was entered into, and over which the public had then acquired no right.</p> <p> Amendment to lien to explain street. </p> <p>An amendment to a mechanics’ lion should be allowed, without prejudice to intervening rights, to show that an avenue named as separating the houses of an apportioned lien, was not a public street at the time the contract was entered into.</p>

<p> Eminent domain—Railroads—Leasehold—Contract—Damages. </p> <p>Where in a proceeding to recover damages for leasehold premises appropriated by a railroad company under the right of eminent domain, it appears that plaintiffs were under a contract to remove daily from a city gas works a large quantity of tar, and that the premises in question, which they leased from the city, enabled them to receive the tar without cost and to manufacture it without transporting it to and from distant points, it is proper to admit evidence that, after the land was taken, it became necessary to carry the tar to a place of distillation by a boat specially constructed; that it was necessary to erect temporary works for the distillation of the tar when received; and that it was necessary to haul over inaccessible roads the barrels needed to hold the tar and its products.</p> <p> Condemnation proceedings—Parties—Practice. </p> <p>In condemnation proceedings, objection that parties are improperly joined as plaintiffs should be made when the petition for the appointment for viewers is presented, or, at the very latest, when the issue is framed by the court.</p> <p>It is no objection to the regularity of condemnation proceedings that the owner of the leasehold condemned, has joined his partners with him as parties plaintiff.</p>

<p> Exemption from taxation—Affidavit of defence. </p> <p>The Supreme Court will not reverse the action of tbe court below in refusing to enter judgment for want of a sufficient affidavit of defence to a scire facias sur municipal lien for construction of sewer, where tbe affidavit alleges facts to bring the defendant within the provisions of the act of May 14, 1874, P. L. 158, exempting from taxation places of religious worship and associations and institutions of learning or charity, founded, endowed and maintained by public or private charity, although the court may not be satisfied that judgment should not have been entered for want of a sufficient affidavit of defence. The case will be allowed to go to a jury where the facts will be more fully developed.</p>

Appeal, No. 18, May. T., 1891, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1890, No. 351, on verdict for plaintiff, Charles S. Segelbaum. Assumpsit to recover assessment for street-paving. The facts appear by the opinion of the Supreme Court.

Appeal, No. 215, Jan. T., 1892, by defendant, from decree of Cr P. Berks Co., Equity Docket, 1890, No. 518, granting injunction on bill filed by Jerome L. Boyer. Held: as the settled law of Pennsylvania, that ‘ when a street is once opened and paved, and thus assimilated with the rest of the city and made part of it, all the particular benefits to the locality derived from the improvements have been received and enjoyed.

<p>Arbitration—Legal arbitrator—Local act of April 6, 1870.</p> <p>The local act of April 6, 1870, P. L. 948, providing for the voluntary choice of a legal arbitrator, conferring upon such arbitrator the powers of judges of courts of record in conducting trials, and providing for review of judgment by exceptions, etc., but no appeal, is not a part of the compulsory arbitration procedure under the act of 1836, and cannot be read into that act so as to give a right of appeal.</p> <p> Constitutional law—Bight of appeal. </p> <p>The local act of April 6, 1870, P. L. 948, providing a special voluntary mode of procedure before a single legal arbitrator, learned in the law, without right of appeal, is constitutional; but the supplement of March 25, 1873, P. L. 396, substituting in lieu of the voluntary a compulsory mode of procedure, is unconstitutional.</p>

Appeal, No. 48, July T., 1891, by defendant, W. U. Hensel, from judgment of C. P. McKean Co., Dec. T., 1883, No. 247, on verdict for plaintiff, B. J. Wilmoth. Assumpsit for reward for conviction of violation of election laws.

Appeal, No. 271, Jan. T., 1892, by-plaintiff, from decree of C. P. No. 2, Phila. Co., refusing judgment for want of a sufficient affidavit of defence. Rule for judgment for want of a sufficient affidavit of defence, in assumpsit for damages for delay in delivering order by telegraph. The facts appear by the opinion of the Supreme Court. The messages of March 17, contained final offer of price and acceptance.

<p>Appeal, No. 88, Jan. T., 1892, by-Edwin S. Mendenhall et al., trustees of Caroline Hampton et al., under the will of John Sharpless, deceased, from decree of O. C. Chester Co., confirming report of auditor on distribution.</p> <p>Claim to receive bequest free from trust.</p> <p>The auditor on distribution, R. T. Cornwell, found among other things that decedent died leaving a will, wherein, after specific devises and bequests, he directed the residue of his estate to be equally divided among his nephews and nieces. He then provided as follows: “ I hereby direct that any part or share of my estate, coming to my niece, Caroline Hampton, under any provision of this, my will, shall he held in trust by my said executors, they to invest the same at interest, and pay over the said interest to the said Caroline Hampton during her life; and at her decease to pay over the principal to her daughter, Bessie Hampton, to whom I give the same.”</p> <p>The auditor further found, that testator was a member of the Society of Friends ; that Caroline Hampton, at the date of the will, and still, was a married woman; that her husband was the keeper of a licensed restaurant and a temperate, industrious, thrifty and worthy citizen. Caroline Hampton was the only married niece whose husband was living, and she was the only one who received less than an absolute estate. Another niece was a widow with several unmarried daughters, and one nephew had a daughter about Bessie Hampton’s age. None of these daughters were mentioned in the will. Bessie Hampton assigned her interest to her mother and the mother claimed the share absolutely. The auditor, on the authority of Yerkes’s Ap., 2 Ches. Co. R. 410, so awarded it.</p> <p>The executors, as trustees, filed exceptions which were dismissed by the court, Waddell, P. J. The trustees then appealed.</p> <p>Errors assigned were (1-5) dismissal of exceptions to auditor’s report, awarding fund absolutely, quoting exceptions.</p>

Appeal, No. 98, July T., 1891, by a judgment creditor, B. F. Lukens, from decree of C. P. Montgomery Co., Oct. T., 1888, No. 70, distributing proceeds of sheriff’s sale in suit of Potter v. Langstrath. Claim for payment of judgment out of proceeds of sheriff’s sale.

Appeal, No. 155, July. T., 1891, by plaintiff, George D. Krumbhaar, from decree of C. P. No. 1, Phila.

<p> Judgment note—Restriction on use—Antecedent debt. </p> <p>The payee of an accommodation note having received it with restriction that he use it to obtain a loan, cannot pledge it for an antecedent debt.</p> <p>It seems that an accommodation judgment note under seal, when given without restriction, may be pledged to secure an antecedent debt of the person for whose accommodation the note was given.</p>

<p>Appeal, No. 397, Jan. T., 1892, by defendant, from judgment of C. P. Erie Co., Feb. T., 1889, No. 153, on verdict for plaintiff, Sarah Baker and A. H. Baker, her husband, in right of- wife.</p> <p>Trespass, in right of wife, plaintiff, for personal injuries through defendant’s negligence in constructing and maintaining a water pipe in the highway. A release to claim for damages by the husband was filed.</p> <p>The evidence, on the trial before Gunnison, P. J., was to the effect that defendant borough had laid a water pipe along a public road, with a stop-cock to let out the surplus water ; and as plaintiff and her husband drove past, the horses took fright at a sudden spurt of the water and ran away, causing the injury.</p> <p>A witness for plaintiff was allowed to state that he put the pipe in for the borough at the direction of the water committee of councils, under objection that it must be shown by the records of councils. [9, 10]</p> <p>Plaintiff also gave evidence, under objection, to show that the water, for weeks before the accident, would come from the pipe, that it was calculated to frighten well-broken and roadworthy horses, and that it did frighten horses a number of times .before the accident. [14-18]</p> <p>Plaintiff’s witness was also allowed to state, that the banks were quite high at this point, under objection that the declaration did not allege such condition of the highway. [19]</p> <p>Plaintiff testified, under objection, that her horse was very gentle. [25]</p> <p>Plaintiff gave evidence as to the value of her services, under objection that a mere release by the husband did not give her aright to recover for loss of earning power. [11-13]</p> <p>Defendant gave evidence to show that plaintiff’s husband was slightly crippled in one arm and that one of the horses had run away before; and that the stop-cock was properly constructed.</p> <p>Defendant, on cross-examination of the street superintendent, asked in substance if the witness had not watched this place and visited it frequently to see that it was all right. Objected to as not cross-examination and excluded. [26-28]</p> <p>A witness was called by plaintiff in rebuttal who testified, under objection that it was not rebuttal, that the stop-cock was out of order. [29]</p> <p>The court charged the jury in part as follows :</p> <p>[“ Now it is the duty of a person or a corporation placing anything in a public highway which is calculated to or may frighten teams, to guard it in such a way as to prevent accidents of that kind from happening.] [30] [In fact no person and no corporation has any right to place in the highway a thing which is calculated to frighten ordinarily well-broken and quiet animals, without guarding it in such a way.] [31] [And in placing this pipe in the highway as it was placed by the borough of North East, although it may have had no tendency and not have been calculated to frighten well-broken and quiet horses when operated in a proper manner and when in a good state of repair, it is the duty of a person, and was the duty of the defendant in this ease in placing that pipe in that highway, to use care in seeing that it was maintained in a proper condition and in a proper state of repair and was operated properly.] [32] ....</p> <p>[“ But the plaintiff claims, and it is the theory of the counsel for the plaintiff, that—they having proven as they have, if you believe the testimony of the numerous witnesses, that the water spurted in the same manner or practically the same manner at numerous times prior to this accident and for several weeks prior thereto, occasionally, although it was not proven that the spurting of the water upon this occasion was caused by the act of the defendant or its employees, yet that it having spurted in this way frequently or occasionally during a number of weeks prior to this time,—you would be justified in finding that they had knowledge or had notice that the water operated in that manner, and, therefore, that they should have repaired the pipes or guarded them in such a way that they would not have operated in that manner.] [33]</p> <p>[“ If the defendants knew that the water was operating in that manner and allowed it to remain so, although it did not operate in that manner from their own act or that of their employees, they would be bound to repair it in a reasonable time after they acquired the knowledge, and if they did not repair it they would be liable for all the injury resulting therefrom, and even if they had no knowledge of that fact, if it operated in that manner with sufficient frequency or for a sufficient length of time to charge them with notice, that is, so long that it would have been their duty to discover that it operated in that way, and then they did not repair it within a reasonable time, they would be still liable for an injury that resulted from their negligence in not discovering that it was not in proper repair and putting it in proper repair.] [34] That is what is called constructive notice. There are two kinds of notice ; actual and constructive. [If they had been actually notified and failed to repair it, they would be liable. If it had operated in this manner for so long a time that in the performance of their duty they ought to have discovered it, then the law imposes the same accountability as if they had actually known it, because it was their duty to know it.] [35]</p> <p>[“ Now it is for you to say whether or not the water did escape in this manner for a sufficient length of time and frequently enough during any number of weeks prior to the accident to charge the defendants with notice of its condition.] [36] ....</p> <p>“ But for the testimony of the plumbers who were called, Mr. Williams and Mr. Purcell, [in my opinion there would be no case for your consideration ; because there would be no evidence to show that there was any want of repair in this pipe. But these witnesses, Mr. Williams and Mr. Purcell, tell you that if the water did escape in the manner which has been testified to you, the stop-cock must have been out of repair. That it could not happen if it had been properly cared for and in proper condition. Now that is some evidence to show that the stop-cock was out of repair and that it was not properly maintained ; and, that being so, the fact that it was noticed to operate in this manner for several weeks prior to the happening of the accident would be evidence that it was out of repair during the time that the water was observed to escape in that manner, and then comes in the principle that I have already explained to you, that if it was in that condition, and by the exercise of ordinary care the agents of the borough could have discovered its condition, then they are chargeable with notice of it, and are liable for any injury that was received if they did not have it repaired within a reasonable time after they should have discovered it.] [20] ....</p> <p>[ “ If you find that the pipe or stop-cock was out of repair for a length of time sufficiently long to charge the defendant with notice of it, then the defendant would be guilty of negligence in not maintaining it in proper condition.] [21] ....</p> <p>[“ It is also claimed by the defendant that Mrs. Baker was negligent in grasping the lines when the horses started to run, and in pulling the wrong line (although there is no evidence that she did, that I remember of) ; that in grasping the lines she in that way contributed to the injury by preventing her husband from properly managing the horses.] [22] [If she had grasped the lines and pulled the wrong line when in the possession of her senses, without anything to frighten her and deprive her of the proper and calm judgment that she would have under ordinary circumstances, and in that way contributed to the injury, it would be contributory negligence which would prevent her recovery. [But if she was suddenly placed in a position of peril and under the influence of fright, deprived of the calm judgment she would otherwise have had, and grasped the lines with the intention of stopping the horses, even though she made a mistake in her judgment as to what would be the effect of her act, the law does not hold her to the accountability that it would if she were in other circumstances.] [37] ] [23] These are questions for you. If you find that she was guilty of negligence which contributed in any degree to the happening of the accident then she could not recover.</p> <p>[ “ If you find that the defendant was not negligent, or that Mrs. Baker was guilty of contributory negligence, your verdict would be for the defendant. If on the other hand you find that the defendant was negligent and that Mrs. Baker was not guilty of contributory negligence, the verdict should be for .the plaintiff.] [38] ....</p> <p>[ “ If you find for the plaintiff you will find such a sum as will compensate her for her loss of earning power. Under the act of assembly I am of the opinion that that is a proper element of damage in this case.”] [24]</p> <p>Plaintiff’s points, affirmed, were as follows, among others: “3. Defendant borough had no right under the evidence to so construct and operate its said water pipe at the place in question as to render the highway unsafe for ordinary public travel.” [1]</p> <p>“ 4. The undisputed evidence being that there was a large amount of travel upon the highway in question known as the Grahamville or Yalley road, that fact would of itself require greater vigilance upon the part of the defendant borough in watching and keeping its water pipe at all times in such condition as not to interfere with or endanger public travel than would be required in case of a highway on which there was only a small amount of public travel.” [2]</p> <p>“ 5. The presumption is that Mr. and Mrs. Baker were in the exercise of due care at the time the accident happened, and that the team Mr. Baker was driving was a road-worthy team, unless the contrary is shown by the evidence in the case.” [3]</p> <p>“6. If the jury find from the evidence that the plaintiff was placed in a position of peril as the result of the defendant’s negligence, even if the jury should also find that Mr. Baker and his wife did not use the best possible means to avert dangerous consequences, but used such means as were natural under such circumstances, they will not be held liable for a mere mistake of judgment.” [4]</p> <p>“2. If the jury find from the evidence that the pipe was properly constructed and arranged and kept in repair, and that from some extraordinary or unknown cause the water did on the day and at the time of the alleged accident escape in the manner described by the plaintiff’s witnesses, scaring the plaintiff’s horse or horses and causing them to run away, and that such escape was an event which the defendant borough had no reason to expect and could not be reasonably expected to foresee as likely to take place, then the borough would not be liable to the plaintiff in damages for the alleged injury and the verdict should be for the defendant. Answer: The second point is affirmed unless the jury find from the evidence that the water had been escaping at the place and in the manner described by the plaintiff for so long a time or so frequently prior to the time of the accident as to be constructive notice to the defendant of a defect or want of repair in the pipe.” [5]</p> <p>“ 5. If the jury find from the evidence that the plaintiff, Sarah Baker, caught hold of the left line or both of the lines at the time the horse or horses scared, and that she pulled the line or lines in such a manner as to cause the horses to turn around to the left or contributed to their turning around to the left in such a manner as to overthrow the wagon and throw the plaintiff out and on to the ground, causing the injury complained of, then" the plaintiff would be guilty of contributory negligence and cannot recover and the verdict should be for the defendant. Answer: The principle stated in the fifth point is correct unless the jury find that the plaintiff, being suddenly placed in a position of great peril, by the negligence of the defendant, was thereby deprived of the power or opportunity of deliberating and of exercising calm judgment in her acts.” [6]</p> <p>“ 9. There is not sufficient evidence of the negligent use and management of the said pipe and escape valve or stop-cock by the borough or its superintendent to entitle the plaintiff to recover.” Refused. [7]</p> <p>“ 11. Plaintiff, if entitled to recover, cannot recover any damages for the loss of earning power since the date of the alleged release.” Refused. [8]</p> <p>Verdict for plaintiff for $900 and judgment thereon. Defendant appealed.</p> <p>jErrors assigned were (9-19, 25-29) rulings on evidence, quoting bills of exception and evidence; and (1-8, 20-24, 30-38) instructions, quoting points, answers and charge, as above.</p>

Appeal, No. 21, July T., 1891, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1888, No. 268, on verdict for plaintiff, Theodore F. Decker. Trespass for personal injuries, caused by alleged negligence by defendant in maintaining the highway. At the trial, before Archbald, P. J., the evidence was to the effect that, on Jan. 17, 1888, plaintiff was driving a load of hay on a sleigh on Oak street in the city of Scranton.

