Volume 152 — Pennsylvania State Reports

Appeal, No. 117, Oct. T., 1892, by defendants, B. S. Tupper et al., from judgment of O. P. Washington Co., Feb. T., 1892, No. 97, on verdict for plaintiff, W. W. Walker. Assumpsit for drilling oil well. At the trial, before McIlvaine, P J., it appeared that on July 23, 1889, Kuntz leased to George W. Reed a tract of land adjoining the borough of Washington, containing twenty acres more or less, for the purpose of oil and gas development.

<p>Appeal, No. 56, Oct. T., 1892, by defendant, Monroe Z. Hovis, from judgment of C. P. Butler Co., June T., 1890, No. 88, on verdict for plaintiff, Robert Yanderlin.</p> <p>Assumpsit to recover $800 as rent under oil lease, from May 9, 1886, to May 9, 1890.</p> <p>The facts appear by the 'opinion of the Supreme Court.</p> <p>At the trial, before Hazen, P. J., numerous offers of proof were made by the defendant, and rejected by the court, all of which were finally summarized in the following offer:</p> <p>“ For the purpose of shortening the case we will make our offer as a whole. Defendant’s counsel now propose to prove by the witness on the stand that on July 1, 1881, Robert Yanderlin made a lease of 275 acres of land in Marion township, Butler county, to Gilbert, Sweetapple and himself (Robert Yanderlin, he signing it both as grantor and grantee) in writing ; that this lease, by various assignments afterwards, came into the possession of the defendant in this case. That he entered into possession by virtue of his assignments on March 9, 1885 — he entered into possession of this lease and has been in possession of it from that time up to the present time. That under the original lease the wells provided for in the lease were drilled on the property. That some short time prior to April 9,1886, defendant made application .to a bank in Franklin, Pa., for a loan of money, and offered to put up his leases that he held, among them this Yanderlin lease, as security for the money he wished to get from the bank. The matter was referred by the bank officers to C. Heydrick, Esq., an attorney of Franklin, to examine the title. That the title papers were laid before Mr. Heydrick, and he found numerous assignments of the original lease existing that were not acknowledged before the title came into Mr. Hovis, the defendant. That to save the expense of hunting up one of the assignors and the expense of recording so many assignments, Mr. Heydrick directed the defendant to go to Mr. Yanderlin and get from him a new lease to be dated the same date as the original lease, to wit, July 1, 1884, upon the same terms and conditions, putting the title direct from Yanderlin to Hovis, for the purpose of placing a leasehold mortgage on the property. That in pursuance thereof the defendant went to Mr. Yanderlin and told him what he wanted — explained that it was for the purpose of saving expense of recording papers, securing acknowledgments, etc. Mr. Yanderlin agreed to give him the lease requested. Mr. Vanderliii and Mr. Hovis then went to the bank of Mr. McKee, in Clintonville, and stated the matter over to Mr. Kerr, the cashier of the bank, requesting him to prepare the new lease, leaving the old lease with him, so that he might make the new one on the same terms and conditions and the same date, the only difference being the lease to Hovis instead of Gilbert, Sweetapple and Yanderlin. That Yanderlin and Hovis left Mr. Kerr, and in the evening of the same day came back to the bank where the lease was prepared. The lease was then signed by both parties and delivered for the purpose named, acknowledged the same day, placed on record and the loan of money obtained. That there was no surrender of the original lease, Mr. Hovis retaining possession of it and the different assignments down to the present time, and now has possession of it and them. To be followed by proof of the original lease and the various assignments of the lease that landed the title finally in Mr. Hovis, and that the covenants of the lease have been complied with. That the new lease was dated back to the date of the original lease and was simply a duplicate of the old contract. This for the purpose of obtaining this new lease, and that there was no change in the terms under which Mr. Hovis held possession of the leasehold, and it was but for the accommodation of Mr. Hovis, to save the expense, as has been stated, and that therefore there is no rental due upon this lease to the plaintiff in this case. That the purpose for which this lease was to be used was known at the time by Mr. Vanderlin and so understood by him, and he consented thereto. •</p> <p>“ Plaintiff’s counsel object to the offer as a whole, because it is incompetent and irrelevant, and object to it specially as to parts, because the proposition is to prove by parol what is in writing. It is objected to in parts again because it is giving the understanding or mental motive of the witness alone. Again, because it is not responsive to any demands of the plaintiff ; is not in answer to any issue that is formed, nor is it authorized by any law or rule of evidence known to us. That the purpose of the lease was wholly immaterial, and for that matter, whether known or unknown to Mr. Vanderlin, is not in issue. He made the lease as written, and how it was used or intended to be used is a matter that did not concern him then or now.”</p> <p>Objection sustained and exception. [12]</p> <p>Defendants then offered to prove execution of the original lease, assignments, etc., and that the covenants had been complied with. Rejected. Exceptions. [13-16]</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Errors assigned were (1-16) rulings on evidence, quoting bills of exception.</p>

<p>Will — Buie in Shelley's Case — Issue—Children.</p> <p>A testator directed that .certain of his real estate should be sold and the proceeds invested in mortgages, etc., the interest to be regularly paid to his daughter ‘ ‘ free from control, liabilities and debts of her husband, an d in case of her death without issue or issues of her children, then reversible to my (his) right consanguinary heirs: ” IIeld, that the daughter took a life estate only, the word issue being equivalent to children.</p>

<p>Appeal, No. 227, Oct. T., 1892, by plaintiff, from judgment of C. P. Armstrong Co., June T., 1892, on verdict for defendant, Christian Mardorf.</p> <p>Assumpsit on policy of fire insurance.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, before Rayburn, P. J., after plaintiff had offered evidence to prove his ease, and rested, defendant gave the evidence recited in the opinion of the Supreme Court, among other things the record of a former suit between the same parties, No. 480, June T., 1885, to establish res judicata. The record is not given with the offer. It is stated that the declaration was in the common counts, but it is not printed. The justice’s transcript showed the plaintiff’s claim was for assessment No. 11.</p> <p>Plaintiff in rebuttal offered the evidence recited in the opinion of the Supreme Court and also offered record of No. 480, June term, 1885, Susquehanna Mutual Fire Insurance Company against Christian Mardorf, for the purpose of showing that the subject-matter in dispute in that case was different from the subject-matter now at issue.</p> <p>Counsel for defendant objects: The paper offered is not the record, the record already being in evidence. The plaintiff’s offer is really a copy of notes of testimony taken on a former trial, claimed by the plaintiff to be their private paper, and without any certificate as to its genuineness by the court stenographer. It being no part of the record cannot be admitted in evidence to contradict the pleadings and the record. Objection sustained and exception. [5]</p> <p>The court charged as follows, by Rayburn, P. J.:</p> <p>. “We have concluded to affirm the first point of the defendant here, ‘ That under all the- evidence the verdict must be for the defendant.’ The plaintiff company having brought at 430 June term 1885 suit against the defendant to recover an assessment upon the same application and policy that is in suit here, and that suit having been brought after the expiration of the policy, we hold as a matter of law that this is an adjudication of all questions arising between the parties here upon this application and policy. We hold that as the law, that the plaintiff cannot recover in this action, and therefore your verdict will be for the defendant. The first point of the defendant is affirmed.” [6, 7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-5) rulings on evidence, quoting bills of exceptions, but not evidence; (6, 7) instructions, quoting charge as above.</p>

Appeal, No. 252, Oct. T., 1891, by defendants, Huckestein & Co., from judgment of C. P. Westmoreland Co., May T., 1889, No. 42, on verdict for plaintiffs, Welsh & Blank. Mechanics’ lien for bricks furnished for building. At the trial, before Rayburn, P. J., of the 33d judicial district, specially presiding, plaintiffs claimed that defendants were liable for 796,372 bricks, the number being ascertained by measurement in the wall.