Appeal, No. 287, Jan. T., 1892, by defendant from judgment of C. P. Northampton Go., Peb. T., 1890, No. 36, on verdict for plaintiff, George R. Horstine. Trespass for personal injuries caused by the alleged negligence of the defendant. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 223, Jan. T., 1892, by defendant, D. S. Ewing, from decree of C. P. No. 2, Phila. Co., June T., 1890, No. 675, in favor of plaintiff, H. H. Smith.</p> <p>Bill in equity for an account.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The case was referred to E. Hunn Hanson, as master, who, after stating the facts, reported, inter alia, as follows:</p> <p>“By the agreement of April 25, 1891, it was provided, among other things, that H. H. Smith should receive three dollars from D. S. Ewing upon each lease of sewing machines accepted by him, when twenty dollars shall be paid by the lessee.</p> <p>“ On January 1, 1883, the said agreement was ended, and the following was indorsed upon it and signed by each party: ‘ This agreement is by mutual consent determined and abrogated, all benefits arising to either party being fully satisfied.’</p> <p>“At this time, January 1, 1883, it was known that there were leases upon which twenty dollars had been paid, and subsequently it was found there were six hundred such. Standing alone the above-quoted clause would be interpreted to include everything connected with the agreement, as well moneys earned as those to be earned by H. H. Smith. But it has been found as a fact that at the time last referred to, January 1, 1883, H. H. Smith, in conversation with D. S. Ewing with respect to this indorsement on the contract, as the latter had written it, said that it did not express his purpose; for it seemed to mean that he was giving up whatever was due on the machines on which twenty dollars had been paid. To which D. S. Ewing replied,41 have used the word “benefits ” as that which you give up, and that means what is to be due in the future, not what has grown due already.’ That H. H. Smith accepted this explanation and thereupon both signed the indorsement. This has been found to be the actual transaction in the face of the denial by D. S. Ewing, because it harmonizes with what an ordinary business man would do with respect to moneys that he knew he had earned; it is clear, circumstantial, and explicit, whereas the denial of D. S. Ewing Is general; it does not set forth the conversation which admittedly preceded the abrogation of the agreement of 1881, and the reason given by him in support of his denial, that is, that H. H. Smith was making a better bargain by the agreement which took the place of that of 1881, to wit, that of January 1,1883, is not persuasive unless it had been shown that the giving up of what had been earned under the agreement of 1881 was a part of the consideration of the agreement 1883, and this was not done. Neither was this expressed as one of the ‘ terms,’ which in the agreement of 1883 was set forth as * mutually satisfactory ’ to the parties and as its consideration, as- it would seem natural in such an agreement had it been intended.</p> <p>“ The evidence of H. H. Smith varies what would have been 'the legal interpretation of the abrogation of the contract; but this is legally permitted where the evidence shows that but for the oral stipulation the paper would not have been executed. This must be shown very clearly, however. Nothing could well have been more direct, clear and explicit than the testimony of H. H. Smith. The elements of it stand un contradicted by circumstances, and it is thought that where there is such testimony it suffices, although it be that of a party in interest, uncorroborated by any other. Consequently it is found that the sum of $1,800 in this account is due from the defendant to the plaintiff. . . .</p> <p>“The proper course in order to ascertain precisely what profits are due to the plaintiff would be to close out and wind up the business. It might also be done without ending the business by converting into cash the sources from which the profits appearing in the books had been ascertained. . But on behalf of the plaintiff it was contended that he was entitled to be paid in money the amount of the profits appearing upon the books by reason of the agreement between him and the defendant, dated March 16, 1886.</p> <p>“ By that agreement D. S. Ewing stipulated to place to the credit of H. H. Smith upon the books $10,000 in ‘ capital account,’ and to debit a like sum, with legal interest, to his personal account, against which latter account should be deducted the profits accruing to the ‘ capital account,’ the balance serving to liquidate the personal account. This was done, and from the date of the agreement to the dissolution of the partnership, in May, 1890, the books show that upon the $10,000 the plaintiff has been debited with interest.</p> <p>“ The agreement also provided that whatever loss may result in the assets, estimated at $100,000 (of which the plaintiff’s interest was one tenth), shall be deemed the price and value of the good-will. That is to say, the assets amounting to $100,000 did not include good-will, and because they did not, and because the plaintiff did not get on this head what otherwise he would be entitled to, he should be compensated by not being required to bear whatever loss might happen to the assets of the estimated value of $100,000. It appears that there has been marked loss in the defaulters’ account, but this account is enumerated among the assets which go to make up the $100,000. Doubtless it is true that of this loss but a part happened with respect to the defaulters up to 1886, and that other loss occurred among those who became defaulters after 1886. Nevertheless, it is upon this interpretation of the agreement, as well as by reason of the payment of interest by the plaintiff during the partnership upon the face value of the assets, it is concluded that he should not bear the loss which might and probably would result from the conversion of the estimated profits of $8,000 upon the books to their cash value. He is entitled, therefore, to receive the sum of $3,000, the profits estimated as due him.”</p> <p>Exceptions filed by defendant alleged, among other things, that the master erred (9) in reporting that plaintiff was entitled, subsequent to the agreement of Jan. 1, 1883, to any sum on account of sewing machines sold by plaintiff prior to that time; (11) in not reporting that the parol evidence was not sufficient to vary the written canceling indorsement; (13) in so construing the agreement of March 16, 1886, as to make it incumbent upon defendant to account to plaintiff, upon dissolution, for the face value of indebtedness contracted after said agreement, whether said indebtedness could or could not be collected; (20) in placing costs on defendant.</p> <p>The exceptions were dismissed. Defendant appealed.</p> <p>Errors assigned were, among others (9,11, 13, 20) dismissal of exceptions, quoting them; (23) in making decree recommended by master ; (24) decree as to costs.</p>

<p>Appeals, No. 17, May T., 1892, by plaintiff, and No. 15, May T., 1892, by defendant, from judgment of C. P. Dauphin Co., March T., 1892, No. 282, on trial by court without jury.</p> <p>Appeal in court below by defendant from tax settlement.</p> <p>The case was tried without a jury under the act of April 22, 1874. The facts were found by the court as follows, in an opinion by McPherson, J.:</p> <p>“ 1. The defendant is a Pennsylvania corporation originally chartered April 9, 1872, P. L. of 1873, p. 1096. This act refers to the act of May 12, 1871, P. L. 787, and both are therefore made part of this 'finding. During the tax year of 1890 it had an average capital stock of $6,502,405, but declared dividends amounting to seven per cent upon an average capital stock of only $4,798,164.10. Upon the last named amount this settlement seeks to recover a tax of three and one half mills.</p> <p>[ “ 2. During the said tax year, and for some time previous thereto, the defendant was exclusively engaged in the manufacture and sale of electrical apparatus and appliances, and machinery for the generation, transmission and utilization of electricity, and in no other business. It conducted its principal manufacturing operations in Pittsburgh, where it employed between eight hundred and a thousand men. It also operated a manufacturing establishment in the city of New York, and a similar establishment in the city of Newark in New Jersey. The value of its manufacturing plant in Pennsylvania was’ $2,861,245.08; the value of its manufacturing plant in New York, all of which is tangible property, was $554,912.27; the value of its manufacturing plant in New Jersey, all of which is tangible property, was $998,126.79.] [1]</p> <p>[ “ 3. A considerable portion of defendant’s capital stock, namely, $4,217,530.34, is invested in and represents patent rights granted by the United States, the entire ownership and interest in which was, during said year, and still is, in the defendant. These patents are absolutely essential to enable the defendant to manufacture and sell the electrical apparatus, machinery, etc., above described, and they are, and were during the said tax year, fairly worth the valuation above placed upon them. If the defendant had not owned these patents, its other property would have been worth much less than the values above estimated. The defendant’s machinery would have been far less valuable, because much of it was adapted especially to the manufacture of the various articles covered by said patents.] [2]</p> <p>“ 4. The defendant is not engaged in brewing and distilling spirituous- or malt liquors and does not enjoy and exercise the right of eminent domain.</p> <p>[“ Upon these facts and for the reasons given in Commonwealth v. William Mann Co., No. 385 January term, 1892, we hold that the defendant is a corporation organized exclusively for manufacturing purposes and actually carrying on manufacturing within the state, and therefore that no portion of its capital stock is taxed by section twenty-one of the act of 1889; but if this position is not correct it is clear that so much at least of its capital stock as is invested in its manufacturing plants in New York and New Jersey are not taxable. Commonwealth v. Pennsylvania Coal Co., 5 Pa. C. C. 90; Commonwealth v. American Dredging Co., 122 Pa. 386.</p> <p>“We also hold that so much of its capital stock as is invested in patent rights granted by the United States is not taxable by the state. As we understand the evidence, these patent rights were either originally issued, or have been directly assigned, to the defendant; and it therefore stands in the same position as an original patentee. The case differs from those heretofore decided by the Supreme Court and to be found in 28 W. N. 515 et seq., as will be shown in a few moments. It presents a question of great importance, which has not been decided by any court of last resort so far as we are aware, and which deserves and has received our careful consideration. We have reached the conclusion above stated, and will briefly give the reasons which we have found controlling.] [6]</p> <p>“ The property in every patented invention has two elements : first, the right to practice the invention, and, second, the monopoly of sale, use and manufacture in favor of the inventor. Each of these elements is property; each may be dealt with as property by the owner, and to some extent may be dealt with separately if he chooses. If it is necessary to support by authority the position that a patent right is property, a recent decision in point may be found in Rehfuss v. Moore, 134 Pa. 471. This right may be transferred by three different forms of conveyance, namely, assignment, grant and license, each having a well-defined, technical meaning, and each operating only upon its appropriate subject-matter. Neither has any necessary connection with the tangible, patented article, and with this we have no present concern; the subject now involved is the right in its twofold aspect.</p> <p>“An assignment, then, operates upon both elements above referred to, upon the invention and also upon the monopoly, and cannot transfer either separately. It must convey the entire interest of the patentee, or an undivided part thereof, and must embrace the whole United States. A grant differs from an assignment only in the fact that the area within which it operates is defined, and must be less than the whole United States. A license is the conveyance of any more restricted interest in the invention than that which is the proper subject of a grant, and does not transfer the monopoly except by way of estoppel against the owner of the patent. The distinction is thus stated in Robinson on Patents, § 792: ‘A transfer of the right to make, or use or sell, or of the exclusive right to make, use or sell, does not convey the entire interest; the grant must operate on all three of these rights and be exclusive as to all; and a transfer which does not thus operate is a mere license.’ And in § 806 the distinction is thus stated: 4 Any conveyance of an interest in a patented invention, which cannot operate as an assignment or a grant, is a license.’ For a full discussion of the whole subject of transferring letters patent we refer to Robinson on Patents, chap. Y, § 752 et seq., and § 806 et seq. See also Oliver v. Rumford Works, 109 U. S. 81.</p> <p>“ In the first two forms of transfer it is plain that the specially valuable element of the patent, namely, the monopoly, the right to exclude others from making, using or selling the patented article or process, is directly conveyed by the patentee and passes completely to the assignee or grantee, who may thereafter protect his rights by suit in his own name. It is plain also that this right to exclude rests upon the federal constitution and the acts of congress. Whenever, therefore, it appears that the capital stock of a Pennsylvania corporation has been invested in either an assignment or a grant of a patent right, in our opinion the state must be forbidden to tax such stock.</p> <p>“ The case of a license stands in a somewhat different position. This form of conveyance does not rest upon the acts of congress, but upon custom and judicial sanction : 2 Rob. Pat. § 760. It is governed and defined by state law as distinguished from statutory patent law, and is subject to the incidents which attach to all agreements: lb. § 806. Its extent depends entirely upon the contract of the parties, but even where it takes the usual form or exclusive right to use, or to make and use, or to make and sell, within a specified territory, it does not in any degree transfer the monopoly. This is only affected by estopping the licensor from exercising his prohibitory powers in derogation of the privileges conveyed by him to the licensee: lb. § 606. The exclusive licensee is entitled to enjoy the privileges thus conveyed without interference from the licensor, and to be protected by him against the violation of these privileges by others (Ibid. § 819), but this right of enjoyment and protection rests upon express or implied contract and not upon the federal law. The licensee cannot protect himself against one who is infringing upon his privilege ; he must call upon the licensor as the person who possesses the monopoly, and can only hope for relief through his successful action. If the licensor refuses to exert his monopoly in behalf of the licensee, the latter has no remedy against the infringer; his only right of action lies against the licensor for an ordinary breach of an express or implied agreement. While, therefore, the licensee may be seriously affected by the monopoly, he has no legal interest in it; he cannot control it or wield any of its power, and his connection with it is sensibly different from the connection enjoyed by an assignee or a grantee.</p> <p>“ But while all this is true and from certain standpoints a license differs materially from an assignment or a grant, when the power of the state to tax is being considered, it seems to us that there is no important difference. The interference of the state is just as effective if it may tax the investment by a licensee, as if it might also tax the ownership of the licensor. Free transfer is hindered as certainly by taxing the buyer as by taxing the seller; and the owner of a patent would have just reason to complain if he discovered that, while the state could not tax his ownership and right to license, it could so tax his intending licensees as to wholly prevent the transaction. ' Putting aside for a moment the veil of capital stock, could it be successfully argued that the state could tax directly the contract of license ? It is easy to see, that to burden this form of contract may seriously impair the value of the patent; in many cases it would wholly destroy its value; and to assert the right of the state to tax it, and thus to harm or to destroy a creature of federal power, seems to us a wholly untenable position.</p> <p>“ In every case, therefore, it is necessary as a preliminary mat-</p> <p>ter to construe the agreement by which the alleged, transfer is made; and, of course, if the agreement is held to be neither an assignment, nor a grant, nor a license, but a mere leasing or sale of patented articles, the question of the state’s right to tax the stock will not arise. This, apparently is the position taken in Commonwealth v. Cent. D. & P. T. Co., 28 W. N. 515; Commonwealth v. Phila. Co., Ib. 518; Commonwealth v. Brush E. L. Co., Ib. 527, and Commonwealth v. Edison E. L. Co., Ib. 581; and its correctness is not to be denied. The agreements there in question look to us like licenses, and we would pronounce them to be licenses if the question was open; but the Supreme Court has construed them to be leases of tangible property, and we have followed that construction in opinions filed herewith. We refer to these cases not to criticise them, but merely to show that they do not proceed bej'ond the stage of preliminary inquiry above referred to. It was unnecessary to go further, but if the agreements then construed had been found to be assignments or grants, or licenses properly so called, we do not doubt that the capital stock invested therein would have been held to be beyond the reach of taxation by the state.</p> <p>“This is a question of power and not of practical results. Either the state may tax capital stock thus invested or it may not; if it may not, it seems superfluous to consider the consequences. Believing the argument to be sound which denies the power of the state to tax this stock,, we feel at liberty to follow it until it is decided to be invalid. Briefly stated, the argument is this:</p> <p>“The tax now in question is upon the defendant’s capital stock, and not upon the dividends, which only furnishes the measure of taxation: Phoenix Iron Co. v. Com., 59 Pa. 104; Bridge Co. v. Com., 117 Pa. 265. Being upon the capital stock, it is a tax upon the company’s property and assets: Com. v. Standard Oil Co., 101 Pa. 119; Fox’s Ap., 112 Pa. 354; and is, therefore, upon the patent rights themselves, whether they are original patents or assignments or grants or licenses. They must be considered as property of some kind, although thq right is intangible, and is merely ‘ a property in notion,’ to use Lord Mansfield’s phrase concerning copyright in Miller v. Taylor, 4 Burr. 2396; see also Rehfuss v. Moore, 134 Pa. 471. Considered, therefore, as a tax upon the right itself, we think it cannot possibly be supported, because it restrains and interferes with a right granted by congress in the exercise of power exclusively committed to the government of the United States by the federal constitution. That instrument, by section 8 of article 1, gives power to congress ‘ to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective rights and discoveries,’ and this power has been exercised for nearly a century. In respect to the subjects and exercise of other powers of congress, express or implied, it is abundantly settled that the states cannot interfere with either by taxation, because the power to tax to any degree involves the power to destroy. Thus, it has been held that a state could not tax the operations of a branch of the United States bank: McCullouch v. Maryland, 4 Wheat. 816; Osborne v. Bank, 9 Wheat. 738. And it cannot tax the loans of the United States : Bank v. Mayor, 7 Wall. 16; Pittsburgh v. Bank, 55 Pa. 45; or the office or emoluments of a federal officer: Dobbins v. Erie, 16 Pet. 435; or commerce between the states : Com. v. Canal Co., 1 Mona. 86 ; or the carriage of the mails : Com. v. R. R. Co., 21 W. N. 412; or the operations of a federal agency: R. R. Co. v. Peniston, 18 Wall. 5; or the franchise of a railroad company granted by congress: Cal. v. C. P. Ry. Co., 127 U. S. 1.</p> <p>‘- The reasoning of this latter case seems to us to be decisive of the point before us. The court says, p. 40: ‘Assuming, then, that the Central Pacific Railroad Company has received the important franchises referred to by grant of the United States, the question arises, whether they are legitimate subjects of taxation by the state. ... It may undoubtedly tax outside visible property of the company situated within the state. That is a different thing. But may it tax franchises, which are the grant of the United States ? In our judgment it cannot.’ After describing the character of the franchise, the opinion proceeds: ‘ Recollecting the fundamental principle, that the constitution, laws and treaties of the United States are the supreme law of the land, it seems to us almost absurd to contend that a power given to a person or a corporation by the United States may be subjected to taxation by a state. The power conferred emanates from, and is a portion of, the power of the government that confers it. The tax is not onfy derogatory from the dignity but subversive of the powers of the government and repugnant to its paramount sovereignty.’ While a patent right may not be a franchise in the strict sense of that word, it certainly resembles it in being a privilege which concerns and is intended to benefit the public, and which depends for existence and preservation upon the government which confers it. Such a right granted by congress would be exposed to serious danger if every state could tax it at will, either directly or by means of a tax upon capital stock. In Pennsylvania it could be reached without difficulty by exercising a legislative power to classify subjects of taxation. Suppose a taxing statute to put together in one class all corporations whose capital stock was invested, either in whole or in part, in patents granted by the United States, and to tax them at a different rate from all other corporations. If this would be constitutional the class first named might be destroyed; and before it is pronounced unconstitutional the objector may be recommended to lay down the rules which, in his opinion, ought to govern the legislature in classifying, and may then be referred to Com. v. Del. Div. Canal Co., 128 Pa., and the cases cited on pages 620 and 621, and to Com. v. Germania Brewing Co., 144 Pa., as illustrations of the extensive and undefined and perhaps indefinable nature of this great power.</p> <p>“ In conclusion, we desire to say that it has not been necessary to consider or determine the power of a state to tax tangible articles manufactured under a patent right, or to restrict the sale or to regulate the use of such articles in the exercise of the police power: Patterson v. Kentucky, 97 U. S. 501; the point decided is that the state may not tax capital stock invested in any form of the intangible right.</p> <p>“We, therefore,reach the following conclusions:</p> <p>“ 1. Defendant is a corporation organized exclusively for manufacturing purposes and actually carrying on manufacturing within the state.</p> <p>“ 2. No part, therefore, of its capital stock is taxed by section twenty-one of the revenue act of 1889.</p> <p>“ 3. If this is not correct, defendant is at least not taxable upon so much of its capital stock as is invested in its manufacturing plants in New York and New Jersey.</p> <p>“ 4. Defendant is not taxable upon so much of its capital stock as is invested in the patents above described.</p> <p>[“ We direct the prothonotary to enter judgment in favor of the defendant if exceptions are not filed according to law.”] [9]</p> <p>The Commonwealth filed exceptions, alleging that the court erred (1, 2) in its 2d and 3d findings of fact, quoting them; (3) in not finding as a fact that defendant held shares of stock in sundry corporations, received in payment for manufacturing products sold, and which stocks it was, and is, the intention of the company to sell as soon as possible; (4) in not finding as a fact that defendant company held shares of stock in sundry corporations, purchased to obtain control of exclusive license to operate under patents owned by said corporation; (5) in not finding as a fact that defendant company held shares of stock in other companies, $110,338.44; (6) in its conclusions of law, quoting the portion of the opinion in brackets, as above ; (7, 8) in not holding the entire stock taxable under the revenue act of 1889; (9) in directing judgment as above; and (10) in not entering judgment for the full amount of the Commonwealth’s claim.</p> <p>The court subsequently sustained the fourth and fifth exceptions, and overruled the others. Judgment was entered for the Commonwealth in the sum of $1,439.14.</p> <p>Various exceptions were filed by defendant to the effect that the court erred in directing judgment to be entered in respect of shares of stock in other corporations held by the defendant.</p> <p>JErrors assigned by the Commonwealth were (1—10) dismissal of its exceptions, quoting them.</p> <p>Errors assigned by defendant were dismissal of its exceptions, quoting them.</p>

<p>Appeal, No. 84, July T., 1891, by defendants, Geo. Trullinger, Geo. Pancake and Alfred Pancake, trading as Geo. Trullinger & Co., from decree of C. P. Centre Co., Aug. T., 1882, No. 133, for plaintiff, in bill for conveyance or account, by Wilbur F. Reeder, administrator of Geo. M. Hertline, deceased.</p> <p>Bill to compel conveyance or for account.</p> <p>The facts appear by the opinion of the Supreme Court. The bill was filed by Hertline, who died pending the suit, and his administrator was substituted. The case was referred to D. F. Fortney, as master, who filed a report recommending that the bill be dismissed. The court below, in an opinion by Krebs, P. J., sustained exceptions, and after reviewing the facts as stated in the opinion of the Supreme Court, found, in addition, that defendants on July 21, 1881, sold the four fifth interest in the premises to Jacob Tome for $150,000, and that they paid Boak, through Tome’s check, $10,000. The court below further found:</p> <p>“10. We are of the opinion and so find as a fact, that the deed of 8th of June, 1880, from Boak to Trullinger et al. was taken by them to be held as a security for the $10,000 to be paid by them to Boak out of the cutting of the timber. In support of this finding we have the testimony of George R. Boak, Cameron Boak and Theodore Boak, disinterested witnesses, and also the fact that when Trullinger & Co. were about to sell to Jacob Tome they consulted the claimant in reference thereto.” [1]</p> <p>“ 13. We also find that Hertline stocked under some arrangement with defendants in the season of 1880-1881 from this land 2,927,267 feet of timber and during the next season, or the early part of 1881, 820,085 feet; that these logs were by agreement put to what is known as Crider’s mill and that the plaintiff was to receive $3.25 for this work and that he received from the defendants in money, as shown by his own account, $14,546.80, and according to the testimony of the defendants the sum of $14,583.10.” [2]</p> <p>“ The order or decree of the master dismissing the complainant’s bill must be reversed and the defendants held to an account.” [3]</p> <p>“ It follows then from the findings of fact and our conclusions of law thereon that the master erred in dismissing the bill, and that an account should be stated, which we may state as follows :</p> <p>21st July, 1881, defendants received from plaintiff’s</p> <p>account on one-fifth interest, .... $17,500</p> <p>By amount paid to Boak, Tome check, $10,000</p> <p>By amount paid to Boak, Tome check, . 2,304</p> <p>--$12,304</p> <p>$5,196” [4]</p> <p>“ And now, 9th May, 1891, it is adjudged, ordered and decreed that George Trullinger, Alfred A. Pancake and George Pancake together, or some of them, pay all costs to be paid unto Wilbur F. Reeder, administrator of George M. Hertline, deceased, the sum of ($5,196) five thousand one hundred and ninety-six dollars, with interest from the 1st day of October, 1881, together with the legal costs incurred in this proceeding.” [5]</p> <p>Errors assigned were (1-5) findings of court and decree, as above, quoting them; and (6) in overruling the findings of the master and not dismissing the bill.</p>

<p>Appeal, No. 147, Jan. T., 1892, by Elizabeth T. Drinkhouse et al. from decree of O. C. Phila. Co., July T. 1879, No. 95, dismissing exceptions to the adjudication of account of the Phila. Trust, Safe Deposit & Ins. Co., trustee of the estate of William Drinkhouse, deceased.</p> <p>Claim to participate in distribution, as grandchildren and heirs of decedent.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The auditing judge, Ashman, J., after reviewing the evidence, recited in the opinion of the Supreme Court, found as a fact that the claimants were legitimate children of Joseph W. Drinkhouse, a son of decedent, and accordingly entitled to participate in the distribution. Elizabeth T. Drinkhouse, widow of Wm. Drinkhouse, and other heirs, filed exceptions, which were dismissed by the court, and the adjudication confirmed in an opinion by Pensóse, J. Exceptants thereupon appealed.</p> <p>Errors assigned were, among others, the dismissal of the exceptions, quoting them.</p>

Appeal, No. 4, May T., 1892, by defendant, from judgment of C. P. Daupbin Co., June T., 1890, No. 416, on verdict for plaintiff, Joseph Kieffer. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. The court charged in part as follows: “ The circumstances are what you have heard testified to by the witnesses. As you have heard, the plaintiff was driving along the road on the 1st day of January, 1890.

Appeal, No. 169, Jan. T., 1892, by plaintiff, William N. Whelen, from judgment of C. P. No. 4 (Old District Court), Sept. T., 1869, No. 516, on verdict for plaintiff for part of bis claim. Judgment was entered on Nov. 9, 1869, against Charles L. Phillips. On Jan. 13, 1891, an attachment sur judgment was issued against the Pennsylvania Company for Insurance on Lives and Granting Annuities, executor of Henry M. Phillips. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 5, May T., 1892, by plaintiff, John McCreary, from judgment for defendant non obstante veredicto, of C. P. Dauphin Co., June T., 1891, No. 433, on verdict for plaintiff.</p> <p>Scire facias sur mortgage with notice to Commonwealth Guarantee Trust & Safe Deposit Co., trustee, and John E. Patterson, guardian ad litem of minor heirs, devisees under will of Lewis Bomberger, deceased.</p> <p>The facts appear by the opinion of the Supreme Court-</p> <p>The court charged the jury as follows:</p> <p>“ This case raises questions of law which will have to be determined by the court hereafter when we have more leisure to consider questions of that kind than we now have while trying cases. Therefore, it is not necessary for us to detain you in the case now.</p> <p>“We instruct you to render a verdict in favor of the plaintiff for the amount in controversy. This verdict will be subject to the reserved question -whether there is any evidence in the case which warrants a verdict for the plaintiff. If there is, the verdict will stand. If not, judgment will hereafter be entered in favor of the defendant notwithstanding the verdict.”</p> <p>Verdict for plaintiff. Subsequently the court entered judgment in favor of the defendant non obstante veredicto, in the following opinion by Simonton, P. J.:</p> <p>“ Counsel for the plaintiff contends, in the first place, that Sarah Bomberger took a fee in the real estate mortgaged, under the terms of the will above quoted. We have carefully examined the cases cited by him in support of this position but cannot find anything in them to sustain it. The devise is expressly ‘ for and during her natural life ;5 and the expression ‘so much thereof as may remain unexpended’ in the devise over could not have the effect of enlarging the life estate into a fee, nor could the power given to sell the real estate, ‘ the proceeds to be reinvested or secured by other real estate subject to the same condition,’ have this effect. We must therefore hold for the purposes of this case, that Sarah Bomberger took only a life estate.</p> <p>“ The second position taken by counsel for the defendant is that if Sarah Bomberger took only a life estate, then at the time of the execution of the mortgage, the fee was vested in Michael Bomberger, trustee, subject to the life estate, and that he had power to join in the mortgage. The legal title to the fee was doubtless vested in him as trustee, but as there were no active duties to be performed by him it was a mere dry</p> <p>trust, and the entire beneficial interest was vested in the cestui que trustent, and therefore the equitable estate Avas fully vested in them: Kay v. Scates, 87 Pa. 31; Yarnall’s Ap., 70 Pa. 335; and the trustee had no power to sell or encumber it without their consent.</p> <p>“As Ann Bomberger has also died, the whole interest in this real estate is vested in the children of Ann and Michael Bomberger, who are named in the petition asking for the appointment of the Trust Company as trustee, which was given in evidence; and it may well be doubted whether we haAre in this proceeding proper parties before us to enable us, in any view we might take of the law, to render a judgment which would be binding upon these children. The trust being, as we have already stated, a dry trust, the fee is really in them, and they are either minors or have not been served AVith process in this case, and it may well be doubted whether they are in court by the appearance of the trustee. In this state of the case we should hesitate very much before we would, in any view we might take of the questions considered, enter judgment in favor of the plaintiff; this, hoAvever, is not material as, in our opinion, for the reasons aboA7e stated the interest of the owners of the fee was not bound by the mortgage, and therefore judgment must be entered in favor of the defendant non obstante veredicto; which is accordingly ordered.”</p> <p>Plaintiff thereupon appealed.</p> <p>Errors assigned were (1) in entering judgment, for defendant non obstante veredicto, as there was no question of law reserved upon any fact agreed to by the parties or ascertained by the verdict; (2) in ruling that there was no evidence in the case that warranted a verdict for the plaintiff and in granting the motion for judgment in favor of defendant non obstante veredicto.</p>

<p>Appeal, No. 37, July T., 1892, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1889, No. 30, on verdict for plaintiff, Abraham C. Stauffer.</p> <p>Trespass to recover damages for destruction of unharvested crop of ice.</p> <p>At the trial it appeared that the defendant was engaged in the manufacture of soap near a small stream, which, about three quarters of a mile further down its course,'flowed into a pond constructed by the plaintiff for the purpose of making ice. In February, 1889, some large vats in which were deposited the spent lye from the soap works broke, and the lye was washed down the stream and destroyed the plaintiff’s ice crop.</p> <p>Martin Eckman, a witness for plaintiff, having testified in his examination in chief that he had paid §1.75 per ton for ice in 1889 was'asked in cross-examination this question: “Was the quality of ice uncut and unharvested on the pond worth $1.75 a ton in 1889 ? ” Objected to, objection sustained, exception. [2]</p> <p>The same witness, having testified that ice at wholesale was worth $4 per ton in 1889 and that that price included cutting and housing, was asked by defendant’s counsel: “ Q. What is the cost per ton to cut and house ice ? ” Objected to, objection sustained; exception. [4]</p> <p>M. L. Davis, a witness for defendant, was asked : Q. “ State whether or not it was possible hi that freeze of 1889, to have gotten off a pond of three quarters of an acre, or, from this pond of Mr. Stauffer, the ice being five inches thick, or from five to six inches thick, one hundred and twenty tons of merchantable ice ? ” Objected to, objection sustained; exception. [12]</p> <p>The defendant presented, among others, the following points:</p> <p>“ 8. The plaintiff in this case cannot recover any imaginary or other profit from his ice crop. The measure of his damage, if he is entitled to recover, must be only compensation for the value of the ice as it was upon the pond at the time the injury was sustained. Answer: We answer that part of the point, that he cannot recover imaginary profits, in the affirmative. We affirm that part of the proposition that says he cannot recover any imaginary profits from his ice crop. Then, the next part is, ‘ the measure of his damage, if he is entitled to recover, must be only compensation for the value of the ice as it was upon the pond at the time the injury was sustained.’ We cannot affirm the latter part as it is expressed—that portion of it.” [80]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (2,4,12,) rulings on evidence, quoting bills of exceptions; (80) answer to point, quoting point and answer.</p>

Appeal, No. 281, Jan. T., 1891, by plaintiff, as trustee under tbe will of Benj. Brannan, from judgment of C. P. Schuylkill Co., Jan. T. 1889, No. 124, on verdict for plaintiff. Trespass on the case to recover damages for injuries to plaintiff’s land by reason of the construction of defendant’s railroad.

Appeal, No. 458, Jan. T., 1892, by use plaintiffs, the assignees of Delamater & Co., from judgment of C. P. Crawford Co., Feb. T., 1886, No. 20, on verdict for defendant, S. B. Dick. Debt against surety on bond.

<p> Election to take under will—Dower—Estoppel. </p> <p>Where a person claiming to be the owner of property makes a gift, whether by deed or will, to one, and by the same instrument gives to another, property belonging to the first, the owner of the property so disposed of by his donor must elect whether he will hold under the donative instrument or adversely to it; he cannot do both.</p> <p>An administrator bought at his own sale the farm of his intestate who was his son-in-law. Subsequently the administrator died, having devised intestate’s farm to one of his daughters, and another farm to plaintiff, widow of intestate, who went into possession of the same. Subsequently the widow brought an action of dower against her sister who was in possession of the farm formerly belonging to intestate. On the trial plaintiff’s counsel declined to state whether she elected to take under the will.</p> <p>Held, that the widow was bound to elect not to take under the will before she could sustain such an action.</p> <p> Evidence of election—Question of fact. </p> <p>Whether the widow’s possession ought not to be regarded as evidence of an election to hold under the will, is a question of fact; unless indeed her refusal to elect should render the submission of that question unnecessary : Per Williams, J.</p>

<p>Appeal, No. 11, May T., 1892, by defendant, Patrick P. Bradley, from judgment of C. P. Dauphin Co., June T., 1890, No. 317, on verdict for plaintiff, Henry Bowman.</p> <p>Trespass for an alleged unlawful entry into dwelling-house.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows, by Simonton, P. J.:</p> <p>[“ Endeavor to ascertain, in the first place, whether this was a renting for a year or not. Did the plaintiff rent that house for a year? Was the contract between the parties that he was to be employed for a year? And in connection with that a question of law has been raised as to the legal position of the parties towards each other with respect to whether the plaintiff was tenant of the defendant, or whether he was merely in his employ; and that question is one which we shall leave to you to determine, for the reason that if he was a tenant in the legal sense of that term; if he had rented the house; if he had made such a contract with respect to the house that he became his tenant for the year, then the defendant had no right to turn him out before the year was up, and the plaintiff’s right would be different from what it would be if he was not a tenant, but simply in the employ of the defendant. So it becomes a question for you to determine, and it depends upon the nature of the contract and the nature of the employment. We leave it to you, then, to find whether he was a tenant or an employee,] [1] and that involves the question whether the occupation of the house was for the purpose of his employment; whether the occupation of the house was a necessary incident to the employment and the work he was engaged to do ? If it was; if the house went with the employment, in the sense that it was reasonably necessary that the person who was employed to do the work should occupy the house; if that was the purpose and use of the house, then he would be an employee and not a tenant; whereas, if that was not so, if the occupation of the house was an independent matter and if he contracted for it as an independent matter, then he would be a tenant. [If the occupancy of the house was not necessary, in other words, to the employment, then he would be a tenant; and you will have to determine then, from the terms of the contract as you find them to be, from the nature of the employment and the situation of the premises and all that, whether the occupation of the house was necessary to the employment. If you find that it was, then he would be an employee, and if it was not, then he would be a tenant.] [2] If you find that he was a tenant, then you- would have to find what the contract of the tenancy was—whether it was for a year or for a less time, with the right on the part of the defendant to terminate the tenancy, for whatever reasons. If the contract was a contract of tenancy for a year, if that would be a correct description of the bargain between them, then the plaintiff had a right to stay in it for a year, and if the defendant put him out before the year was up, then he would be liable for whatever damages were occasioned by putting him out. If you should find that he was not a tenant for a year, then you would have to consider whether whatever conditions there were, which gave the defendant the right to put him out, had occurred or not. [If you find that the plaintiff was an employee; that he was what in legal phrase is called a ‘ servant; ’ if you find that the plaintiff was simply employed by the defendant, then you will have to determine what the contract was as to the employment. Was he hired for a year without conditions, or was he hired for a year subject to the condition that if he did not give satisfaction he could be discharged; or, if he was hired for a year, did he fail to perform his duties to such an extent as to give the defendant a right to discharge him before the year was up ? All these matters you will have to consider; and if he was an employee and not a tenant, then, whenever the time would come that the defendant had a right to discharge him, the defendant at that time would also have the right to give him notice to leave the house; and if you find that he was employed for a year and that it was not an employment as long as he gave satisfaction to the defendant, then you would have to determine whether he did or not fail in performing his duties.] [3] If he was employed simply so long as he gave satisfaction to the defendant, then you would have to determine whether he did give satisfaction or not.</p> <p>Defendant’s points were as follows, among others:</p> <p>“ 4. Even if the jury should find that the hiring was for an entire year and without the qualification that the plaintiff might be discharged by the defendant whenever his services proved unsatisfactory to the defendant, yet if the jury find that the plaintiff refused or failed to obey and carry out the lawful orders of the defendant with respect to the employment, or, in material matters, negligently, carelessly and unskillfully performed his services or omitted to perform the services he was, under the contract, bound to perform, the defendant had a right to discharge him, and upon such discharge had the right to peaceably repossess himself of the house in question. Answer: To that we say that if the hiring was for a year and without the qualification referred to, then, if the plaintiff failed to perform his part of the contract in any substantial matters, the defendant would have the right to treat the contract as at an end, and if he did have the right to treat it as at an end, then he would have the right to discharge the plaintiff, and if he had the right to discharge him, then he would have the right to take possession of the house if he did it without doing any unnecessary damage to the person or goods of the plaintiff; and it is a question for you to determine under the evidence, if that point becomes material, whether or not the plaintiff did fail in material matters to perform his contract. Whether or not he failed to do the work he was employed to do with reasonable care and diligence. You have heard about the feeding of the cows, the plowing, and in respect to there, being but one horse, and the feed that was furnished; of these you have heard the evidence on both sides, and they are questions for you to determine.” [4]</p> <p>“ 5. If. the jury believe that the use and occupation of the •house in question was a part of the compensation of the plaintiff for services to be performed by him for the defendant, and that the defendant, either under the agreement between the parties or by reason of the failure of the plaintiff to perform such services properly, had the rightto discharge the plaintiff and did discharge him, in such case the defendant was entitled to the possession of said house and had the legal right to take possession of it, provided he committed no breach of the peace and did no wanton damage. Answer: To that we say, gentlemen, if you should find the occupation of the house was a necessary incident to the service, and thus find that the plaintiff was an employee and not a tenant, then if he failed to perform his duty to such an extent, as we have instructed jmu in the preceding .point, as would give the defendant a right to terminate his employment, then the defendant would have the right, when he did terminate the employment, to terminate the possession of the house, provided he did no unnecessary damage.” [5]</p> <p>“ 7. If the jury find that at the time of the alleged trespass, the defendant had the right to the possession of the house in question, and that no injury was wantonly or negligently done to the goods of the plaintiff by defendant or those acting under him, their verdict must be for the defendant. Answer: That point is refused, because it asks us to lay down a wrong measure of what is necessary for damages, and we have explained .that so frequently that we refuse that point.” [6]</p> <p>“ 10. The plaintiff is not entitled to recover anything in this action for loss of wages, or for the value of the use and occupation of the house in question, qr for the expense of obtaining or moving into another house, or for the boarding of his children; the most that he can in any event recover would be for damage wantonly or negligently done by the defendant, or those acting under him, in setting out plaintiff’s goods. Answer : The answer to be given to that point depends upon what you find to be the contract between these parties. If it was a tenancy for a year and the term had not expired, and the plaintiff, at the time the act complained of was done, was still a tenant with part of his term unexpired, then you would have a right in this case, if you find for the plaintiff, to give such damages as will compensate him for all' the wrong that was done him; damage for the trespass committed upon him in entering the premises; damage for removing his goods; for whatever injury was done to his goods by the way in which they were removed, and up to such reasonable time as he could take care of them after they were removed; to whatever expense he had been put to in reasonably taking care of them, and whatever expense he would be put to in taking them to another place, and to any additional expense he would be put to, to shelter his goods and family. In short, he would be entitled to just such damages as were the actual and probable result of the action of the defendant. This now, gentlemen, on the assumption that he was a tenant for'a year and that the term had not expired. On the other hand, if you find that was not the contract, if you find he was a tenant under such conditions as that right had accrued to the landlord to remove him before the year was up, or if you find that for any reason, if he was a tenant, the tenancy had expired, or if you find that he was an employee and not a tenant, then the damage that he would be entitled to, if any, would be whatever would compensate him for any injury to his property in putting it out and in its being out until he could reasonably take possession of it and find a place for it. Perhaps I. ought to qualify the last part of that phrase, and say, any injury that was unnecessarily done to his property by putting it out, would be what he could recover, if the landlord had the right to put him out, and I change the instruction to that extent.” [7]</p> <p>“ 11. If the jury believe that no damage was wantonly or negligently done by the defendant or those acting under him, to plaintiff’s goods, there can be no recovery in this case. Answer: That we must qualify again. It is not a question of wanton damage. It is a question of carelessness or unnecessary, damage, and we have had to qualify that so frequently that we decline this point, because it does not state the proper ground of damages.” [8]</p> <p>“ 12. Under all the evidence in this case, the plaintiff is not entitled to recover.” Refused.” [9]</p> <p>[“ 1. The relation of plaintiff and defendant in this case was that of master and servant, and not that of landlord and tenant; and, upon discharging plaintiff, whether with or without good cause, the defendant was entitled to the occupation of the house in question, and had the right to set out the goods of the plaintiff. Answer: [To that we say, as we have already said, we have left the question to you as a question of fact, to determine whether the relation was that of master and servant, or landlord and tenant, and we have told you what would be the legal effect of the finding in one way or the other.] [11]</p> <p>[“ We are asked, however, further by the defendant to tell you that if you find that the plaintiff was in the employ of the defendant, and not his, tenant, the defendant had a right to turn him out without good cause if he chose to take possession of the house, or that if he did turn him out without good cause, he would have the right to take possession of the house. That we cannot say. The defendant could not get any rights to the house by doing that which he had no right to do; and if he had employed the plaintiff for a year, if the circumstances were such that he discharged the plaintiff without having a right to do it, as we understand the point to mean, he could not by so doing get a right to take possession of the house.”] [12]] [10] Verdict and judgment for plaintiff for $831.83. Defendant appealed.</p> <p>Errors assigned were (1-12) instructions, quoting them, as above.</p>