<p>[Marked to be reported.]</p> <p>Municipalities — Negligent construction of public works.</p> <p>For negligence either in construction or repair of public works, when repair is a duty, municipal corporations must respond in damages whenever special injury results : Allentown v. Kramer, 73 Pa. 406.</p> <p>Plaintiff’s testimony, which was practically uncontradicted, was that defendant had constructed a bridge in such a way that there was not sufficient space at times of ordinary high water for the stream to flow through, and that in consequence the water was backed upon his land, and further that there was no necessity for so constructing the bridge. Held, that it was not error to submit to the jury the question of whether the defendant had been negligent in constructing the bridge so as to injure the plaintiff in the enjoyment of his land.</p> <p>Statute of limitations — Prescriptive right.</p> <p>Where an action was brought in 1890 for damages for flooding plaintiff’s land from 1884 to 1889, caused by the backing up of the water by a bridge erected by a municipality in 1866, no question of the statute of limitations arises ; nor is the fact that similar actions were not brought in previous years evidence of a prescriptive right.</p>

<p>Negligence — Fellow servants — Railroads.</p> <p>A fireman of a locomotive and a station agent who is also a telegraph operator, are fellow servants within the rule that an employer is not liable to an employee for an injury caused by the negligence of a fellow servant.</p> <p> Negligence in employing servants. </p> <p>Although a servant may not be properly qualified for the place he occupies, his employer cannot be charged with the consequences of his negligence, in a suit by a fellow servant for personal injuries, if it does not appear that the employer knew, or in the exercise of reasonable diligence should have known, that the servant was incompetent to discharge the duties of the position to which he was assigned.</p> <p>Notice of servant’s incompetency — Railroads.</p> <p>Notice of the incompeteney of a telegraph operator given to the chief train dispatcher of a railroad is not sufficient to charge the company, where it appears that the dispatcher had no power to employ or discharge operators.</p>

<p>Appeal, No. 299, Jan. T., 1892, by plaintiff, Lucy A. McConomy, administratrix of Ambrose Mc-Conomy, deceased, from decree of C. P. Lancaster Co., Eq. Doc. No. 2, p. 802, dismissing bill for account filed against defendants, George K. Reed, B. J. MoGrann and R. H. Brub,akers.</p> <p>Bill for partnership account.</p> <p>It appeared in evidence before the master, W. A. Atlee, that the books of the firm, after Aug. 5,1880, the date of the alleged dissolution of the partnership, showed an account with Ambrose McConomy debiting him with money due the firm and crediting him with dividends equally with the other members of the firm down to and including Jan. 1, 1885. These entries were explained by the testimony of two clerks of the firm, Hoffer and Lichty, who stated that they were made by them from year to year so as to gradually cancel the debtor balance of Ambrose McConomy to the firm instead of charging it all off at once in the first year, which would have cut down the profits of the firm for that year to nothing.</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>The master disregarded the testimony of the clerks explaining these entries, as well as their testimony that the firm was dissolved Aug. 5, 1880, on the ground that no knowledge of any acts or declarations of Ambrose McConomy acquiescing in the dissolution was shown; and found as a fact that there had been no dissolution Aug. 5,1880, as alleged by defendants, and reported that plaintiff was entitled to an account.</p> <p>Upon exceptions, the court, in an opinion by Pattebson, J., reversed this finding of fact and entered a decree dismissing plaintiff’s bill.</p> <p>Errors assigned were sustaining exceptions and entering decree, quoting them.</p>

<p>Appeal, No. 240, Oct. T., 1891, by defendant, from decree of C. P. Clarion Co., Aug. T., 1887, No. 2, ordering plaintiff, J. S. Foster, and defendant, J. W. Verner, to jointly pay the master’s fee and record costs in the case.</p> <p>Partnership bill for dissolution, an account, appointment of a receiver, and general relief. An answer was filed, and B. J. Reid was appointed master, Dec. 6,1877. In 1890 the master filed his report, finding a balance due plaintiff; this, upon exceptions, the court refused to confirm, in an opinion in part as follows, by Mehabd, P. J.:</p> <p>“ The investigations of the learned master and of the court, instead of leading to the discovery of the truth, serve to show that during their four years’ business, the parties to this suit, with mutual fault, so covered up the truth, with errors and confusion, that even its main outlines cannot be found. Hence neither one has ground to ask a balance in his favor.</p> <p>“ It is now considered that there is not evidence to show a balance of the partnership account in favor of either plaintiff or defendant: hence a decree of a balance is refused.</p> <p>[“ And it is further considered, ordered and decreed that the parties jointly pay the master’s fees, which are fixed at twelve hundred dollars, and likewise the record costs of this case, and that each party pay the costs incident to the subpoenaing and attendance of his own witnesses.”] [1]</p> <p>Errors assigned were, inter alia, decree, quoting it.</p>

<p>Appeal, No. 147, Oct. T., 1892, by plaintiff, John Glasgow, from order of C. P. Butler Co., June T., 1891, No. 40, in favor of defendant refusing judgment for want of a sufficient affidavit of defence.</p> <p>Assumpsit to recover rent or royalties on oil lease.</p> <p>The lease provided as follows :</p> <p>“The lessor in consideration of one hundred ($100.00) dollars paid by the lessee, the receipt of which is hereby acknowledged, does hereby grant, demise and -let unto the lessee his heirs and assigns all the oil and gas in and under the following described tract of land, and also the said tract of land for the purpose and with exclusive right of operating thereon for said oil and gas, • together with the right of way and the right to lay pipes over, and to the use of water from the same, and the right to remove, at any time, all property placed thereon by the lessee [describing the premises].</p> <p>“ To have and to hold the same unto the lessee, his heirs and assigns, for the term of five years from the date hereof and as much longer as oil or gas is found in paying quantities thereon; yielding and paying to the lessor the one eighth part or share of all the oil produced and saved from the premises, delivered free of expense into tanks or pipe lines to the lessor’s credit, and should any well produce gas in sufficient quantities to justify marketing, the lessor shall be paid at the rate of three hundred ($800.00) dollars per year for such well so long as the gas therefrom shall be sold.</p> <p>“Provided, however, that this lease shall become null and void, and all rights hereunder shall cease and determine unless a well shall be completed on the said premises within one month from the date hereof, or unless the lessee shall pay at the rate of one hundred ($100.00) dollars, monthly in advance, for each additional month such completion is delayed from the time above mentioned for the completion of such well until a well is completed. Such payments may be made direct to the lessor or deposited to his credit in Butler Savings Bank, of Butler, Pennsylvania.”</p> <p>No developments were made on the property, but the defendants paid the monthly rentals on the lease up to and including January 10,1891. Since then no payments were made. On April 13, 1891, plaintiff brought this suit to recover $300 for payments claimed to be due for February, March and April, 1891. The affidavit of defence denied the defendant’s liability. The court discharged a rule for judgment in the following opinion by Hazen, P. J.:</p> <p>“The following facts clearly appear, to wit:' L That the contract upon which this suit is brought is not a joint contract. 2. That there is no averment that the defendants are jointly liable. 3. [That this contract contains no agreement, covenant or promise, either expréssed or’implied, on the part of the lessee to pay anything to the lessor;] [1] and 4. [That'at most it is only an option revocable at the pleasure of the lessee.] [2] t</p> <p>1 “ Therefore, upon the foregoing state of facts, under the law,, apptying same to the case under consideration, there can be no judgment. This agreement or contract may be very improvident,, but with this we have nothing to do. We cannot read into this contract, agreements, covenants or promises which the parties thereto left out of it. It is enough that the court interpret and enforce it as made by the parties thereto. -‘ Persons may, of course, contract in this form and to this effect if they chooseWills v. Gas Co., 130 Pa. 233; and this clearly iá a case where the parties to this agreement have so contracted, and now must abide the legitimate result. The motion for - judgment under the law and facts should not be granted and this rule should be discharged.”</p> <p>' Errors assigned were (1, 2) portions of opinion in brackets, quoting them, (3) discharging rule for judgment, and (4) re-, fusing to enter judgment.</p>

<p>Oil lease — Forfeiture—Construction—Word “ retained.”</p> <p>An oil lease covering several tracts of' land provided for the drilling and operating of a well upon each tract, a failure so to do to forfeit the lease upon such tracts as were not operated upon. A failure to comply with any of the conditions of the lease rendered it void at the option of the lessor. In the event any piece of land failed to yield the lessor a certain royalty, the lessee agreed to pay a certain rental upon each such piece of land retained by the lessee. Held, that the word “ retained ” referred to the right to operate for oil on the premises, and this right continued until the lessee made a formal surrender of the lease.</p> <p>Surrender of lease — Authority of agent — Solicitor—Abandonment,</p> <p>An offer to show that the solicitor of a company had control of its legal business is not sufficient proof of his authority to accept surrender of a lease, or abandonment of the premises.</p>