Appeal, No. 110, July T., 1891, by plaintiffs, Isaac P. Hand and Edward S. Dolph, executors of Edward Dolph, deceased, from decree of C. P. Lackawanna Co., June T., 1890, No. 4, dismissing bill in equity against A. J. Weidner and Laura Weidner, his wife, et al. Bill in equity to reform defective certificate of acknowledgment.

<p>Appeals, Nos. 28 and 29, Oct. T., 1892, by defendant, James Carey, from judgments of Q. S. Lawrence Co., Dec. T., 1891, Nos. 10, 11, on verdicts of guilty.</p> <p>Indictments for furnishing liquors on Sunday and to minors.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points, as follows, were refused by the court, Hazen, P. J:</p> <p>“ 1. If the jury shall find that the liquors were furnished by defendant at a camp, where he and a party of friends were camping, as a fishing club, for recreation or any lawful purpose, and were furnished to the parties charged in the indictment whilst they were visitors and guests of the members of said club at their camp or temporary home, it would not be such a furnishing as is prohibited by statute, and defendant should be acquitted.” [2]</p> <p>“ 2. If the jury find that the liquors were furnished by defendant whilst he and his associates, legally authorized detectives, were engaged in searching for evidence to convict parties of crimes of putting obstructions on railroad, and whilst defendant and his associates were in camp under the guise of a fishing party, and when so furnished, were being furnished by the defendant as a legal detective, in good faith, and for the purpose of obtaining evidence to convict criminals, it would not be such a furnishing as is prohibited by statute, and defendant cannot be convicted.” [3]</p> <p>“ 3. Under all evidence in the case, no offence or crime has been shown to be committed and the defendant should be acquitted, and your verdict should be, not guilty.” [4]</p> <p>Verdicts of guilty and sentence. Defendant appealed.</p> <p>Errors assigned were, among others, (1) exclusion of evidence, recited in opinion of Supreme Court, quoting bill of exception; (2-4) refusal of points, quoting them.</p>

<p>Appeal, No. 189, July T., 1891, by plaintiff, John J. Barclay, from judgment of C. P. Bedford Co., Feb. T., 1890, No. 240, on verdict for defendants, Simon Deckerhoof et al.</p> <p>Assumpsit on bond to charge sureties for default of builder.</p> <p>On the trial before Baee, P. J., the evidence was to the effect that defendant Deckerhoof, on June 19, 1888, contracted in writing to erect a dwelling for plaintiff. It was provided in this agreement that “ all alterations of the afore-mentioned plans and specifications by which the cost of the building may be either increased or diminished, shall be indorsed on these articles and signed by the parties, before they shall be deemed binding on either party.”</p> <p>The specifications provided that the building should be “ two stories high with loft and attic rooms in the front finished and the loft in the back part unfinished. Should disputes arise, or anything require explanation or further detail the contractor is to apply to the architect, allowing him a reasonable time to supply the same, and is to accept as final his interpretation of the contract, and is to comply with any such further detail given him as part of the contract. The architect shall be empowered to make any deviation from or alterations in the drawings and specifications that may be desired by the owner, without invalidating or rendering void the contract. In case of any difference in the expense, an addition to or abatement from the contract price shall be made. In no case will any extra or addition be admitted or allowed for, unless executed under written authority, the amount of costs to be agreed upon in writing before said extra work shall be commenced. . . . All disputes, however arising, and all questions of doubt as to the tenor and intention of the drawings and specifications, or of the contract, shall be referred to the architect, whose decision shall be considered final, binding and without power of reference on all parties concerned.”</p> <p>Indorsed on the specifications was the following, signed by both parties to the contract and witnessed by the architect:</p> <p>“ It is agreed the 26th day of September, A. D., 1888, that Simon Deckerhoof is to finish the entire rear attic of the within specified building for which J. J. Barclay agrees to pay the sum of thirty-five dollars.”</p> <p>Defendants, Joseph T. Alsip and William Gf. Eicholtz, became sureties for Deckerhoof on a bond conditioned “ that if the above bounden Simon Deckerhoof shall and will well and substantially erect, build and deliver to the said J. J. Barclay or his legally authorized agent or agents one house, messuage or tenement, according to plan, draft or scheme made by P. Bernheisel, Jr., Architect, Harrisburg, Pa., the specifications aceompanying and terms of article of agreement signed and sealed June 19, 1888, they being identified with and part of this agreement, then the above obligations to be void, or else to be and remain in full force and virtue.”</p> <p>Plaintiff’s points were among others as follows:</p> <p>“ 5. There are no such changes or alterations in the contract or in the style and finish of the building as under all the evidence in this ease will relieve the sureties on the bond for such damages to the plaintiff as may be proved in the case. Answer: If the jury believe that by this indorsement, made on the 26th of September, 1888, and entered on the specifications, by which it was agreed that Simon Deckerhoof should finish the entire rear attic of the building specified in the contract for the sum of $85, to be paid by J. J. Barclay, and which was signed by the plaintiff and the contractor and witnessed by the architect, was made and indorsed without the assent of the sureties, and find that it was not an independent contract but was made a part of the original contract, and increased or enlarged the burden and risk of the sureties, then the sureties were thereby relieved. But if you find that such a change as that indorsed on the specifications on the 26th of September, 1888, was a mere independent contract between Barclay and Deckerhoof, and not made or intended to be a part of or embraced in the original contract, and did not increase the burden or risk of the sureties, then it would not relieve the sureties.” [1]</p> <p>“ 8. By the terms of the contract, the contractor agreed to accept as final the architect’s interpretation of the-contract and to comply with any other details given, and the architect was empowered to make any deviations from or alterations in the drawings and specifications that may be allowed by the owner, without invalidating or rendering the contract void, and the contractor was to erect and complete the building according to specifications.and drawings and according to the directions and entire satisfaction of the architect, then the defendants cannot be relieved in this action by reason of any additions, alterations or changes, as claimed, or for extra work contracted for with Deckerhoof. Answer: This point is affirmed so far as it relates to changes of plan and specifications; but not as to any changes or alterations, if any, in the contract itself, which enlarged the burden of the sureties. It is refused.” [2]</p> <p>“ 10. If the jury believe that Deckerhoof contracted to erect the plaintiff’s building according to the plans, drawings, specifications and contract, offered in evidence; and that he failed to erect the same and deliver it to the plaintiff, complete and discharged of liens, then, under all the evidence in this case, the plaintiff is entitled to recover from the defendants such sum as damages as he was required to pay by the Jailure of the contractor to complete the same and deliver it to the plaintiff discharged of liens. Answer: By this point the plaintiff claims the right to recover the difference between the contract price and the whole amount required to be paid out on account of this building. This point is affirmed unless under the evidence and the charge of the court the jury find that the sureties were relieved by a change or alteration in the contract without their assent, and which was material and increased their burden, as has been fully indicated both in the general charge and in the answer to the other points. If their burthen was not so increased, they are not relieved; and then this point would be refused.” [3]</p> <p>Defendant’s points were among others as follows:</p> <p>“5. Any material alteration in the contract, by Barclay, without the consent of the sureties on the bond, discharges the sureties from their obligation on the bond; and the agreement entered into on the 26th day of September, 1888, by Barclay with Deckerhoof, under and by which Deckerhoof bound himself to complete and finish the attic of the building which was not required or contracted for in the original agreement, imposed an additional obligation on Deckerhoof and was a material change or alteration of the contract as it existed at the time the bond was given and relieved the sureties in this case from their obligation, and there can be no recovery against them.” Answered with next point.</p> <p>“ 6. That clause in the specifications, ‘ that the architect shall be empowered to make any deviation from or alteration in the drawings and specifications that may be desired by the owner, without invalidating or rendering void the contract,’ did not give to Barclay any right to make alterations in the contract; and the change in the contract, made by Barclay with Decker-hoof, the one on the 26th day of September, 1888, by which the attic of the building was to be finished, and the other the change made by Barclay by his letter of October 13, 1888, by which the pantry and the doors were changed from the original plans and specifications, which entailed additional labor and expense on Deckerhoof, were material alterations in the contract; and, being made without the knowledge and consent of the sureties, discharged them from their liability on the bond in suit, and ,no recovery can be had against them in this case. Answer to 5th and 6th points: We say to you, gentlemen of the jury, that a material change or alteration in the contract as made between the plaintiff and Mr. Deckerhoof, by which the burden of the sureties would be increased, would discharge or relieve the sureties. You will look at the agreement made on the 26th of September, 1888, and indorsed on the specifications and signed by plaintiff and contractor, and on all the evidence in the case you will first determine whether that agreement was an independent subsequent agreement, made by them, on which the work to be done and money to be paid was outside of the original agreement or contract, or whether it was in fact a mere change or alteration of the original contract in a material part and without the assent of the sureties, and whether it became and was intended to be a part of and included in the original contract. If it was an independent contract, and did not in any sense or degree affect the responsibility of the sureties on the bond by increasing their burden, there can then be a recovery in the ease; but if it became, and was intended to be, an alteration and change of the contract and a part of it, and increased the burden of the sureties and their risk, then there can be no recovery in this case.” [4]</p> <p>“ 8. If the jury believe there was any alteration made in the contract by Barclay or Deckerhoof, without the knowledge or consent of the sureties, that was material, and that would require the sureties or make them liable to pay any sum in excess of what they would have been liable for under the contract as it existed when the bond was signed,—such alteration would avoid the contract as to the sureties, and there can be no recovery against them in this suit.” Affirmed. [5]</p> <p>Verdict for plaintiff against the contractor only, and for defendants as to sureties, and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were, among others, (1-5) instructions, quoting them.</p>

<p>Appeal, No. 434, Jan. T., 1892, by plaintiff, Michael Lynch, from judgment of C. P. Erie Co,, Sept. T., 1890, No. 47, on verdict for defendant.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below, Mobbison, J., of the 48th judicial district, specially presiding, charged, that plaintiff was guilty of contributory negligence, and gave binding instructions for defendant.</p> <p>Errors assigned were (1, 2) instructions, quoting them.</p>

Appeal, No. 439, Jan. T., 1892, by plaintiffs, Henry R. Karchner, executor, et al., from decree of C. P. Northumberland Co., No. 164, in equity, in favor of defendants, Charles E. Hoy et al. Bill in equity by the surviving legal representatives, and the devisees of the grantor, Andrew Karchner, and the heirs and legal representatives of Chas.

Appeal, No. 192, Jan. T., 1892, by defendants, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1889, No. 319, on verdict for plaintiff, Samuel Holmes.

<p>Appeal, No. 143, July T., 1891, by defendant, Otto Weber et al., executors of Theresa Demarra, deceased, from judgment of O. P. Lancaster Co., Feb. T., 1890, No. 33, on verdict for plaintiff, J. W. Gerz.</p> <p>Assumpsit for nursing, boarding, etc., of decedent.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged the jury in part as follows, by Patterson, J.:</p> <p>[“ We cannot say to you, as requested, that the plaintiff cannot recover in this action. The facts and circumstances are such, that when presented to you, we cannot say that the verdict must be in favor of the defendants.] [5] In the case cited to support that view, it is argued that the services were rendered by the daughter, a married daughter. [Now, in this case, while Mr. Gerz, the plaintiff, is the son-in-law of this woman who left a will at the time of her death, there is no proof that he did not furnish anything to her. There is proof here by some of the witnesses, that Mrs. Gerz, her daughter, carried her up to her room when she was sick. But did not Mr. Gerz furnish the house where she lived, carry up the bedding to keep her warm, and the food to feed her, and all this kind of thing ?] [6] [Now, the law does not require a special contract between this dead person and Mr. Gerz, who is only a son-in-law, in order to enable him to recover; it does not require a special contract or agreement. If he did as a son-in-law anything in this matter for this mother-in-law, he has a right to charge for it.] [7] [There is no allegation at all on the part of the plaintiff here that there was a contract between this old lady who died and Mr. Gerz, or between the old lady and her daughter Rosa, Mrs. Gerz. There was a good deal said about a contract ; but they did not sue on a contract. If a person does work for another, or supports another who comes to the house, without a contract, he can support an action to recover for that support by showing that what he asks to recover is a reasonable price. That is what was done in this case.] [8] [As regards the price or the pay you should allow this plaintiff, that depends upon the evidence.] [14] Some made it $4.00 and some $5.00 a week, and some cut it down as low as $1.00 and $1.50, where the person was sick, and required nursing day and night. Now all this evidence is for you to consider. [You can make it the lowest or the highest price—whatever you think is right.] [14] I need not refer to those five or six weeks, when this old lady was attacked by paralysis. There is a dispute about that. There is a contradiction of testimony in regard to other times when it was alleged she was sick and required attention. Yet there does not appear to be any contradiction about those five or six weeks at the end of 1889, when she died; and it was previous to that, as both parties have in their proof admitted, that for five or six weeks she was prostrated by paralysis. Now from the evidence you must judge whether such attention, as the proof shows, was given to her. And who attended to her; who provided for her ? [It is true that her daughter Rosa, while she was there, sick at Gerz’s, in this last sickness, waited on her. Mrs. Gerz attended to her; but the son-in-law has a right to charge for the services of the wife, just as much as he had a right to charge for his services ,-] [9] and [it is not disputed but that he found everything that was necessary to make her comfortable, while she was with him, and everything necessary to provide for her wants, such as food, covering, and so forth.] [13]</p> <p>[“ Now, as regards the amount of the compensation you will allow the plaintiff, that depends upon the evidence, and upon the view you, gentlemen, take of that evidence.] [14] . . . . [“ Now, gentlemen, the amount that this plaintiff is entitled to depends upon you, upon your judgment, after looking at all the evidence on both sides.] [14] ....</p> <p>[“If you think that Mrs. Gerz did all this work for her mother while she was at Mr. William Gerz’s, that he found everything that was necessary to make her comfortable in the way of food, and comfort and covering, then the doctrine that has been advanced here might avail the defendants. Because they say that a daughter cannot recover for her services to her mother, unless she prove a special contract, and that under this cpnstruction of the law the husband is in no better condition. It is strange law; it is new law to me; but we will permit it to go to you as the law in this case. Hence you must look at the evidence, and say whether Mrs. Gerz did all this and found all this, or whether Mr. Gerz did it. The plaintiff is Mr. William Gerz. He makes this claim for this boarding and care and services rendered to her, while she was there with him.] [10] Then, gentlemen, there is some dispute about the time. The plaintiff alleges she was there about two years. The other side deny that, and they call witnesses on their side to disprove that. You must look at that question, and say how long she was there; and you will say whether or not when she was there she went only to visit, and if so, how frequently—on Sunday, and came back on Sunday in the evening or on Monday morning, and whether that should be deducted from the time she was there or not. You will again consider, if you believe some of the witnesses, whether this old lady did any work while with Mr. Gerz, to compensate for her board and for the attention given to her, and you will consider whether this old lady ever intended or expected to pay for this care and attention. It was alleged that this was done without any intention on her' part of paying, that she never intended to pay for it. The testimony of Annie Haberbusch shows what disposition was made of it. She said, when she died she would be paid right well. Where was the wife in this plaim ? That does not amount to a contract. But it only shows what the view and the mind of this old lady was. [But, as I said before, it does not require a contract to bind the estate for whatever services he rendered in the way that I have mentioned, in the way of covering, and shelter, and warmth, and food and things of that kind.] [11 ] . . .</p> <p>[“ It is a question of fact entirely for your consideration, both as regards the time this old lady was with Mrs. Gerz, and as regards what services she did, if she did any, and as regards the price charged, whether it is too great or too little, and whether it is just and right.] [12] ....</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4) rejection of evidence, recited in opinion of Supreme Court, quoting offers; (5-14) portions of charge in brackets, quoting them; (15) charging on plaintiff’s evidence, and omitting to charge on defendant’s evidence or theory as to presumption from relationship; (16) the charge as a whole was misleading.</p>