<p>Equitable conversion — Power of sale — Provisions of will.</p> <p>While a mere naked power of sale will not work a conversion of a testator’s real estate, yet where it is clear from the face of the will that it testator’s intention that the power should be exercised, it will be construed as a direction to sell and will operate as an equitable conversion.</p> <p>Where it plainly appears that effect cannot be given to material provisions of the will without the exercise of this power the conclusion is irresistible that a conversion is as effectually accomplished by the will as if it contained a positive direction to sell.</p> <p>Testator after a power of sale gave directions for the investment of certain portions of Ms whole estate, real and personal, in mortgages, etc., the interest of which was to be paid to the legatees for life. Held, that it was apparent that testator intended a conversion of all his property into money for distribution, investment and payment of income as he had directed.</p> <p>Evidence of conversion — Privilege to purchase by legatees.</p> <p>The fact that testator gave to the beneficiaries under his will the privilege of purchasing his real estate in a manner prescribed by him is an additional evidence of the intention of the testator that they should take no title to it save by purchase from his executors.</p> <p>Power of sale — Failure of executors to exercise.</p> <p>The failure of executors to exercise a power of sale directed by testator to be exercised within a fixed time does not destroy the power. During the period limited they have some discretion: after its expiration they have none.</p>

<p>Appeal, No. 330, Oct. T., 1891, by Jacob H. Walters, a creditor, from decree of C. P. 1 Allegheny Co., Sept. T., 1884, No. 23, confirming auditor’s report distributing funds of assigned estate of Penn Bank.</p> <p>Claim by depositor for alleged balance.</p> <p>The facts as they appeared before Thomas D. Carnahan, auditor to distribute the assigned estate of the Penn Bank, are stated in the opinion of the Supreme Court.</p> <p>Errors assigned, inter alia, were (1) affirmance of master’s rejection of appellants claim; (2) refusal of decree in favor of appellant; (1-5) refusal of appellant’s exceptions to master’s report.</p>

<p>Appeal, No. 161, Jan. T., 1892, by defendant, from judgment of C. P. Lancaster Co., Feb. T., 1888, No. 43, on verdict for plaintiff, Samuel Eshleman.</p> <p>Trespass for draining water from highway across plaintiff’s farm.</p> <p>At the trial, before Livingston, P. J., there was evidence as to the following facts: Plaintiff purchased the farm in question in 1869. There was conflict of testimony whether the water since 1887 had flowed by the same channel from the public highway across the farm. In 1882 a supervisor of the township, after conferring with county auditors, gave plaintiff permission to close the drain and to make another on the opposite or east side of the road so as to drain the water over some waste land belonging to plaintiff. In 1885 however this east side drain was closed by the township and the water allowed to again flow through the old drain across the farm. For the damages thus caused to the land plaintiff brought suit in 1888.</p> <p>Plaintiff, under objection and exceptions, gave evidence as to the market value of the farm with and without the water running over it. [1, 2, 5-8].</p> <p>Defendant, on cross-examination, asked one of plaintiff’s witnesses how much plaintiff would be injured by the appropriation of a strip of land sufficient for a drain to carry off all the water from the road. Objected to, objection sustained and exception. [3]</p> <p>Defendant also asked the same witness on cross-examination what plaintiff’s property was worth in the market immediately after the gutter was made on the east side of the public road. Objected to, objection sustained and exception. [4]</p> <p>Defendant also asked one of his witnesses what it would cost to make the road permanently safe for travel. Objected to, objection sustained and exception. [9]</p> <p>Plaintiff’s points were as follows:</p> <p>“ 1. If the jury believe that Samuel Eshleman, the plaintiff in this suit, in pursuance of an agreement or understanding with and permission of the authorities of the township of Mar-tic, constructed and opened the drain or ditch on the east of the road, and the same was sufficient to convey, and did convey, the drainage water from the road on and into the field of plaintiff on the east side of the road, the supervisors of the township had no right to close it up; and if they did so, and the water which could have been conveyed from the road through the drain or ditch, was turned in and on the property of plaintiff on the west side, the verdict must be in favor of the plaintiff for such sum as, under the evidence, will compensate him for the damage done by so turning the water in and on his land. Answer: Affirmed, if the jury find from the evidence that the drain was made sufficient to carry off the water, and was used by the township for that purpose.” [10]</p> <p>“ 2. If plaintiff constructed and opened the ditch or drain, as he testifies he did, under agreement with and permission of the township authorities, that the water from the road should be conducted through it to his field on the east side, with the understanding that the water should no longer be turned on his property on the west, the authorities had no right to close up said drain after it had been opened, if it was sufficient for the purpose for which it was constructed, but were bound to keep it open and in proper repair in the absence of any agreement that Eshleman should do so. Answer: Affirmed, if the jury find from the evidence that such drain was made by agreement with or permission of the supervisor and township authority.” [11]</p> <p>“ 8. If there were natural water courses, depressions, ravines or drains through which the water could have flowed from the road before it reached the land of plaintiff, and they, or any of them, were closed or allowed to be closed by the township authorities, causing all the water to come down the road and increasing the volume cast upon plaintiff’s land, the township is liable for whatever damage plaintiff may have sustained by having the water turned in on his land, that might have flowed from the road before reaching his land, through the natural water courses, depressions, ravines or drains, had the same been kept open.” Affirmed. [12]</p> <p>“ 4. If the jury believe, from the evidence, that the drain or ditch on the east side of the road was at any time insufficient to carry off the water from the road, simply because it had become clogged, it was the duty of the supervisors to open it, and their failure to open it when clogged would make the township liable for any damage sustained by the water’s running in and on the plaintiff’s land, that might have been carried off through the drain if kept open and free from obstructions.” Affirmed. [18]</p> <p>“ 5. If the jury believe that the water that ran in and on the land of the plaintiff could have been conducted from the road in a manner that would not have caused injury to plaintiff or other landowners adjoining the road, it was the duty of the supervisors to so conduct or carry it off; and for any damage sustained by their failure to do so, he must be compensated by the township. Answer: This is true provided the jury find from their view and the whole evidence that the water could be so conducted and diverted from the road without unreasonable expense to the township.” [14]</p> <p>“ 6: If, under all the evidence, the jury believe that the damage done the plaintiff could have been avoided by having the water properly carried off or conveyed from the road through the drain or ditch to his field on the east side, the verdict must he in his favor for such sum as will compensate him for the injury done to his property. Answer: This would be true, provided the jury find from the evidence that it could be properly carried or conveyed from this road at this point through the ditch or drain on the east side thereof, and that the drain was sufficient to so carry it on to Eshleman’s other field, and thus let it run to the creek.” [15]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. If the defendant used the water course in question across the plaintiff’s land for conveying water from the road notoriously, continuously, and adversely, for over twenty-one years prior to 1882, it gave it a legal right to continue the use of it in the same manner and to the same extent as long as it desired, without compensation to the plaintiff. ■ Answer: This would be true under the latest' decision: Huddleston’s Case, 111 Pa. 110. It appears as though this' point should be affirmed, if no change has been made within twenty-one years. The jury will from all the evidence say whether or not there was any change in the user within twenty-one years prior to the commencement of this suit, whether or not any change of the place of its flow was made by Samuel Eshleman, the plaintiff, or the township, whether or not any other places where the water used to flow were closed and a greater volume of water thrown into the drain at Eshleman’s. It would have to be used openly, notoriously, uninterruptedly and continuously and adversely, as it was used at the time suit was brought, for twenty-one years prior to the time of bringing this suit, in 1888, to give the defendant such right. The public, the township, the defendant here, and its officers have but an easement, have but the right to pass through the plaintiff’s land over the public road, with the right to repair and keep it in good order for safe and convenient travel, and in so doing they have an undoubted right to enter upon his other land adjoining this roadbed on either side, and to cut ditches and make drains where it can be done to carry off the surface water collecting on the road, in such numbers, and at such points as in their judgments will best accomplish that purpose, doing the least injury to private property, without regard to where it would Sow, if left alone, or naturally or how long it had continued to flow. The law gives them authority to do so. But they would have no right to increase the volume of water on this road by closing or permitting other drains thereon to he closed, and throw the water which ran therein, in enlarged and greatly increased volume, upon plaintiff’s land to his injury within twenty-one years prior to the time this suit was brought, in 1888.” [16]</p> <p>“ 2. If the jury believe from the evidence that the course of the water down the hill and through the plaintiff’s land was the natural course of the Pequea creek, and that the supervisors used no artificial means, by embankments, drains or otherwise, to accumulate water that would not naturally flow through said water course, and, from the conformation of the ground, they could not cause the water to flow elsewhere without digging drains through the road embankments upon-improved lands where it was liable to do damage, they committed no wrong by suffering it to flow through said natural channel on the land of the plaintiff. Answer: We cannot affirm this point as stated. There was no natural water course, such as is j-ecognized by law, shown here, no definite channel having a bed, sides or banks — no stream of water flowing — nothing more than mere surface drainage from rains, snows, etc.” [17] “ 8. If the plaintiff bought his land in 1869, with a visible water course upon it, for the use and benefit of the township, which had been enjoyed by it continuously, notoriously and adversely, for more than twenty-one years, he has no right to complain, and is entitled to no compensation for the continuance of it. Answer: This point is refused. . There has been no such water course proved to exist in this case as would enable the defendant to acquire the right of flowage stated in the point, and contended for by defendant, or deprive the plaintiff of his right to complain and recover damages for injury done by the acts or negligence of defendant’s officers, when proper proof of such negligence or injury is produced. And, if the jury believe, from the evidence, that Eshleman closed up this drain in 1872, and after its being closed the defendant, by its officers, opened it again, twenty-one years had not elapsed between that time and the bringing of the suit in 1888, and the plaintiff-would not be estopped from complaining.” [18]</p> <p>“ 4. The permission given by one of the supervisors of Martic township to the plaintiff to dig a gutter along the roadside at his own expense, to relieve his land on the west side of the road of the drainage, by running it to the east side on other land belonging to him, was not a contract, but a conditional license, and did not estop the township from returning the water to the old water course, when, in the judgment of the supervisors, on account of the insufficiency of the gutter, it was necessary in order to keep the road in proper and safe condition. Answer: If the supervisor and township auditors consented that plaintiff should dig the drain on the east side of the road where it was dug, and that this surface water should run through it, and not where it ran before, to the damage and injury of the plaintiff, but that that place should be closed — permitted him to dig and construct such drain at an expense on his part of about $200, and drain when completed was sufficient to and did accomplish its purpose, did properly drain the surface water off the road at this point, and after its construction the supervisors ratified the act by permitting it to remain and draw off the water from the time stated by the witnesses, such action would bind the township, and it would be obliged to allow it to remain open as a drain as it does other drains along its highways, and clean and keep it open as it does other drains along its highways when obstructed, and could not let it become obstructed, or let any person obstruct or fill it up to prevent the water from passing through it from the road, and thus turn the water back on Eshleman’s land, to his great injury, without the township becoming liable for damages to compensate such injury.” [19]</p> <p>“ 5. One supervisor of Martic township, without the presence or advice of the others, could not make a contract with the. plaintiff, binding upon the township, to abandon the right to use this water course over the plaintiff’s land. Answer: One supervisor may abandon any drain and replace it by another, where it will do less injury to private property without injury to public travel, or accept one prepared by the landowner without expense to the township; the doing so is not the making of such contract as requires the advice and consent of both supervisors. It is their duty to place these drains where best for the road and least injurious to private property. Courts say, one supervisor has power to make contract and employ men to do and make ordinary repairs, or work upon the roads, such as digging and making drains to carry off the water from a road already opened and in use, but one cannot bind the township by contracts for the opening of a new road.” [20]</p> <p>“ 6. If the township had a right under the evidence to use the water course on plaintiff’s land in 1882, and the latter made a gutter on the roadside by permission of a supervisor to relieve his land, he was bound in law to keep the guttér in such condition that the public highway was not injured by accumulations of water; if he did not the township had a right to return the water to the original water course. Answer: Refused. If the supervisor permitted plaintiff to change the drain, provided he would make it at his own expense, and nothing was said about his keeping it open after he had completed it, his duty was performed when it was finished. The drain thus made on the east side then took the place of the other drain where the water ran off defendant’s road in on Eshleman, and became a township drain to carry the surface water from the road, and was to he cleaned as other township road drains, by the township supervisor. If they neglected or refused so todo, and plaintiff suffers injury thereby, he has his remedy by action and may recover.” [21]</p> <p>“ 7. Under the law and the evidence in this case the verdict must be for the defendant.” Refused. [22]</p> <p>Verdict for plaintiff for $369.77 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were (1-9) rulings on evidence, quoting bills of exception and evidence; (10-22) instructions, quoting them.</p>