<p>Appeal, No. 179, July T., 1892, by defendants from decree of C. P. Berks Co., No. 512, 1890, equity docket, for plaintiff.</p> <p>Bill in equity to restrain defendants from preventing the construction of a grade crossing.</p> <p>The bill averred that plaintiffs had located two branch railroads from their main line, crossing at grade defendants’ tracks and extending to two manufacturing establishments; that in the construction of one of the branches it was not reasonably practicable to avoid a grade crossing; that they had been unable to agree with defendants upon the terms of the crossing; that the defendants objected to the making of the said grade crossing, and proposed forcibly to resist the making of the same, and unless restrained irreparable injury would be done to plaintiffs.</p> <p>’ The bill prayed for an injunction, preliminary until hearing and perpetual thereafter, restraining defendants from in any wise interfering with the construction by plaintiffs of the said crossing, and general relief.</p> <p>The court refused the injunction prayed for. Subsequently plaintiffs presented a petition in which they averred that they had condemned land and were excavating, grading and laying tracks for the branches described in the bill, but that their work was retarded because they had no crossing over defendants’ tracks to move construction material by means of cars. The petition prayed for an injunction restraining defendants from interfering with the construction by plaintiffs of a crossing.</p> <p>The court, Ermentrout, P. J., made the following order: “And now, July 6, 1891, the foregoing petition having been presented and duly considered, the court refuse to award a preliminary injunction as prayed for, but allow the plaintiff to construct a temporary crossing, to be used only for construction purposes, and plaintiffs to be limited to the passing and re-passing thereon of not more than two construction trains each day, the said trains to be moved at such times as not to interfere with defendants’ trains and use of their road. Plaintiffs, at their own expense, to have a watchman at crossing to prevent accidents, and defendants are enjoined from in anywise interfering with the construction and use of the crossing as aforesaid. Plaintiffs, .before constructing such crossing, to file a bond in the sum of $1,000, with approved sureties, for the securing to the defendants the payment of such damages as they may be entitled to.”</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 266, Jan. T., 1891, by plaintiff, David Williams, and No. 226, Jan. T., 1891, by defendant, Henry Fulmer, from judgment of C. P. Lehigh Co., Jan. T., 1884, No. 65, on verdict for plaintiff.</p> <p>Trespass on the ease for damages for diverting water of navigable river.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiff proposed to prove by a witness that from September, 1864, he was the owner in fee simple, and in the exclusive and uninterrupted possession of a tract of land along the western side of the Lehigh river, and was in such possession at the time of the grievances complained of, and that he was also the owner and possessor of the island in the Lehigh river, immediately opposite the lands before referred to, and that between the island and the main land there passed a portion of the waters of the Lehigh river, there being a channel of from eighty to one hundred feet wide; that some ten years before the bringing of this suit the plaintiff erected upon his land, close to the Lehigh river, but above high water mark, on this western branch of the stream, a school slate factory, and built a small dam across the arm of the Lehigh river, between the plaintiff’s island and the main shore; that at that time the plaintiff and Henry Harper were the owners of the land on the western shore of the Lehigh, above the lands now owned by the plaintiff, viz.: the lands now owned by the defendant, and on which the wrongs complained of in this suit were committed; that while Williams & Harper were the owners of the Fulmer tract of land the dam was erected, with the consent, knowledge and permission and request of Henry W. Harper, then the joint owner with David Williams of the Fulmer land; that the dam so erected was maintained and at the time of the bringing of this suit existed as it had been from the time it was first built when Henry Fulmer, and those under whom he claims, purchased the title of Henry Harper, part of the Fulmer tract; that the dam was visible and apparent; that the dam did not at any time operate to divert or draw any of the water of the Lehigh river out of its natural course or channel, and that it did not in any way interrupt, impede or interfere with the navigation of the Lehigh river, or any of its parts; that the Lehigh Coal and Navigation Company, holding from the commonwealth the exclusive right itself, and those to whom it granted permission to use all the water power of the Lehigh river, and to build dams for that purpose, knew of the existence of this dam and made no objection to its maintenance, but frequently consulted and conferred with the plaintiff as to the rental he should pay for the use of the water. Plaintiff proposed to prove that along this western bank of the Lehigh river and at his factory, he put in a turbine water-wheel some six or eight years before the injury complained of, the waterwheel being at a point between high and low water mark, and that the putting in of the wheel did not interfere with the navigation of the stream; that from this water power the plaintiff operated the machinery of his mill, employing from one hundred and fifty to two hundred hands; that in 1881, before the commencement of this suit, Mr. Fulmer, the defendant, deposited and dumped the refuse and rubbish of his slate quarry to the extent of thousands of tons into this branch or arm of the river at a point above the lands of the plaintiff, and that before this suit was brought this deposit of rubbish extended beyond low water mark, and almost entirely across the channel of the river, thus preventing the flow of the water through said arm as it had been accustomed to flow, gradually reducing the quantity of water that flowed through the channel, so that there was not sufficient to furnish the power for propelling plaintiff’s mill. Plaintiff proposed to follow this up by proof that by the diversion of said water and the filling up of the said channel the plaintiff was damaged—the market value of his property decreased, and he deprived of the use of the said water for the purposes stated.</p> <p>Objected to: (1) as incompetent and irrelevant; (2) because the plaintiff, as owner of the shore, has no ownership in the water of the Lehigh river, growing out of or appurtenant to his title to the shore; (3) the Lehigh river being a navigable river by the laws of Pennsylvania, the owner of the shore has not, as such, any right of property in the water flowing in the river, and has no right to any water power in said river, or to any use of it, other and distinct from those vested in him as a citizen of the commonwealth.</p> <p>The Court: It has been decided in this case, that the plaintiff has no title to any water power derived from the river Le-high. The objection is sustained. Plaintiff excepts; bill sealed. [1, plaintiff.]</p> <p>Plaintiff then renewed the offer, with this modification: Withdrawing from the offer of proof the existence of a water power by reason of a dam thrown across the river, he proposed to prove that the formation of the bed of the stream opposite the factory of the plaintiff was such that without the erection of a dam or encroaching upon the stream, even beyond or below high water mark, there existed a natural water power, and that the mere flow of the water that naturally passed through the arm of the Lehigh between the island and the main land was sufficient to drive an undershot water-wheel, moved by the current in time of ordinary high water, the wheel to be located between high and low water mark, in such a way as not to interfere with the rights of the public in the navigation and use of the river, or to injure, in any way, or to interfere with the rights of any riparian owner, above or below, and that this power, that could be so utilized, was destroyed and rendered unavailable by the unlawful acts of the defendant, as set forth in the preceding offer of proof, which, in all other respects but the one last stated, the plaintiff asked to be considered as part of the’ present offer.</p> <p>Objected to, for the same reason as given in the case of the preceding offer.</p> <p>The Court: If the plaintiff proves, that by placing an undershot wheel between high and low water marks a valuable power is created, and that defendant’s unlawful acts deprived him of that power, can the jury be told that the plaintiff may recover if they find that the wheel would not obstruct navigation? For, if the question of obstruction cannot be submitted as a matter of fact for the determination of the jury, then such injury must be deemed to have been damnum absque injuria. The strip between high and low water marks is as much a part of the highway as the middle of the stream is, for, when the water is high, there may be navigation there. I conceive that it cannot be submitted to the jury to say that a part of. the public highway may be obstructed, except temporarily by municipal regulation, simply because it does not interfere with the public’s use, and that for interference with such an obstruction, the erector thereof may recover damages. I understand the decisions of the Supreme Court upon this subject, including that rendered in this ease, to be, that no one may lawfully place an obstruction in a navigable stream even below high or low water mark. An undershot wheel, such as is described in the offer, is an obstruction. No matter how it is constructed, it must touch the water and be in the highway. It differs from a dam only in the extent of the obstruction created. The objection is sustained and the evidence excluded; bill sealed for the plaintiff. [2, plaintiff.]</p> <p>Plaintiff gave in evidence, under objection and exception, declarations by defendant that he intended to “law plaintiff until he was poor.” [20]</p> <p>The court charged in part as follows, by Albright, P. J.:</p> <p>[“ The mere filling in by the defendant, Mr. Fulmer, even beyond low water mark, in itself, gives no right to Mr. Williams, the plaintiff, to recover damages. Inasmuch as he is an owner on a public stream, the mere stoppage of the water, without showing anything more, would not entitle him to recover. But if he has shown that unlawful act—that the filling in Avith slate rubbish beyond low water mark—was done or caused to be done by the defendant, and that he, the plaintiff, was injured by it in the enjoyment and use of his property, then he may recover. I will repeat here, that in considering the use of his property you must exclude all idea of the water power, because he had no right to that, and you must exclude also such use of the stream as he had a right to in common with every other citizen. But he can recover for any peculiar injury to his property resulting from the defendant’s interference with the stream, as the plaintiff had the right to have and use that stream.] [14] ....</p> <p>“ It has been argued strenuously that Williams, the plaintiff, cannot recover unless he shows that not only he, but the people generally in the neighborhood were damaged; in other words, that only by showing this was a public nuisance, and that he sustained special injury can he recover. [My view of the law is that such a rule would be too narrow, and that if there is an obstruction of a stream which is a public highway beyond low water mark, and even although it does not affect the whole community so as to amount to a public nuisance, yet that an owner on the shore who has been specially injured may recover damages.] [15] .... [I can conceive of a case where lands might be owned in large tracts, and where the ground might be comparatively flat and level, and with a stream which is a public highway flowing through it, and where one man by damming up the stream and digging a trench might take away the stream entirely from his neighbor, and then bring it back again to its natural bed below his neighbor’s land, and nobody might be affected by it except that neighbor. In such a case as well as in this case, in my estimation, the injured party can recover.] [16] ....</p> <p>[“ Williams, the plaintiff, had no right to any water power by means of a dam and turbine wheels to drive the machinery in the factory, and did not have the right even to place an undershot wheel in the stream between high and low water mark.] [4, plaintiff.] [But, as between him and the man who owned the property immediately above him, so far as that upper owner’s right was concerned, to fill in beyond low water mark, I say to you that Mr. Williams had a right to have the stream flow past his property in its natural channel, as it would have flowed if there had been no filling in beyond low water mark. And if you find that the presence of the stream there, as it would have been if the defendant had not filled his rubbish into the stream beyond low water mark, was a benefit to the property of Williams, and that the taking away of it, if it was taken away, by the defendant, was an injury, and if that injury was a material one—more than a mere nominal one of a cent, or a few cents—then you may say that the plaintiff can recover for the injury done to his shore property.] [17]</p> <p>[“ Was the property injured by what the defendant did, and, if it was, how much, and what would it cost to remove the rubbish which was thrown in the stream when the suit was brought beyond low water mark ?] [18] ....</p> <p>[“ If you reach this question you will ascertain (if the property of the plaintiff is damaged, and if the injury is permanent,) which is the lower amount, the depreciation, if there was a depreciation, in the real estate, or the cost of removing the rubbish, and the lower sum you will take as the compensatory damages in the case.”] [22]</p> <p>Plaintiff’s points were, among others, as follows :</p> <p>1. Same as 1st point in 122 Pa. 199. [1]</p> <p>“ 2. If the water of the Lehigh river which flowed over the lands of Mr. Williams, between high and low water mark, was diverted from his lands by the unlawful act of Fulmer, and Mr. Williams was deprived of its use for lawful purposes beyond the mere right he had in common with the public, Fulmer is liable for the damages thus inflicted.” Affirmed. [2] .</p> <p>“ 3. If the formation of the bed of the stream opposite the factory or property of the plaintiff, between high and low water marks, was such that the mere flow of the stream over it would create a water power that could be used by the plaintiff without diverting the water in any way, and without interfering with the rights of the commonwealth and the public in the stream, he could not be deprived of this advantage by any unlawful act of the defendant, and if the defendant did by an unlawful act so divert the flow of the water from the lands of the plaintiff as to deprive him of this advantage, he is liable for the injury thus inflicted, and must respond in damages therefor.” Negatived. [3, plaintiff.]</p> <p>“ 4. While the commonwealth or its grantees have the absolute right and ownership in the water of navigable streams, yet as between riparian owners each one has the right between high and low water mark to all the advantages arising from the flow of the water over such lands which do not interfere with the rights of the commonwealth, its grantees, or the pub-lie. No riparian owner has the right by any unlawful obstruction in the stream below low water mark to interfere with this advantage, and if he does, he must respond in damages to the owner injured.” Affirmed. [3]</p> <p>“ 5. If the flow of the water of this stream along the property of the plaintiff gave it a value beyond its value without such flow, a,nd the plaintiff by his unlawful act has diverted the flow and thus depreciated the value of the property, he must respond in damages for the injury done.” Affirmed. [4]</p> <p>“ 7. If the defendant was guilty of an unlawful act and committed the same willfully, intentionally and maliciously with intent to injure and damage the plaintiff, the jury in addition to compensatory damages may add vindictive or exemplary damages as a punishment for such conduct. The amount of exemplary damages rests in the sound discretion of the jury uninfluenced by prejudice or passion.” Affirmed. [21] Defendant’s points were, among others, as follows:</p> <p>“ 1. Under all the evidence the verdict must be for the defendant.” Negatived. [19]</p> <p>“ 3. In this case it is essential that the plaintiff prove that the alleged encroachment of the dump pile upon the Lehigh river is a public or common nuisance. Such a nuisance is defined to bo an act which interferes with the enjoyment of a right which all of the members of the community are entitled to; it must be such an act as affects the whole community in general, and not merely some particular person. Answer: This contains a correct statment of what is a public nuisance. But plaintiff may recover as a lower riparian owner, if he was injured as such owner, by the willful, malicious and unlawful act of defendant in dumping beyond low water mark, even if It is not shown that the whole community was injured; it is not essential to show that the dump pile was a common nuisance, in the sense of affecting the community; therefore, the point is negatived.” [5]</p> <p>“5. Public nuisance, as such, can only be abated by the commonwealth. If a person brings a private action he must show the existence of a common public nuisance, and that he has suffered a special or peculiar injury resulting therefrom. Answer: Affirmed as a legal proposition; if a plaintiff complains only of a public nuisance, and special injury to himself* he must prove what is here stated. The plaintiff in this case complains not of the commission of what affected the community, but that defendant, as an upper riparian owner, did an unlawful act, to the injury of plaintiff as a lpwer riparian owner. If plaintiff has shown what he alleges, he may recover.” [6]</p> <p>“ 6. An action for a nuisance in a public highway cannot be sustained unless the plaintiff shows a special or particular injury to himself, different in kind and distinct from that which lie puffers in common with the rest of the community. Answer: Answered in words of answer to fifth point, which answer is now again read to the jury. [7]</p> <p>8. Same as 2d point in 122 Pa. 199. [8]</p> <p>9. Same as 3d point in 122 Pa. 199. [9]</p> <p>“ 10. The plaintiff having no grant from the state, has in the soil of the Lehigh river and its banks, below low water mark, no private rights and no riparian rights arising therefrom and cannot recover for any obstruction put in the river above him, that has not in fact obstructed his right to use the river as a navigable public highway. Answer: Negatived; this is in substance a proposition that plaintiff’s right to recover for the obstruction must be confined to his right to navigate the stream. This I cannot affirm.” [10]</p> <p>11. Same as 7th point in 122 Pa. 200. [11]</p> <p>12. Same as 6th point in 122 Pa. 200. [12]</p> <p>14. Same as 15th point in 122 Pa. 200. [13]</p> <p>The verdict was for plaintiff for compensation $1,318 ; exemplary damages $1,175; total damages $2,482, for which amount judgment was entered. The verdict on the former trial was for plaintiff for $6,831.81. Both plaintiff and defendant appealed.</p> <p>Errors assigned by plaintiff were (1, 2) rulings on evidence, quoting bills of exceptions; (3, 4) instructions, quoting point and charge, as above.</p> <p>Errors assigned by defendant were (1-19, 21, 22) instructions, quoting them ; and (20) admission of evidence, quoting bill of exception and evidence.</p>

<p> Reserved point—Verdict for defendant—Judgment*—Practice. </p> <p>On verdict for defendant no question of law can properly be reserved, for no judgment can be entered for plaintiff non obstante veredicto in case of a decision in his favor. A judgment entered for plaintiff upon a point reserved after verdict for defendant will, therefore, be reversed. In this case there was a verdict for both defendants, the court reserving a question of law upon which judgment was entered subsequently in favor of plaintiff as to one of the defendants and in favor of defendant as to the other; for this reason the judgment was reversed.</p> <p> Accord and satisfaction—Executory agreement—Performance. </p> <p>An accord and satisfaction is the substitution of a new agreement in place of the old and performance of the new agreement; together they are a complete defence to an action on the original agreement. Tender of performance cannot take the place of satisfaction unless accepted. A mere agreement or accord on a new consideration is not enough, the accord must be executed. If the accord itself is accepted as satisfaction, and is founded on a new consideration, that will be sufficient. But there is a distinction between an agreement to accept a promise in satisfaction and an agreement requiring performance of the promise.</p> <p>Defendant agreed in writing to pay a sum in cash and a sum in securities to be satisfactory to the plaintiff, “ the above in lieu of two notes ” upon which plaintiff had brought suit: Held, that “the above” in this agreement referred not to the promise but to the money and securities, and therefore the agreement was executory and contemplated the performance of the promise. A tender of performance, although made promptly and in good faith, was not satisfaction.</p> <p> Consideration—What is sufficient for an accord. </p> <p>Where the agreement was under seal to give plaintiff in place of promissory notes of over $7,000 face value, $8,000 in cash and $4,000 in securities, and to pay attorney’s fees in the suit on the notes, there was sufficient consideration, in addition to the seal, to support the agreement.</p>

Appeal, No. 362, Jan T., 1862, by defendants, E. A. Zeek et ah, from judgment of C. P. Hunting-don Co., Sept. T., 1886, No. 144, on verdict for plaintiff, R. Meyers, executor of J. R. Kephart, deceased. Sci. fa. to revive judgment. On the trial, before Etjbst, P. J., the evidence was to the following effect: Height held a judgment for $800 against Zeek which was a first lien; the next lien was held by another party, and J. R. Kephart held a subsequent judgment for $500.