<p>Appeal, No. 119, Oct. T., 1892, by plaintiffs, J. A. McElroy et al., from judgment of C. P. Washington Co., Nov. T., 1890, No. 194, on verdict for defendants, J. M. Braden and wife, et al. right of the plaintiffs to have a mechanics’ lien against this property. Objection overruled, exception. [1]</p> <p>Sci. fa. sur mechanics’ lien, against owners and contractor. Pleas, nunquam indebitatus.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>On the trial, before McIlvaine, P. J., defendants offered to show by J. M. Braden, one of the defendants, the amount of money paid by the defendants under the contract to him, under what circumstances and under whose order it was paid, for the purpose of showing that the defendants acted in good faith and consistently, under the terms of the contract.</p> <p>This was objected to as incompetent and irrelevant for the reason that the right of the plaintiffs to have a "mechanics’ lien against the property did not depend upon the payment of the contract price to the contractor,, and that the question of good faith on the part of the defendant owners could not affect the</p> <p>Plaintiffs’ first point is quoted in the opinion of the Supreme Court. [2] They also presented the following point:</p> <p>“ 5. Under all the evidence in this case the verdict must be for the plaintiff. Answer: Refused. As we said before, we leave the question to you, and we repeat again that we think the material fact in this ease that is contested, and upon which the plaintiffs’ case rests, is the fact whether or not there was an agreement between Thomas H. Scott, contractor, and Mr. and Mrs. Braden, that no liens should be entered by him, or his subcontractors or material-men. If you believe there was such an agreement, then it is binding on the plaintiffs, and your verdict should be for the defendants ; if you find there was no such agreement, and find these other necessary facts in regard to the filing of the hen, then your verdict should be for the plaintiff.” [3]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Frrors assigned were (1) admission of evidence, quoting bill of exception, but not evidence; (2, 3) instructions, quoting them.</p>