<p>Evidence—Witnesses—Party dead—Act of May 23, 1887.</p> <p>In a sci. fa. sur mortgage, a terre tenant is not a competent witness, where the mortgagor is dead, to prove that the mortgagor had sold the property to the terre tenant prior to the execution of the mortgage.</p> <p>The subject-matter of the contest and the rights and disabilities of the parties are the same in an action by the mortgagee as in an ejectment by the mortgagor tried after his death and the substitution of his heirs.</p>

<p> Coal lands—Sale—Thorough examination for coal—Mode. </p> <p>A vendee who has covenanted to thoroughly examine land in search of an undervein of coal in order to settle the price to be paid for the land may select the mode, if none be prescribed by the contract.</p> <p>He has a right to consider the results of former examinations on the same land, and the established facts of science relating to the formation of the carboniferous measures, and to the stratified rocks above and below them as well as his own work.</p> <p> Evidence of examination—Corroboration—Expert witnesses. </p> <p>Having proved that his examination showed no trace of the vein sought for and that he thence concluded it did not exist, he has a right to show, in corroboration by expert witnesses, that they have examined the tract by the application of scientific and practical tests with which they are familiar, and that the vendee reached a correct conclusion</p> <p> Instructions as to weight of expert testimony. </p> <p>It is not error to leave it to the jury to determine the weight of expert testimony, but they should be instructed that the value of such testimony depends largely on the extent of the experience or study of the witness. The greater the experience or knowledge, the greater is the value of the opinion resting upon it.</p> <p> Practice—Order of proof . </p> <p>Where defendant had agreed to pay a maximum price for coal land, unless after a thorough and exhaustive examination he finds that a certain supposed vein of coal does not exist, plaintiff suing for the price is not bound to show defendant’s manner of performance or its insufficiency, in the first instance. But if he has shown the manner of performance by the defendant as part of his case in chief, it is not error to allow him to give evidence tending to show its insufficiency.</p>

<p> Deeds—Recitals—Reservation—Constructive notice. </p> <p>A recital in a deed excepting from the grant all lots which have been granted to any person for burial lots, is constructive notice to those claiming under said deed that the burial lots were excluded from the operation of the deed, although the deed of the burial lots was not recorded until after the deed containing the exception.</p>

Appeal, No. 178, Jan. T., 1892, by defendant, from judgment of C. P. Berks Co., No. 15, Dec. T., 1889, on verdict for plaintiff, Francis Brunner. Trespass for injuries suffered by plaintiff by reason of his horse becoming frightened and running away, caused by explosion of dynamite cap by one of defendant’s workmen, John Delaney. The facts appear by the opinion of the Supreme Court.

<p> Police powers—License fee—Power of legislature. </p> <p>What business or occupation so far affects the public welfare and good order as to require to be licensed, is a matter of legislative consideration and control, which when exercised in good faith is outside of the jurisdiction of the courts.</p> <p>Where a license fee on occupation is imposed under the police power, and its good faith and the reasonableness of its amount are not questioned, the presumption is that it is what it professes to be, although apparently imposed with an eye to the increase of revenue.</p> <p>Bank license—Tax—TSxemption—Acts of 1874, 1885 and 1889.</p> <p>The act of June 30, 1885, § 3, P. L. 193, exempting banks from local tax on payment of state tax, does not exempt banks in such case from the payment of a license tax under the act of May 23, 1874, § 20, cl. 4, P. L. 239, such license tax being incidental to the exercise of the police power.</p> <p>The license tax on banks authorized by the act of May 23, 1889, P. L. 277, being for general revenue purposes, banks are exempt from payment of it upon compliance with the exempting provisions of the act of 1885.</p>

<p>Appeal, No. 132, Jan. T., 1891, by plaintiff, Geo. W. Hancock, from judgment of C. P. No. 4, Phila. Co.. Oct. T., 1888, No. 341, on verdict for defendant, Thos. B. McAvoy.</p> <p>Ejectment for cemetery lots.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below, Arnold, J., directed a verdict for defendant.</p> <p>Errors assigned are immaterial in view of the decision.</p>

<p> Evidence—Party dead—Surviving party called as on cross-examination on former trial—Competency—Offer. </p> <p>To remove the incompetency of a surviving party, an offer to show “ that on a former trial of the ease the witness was called by the opposite party as if under cross-examination and was asked questions and had answered them, and that thereby, the witness was made competent to testify to matters occurring in the lifetime of tire deceased party,” is not sufficient; the offer to be self-sustaining should state that the questions and answers related to matters occurring in the lifetime of the deceased party.</p>

<p>Appeal, No. 2, Oct. T., 1892, by defendant, Wm. Culp, from judgment of C. P. Westmoreland Co., May T., 1889, No. 64, on verdict for plaintiff.</p> <p>Ejectment against tenant of heirs of Harriet E. J. Elder, and case-stated.</p> <p>The case-stated agreed upon the following facts, among others: Harriet E. J. Elder made her will wherein she provided as follows: “ After providing for my necessary funeral expenses, I do give and bequeath my mother Mary Elder, all my personal effects whatsoever, and also all my right, title, interest and claim of and to our farm, together with all monies interests of whatsoever character or kind’ accruing therefrom, to be used by her for her own personal benefit.”</p> <p>The following clause was written by one of the subscribing witnesses below their signature, and was signed by Mrs. Elder when she signed the. previous part of her will: “ N. B. After the decease of my mother, Mary Elder, I desire that my interest in the said above mentioned farm, together with all interest accruing therefrom shall be appropriated to Foreign Missionary Work.”</p> <p>Mary Elder by her will devised her interest in the farm to plaintiff. Defendant is tenant under heirs at law of Harriet Elder.</p> <p>The court in an opinion enteréd judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned were (1) entering judgment for plaintiffs, quoting the decree ; and (2) not entering judgment for defendant.</p>

Appeal, No. 118, Oct. T., 1892, by defendants, C. L. Poor et al., from judgment of O. P. Venango Co., April T., 1890, No. 34, on verdict for plaintiff, James Kennedy. Before Sterrett, Green, Williams, Mc-Collum, Mitchell and Heydeick, JJ. Sci. fa. sur mechanics’ lien.

<p> Married women—Justice of the peace—Appeals—Laches. </p> <p>A married woman, who has taken no appeal from the judgment of a justice of the peace, cannot, after a delay of three years, and after a transcript has been filed in the common pleas, have the judgment opened to let her into a defence. She is barred by laches.</p> <p> Practice—Parties—Joining husband as defendant. </p> <p>Under the Married Persons Property Act of 1887, the husband of a married woman need not be made a party defendant in an action against the wife, although plaintiff’s claim may have originated before the passage of the act.</p> <p> Opening judgment entered on transcript filed as a lien. </p> <p>The court of common pleas has no jurisdiction to open a judgment, entered on a transcript of a judgment of a justice of the peace filed in court as a lion.</p>

<p>Municipal corporations—Form of entering into contract.</p> <p>The water commissioners of a city authorized to bind the city by contract may enter into a valid corporate obligation with a contractor without reducing the agreement to writing or causing a proper minute thereof to be entered in their books.</p> <p>Water commissioners of ISrie—Act of April 4, 1867.</p> <p>Under the act of April 4, 1867, the Water Commissioners of the city of Erie have power to enter into an agreement with a contractor to pay for extra work necessary for the erection or maintenance of the city water works.</p>

<p> Evidence of forgery—Surrounding circumstances. </p> <p>On an issue to determine the genuineness of a judgment note dated, in February, 1887, and entered up in September, 1890, it is proper for the defendant to show that plaintiff had in her possession a few days before the entry of the judgment, other notes bearing the signature of the same maker, but in blank as to dates and amounts. The possession of such blanks was a highly suspicious circumstance calling for clear explanation.</p> <p>Plaintiff testified that the note was signed on a Thursday, and that she knew that it was a Thursday because she had looked at the almanac then and there. On cross-examination she was asked why she looked at the almanac. Objection to the question was sustained. Held, that the examination of the almanac to fix the date of the note on the very day it purported to have been signed was unusual, and might be suspicious, and that the rejection of the evidence was erroneous.</p> <p>Evidence—Deposition.</p> <p>Plaintiff’s deposition, taken in the lifetime of the defendant who is dead at the time of the trial, is only admissible for plaintiff as a whole.</p> <p> Threats against witness. </p> <p>It is improper to admit evidence of threats against plaintiff’s witness by a person who was not connected with the defendant in any way, to make the latter responsible for the conduct of the person who made the threats.</p>

<p>Appeal, No. 133, July T., 1891, by plain tiff, A. M. Weber, from judgment of C. P. Montgomery Co., March T., 1890, No. 131, on verdict for defendant, Clinton Rorer, bailiff for Paul Jacoby.</p> <p>Replevin. Defendant pleaded “no rent in arrears.”</p> <p>At the trial, before Weand, J., the evidence was to the effect that Paul Jacoby leased to plaintiff a farm, by a written lease, dated March 10, 1886, for a yearly rent of $300 payable in quarterly instalments of $75 each. Plaintiff claimed that there was no rent due, as he had made overpayments in previous quarters, which more than offset the amount of the rent due for the two quarters for which the distress was made.</p> <p>Counsel for plaintiff offered in evidence the testimony of Algernon S. Jenkins, taken by defendant in the former trial, to show that defendant’s agent, with his authority and consent, prepared a statement or settlement in which he recognized the fact that Weber had on certain occasions paid rent in advance, recognizing those payments, and to show how the payments were made, to be followed up by proof that plaintiff has receipts showing that he has paid in conformity with his lease to his landlord a sum exceeding $1,175.83, which is more than the rent due up to the two quarters embraced in the defendant’s answer. Objected to.</p> <p>The Court: The court will permit the plaintiff to prove any payments of rent in advance referring to the period commencing July 1, 1889, and ending January 1,1890, but will exclude any testimony referring to overpayments made for previous quarters in any other way. Objection sustained, and exception. [1]</p> <p>Plaintiff offered to prove by a witness on tbe stand, and by the production of receipts, which were acknowledged upon the former trial by the landlord to be correct, that plaintiff had paid to him or his agents for and on account of rent $1,175.83, and that there was now a balance due from the landlord to the tenant by reason thereof. Objected to, objection sustained and exception. [2]</p> <p>The court charged in part as follows:</p> <p>“ I further charge you as a matter of law that the tenant in this case can only set off against this claim for rent any amounts he has paid on account of the rent for those two quarters. He claims that he has overpaid the landlord by mistaken payments and by payments made for previous quarters for which he received no credit, but under the law as the court understands it this defence is not allowable, and unless the plaintiff, the tenant, shows that he has paid the rent for those two particular quarters or on account thereof, your verdict must be for the landlord for such an amount as is shown to be due.</p> <p>“ It is claimed by the plaintiff that on August 13 he paid $75 cash, that on September 16 he paid taxes, $19.09, and on November 13 he paid cash $30. He also testifies to a payment of $56, which has been allowed him in the claim made by the landlord. So that the amount shown by these three payments aggregate $124.09. Now if these amounts were paid on account of this particular rent it would be a defence; but when the tenant is called to the stand he first says it was paid on account of a levy made previously and for rent due before July 1, 1889. If the payments were so made they cannot be credited on the rent which is now distrained for.</p> <p>“ He further testifies upon further cross-examination that they were paid on account of rent generally. Now it appears from the testimony which is undisputed here that there had been a deficiency of rent due July 1, and that after that time there had been a levy for that rent and then some arrangement made between the tenant and Mr. Hoover, who was acting for Jacoby, in relation to its payment, and that afterwards these amounts were paid. Now if they were paid generally on ac- ' count of rent, and if there was no specific appropriation by the tenant when he paid them, of which there was not any evidence in this case, then the landlord would have a right to appropriate those payments to the rent which was least secure or which was first due, and especially would that be the case if Mr. Hoover and Mr. Weber so agreed. [So that in either aspect of this case as the court views it, all these amounts so paid would have to be credited on the rent which was due before July 1, and then there would be no evidence that anything was paid on the rent which became due after that, and that being the case your verdict would have to be in favor of the defendant, the landlord, for the amount claimed by him, $145.70.] [3]</p> <p>“ In cases of this kind whore the jury find for defendant, it is their duty to find not only the amount of rent due but also the value of the goods. Therefore in this case your verdict would be in favor of the defendant for the rent due, $145.70, with interest from January 1, 1890, and the value of goods distrained, $328. There has been a calculation made here showing what the interest would amount to, which the jury can take. You are not obliged to take it for truth, but can verify it. If it is true, your verdict would be in favor of defendant for $158.08, rent due, and the value of goods, $328.”</p> <p>Verdict for defendant for $158.08, rent in arrear, and value of goods distrained $328. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, and (3) instructions, quoting bills of exceptions and portion of charge in brackets.</p>

<p> Statute of frauds—Promise to pay debt of another. </p> <p>Where the leading purpose of a promise is to subserve some interest or object of the promisor himself, notwithstanding the effect is to pay or discharge the debt of another, the promise is not within the statute of frauds.</p> <p>.Defendant contracted to sell his own undivided interest in land to plaintiff and also the interest of a cotenant. When the deed of the cotenant was offered to plaintiff, he objected to taking it, because ho feared there might be judgments against the cotenant. Defendant, to induce him to take the deed, made an oral agreement to pay all of the cotenant’s judgments.</p> <p>Held, that the promise of the defendant was not a promise to pay the debt of another within the statute of frauds, but was an original undertaking, based upon a sufficient consideration.</p>

Appeal, No. 138, Oct. T., 1892, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1891, No. 27, on verdict for plaintiff. Assumpsit for drilling well for water.

<p>Appeal, No. 13, July T., 1892, by defendant, William Schwenk, from judgment of C. P. Northumberland Co., Sept. T., 1883, No. 251, on verdict for plaintiff, Daniel Kehler.</p> <p>Case by minor by next friend to recover damages for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial before Sittser, P. J., when Milton M. Haas was on the stand, plaintiff proposed to ask him whether a boy of the size and strength of Daniel Kehler at the time of the accident, could have unhitched the mule from the car in any other manner than that described by the witness, to wit, by getting in front of the car. Objected to. Objection overruled and exception. [1]</p> <p>The witness answered: “ I don’t think he could.”</p> <p>Plaintiff proposed to show by the same witness that the road bed upon the dirt bank in question, belonging to the colliery of Schwenk, Robertson & Co., known as the Black Diamond colliery, and being the one upon which Daniel Kehler was injured on the 13th of September, 1882, was in bad condition; that holes were worn between the sills both outside and inside of the tracks; that many of the sills upon which the iron rails were laid were rotten, and would not hold nails or spikes so as to fasten the rail; that the path upon the outside of the track was in bad condition; that the ties extending beyond the rail were rotten, and also extended above the surface of the path. This for the purpose of showing that the place at which Daniel Kehler was put to work in pursuance of the order and direction of one of his employers, to wit, George Robertson, was dangerous, unfit and unsafe for a boy of the size, age, strength, physical condition and experience of Daniel Kehler at that time.</p> <p>Objected to. Objection overruled and exception. [2]</p> <p>The witness testified substantially in accordance with the offer; and further as recited in opinion of Supreme Court.</p> <p>When Daniel Specht, a witness for plaintiff, was on the stand, plaintiff proposed to ask him whether a boy of Daniel Kehler’s size and physical strength could have unhooked a mule while in rapid motion while the boy was on the outside of the rails. Objected to. Objection overruled and exception. [3]</p> <p>The witness testified that he could not.</p> <p>Counsel for plaintiff proposed to show by John McEliece, a witness for plaintiff, that the hitch, contrivance and appliances used upon the dirt bank of defendant company for the purpose of dumping coal dirt in 1882, were not at that time, or at any other time prior thereto, in general use, or in fact in use at any colliery in either Northumberland or Schuylkill county; that this was the only hitch of this kind, and that it was unsafe and dangerous. This for the purpose of showing that this contrivance, including the hitch, was not in general use; that it was exceptional and dangerous, and not a fit appliance to the purpose for which it was used. Objected to. Objection overruled and exception. [4]</p> <p>The witness testified that he was familiar with the appliances.</p> <p>Counsel for plaintiff proposed to show by the same witness that, grade or no grade, there never was such an appliance, as that used by defendants upon their dirt bank for taking out coal dirt, used upon any other dirt bank in Northumberland or Schuylkill county. This to be followed with the testimony of persons who were acquainted with the different dirt banks, showing that upon other dirt banks of a character similar to that of the defendants, and where the same material was being hauled, that no such appliance as that furnished by the defendants to the plaintiff was used. Objected to. Objection overruled and exception. [5] -</p> <p>The witness testified substantially as in the offer.</p> <p>The court charged in part as follows:</p> <p>“ In passing upon the question of negligence which is charged against the defendants in this case, you should consider what was the situation of affairs immediately before the accident, and at the time of it. Take all the circumstances which were surrounding the case, as they would naturally appear to the defendants, in reference to the business they were conducting. Consider the manner in which they were conducting it, take the age, size and intelligence of this boy into consideration, the manner in which the car was constructed, and then determine whether these defendants were guilty of negligence in furnishing such a car and appliances to such a boy. You can also consider whether it was the common and usual practice for boys of the age of the plaintiff, and of his strength and intelligence, to drive and unhitch mules from cars of this kind. Take all this into consideration and determine whether there was anjr negligence in this respect. [6] ....</p> <p>“ If this was a dangerous business; if it was dangerous to unhitch this mule in front of the car; if the defendants were guilty of negligence in providing such machinery for this plaintiff to operate, and this plaintiff being fourteen years of age knew it was dangerous, and had sufficient judgment and sense that he ought to have known better than to have incurred this risk, then he would be guilty of contributory negligence and cannot recover. But if he was of such tender years, or did not have sufficient sense to appreciate the danger and know better than to go there and do that work, then he would not be guilty of contributory negligence. That' is a question for you.” [7]</p> <p>Defendant’s points were as follows among others:</p> <p>“ 1. Under all the evidence in the case the plaintiff is not entitled to recover and the verdict of the jury should be for the defendants. ■Answer: This we do not affirm, neither do we say to you that, under all the evidence in the case the plaintiff ought to recover; but whether the plaintiff ought to recover or not is a question for you to determine after a careful consideration of all the evidence in the case, under the instructions which we have given you.” [8]</p> <p>“6. If the jury find from the evidence that the lower hitch, such as was used by the defendants, was one of a kind in general use upon dirt banks with similar grades, there was no negligence in the use of that hitch by the defendants, and the plaintiff cannot recover. Answer: We affirm this point so far as to say that there was no negligence in the use of that hitch by the defendants and that so far as that branch of the case is concerned the plaintiff cannot recover, unless there was some negligence in sending a boy of the age and mental condition of the plaintiff to work with that kind of machinery, without any instructions as to its proper use.” [9]</p> <p>“ 8. If the jury believe that the plaintiff voluntarily placed himself in front of the ear, when moving at a rapid rate, at an improper point and before the mule had reached the point where it was necessary to uncouple in order that the car might run to the end of the dump, and that he was hurt in such position, then he was guilty of such contributory negligence as would prevent a recovery in this case. Answer: This we affirm provided you find that this boy had sense enough to know better.” [10]</p> <p>“ 9. If the jury believe that the mule would have turned out at the level place testified to, and at a point where the spreader could have been unhooked at the side of the car and without the plaintiffs getting between the rails, and that the plaintiff attempted to unhook the spreader before this point was reached and was hurt in such an attempt, he was guilty of contributory negligence, and there can be no recovery in this action, and the verdict should be for the defendant. Answer: This is affirmed if he had sense enough to know better.” [11]</p> <p>“ 10. The undisputed evidence by both plaintiff and defendant, showing that the kind of dump car used at defendant’s colliery for many years prior and a long time subsequent to the accident, the plaintiff, when he was employed at the colliery, assumed all the risks incident to the use of this dump car, and there being no evidence that the car was out of repair, the plaintiff cannot recover in this suit by the mere allegation that the accident might have been avoided if the car had been of different construction, and the verdict should be for the defendant. Answer : We do not affirm this point as drawn. There are various facts stated in it which are questions for the determination of the jury.” [12]</p> <p>“11. Daniel Kehler having testified that when he was directed by Edwin Smith, in charge of the chutes, to assist on the dirt dump, he, Kehler, informed Smith that the work was too heavy for him, and Smith directed him to see Robertson about it and Kehler neglected to do so, but went to work without seeing Bobertson, who was then about the breaker, and continued to work about the dirt bank until injured, he did so voluntarily and negligently, and assumed all the natural and ordinary risks of such employment, and the plaintiff cannot hold the defendant responsible for the injuries sustained. Answer : This is not affirmed as drawn.” [13]</p> <p>“13. If the jury believe that Edward Smith sent the plaintiff out to work without orders to do so from any of the defendants, and it was found that the employment was unsuitable and the appliances unsafe, and the plaintiff was injured while performing the services which he was directed to perform by the said Edward Smith, such injury was caused by the said Edward Smith, a fellow servant, and there can be no recovery. Answer: This is not affirmed. The defendants were bound to furnish reasonably safe appliances for all those set to work by them, or by any one who had the power to set others to work in their employ.” [14]</p> <p>The plaintiff presented this point:</p> <p>“1. That under the evidence of this case the defendants were in duty bound to put Daniel Kehler at such work as was suitable and reasonably safe for a boy of his age, size, strength, physical ability and experience. Answer: This we affirm; and, considering whether it was negligence to put this boy at this work, you will take into consideration whether it was usual and common to put boys of his age and strength at this kind of work. What was the practice in the community ? Consider, too, the nature of the work, and whether any great amount of strength was required. Take all these matters into consideration in determining whether it was negligence to put this boy at work driving a mule on this dirt bank.” [15] Yerdict for plaintiff, $1,550; judgment. Defendant appealed.</p> <p>Errors assigned were (1-5) rulings on evidence, quoting bills of exceptions and evidence; (6-15) instructions, quoting them.</p>

<p> Mortgage—Assignment—Defences. </p> <p>The assignee of a mortgage holds it subject to all defences that might have been made against it in the hands of his assignor.</p> <p> Payment by vendee of judgment against vendor—Set-off. </p> <p>The vendee of land has a right to pay off a judgment, entered against the vendor after delivery of possession but before conveyance, and to set off the amount of such payment against a mortgage given for the purchase money.</p> <p> Notice—Judgment—Mortgage—Record. </p> <p>The assignee of a purchase money mortgage has constructive notice of a judgment against the vendor, which is a lien upon the land, and is put upon inquiry as to payments made by the vendees.</p> <p> Ejectment—Conditional verdict—Application of payments—Liens. </p> <p>In an action of ejectment it appeared that defendant by articles of agreement purchased the land in dispute from Boas for $850, and went into possession in April, 1882, and immediately made valuable improvements. On Aug. 1,1882, a judgment was entered against Boas. Payments on account of the purchase money were made by defendant to Boas until August 22, 1882, when Boas executed a deed for the promises and took a mortgage for $555, residue of purchase money, both deed and mortgage being duly recorded. Further payments were made until April 27, 1888, when the mortgage was assigned to plaintiff. The balance due at that time was $415. After notice of the assignment payments were made by defendant to plaintiff, the assignee, aggregating to April, 1888, $140. On Nov. 8, 1887, plaintiff purchased the judgment against Boas, issued execution on the same, and bought in the land at the sheriff’s sale. Held, in an action of ejectment, that plaintiff had constructive notice of defendant’s equity to have the payments made on the mortgage sot off against the judgment, and the verdict should be conditioned accordingly.</p>

<p> Ejectment—Equitable defence—Parol partition—Res adjudicata. </p> <p>A series of circumstances may make an equitable defence to an action at law, that would not sustain an action or justify a chancellor in finding and specifically enforcing a parol contract in equity.</p> <p>Where a bill filed for specific performance of a parol partition was dismissed, and the parties relegated to their legal rights, such dismissal is no bar to the setting up of the parol partition as a defence in ejectment for the same land.</p> <p>The parties having been sent by the decree in equity, into a court of law, have a right there to sot up any facts that may make it inequitable for plaintiff to assert his legal title against them.</p>

Appeal, No. 173, Oct T., 1892, by John L. Gill, plaintiff, from judgment of C. P. Cambria Co., June T., 1891, No. 471, on verdict for defendant.

Appeal, No. 57, July T., 1892, by plaintiff, from decree of C. P. Lancaster Co., equity docket No. 2, p. 383, dismissing bill in equity. Bill in equity for an injunction to restrain defendant from removing plaintiff’s toll gate.

<p>Appeal, No. 241, Oct. T., 1890, by plaintiff, George Walters, from decree of O. P. Clarion Co., Jan. T., 1888, No. 1, in equity, in favor of defendants, Joseph McElroy et al.</p> <p>Bill in equity for injunction to restrain continuing trespass.</p> <p>The facts and material averments of the bill and answer are stated in the opinion of the Supreme Court.</p> <p>The agreement set up in the answer as a defence was under seal, and provided that “ the party of the first part [plaintiff] hereby for the consideration of one dollar in hand paid, as well as the agreements hereinafter mentioned, agree to sell and do hereby sell and convey to the party of the second part, [B. Heidrich] his heirs and assigns, all the coal and all other minerals of every kind and description and all that is found, removed and sold from, in, and undér, a certain tract of land situate in the township of Madison, county of Clarion and state of Pennsylvania, [describing the premises upon which the alleged trespasses were committed,] with full right to enter said land, to dig, bore, excavate, quarry, mine and ship, build and remove, locate and build railroads over and under said land, or in any other manner to remove the same. In consideration whereof the said party of the second part hereby agrees and binds himself to pay the first party ten cents for every ton of 2240 pounds of coal and ten cents for every ton of 2440 pounds of ore and limestone and for all that is found, removed and sold; payments shall be made monthly for all that is removed and sold, and furthermore if said second party has paid royalties or made payment on minerals or payment in any manner on said land to the amount of —-dollars, said first party agrees to make a clear deed free of all incumbrances for said land, and to give possession at once.”</p> <p>The answer averred, upon information and belief, that the consideration, left blank by mistake, was $5,000; that $4,000 and upwards had been paid in royalties and other payments, with willingness to pay balance. The answer further alleged erection of valuable improvements, etc., and prayed to be discharged with costs.</p> <p>The case was referred to James Boggs, as master. Plaintiff, called by defendants by way of cross-examination, testified that there was no agreement as to the sale of the land, that he refused to sell it. The master reported that defendants were guilty of the acts complained of in the bill. He recommended that a decree should be entered against the defendants for $179 and costs, and that a perpetual injunction should issue as prayed for in the bill. On exceptions to the master’s report, the case was referred back to him to take further testimony. The master filed a second report in which he found [“ that the subject-matter of this suit is not within the jurisdiction of a court of equity, for the reason that the legal right on which plaintiff’s prayer for relief rests is disputed by the defendants.”] [2]</p> <p>Exceptions to the master’s report were overruled by the court in the following opinion, by Mehakd, P. J., of the 35th judicial district, specially presiding:</p> <p>“ The learned master concluded in his second report, that the subject-matter of this suit is not within the jurisdiction of a court of equity, for the reason that the legal right, on which plaintiff’s prayer for relief rests, is disputed by the defendants. The soundness of the doctrine leading to this conclusion is conceded by the learned counsel for the plaintiff, but its pertinence to this case is denied. The chief point of distinction relied upon is, that the instrument, conferring on defendants whatever rights they have to the locus in quo, is at most an executory contract for the land and was a present grant of only the coal and mining rights, privileges and facilities, and that, specific performance being a peculiar subject of equity, the court has jurisdiction. But this suit was not brought for that purpose; nor do the defendants in their answer, or cross bill, ask for specific performance of the contract. They are content, so far as the pleadings go, to abide by such execution of the contract as has already been performed. They are not here asking further performance. On the contrary, the issue is, whether their possession and enjoyment exceed their rights under the contract.</p> <p>“ It is earnestly and ably contended on behalf of plaintiff that the instrument under which defendants claim is not a valid contract for the. conveyance of the land therein described, in as much as it omits to state the amount of consideration to be paid therefor. The determination of the question thus raised depends upon the true construction of the instrument itself; its legal effect when so construed; the conduct of the parties and privies with respect to that contract and the effect of such conduct on what might otherwise be their legal right. That issue must be determined before it can appear that plaintiff has suffered or is in danger of injury. The construction of that instrument and a determination of its legal effect is a question of much nicety and by no means free from difficulty: See Soles v. Hickman, 20 Pa. 180; Bowser v. Cravener et al., 56 Pa. 132. It calls for careful distinction between kindred cases and kindred principles. And a just determination of the whole question will evidently require a full investigation of many facts. If it should be determined in favor of defendant, this court would clearly have no jurisdiction of the subject-matter in the suit. As its determination in plaintiff’s favor is precedent to his right to the remedy sought, it would be begging the question to assume jurisdiction of it, on the ground that the only adequate remedy for the supposed injury is to be had in equity: See Grubb’s Appeal, 90 Pa. 228; Newcastle v. Raney, 130 Pa. 546 ; Mirkil v. Morgan, 134 Pa. 144. Tt is therefore considered that the learned master correctly concluded that this court has not jurisdiction of this suit.</p> <p>[“ And now it is considered, ordered, adjudged, and decreed, that plaintiff’s bill be dismissed at his costs; save that defendants shall file no bills for witnesses.”] [1]</p> <p>Errors assigned were (1) decree; and (2) in sustaining conclusion of master enclosed in brackets, quoting decree, etc.</p>

<p> Limited partnership—Managers—Transfer of stock—Admission of members. </p> <p>A limited partnership under the act of June 2, 1874, was organized with three members, one of whom on the day of organization transferred his shares to his mother who was never elected a member; but the remaining members continued the son as representative of the mother in the board of management.</p> <p>Held, that this was an informal but effectual consent to the assignment and an admission into the association. The relation of the holders of the shares to each other and to the business of the association enabled them to continue their operations under the same management and as a properly organized joint stock association. They did not become liable as general partners.</p> <p>The provision of the act of 1874, restricting the right of the transferee to participate in the business until he or she shall be elected or admitted as a member, is for the protection of the remaining shareholders in the selection of their associates in the management and may be waived by them.</p> <p> Creditors—Right of members to claim as such. </p> <p>A member of a limited partnership under the act of June 2, 1874, may claim as a creditor against the assigned estate of the partnership and is entitled to receive his pro rata share of the fund with the other creditors.</p>

Appeal, No. 271, Oct. T., 1891, by W. H. Barnes, receiver of the Allegheny Valley It. it. Co., defendant, from judgment of C. P. Clarion Co., No. 96, Nov. T., 1890, on verdict for plaintiff, Lydia W. Brown. Trespass for damages for death, of plaintiff’s husband caused by the alleged negligence of defendant company. At the trial it appeared that Nathan Brown, plaintiff’s husband, was a passenger on defendant’s train from Emlenton to Foxburg.

<p> Disclaimer to take under will—Evidence—Ejectment. </p> <p>The assertion by defendant, in an action of ejectment, of contracts for tlie sale of land by plaintiff’s testator to defendant’s ancestor, is not a disclaimer by defendants of the devise to them of a portion of the lands by plaintiff’s testator, but is a mere assertion by defendants that they were entitled to a further assurance of the lands included in the contracts but not devised to them.</p> <p> Meseission of contract for sale of land. </p> <p>A contract in writing for the purchase and sale of land may be rescinded by parol, or by such conduct of the parties as clearly shows an intention to rescind. Evidence of the surrender of the premises by the vendee, and the acceptance by Mm of a lease from another person, is admissible to establish the rescission of such a contract.</p> <p> Parol sale of land—Evidence sufficient to establish. </p> <p>Parol sale of land may be established by evidence to the effect that the vendor having bought the land at a judicial sale at the request of the vendee, agreed to sell to him as much as he could pay for; that a line was subsequently established fixing the portion of the vendee who was “ to pay at the bid which the land was bid off at, with $200 extra; ” and that the vendee took possession and paid the whole of the purchase money.</p>