<p>Appeal, No. 58, Oct. T., 1892, by plaintiffs, A. E. Barnhart et al., trading as Hocb Bros., from judgment of C. P. Butler Co., March T., 1891, No. 57, on verdict for defendants, M. L. Lockwood, Jas. S. Patterson, Chas. Young and Edwin Young.</p> <p>Ejectment for undivided half of tract of land.</p> <p>On the trial before McMichael, P. J., plaintiffs claimed title under the following lease, dated March 1, 1878, from Chas. Young, one of the defendants, as party of the first part:</p> <p>“The said party of the first part, for and in consideration of one dollar, the receipt of which is hereby acknowledged, the covenants and agreements hereinafter contained on the part of said party of second part to be paid, kept and performed, I hereby bargain, grant, demise, lease and let unto the parties of the second part, their heirs and assigns, for the term of eighteen years from the date hereof the following described real estate [describing it].</p> <p>“ It is further agreed that if oil is found in vicinity, the said second parties shall have the refusal of balance of land, giving and granting to the party of the second part, their heirs and assigns, the full, free and exclusive possession of said piece of land during the term aforesaid, to bore, explore and dig for oil, and to collect and gather the same therefrom, together with the right to keep tanks thereon for the storage of oil and to lay all necessary pipe lines for the transportation of the same, and to erect thereon any buildings that the party of the second part may require for the purpose aforesaid. The parties of the second part, their heirs and assigns, shall have the full and free right to subdivide said lot of land into any number of smaller lots and pieces and sub-lease the whole or any part of said tract of land, and at the termination of the lease, or before, to remove all machinery and fixtures therefrom.</p> <p>' “ In consideration of which the said parties of the second part, their heirs and assigns, covenant and agree to go upon said land and operate the same for the purpose aforesaid, and deliver as royalty to the party of the first part herein, their heirs or assigns, one eighth part of all oil obtained and saved from said land, and to keep true and correct books of account, showing the production of each and every well, the share or proportion due the party of the first part for royalty as herein-before provided, which books shall be kept open and free to the inspection of all parties interested in this agreement.</p> <p>“ And it is further agreed by and between the parties hereto, that if the oil produced from said tract of land be transported through any of the pipe lines, that the superintendent of the line through which the same may be transported is hereby authorized and empowered to set apart to the account of the said first part that portion of the production hereinbefore agreed upon as royalty. The said parties of the second part agree to drill a test well at or near Little Connoquenessing or Crab Run creek, commencing inside of forty days.”</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>Plaintiffs’ points were as follows :</p> <p>“3. There can be no abandonment of the lease sued on short of the period of eighteen years. Abandonment is never predicated of a perfect but is. confined to inchoate titles. Answer: That point is not affirmed. There could be abandonment of the title which the plaintiffs had to this land short of eighteen years.” [1]</p> <p>. “ 4. Plaintiff is entitled to recover the undivided one half of the premises described in the writ to the extent granted by their lease and for the purposes within written therein. Answer : That point is not affirmed. ” [2]</p> <p>“ 5. This conveyance sued on is a grant of the realty, the oil in place, and is without any terms of forfeiture ; that is, is non-forfeitable for any cause alleged or shown. On this point it is in full life for the period or term written. Answer: That point is not affirmed. This contract is not a grant of a property in the oil, but it is a grant of possession of the surface with the right to procure oil.” [3]</p> <p>Defendants’ points were as follows :</p> <p>“ 1. The title shown by plaintiffs, upon which they rely for recovery, is equitable merely, and they stand in the position of one seeking specific performance of a contract for a lease. Their delay in operating their lease for a period of more than eleven years unaccounted for, accompanied by an increase of the value of the territory for oil purposes caused by developments .of others in the neighborhood, is such laches and failure of consideration as disentitles them to the relief they now seek in this action, and they are not now entitled to the verdict. Answer : Gentlemen, I am not inclined to affirm the first part, but the last part of it; that is, that the plaintiffs’ delay in operating their lease for a period of more than eleven years unaccounted for, accompanied by an increase of the value of the territory for oil purposes caused by developments of others in the neighborhood, is such laches and failure of consideration as disentitles them to the relief they now seek in this action, and they are not now entitled to the verdict.” [4]</p> <p>“ 2. If the lessees named in the lease of March 1,1878, under which the plaintiffs claim, after completing the test well drilled at or near Crab Run in 1881, abandoned the same as an unsuccessful search for oil and sold or removed their tools, machinery and derrick, and never entered under the said lease for purposes thereof or offered to do so until after the execution of the lease of Charles and Edwin Young to M. L. Lockwood on December 1, 1889, and the announcement of operations thereunder of the discovery of oil in the neighborhood, such facts constitute a surrender of the said lease of March 1, 1878, by operation of law. Answer: That point, gentlemen, covers, as I regard it, the entire defence as it is made in this case and it is affirmed. Of course, there is included in this point a statement of facts, hypothetically, that if the facts be so and so then it was an abandonment; that is true, and the facts being in this case not controverted, there being no dispute about them, the jury could not find them otherwise than as they are stated in this point to be. That, gentlemen, leaves you really nothing to do but find a verdict in this case for the defendants.” [5]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them respectively.</p>

Appeal, No. 163, Oct. T., 1892, by plaintiff, from judgment of Q. S. Clarion Co., Nov. T., 1891, No. 8, on verdict for defendants, Mary A. Royce and C. N. Royce. Indictment for obstructing a street by a fence. At the trial, before Baer, P. J., there was evidence to the effect that in 1866 John M. Cunningham laid out a large part of the borough of East Brady in town lots, streets and alleys.

<p>Besulting trust — Trust ex maleficio — Evidence—Declarations.</p> <p>Where a son, acting lor his lather, the plaintiff in an execution, purchases real estate at a sheriff’s sale for an inadequate price, but pays the purchase money out ol his own pocket, and the father by his subsequent conduct shows that he had knowledge ol the whole transaction, the son will not be declared a trustee ex maleficio for the father or the father’s heirs.</p> <p>' In such a ease declarations made by the lather alter the sale, claiming the land as his own, are inadmissible as evidence of a resulting trust.</p>

<p>Appeal, No. 68, Oct. T., 1892, by Nancy Donaghy, widow of Jos. Donaghy, from decree of O. G. Butler Co., Sept. T., 1882, No. 84.</p> <p>Petition to vacate recognizance entered in partition proceedings, and to order entry of new recognizance in its place.</p> <p>From the record it appeared that Joseph Donaghy died in Í863, leaving to survive him a widow, Nancy Donaghy, the petitioner, and six children. One of the children, James H. Donaghy, bought the shares of four of the other children. Martha M. Gill owned the sixth share, which she refused to sell to her brother. Under the will of decedent, the widow had a life interest in the estate.</p> <p>On November 21, 1882, James H. Donaghy presented his petition in the orphans’ court for partition. The widow joined in the partition proceedings, which resulted in a decree fixing her interest in the estate at one third for life. One purpart was awarded to Martha M. Gill, charged with owelty to the amount of $1,897.60, which was subsequently paid by Mrs. Gill to James H. Donaghy. On April 9, 1884, Mrs. Gill and her husband, in obedience to the decree of the court, entered into a recognizance in the office of the clerk of the orphans’ court to pay to Nancy Donaghy for life the interest on one third of the purpart awarded to Mrs. Gill.</p> <p>The petitioner prayed that the recognizance should be vacated, and that Mrs. Gill and her husband be ordered to enter into another, conditioned for the payment of the whole interest on the valuation of the purpart awarded to Mrs. Gill.</p> <p>The court decreed as follows, in an opinion by Hazen, P. J.:</p> <p>“ And now, Jan. 11,1892, upon due consideration, it is ordered that the decree of this court, under date of April 9,1884, awarding to Martha M. Gill purpart No. 1 of the lands of Joseph Donaghy, deceased, partitioned, be modified so as to provide payment of interest to Nancy Donaghy, the devisee and life tenant under the will of said decedent, lawful interest annually on the whole amount or sum at which said purpart was so awarded, [less annual interest on whatever of the principal has been paid by respondent to James H. Donaghy in his own right and in the right of the residuary legatees, of whom he is the vendee, or otherwise is paid.] [1] Recognizance with surety to be entered accordingly.”</p> <p>Error assigned was portion of decree in brackets.</p>

<p>Practice — Supreme Court — Appeals from interlocutory orders.</p> <p>The Supreme Court will not consider appeals from interlocutory orders requiring sums of money to be paid to or by receivers, unless such orders .are shown to have been improvidently made.</p> <p>Receivers — Payment by — Refunding bond — Practice.</p> <p>Where an order is made requiring a receiver to pay over a sum of money in his hands in partial distribution of the fund, it is proper to require a refunding bond to be entered in double the amount of the money to be paid.</p>

Appeal, No. 192, Oct. T., 1892, by J. G. Rolshouse, from decree of orphans’ court of Allegheny Co., June T., 1891, No. 178, ordering specific performance of a contract of sale of land by the executors of George F. Smith, deceased. Petition by Mary Smith, Lewis Smith and G. F. Smith, Jr., executors of George F. Smith, deceased, praying for specific performance of a contract for the sale of land made between their testator and J. G. Rolshouse.

<p>[Marked to be reported.]</p> <p>Wills — Life estate — Fee—Precatory words.</p> <p>Mere precatory words, or words of command, or words of explanation, are not enough to establish an intention that is not to be gathered from a consideration of the operative words upon the face of a will.</p> <p>A will provided as follows: “ As to my worldly goods, after my just debts are paid, I give and bequeath to my beloved wife all my property, real and personal, for her support during her natural lifetime; any remainder at her decease to be disposed of by her as she may think just and right among my children.” Held, that the words of the will import an absolute gift, and give a fee with all its incidents, including the power to sell and the power to devise. The words referring to the remainder do not limit the estate, as they are merely precatory.</p>

<p>Appeal, No. 283, Oct. T., 1892, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1891, No. 389, in equity, in favor of defendant.</p> <p>Bill in equity for injunction to restrain construction of electric railway across tracks of plaintiff’s railroad at grade. The bill contained an alternative prayer that should the court be of opinion that defendant had the right to make such crossing of plaintiff’s tracks in any manner, the court would prescribe the place where and the manner in which such crossing might be made and used, and what precautions or provisions should be observed to best protect life and property.</p> <p>On hearing of motion for preliminary injunction, the court, in an opinion by Stowe, P. J., 1 Dist. R. Ill, ordered an injunction to issue until the court should be informed by sufficient evidence as to the safest and best manner of regulating and guarding the crossing. The case being put at issue a commissioner was appointed to take testimony, and, upon the coming in of his report, the following facts were agreed upon by the parties:</p> <p>Plaintiff company, incorporated in 1846, acquired, in 1850, under its power of eminent domain, a strip of land sixty-six feet in width through the land of Isaac Mills in what is now Braddock township, Allegheny county, Pa., for the construction and operation of its railroad, and upon this strip (which includes the point of crossing in controversy) shortly after-wards constructed and has since operated its railroad, consisting now, at Copeland station, the proposed crossing point, of four main tracks, to which is shortly to be added a fifth track. In addition to the main tracks there is also at present an additional track or siding leading into an ice-house on the south side of plaintiff’s railroad and on the west side of the road below mentioned, upon which defendant’s railway is constructed. Plaintiff has also constructed and erected upon its said right of way telegraph wires, and the signal appliances below referred to, which are in use and necessary for the operation of plaintiff’s railroad. Plaintiff’s railroad at the proposed point of crossing has a heavy grade descending eastwardly, being about forty-seven feet per mile. The four main tracks are used indiscriminately for freight and passenger traffic, and a large number of trains pass Copeland station daily upon said tracks. The number of regular daily trains in December, 1891, was two hundred and twenty-eight, of which about two hundred pass Copeland between 6 A. M. and midnight. In October, 1889, at No. 13, March sessions 1889, of the court of quarter sessions of Allegheny county, a road for public use was confirmed and ordered to be opened [sixty feet wide] from the northerly line of the borough of Braddock (being an extension of Fourth street in said borough), a distance of about twelve hundred and fifty feet, crossing plaintiff’s railroad at grade, and extending to the public road from Braddock to Wilkinsburg which runs in this locality approximately parallel and near to plaintiff’s railroad. This road was accordingly opened by the township supervisors, and has since been maintained and used as a township road. This road, however, had previously existed on both sides of plaintiff’s tracks through dedication to public use by the owners of the land upon plans laid out by them. The plaintiff owns in fee a lot of land on the southern side of its railroad adjoining its right of way and abutting or fronting upon the said road, and on this lot are located the Copeland station buildings. Approaching plaintiff’s tracks from the southern side the said road for a distance of one hundred and fifty feet from the centre of plaintiff’s tracks rises at a grade of ten and one half feet in the hundred, and after crossing plaintiff’s tracks continues to rise on the north side thereof at the rate of six and nine tenths feet per hundred to the public road between Braddock and Wilkinsburg, called Charles street or Hawkins avenue. On the west side of the said road on the north and south sides of plaintiff’s tracks are buildings which interfere with the view of plaintiff’s tracks by any one approaching the same upon the road, but when one has reached plaintiff’s tracks they can be' seen, if not occupied by trains, for a distance of about nineteen hundred feet to the west and about thirteen hundred feet to the east from the crossing. West of the said road on both sides of plaintiff’s tracks are several streets or highways dedicated to public use leading to, but not crossing, plaintiff’s right of way. The topography is such that at First street, about seven hundred feet west of the said road, it would be practicable to cross plaintiff’s tracks by means of an overhead crossing or bridge. A substantial structure spanning plaintiff’s right of way would cost from $6,000 to $7,000, exclusive of approaches on the south side, which would have to be constructed above the natural grade of the ground with the consent of property owners affected thereby. A short distance east of the said road a crossing beneath plaintiff’s tracks is also practicable, but at considerably greater cost, and in part through private property.</p> <p>On June 9,1890, defendant company was incorporated under the act of May 14,1889, with authority to construct, maintain, and operate a street railway for public use in the conveyance of passengers by power other than locomotive upon certain streets and highways in Braddock borough and Braddock township, but not including or covering the road at the crossing here in controversy. Pursuant to the power given by said act defendant company on July 29, 1890, Jan. 15, 1891, and May 22, 1891, by action of its board of directors, changed or modified its route, one of these modifications or extensions (that of July 29,1890) covering the road and the crossing here in controversy. In February, 1891, the then supervisors of Braddock township gave their written consent to the construction of defendant’s railway. On June 9, 1891, defendant asked consent of plaintiff to construct at the expense of defendant a bridge for its electric railway to cross plaintiff’s tracks overhead at First street. No definite reply was given immediately to this request, the delay, as explained by Mr. Robert Pitcairn, plaintiff’s general agent and superintendent, to whom defendant’s letter was addressed, being by reason of an effort made by him to effect an arrangement with the supervisors of Braddock township, under which plaintiff company might, at its own expense, construct a bridge over its railroad at some suitable point near Copeland which would furnish an overhead crossing both for general travel and for the electric railway, so as to abolish the grade crossing of the road at Copeland station. On Aug. 20, 1891, Mr. Pitcairn, on behalf of plaintiff, wrote to the defendants letter, intended, as lie says, to express plaintiff’s assent to the construction of the bridge as proposed by defendant’s letter of June 9th, but which defendant says it understood to be an assent to the construction of an overhead bridge on the road at Copeland station instead of at First street. Defendant having let its contract for the construction of its railway upon the road crossing plaintiff’s tracks at grade at Copeland, this bill was filed. Defendant has constructed its railway upon and along the said road on both sides of plaintiff’s tracks, with air overhead trolley wire carrying the electric current, which trolley wire is supported by cross wires and poles set in the ground erected on both sides of the road or highway, and upon this railway so constructed (at present a single track) proposes to operate and- run street cars by electricity, crossing plaintiff’s tracks at grade from the southern side to the northern.</p> <p>Plaintiff has in use upon all of the tracks of its railroad between Pittsburgh and Stewart station, a distance of about seventeen miles (and thus extending beyond or east of Copeland station), a system of signals necessary for the operation of its trains, known as the automatic-pneumatic electric system. Under this system the railroad is divided into sections of about one half mile each, and at the end of each section are located for each track two signals, known respectively as the home and distance signals, the home signal indicating the condition of the section of track first in advance and the distance signal indicating the condition of the section second in advance. These signals are operated by an electric current, of which the rail of the track is the conductor. Anything which makes a metallic connection between the two rails of the track, as, for example, the wheels and axles of an engine or car, permits the electric current to pass from one rail to the other, and thereby automatically moves the signals at the end of the section, the home signal indicating danger and the distance signal indicating caution. The construction of defendant’s railway makes a metallic connection between the two rails of each one of the plaintiff’s main tracks, and would render useless the signals on that section unless some means were taken to overcome .the difficulty. So far as the operation of the signals is concerned, it is practicable to overcome the difficulty by insulating the the rails of each track on both sides of the proposed crossing and connecting the rails between the insulated points, using as conductors underground wires instead of the rails themselves. While this restores the operations of the signals as to the section generally it necessarily cuts out of and disconnects from the signal system that portion of each of plaintiff’s tracks between the insulated points on both sides of the crossing (being a distance of two rail lengths, or about sixty feet), so that an obstruction of any sort on plaintiff’s tracks between the insulated points or on defendant’s track upon, the crossing would have no effect upon the signals.</p> <p>The court, after argument, entered a decree dissolving the injunction previously granted, sustaining defendant’s right to cross at grade, and prescribing the terms upon which defendant should construct and operate its grade crossings, in opinion by Stowe, P. J., 1 Dist. R. 626. .</p> <p>Errors assigned were (1) decree that defendant has the lawful right to construct, maintain and operate its street railway upon the road crossing the tracks of plaintiff’s railroad at or near Copeland station or (2) upon plaintiff’s tracks at grade at or near Copeland station; (3) in not decreeing that defendant be enjoined from constructing and operating its railway upon or across the tracks and property of plaintiff; (4) decree that plaintiff pay the costs.</p>