<p>Appeal, No. 315, Jan. T., 1892, by defendant, from decree of C. P. Berks Co., Sept. T., 1890, No. 55, refusing to permit land damages to be paid into court.</p> <p>Petition to pay land damages into court.</p> <p>Defendants’ petition averred that a verdict had been rendered for plaintiffs for f8,839.78 for land appropriated by defendants ; that the land appropriated and for which the damages were allowed, was bound by the liens of certain judgments and mortgages. The petition prayed for leave to pay the amount of the verdict into court for distribution to the person or persons entitled to the same, and that upon such payment into court it may be directed that the verdict be marked satisfied, etc., and for other relief.</p> <p>The answer averred: (1) That by the verdict the damages were found to be due to plaintiffs as owners of the property appropriated. (2) That the proceedings under which defendants acquired possession of the land appropriated and by which the damages were assessed were of an adverse character, and payment to the plaintiffs would be a final disposition of any claim for damages and full protection from any future liability to lien creditors. (3) That no lien creditors have appeared and become parties to proceedings asking for payment to them instead of to the plaintiffs. (4) That the payment into court is an unnecessary precaution and unwarranted by law, and will tie up the money_ and subject the plaintiffs to serious loss and damage, for which there is no justification in law. (5) That the amount of the verdict is but a very small fraction of the value of plaintiffs’ property and of the liens against it.</p> <p>The court refused the application and dismissed the petition in an opinion by Ekmentrotjt, P. J.:</p> <p>“ The right of the defendant to pay the amount of the verdict into court is not established by or predicated upon any act of assembly. In general practice, in assumpsit or covenant for the pajrment of money, when the dispute is not whether anything, but how much is due to the plaintiff, the defendant may have leave to bring into court any sum of money he thinks fit and is willing to admit to be due. Where, however, the action is for a tort or for general unliquidated damages it cannot be allowed. A tender cannot be pleaded and defendant is not allowed to bring money into court. Troubat and Haley’s Practice, § 503. In applications of the present character the appeal is made to the equitable power of the court, which is exercised and is oftentimes indispensable to prevent injustice. Deckert’s Appeal, 5 W. & S. 342. Whenever, therefore, payment of money into court is indispensable to prevent injustice, then and then only will the court permit a defendant to do so. As in all cases of the exercise of equitable powers, the party invoking the aid of the court ought to present a clear case, showing the injury that may arise unless the court interfere. With this principle in view, the disposition of the present case is free from difficulty. By act of assembly the owner is the party having the right to recover, the proceedings are instituted in his name and without objection a recovery has been had. The petitioner alleges ‘ that the land appropriated for the construction of the railroad and for which the damages are allowed is bound by the lien of certain judgments and mortgages.’ Their nature, character and amount are not specified. It is not alleged nor is it shown that any injustice can possibly arise by the payment of the money to the owner who has recovered in the suit. On the contrary, the answer of the owner is ‘ that the amount of the verdict is but a very small fraction of the value of the plaintiff’s property and of the liens against it.’ Nor does any lien creditor appear here in court asking for any disposition of this money, nor alleging that payment to the owner would work any injustice or prejudice the value of his security. This action is instituted to No. 55 Sept, term, 1890. The act of appropriation of land was notorious and public. Creditors have therefore had ample time to make their claims. No clear case calling for the exercise of the equitable powers of the court is therefore shown, and under the circumstances of this case it would be inequitable to order this money into court to be diminished by the payment of poundage, etc.</p> <p>“ A brief examination of the authorities will clearly demonstrate that this power of the court has not been exercised except to prevent palpable injustice, and at the request either of lien creditors whose security and rights were in danger, or where the defendant was notified not to pay over by lien creditors so imperiled. Beginning with Schuylkill Navigation Company v. Thoburn, 7 S. & R. 411, it has been decided, that none but the owner or owners can sustain proceedings against the corporation or company exercising its right of eminent domain in the taking of the owners’ lands, and that whatever claim lien creditors having liens upon the land taken might possibly have to the damages recovered, could only be enforced upon motion to take the money out of court. In Reese v. Addams, 16 S. & R. 40, it was held that whilst the owner of the land is the party to bring suit, courts of justice would take care that the rights of all interested in the proceeds of the land would be protected. In this case the money recovered as compensation for the land had been paid into court and the lien creditors appeared, ‘ asking the court to protect their rights, which will be absolutely destroyed if the money be suffered to pass into the hands of the owner of the land or his assignee.’ The owner by his assignee was not permitted to take the money, which was insufficient to pay the liens. The plaintiff’s assignee was demanding the money, not as a trustee for lien creditors, but with the intent to apply it to an entirely different purpose. The court intimated that ‘ a payment by the company to the owner would be a protection to them, that they were not bound to see to the application of the money unless perhaps on express notice.’</p> <p>“ In Deckert’s Appeal, 5 W. & S. 342, the money had been paid into court and the lien creditors ‘ were diligently pursuing it to prevent it from going into the hands of the owner or his assignee.’ The court sustained the claim of the lien creditors upon the ground ‘ that rights would have been destroyed if the money had been suffered to pass into the hands of the owner,’ who was insolvent; that the right of the court to do so ‘ comes under the head of preventive justice, a beneficent and highly useful branch of chancery jurisprudence.’ But the Supreme Court also said ‘ that the owner of the land who was insolvent had the legal right to receive the money from the company, and paj-ment to him would have been a good payment without notice of the equitable interests.’ The right of the creditors was preserved under the equitable powers of the court to prevent injustice. In Phila. v. Dyer, 41 Pa. 463, the existence of liens on the land wafe held not to affect the right of the owner to recover, and at the end of the opinion filed the court say, ‘ we add only that if there are liens upon the lands the rights of the lien creditors may be protected by ordering the fund to be paid into court to be marshaled there. Such liens do not affect the right of the plaintiff to recover.’ In Workman v. Mifflin, 30 Pa. 362, part of a lot out of which a ground rent was reserved was taken for a public highway. It was held,</p> <p>‘ whilst the ground landlord was not an owner to whom damages could be awarded, that in equity a portion of the damages could have been impounded to meet the accruing rents.’ Powell v. Whitaker, 88 Pa. 445, raised the question of priority of a ground landlord having a lien for arrears of ground rent over a judgment creditor in a claim for damages awarded for the opening of a street through the ground. The landlord was protected upon equitable grounds, ‘ that. he would be defenceless unless he could in some way be protected by the courts.’ His claim was largely in excess of the damages awarded. Upper Dublin Road, 94 Pa. 126, as reported, is of but little value except as an intimation that a mortgagee of property alleged to be damaged by the opening of a road might, by a petition with proper averments, bring himself upon the record so as to obtain the benefit of said damages. In this case, because of the want of the necessary averments, the Supreme Court could not take cognizance of the question of the mortgagee’s right to damages.</p> <p>“ The latest case on the question is that of Knoll v. New York, etc., Ry. Co., 121 Pa. 467. The company had constructed its railroad and the plaintiff was the holder of a mortgage upon the house and lot in front of which the railroad passed. On the assumption that the value of the property had been depreciated by the act of the company, and that therefore his security had been impaired, he sought to maintain his action for damages. It was held ‘ the right of action was in the owner of the freehold and not in the mortgagee, who was not in possession of the premises, and especially is this the case when the owner has already in good faith settled in full with the railroad company for the injury occasioned, and the mortgagee has made no attempt to collect his debt and fails to show that his mortgage interest has been impaired.’ As to method of procedure when owner refused to proceed, it was said if the owner should refuse to move or should act fraudulently, the courts, on proper application by lien creditors, might treat him as a trustee and require him to do, or to permit his creditors to do in his name, what might be necessary to an adjustment of the damages, and impound the money for the benefit of those entitled thereto.</p> <p>“ But whenever the courts have obtained control over the damages assessed, distribution has been made on equitable principles, the owner being regarded as a trustee for lien creditors, and a recovery in his name to be controlled for their benefit. The courts have never taken control unless equity required it to prevent injustice.</p> <p>“We therefore summarize the decisions on this question as follows:</p> <p>“ 1. The owner is the proper party to maintain the action and adjust the question of damages, and receive them.</p> <p>“ 2. A settlement with him in the absence of fraud will release the company.</p> <p>“ 3. Lien creditors, by proper application to the court, showing that their rights are imperiled by the owner’s refusal to bring suit or by fraudulent acts in making settlement, can compel him to bring suit, and the court will make such ordei as to secure a fair ascertainment of the damages, and a proper appropriation of them.</p> <p>“ 4. This latter power of the court is purely equitable, and therefore a clear case for invoking this power is necessary to be shown.</p> <p>“ Under the facts in this case there is nothing to call for the exercise of the equitable powers of the court in permitting the payment of the money into court and making distribution.</p> <p>[ “ And now, to wit, February 6,1892, the application of the petitioner is refused, and the petition is dismissed.] [2]</p> <p>Errors assigned were (1) refusal of application ; (2) decree, quoting it.</p>

<p> Widow's exemption—Election—Waiver by inconsistent demands. </p> <p>"Where a widow who is also executrix makes no claim of exemption before the auditor, but seeks to establish her ownership in a fund which it is claimed should have been included in her account, she cannot, after the auditor has decided adversely to her*, claim the fund under the exemption laws. Speakman’s Ap., 71 Pa. 25, distinguished.</p> <p> Auditor's finding of facts—Decedent's estates. </p> <p>An auditor’s finding that a fund claimed by the executor was really the property of the testator and should have been included in the account, if based upon sufficient evidence and approved by the court below, will not be reversed by the Supreme Court.</p> <p>Evidence—Admission of irrelevant evidence—Review.</p> <p>The Supreme Court will not reverse because of the admission of evidence apparently irrelevant, where such evidence was not the basis of any finding against the appellants, and therefore did no harm.</p>

<p> Townships—Negligence—Bridges—Ordinary travel—Traction engines. </p> <p>A township is not required to assume that its bridges will be used in an unusual and extraordinary manner, either by crossing at great speed or by the passing of a very large and unusual weight. As it does not anticipate any such use, it is not required to so build as to protect against injury resulting from such reckless conduct. Its liability stops with constructing and maintaining its bridges so as to protect against injury by a reasonable, proper and probable use thereof, in view of the surrounding circumstances, such as the extent, kind and nature of the travel and business on the road of which it forms a part: McCormick v. Washington Township, 112 Pa. 185.</p> <p>In an action to recover damages for injuries to a steam traction threshing engine by the breaking down of a township bridge, a nonsuit was properly entered, where it appeared from plaintiff’s testimony that the engine weighed several tons', and was heavier than the ordinary travel in the neighborhood, that plaintiffs had examined the bridge before driving the engine upon it, and considered it safe; and that the township authorities had examined the bridge two years before, made some repairs, and left it in a safe condition as was supposed.</p> <p>By the act of June 80, 1885, P. L. 251, the legislature has recognized the right to take steam machinery over the public highways, by providing certain regulations for its exercise. When the use of steam engines for threshing or other lawful purposes becomes so general that their transportation over the roads amounts to an ordinary use of them, it may be necessary to strengthen the bridges so as to withstand the increased strain. Per Paxson, C. J.</p>

<p>Appeals, Nos. 222 and 223, Oct. T., 1892, by Henry S. Ritchey, guardian of minor children of Samuel Woodburn, deceased, and John Woodburn et al., from decree of O. C. Washington Co., Aug. T., 1889, No. 48, distributing estate of Samuel Woodburn, deceased.</p> <p>Audit of executor’s account.</p> <p>From the report of the auditor, J. F. McFarland, it appeared that Samuel Woodburn died April 1, 1889, leaving a will by which he devised and bequeathed his estate as follows :</p> <p>“ 2. I do give and bequeath to my wife (Mary Woodburn) the use of a one third (£) interest in my estate (property personal and real estate) to be paid to her yearly by my executors hereinafter named.</p> <p>“ 3. The use of the remaining two thirds (f) I direct to be equally divided between my five children (John, William, Minnie, Samuel and Susannah) or their lawful heirs, during the lifetime of my wife (Mary Woodburn) to be paid yearly to their guardian or on maturity to each one individually.</p> <p>“ 4. I further devise that at the death of my wife, my property be equally divided between my five (5) children or their lawful heirs.</p> <p>“ 5. I further declare it to be my will that James M. Mc-Mannis, of Taylorstown, Pa., and Wallace M. Mustard, of Middletown, Pa., act as the executors of this my last will and testament.”</p> <p>William, Minnie, Samuel and Susannah Woodburn were minors at the date of the audit in October, 1889. William came of age before the appeal was taken. The widow elected to take against the will. See Woodburn’s Est., 138 Pa. 606.</p> <p>Before the auditor it was claimed that upon the election of the widow to take against her husband’s will, the trust created by the will was terminated, and the children were entitled to immediate possession of two thirds of the fund. The auditor refused to allow the claim, and awarded the fund to the executors as trustees to hold during the lifetime of the widow;.</p> <p>On exceptions to the auditor’s report the court held, in an opinion by McIlvaine, P. J.:</p> <p>“ That the testator intended to create an active trust and that his estate should be controlled by his executors until the death of the widow, the income thereof to be paid by them to the legatees named in the will, subject to the rights of the widow under the intestate laws of the commonwealth, she having elected not to take under her deceased husband’s will.”</p> <p>Errors assigned in each appeal were in effect to the ruling of the court as above, and the decree of distribution, quoting them.</p>

<p>Appeal, No. 21, Oct. T., 1892, by-plaintiffs, D. W. Cochran et al., from judgment of C. P. Westmoreland Co., Aug. T., 1889, No. 140, on verdict for defendants.</p> <p>Ejectment. The facts appear by opinion of Supreme Court.</p> <p>On the trial, before Rayburn, P. J., defendants offered in evidence draft of the property made by John McIntyre. Objected to because it was not a draft of the entire tract, purpart C as marked upon the draft not having been surveyed at all by the witness. Objection overruled and evidence admitted. [1]</p> <p>Defendants, under objection, offered the record evidence recited in the opinion of the Supreme Court for the purpose of showing title. [2]</p> <p>Plaintiff offered to prove by Henry Cochran, one of the plaintiffs, that he never had any guardian or notice of the proceedings for specific performance. Objected to and offer rejected. [3]</p> <p>The court gave binding instructions for defendants. [4]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2) admission of defendants’ evidence, quoting the offers but not the bills of exception or the evidence, except in the form of docket entries; (3) rejection of plaintiffs’ offer, quoting offer but not bill of exception; and (4) instructions, quoting them.</p>

<p>Equity—Jurisdiction—Fraudulent procurement of deed—Cancellation— Acts of June 13, 1840, and Feb. 14, 1857.</p> <p>Under the acts of June 13,1840, and Eeb. 14, 1857. the courts of com-</p> <p>men pleas as courts of equity have jurisdiction to entertain a bill to sot aside a deed alleged to have been executed by an attorney in fact through the corrupt procurement of the grantee. And the fact that ejectment might lie will not oust the jurisdiction of equity.</p> <p> Repayment when not condition for decree of rescission. </p> <p>Where an attorney in fact, whose power has been revoked, executes a deed for land at the corrupt solicitation of the grantee and receives from the grantee money which he does not pay over to the owner of the land, the owner will not be compelled to repay the amount to the grantee as a ■condition precedent for a decree rescinding the deed.</p> <p> JSquity practice—Form of master’s report. </p> <p>A master’s report should set forth a clear and concise 'finding of the material facts, unburdened by recitals of, references to, or comments 'upon the evidence. This should be followed by an opinion upon the facts so found with citation of authorities; but such opinion should be as brief as the subjeet will admit.</p>

<p> Negligence—Questions of fact—Conflict of evidence. </p> <p>When upon all the evidence no question of fact is left in doubt the trial judge should direct the verdict; but if there is a conflict in the evidence the conflict must be decided by the jury before the legal value of the facts can be pronounced by the court.</p> <p>Plaintiff was injured by the fall of a scaffold erected by his fellow workmen and his employe*. There was testimony on behalf of plaintiff, contra-, dieted by defendant’s evidence, that the scaffold was erected in haste, that wrought iron nails should have been used, that they should have been driven at an angle, that cleats should have been used, and that without these the scaffold was unsafe.</p> <p>Held, that, as these were questions of fact and not of law, they should have been left to the jury, and a binding charge in favor of defendant was error.</p> <p>The facts that the scaffolding fell under less weight than similar scaffolding had sustained previously; that it was built not by carpenters but by men unfamiliar with such work, while not proof of negligence are circumstances proper for the jury to take into account and which may help them to a conclusion upon the question of negligence.</p>

Appeal, No. 167, Oct. T., 1891, by defendant, Dennis Cloonen, from judgment of O. & T. Allegheny Co., March T., 1892, No. 13, on verdict of guilty of murder. Indictment for murder. At the trial, before Collier, P. J., and Slagle, J., it appeared that, on the evening of March 17,1892, defendant killed his wife by striking her over the head with a chair. .Defendant claimed that at the time of the killing he was intoxicated.

Appeal, No. 179, Oot. T., 1892, by-defendant, from judgment of C. P. Venango Co., Aug. T., 1891, No. 71, on verdict for plaintiff, Ruhamah Welsh. Assumpsit on a policy of fire insurance. At the trial, before Taylor, P. J., it appeared that plaintiff owned a life interest in real estate under the will of her deceased husband.

<p> Negligence—Contributory negligence—Choice of ways. </p> <p>Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.</p> <p>Defendant, a bridge company, in taking down an old bridge for the purpose of erecting a new one in its place, suspended travel on the foot-ways while the work was going on, but maintained the roadway unobstructed for travel. Plaintiff and her daughter desiring to cross the bridge found that there was no footway, and were obliged to take the roadway in order to cross. They were told by the toll keeper they would have to walk part of the way on the roadway, but they were not told to take the footway for any part of the crossing. They saw that the footway was destroyed for about half the way across, the planks being torn up and the timbers underneath exposed. At about two thirds of the way across the bridge an opportunity was afforded to go upon the remainder of the foot-way and they went upon it, and walked the rest of the distance upon it. The roadway for the rest of the distance was unobstructed, and they could have walked upon that across the bridge if they had ohosen to do so, but they chose to go upon the footway. On the latter, men who were at work upon the bridge had cut a square hole through the floor over the pier large enough to pass through, in order to prosecute their work. A piece of the planking was lying upon the surface of the walk turned bottom side up with a nail or spike projecting through about two inches, but bent over so that it was no more than an inch above the surface. The end of the bent nail was not perpendicular, but horizontal, and owing to the plaintiff’s having a hole in the sole of her shoe, the end of the nail caught in the shoe, and she was thus thrown forward, and fell to the floor and was injured. Held, that the plaintiff was not entitled to recover.</p> <p>If the plaintiff had paid but slight heed to her steps she would have discovered the loose plank and avoided it, or if she had simply continued on the perfectly safe course she was pursuing on the roadway, she would not nave been hurt. Per Green, J.</p>

<p> Mortgage—Defence—Assignee—Lease and bill of sale. </p> <p>Where a mortgage on real estate forms part of the price for personal property covered by a lease with agreement for bill of sale on payment of a sum named but with provision for retaking the property on default of payment of any installment, and the property is retaken for such default; the contract is at an end, and the mortgage being a part of the contract falls with it, and there can be no recovery on the mortgage although the amount named in the lease is independent of the amount named in the mortgage, and although suit is brought by an assignee for value without notice before default.</p> <p>Had suit been brought for the consideration in enforcement of the contract, the result would have been different. But the contract being at an end by the act of the use plaintiff’s assignor, the consideration fell with it. The contract having been terminated no action lies. Per Sterrett, J.</p>

Appeal, No. 222, Oct. T., 1891, by defendant, William B. Rodgers, from judgment of 0. P. No. 2, Allegheny Co., on verdict for plaintiff, S. O. Rhodes. Trespass for assault and battery. At the trial, before Ewing, P. J., the evidence tended to establish that, on Feb. 6, 1890, plaintiff and defendant had a dispute about an account. Defendant walked away and plaintiff followed him with his hands in his pocket.

Appeal, No. 63, July T., 1891, by defendant, William K. Wieand, from decree of C. P. Northampton Co., April T., 1891, No. 4, ordering him to deliver up the records and vacate the parsonage of Salem Evangelical Church at Bangor, Pa. Bill in equity by the pastor, trustees and stewards of Salem Evangelical Church at Bangor, Pa., to compel defendant, who they alleged wrongfully claimed to be the pastor of the church, to give up to them the church records and parsonage.

Appeal, No. 168, Oct T.; 1892, by defendant, James B. Oliver, from order of C. P. No. 2, Allegheny Co., Oct T. 189.1, No. 349, making absolute a rule by plaintiff, M. F. Leatherman et al., for judgment for want of a sufficient affidavit of defence. Assumpsit for rent on oil lease.