<p>[Marked to be reported.]</p> <p>Street improvements — Unconstitutional act — Remedial act — Contract— Act of May 16, 1891.</p> <p>Where a street improvement is made under an unconstitutional act, and subsequently a remedial act is passed providing that viewers should be appointed “ to ascertain and determine the total damages and expenses of such improvement,” the assessment should be made on the basis of a quantum meruit, but the contract with the city under which the work was done is some evidence of the cost of the improvement and may be considered by the viewers.</p> <p>But in such a case if the viewers refuse to hear evidence as to the value of the work, and declare their purpose to “ only take the contract price as furnished by the city engineer,” and express no belief that the contract price was a fair price, their report will be set aside.</p> <p>Practice under act of May 16, 1891.</p> <p>Under the act of May 16, 1891, questions of fact must be raised before the viewers, and if a lot owner fails to appear before the viewers to raise questions of fact on which he wishes to be heard, he will be held to have-waived them; but questions of form, or of law, arising upon the face of the report may be brought to the attention of the court by exceptions by any one interested and without regard to his appearance or nonappearance before the viewers.</p>

Appeal No. 217, Oct. T., 1892, by A. H. Childs et al., from decree of C. P. No. 3, Allegheny Co., Aug. T., 1891, No. 82, dismissing exceptions to report of viewers. Heard with preceding case. The facts are similar to those of the preceding case. The exceptions, filed by appellants, property owners, were among others as follows: “ 5.

<p>Appeal, No. 122, Oct. T., 1892, by Frank Shanley et al., from decree of C. P. No. 2, Allegheny Co., July T., 1891, No. 498, dismissing exceptions to report of viewers. Heard with preceding cases.</p> <p>The facts as they appeared before White, J., were substantially similar to those of the preceding cases. The exceptions filed by appellants, property owners, were among others as follows:</p> <p>“ 6. Neither the city of Pittsburgh nor the viewers have ascertained and determined the true costs and expenses of making said improvement, and the sum so reported is largely in excess of the actual cost and expense.”</p> <p>Error assigned was entry of decree dismissing exceptions and confirming report, quoting decree.</p>

<p>Street improvements — Act of May 16, 1891.</p> <p>Viewers appointed under the act of May 16, 1891, to assess benefits for street improvements made under the unconstitutional act of June 14, 1887, must ascertain what the improvements were really worth, and must not rely merely upon the contract price as furnished by the city engineer.</p> <p>Practice under act of May 16, 1891 — Exceptions—Report.</p> <p>Where the report of viewers shows that exceptions were filed with the viewers at the proper time, heard by them, and their report afterwards modified and corrected “ in conformity with justice and equity,” but the report fails to show whether the exceptions were based on questions of fact or law, the report is fatally defective, and the proceedings will be set aside.</p>

<p>Public officer — Special compensation — Contract—Public policy.</p> <p>A doubtful matter of public policy is not sufficient to invalidate a contract. An agreement is not void on this ground unless it expressly and unquestionably contravenes public policy, and is manifestly injurious to the interests of the state.</p> <p>While an agreement by a private person to pay a public officer for doing his duty is void as against public policy, it is otherwise as to matters not in the scope of the officer’s public duties. But agreement to pay for such services must be special in order to bind.</p> <p>Sheriff — Expenses of special deputies in Allegheny county.</p> <p>A sheriff in Allegheny county can recover money which he actually expended in paying the per diem wages and costs of subsistence of special deputies selected by himself, without authority of the salary board, at the instance and request of defendants, for their special benefit, and upon the faith of their promise to refund the amount thus advanced.</p> <p>Plegalfees under act of March 28, 1814.</p> <p>It would be a strained construction of the penal act of March 28, 1814, to hold that a claim for money thus advanced is in any sense demanded as compensation for the officer’s own service or services of his regularly authorized and appointed deputies.</p> <p> Cases as to sheriff's charges distinguished. </p> <p>Cases deciding that the sheriff is not entitled to extra charges for keepers of goods levied on, for cartage, storage, auctioneer’s services, insurance, etc., do not hold that the sheriff cannot recover reasonable extra expenses incurred at the instance of interested parties and upon their promise to reimbuse the officer. Many of those cases were cases in which the officer endeavored to charge such extra expenses on the fund to the prejudice of parties interested therein.</p>

Appeals, Nos. 158, 159 and 160, July T., 1892, by defendants, from decree of C. P. No. 4., Phila. Co., March T., 1892, Nos. 829, 968, and granting a perpetual in-j unction, restraining defendants from erecting poles and wires for the electric propulsion of street cars. Bills in equity by Stacy Reeves et al., citizens and property owners of Philadelphia, against the Continental Ry. Co., the West Phila. Passenger Ry.

Appeal No. 107, Oct. T., 1892, by defendant, Thomas Matthews, from judgment of Q. S. Allegheny Co., Dec. T., 1891, No. 17, Miscellaneous, on appeal from conviction before alderman. Appeal from conviction before alderman under Sunday act of 1794. The .facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 276, Oct. T., 1892, by defendant, C. E. Shirley, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 620, in favor of Commonwealth to use of G. W. Russ and Allegheny county, on case-stated.</p> <p>The case-stated was in part as follows:</p> <p>“ It is admitted that on the 21st of December, 1891, the defendant did, in the county of Allegheny, have in his possession with intent to sell, did expose for sale and did sell one pound of oleomargarine as an article of food, which was manufactured as follows, to wit: [Omitted, as unimportant to the decision.]</p> <p>“ The oleomargarine butter manufactured as aforesaid and sold by the defendant is a wholesome article of food, and there is a large demand for it in the retail market as a substitute for dairy butter. Upwards of four hundred persons being now licensed to deal in the same at retail in this federal internal revenue district. So much thereof as was sold by the defendant was manufactured in the manner aforesaid, in the state of Illinois, where it is lawful to manufacture and sell the same, and every pound was duly accounted for to the government of the United States. The same was brought into the state of Pennsylvania in a package having permanently painted thereon with black paint the words ‘ Oleomargarine Butter,’ in Roman letters, not less than one half inch in length, in a straight line, where the same could be plainly seen, and the defendant made sale thereof from said package marked as aforesaid, after said package had been broken and the contents thereof separated for sale at retail.</p> <p>“ Said oleomargarine butter, as distinguished from dairy butter, was a well known article of food, in the state of Pennsylvania, at, and long prior to, the passage of the act of May 21, 1885, entitled ‘ An act for the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof,’ and a large class of the-citizens of said state were engaged in the. manufacture and sale thereof, and there was an extensive demand therefor, as there is still, , among the inhabitants of said state.</p> <p>“ The aforesaid article, known as oleomargarine butter, is in no way injurious, to' the public health, or to the health of persons using the same as an article of food, the said substance being' designed to take the place of butter produced from pure unadulterated milk, or cream from the same.</p> <p>“ And that on the day and year aforesaid at the county aforesaid after the aforesaid sale the defendant had other of the same substance in his possession, with intent to sell and exposed the same for sale as an article of food.”</p> <p>The court entered judgment against defendant, in the following opinion by Porter, J.:</p> <p>[“ The constitutionality of the act of assembly upon which this action is based, having been already passed upon by the Supreme Court of the commonwealth, we must hold the legislation to be valid.] [1] [We are of opinion that one sale of oleomargarine constituted one complete offence, and the subsequent exposure of the substance for sale rendered the defendant liable to a second penalty.] [2] We, therefore, order judgment against the defendant in the sum of two hundred dollars.</p> <p>[“ And now, Sept. 21, 1892, it is ordered that judgment be entered upon the case-stated in favor of the plaintiff and against the defendant in the sum of two hundred dollars ($200) with costs.”] [8]</p> <p>Errors assigned were (1-8) portions of opinion in brackets, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Zibet — Definition.</p> <p>Any publication, injurious to the social character of another and not shown to be true, or to have been justifiably made, is actionable as a false and malicious libel.</p> <p> Office of an innuendo. </p> <p>The office of an innuendo is to aver the meaning of the language published ; but, if the common understanding of mankind takes hold of the published words and at once, without difficulty, applies a libelous meaning to them, an innuendo is not needed, and if used may be treated as surplusage.</p> <p> Actionable words. </p> <p>The following publication is actionable per se: “ Complaints from outside parties were sent to the department, one asking for his dismissal on account of intimacy with a well known young local elocutionist.”</p>

<p>Appeal, No. 96, Jan. T., 1892, from decree of O. C. Phila. Co., Jan. T., 1887, No. 18, distributing estate of Patrick McBride, deceased.</p> <p>Adjudication of account of Real Estate Title Insurance & Trust Company, trustee.</p> <p>The facts were found by the auditing judge as following, in an opinion by Penrose, J.:</p> <p>“ By his will, proved Sept. 19,1868, Patrick McBride provided, inter alia, as follows:</p> <p>“ ‘ I give devise and bequeath unto my son Joseph Augustine McBride his heirs executors administrators and assigns the eighteen shares of 'stock in the Farmers’ and Mechanics’ Bank of the city of Philadelphia in trust -nevertheless for and upon the uses intents and purposes hereinafter limited declared and contained of and concerning the same for no other use intent or purpose whatsoever that is to say, that the said Joseph Augustine McBride his heirs executors administrators and assigns shall and will receive the dividends which from time to time may be declared upon the said shares and invest the same in additional shares of the said stock for the use of Charles Joseph McBride, Catharine Philomena McBride and Francis Aloysius McBride children of my son John McBride and such other children lawful issue which he may have, the said sum to accumulate until the youngest surviving of these children _ shall have attained the age of twenty-one years at which time it is my will that the said shares be sold and the proceeds of the same be paid in equal shares to the said Charles Joseph, Catharine Philomena and Francis Aloysius McBride children of my son John McBride and such other children lawful issue which he may have. Provided that they the said children shall have been brought up and are at the time members of the Roman Catholic Church and should either of the said children have not been so brought up and be not at the time a member of the said church then the share or shares which it is my will should be received by the said child or children shall be equally divided between those of them who have been so brought up and are at the time members of the said church. And should only one of said children have been brought up as and continues to be a member of the said church in such case it is my will that the entire sum be paid to the said child and should either of the said children having been brought up a member of said church and having died a member thereof before the time hereinbefore specified for the division distribution and payment of this bequest having a child or children lawful issue being brought up in the doctrine of the said Roman Catholic Church such child or children it is my will shall be entitled to receive such share or shares as the parent or parents would have been entitled to receive if then living.</p> <p>“ ‘Provided further that should neither of the said children have been brought up in membership of said church or having been so brought up should have all died without lawful issue before the time specified for the division and distribution and payment as hereinbefore set forth — then in such case it is my will that the entire proceeds from the sale of these shares of stock no matter how large the amount to which it may have accumulated be given to the managers of the Saint John’s Orphans’ Asylum (a Roman Catholic institution for male orphan children located in the Twenty-fourth ward of the city of Philadelphia) for the support and maintenance thereof.’</p> <p>“ The residue of the estate, after a legacy of $850 to the wife of the testator, was given, one third to his said wife, Mary Ann McBride, and two thirds to his children, Francis P., Joseph Augustine, and Mary Ann McBride (his son J ohn being excluded), in equal shares.</p> <p>“ The will was executed July 28,1864, at which time Charles J., Catharine P., and Francis A. McBride, the only children of John then born, were respectively about seven, five, and three years of age; Francis afterwards died at the age of eight jmars. After the testator’s death, as represented, three other children were born, viz.: John, now twenty-three years of age ; Caroline, now fifteen years of age, and Helen, now in her thirteenth year. John McBride, the fathel of these children, is now, as represented to the court, sixty-three years old, and his wife, Mary A. McBride, sixty years old. Joseph Augustine McBride, the trustee named in the will, died in 1886, and the present accountant, the Real Estate Title Insurance and Trust Company, was then appointed in his place. . . . The account is of the stock held under the trust so created, and it has been filed at the instance of Charles J. and John P. McBride, claiming that the trust has ceased and that the estate is now distributable.</p> <p>“ The general rule in case of a legacy to the children of a designated person is that it shall not extend to after-born children, but where it is given with any suspension of the time so as to make the gift take place at a future period, then such children shall take as are living at that period (Singleton v. Gilbert, 1 Cox, 63); and hence if the distribution is to be made when all attain the age of twenty-one, or when the youngest attains the age of twenty-one, all, whenever born, may be admitted: Hughes v. Hughes, 3 Bro. C. C. 434; 14 Yesey, 256. A more restricted rule may be applied, where by reason of letting in members of the class coming into existence after the testator’s death the limits of perpetuity may be exceeded or some principle of law violated: Kevern v. Williams, 5 Sim. 171.</p> <p>“ It is very evident in the present case that the trust for accumulation, except so far as it may be saved by the contingent limitation to a charity, is void unless it is confined to a minority in existence at the testator’s death. The act of 1853, unlike the Thelussen act, does not permit accumulation during an arbitrary period of twenty-one years, but confines it to an existing minority, and for the benefit of the minor (Washington’s Estate, 25 Smith, 102; Carson’s Appeal, 3 Outerb. 325); and hence, if ‘ the youngest child ’ spoken of in the will is to be understood as the youngest child of John McBride, whenever born, and the accumulation' as continuing until he shall attain the age of twenty-one, not only will the trust be invalid so far as concerns such accumulations, but as the persons who are to take are uncertain until the time for distribution, the accumulations themselves, instead of enuring to the benefit of the children of John, will, under the authorities, go to the residuary legatees to their entire exclusion: Ellis v. Maxwell, 3 Beav. 587; Gray on Perp. § 704, etc. And not only this, but as the law contemplates the possibility of the birth of issue, no matter what may be the age of the parents, no distribution of the principal could be made until the death of John McBride, because until then it could not be known that any of his living children would be the ‘youngest.’ The inconvenience thus arising would, of course, be of no consequence if the testator’s meaning is clear and unequivocal, but it is not to be lost sight of in construing the will and in determining the meaning of what he has said. See Bonaffon’s Estate, 14 W. N. 501. A construction which will satisfy the language used without leading to absurd or inconvenient results is to be preferred, still more so if the opposite construction will defeat the will altogether, and divert the bounty of the testator from those whom he manifestly intended to benefit, and give it to persons whom he thought he had already sufficiently provided for. Kevern v. Williams, supra; Bonaffon’s Estate, supra; Gray on Perp. § 633.</p> <p>“ Before recurring to the language of the will with regard to the time of distribution, it is proper to consider how far the trust for accumulation is preserved by the limitations to the Orphan Asylum in the event of the death of the grandchildren or their ceasing to be connected with the Roman Catholic Church.</p> <p>“The act of 1853 forbids accumulation except for the benefit of an existing minority, but with this qualification: ‘ Provided, That any donation, bequest, or devise for any literary, scientific, charitable, or religious purpose shall not come within the prohibition of this section.’ Literally, this would apply to contingent no less than vested gifts for the excepted purposes, but the act is a remedial one, and is to be interpreted so that the mischief may be suppressed and the remedy made effectual. It is to be construed in a manner that will ‘ supresse subtill inventions to creepe out of the statutes’ (Co. Litt., 230, a.-l.') ; and unless the proviso be confined to direct gifts for charitable, etc., purposes, it is clear that all that would be necessary to prevent its operation in any case would be to insert in the will directing an accumulation for any period, within the limits of the rule against perpetuities, a provision that if all persons for whom it was intended should be then dead, the fund with its increase should go for religious or charitable or literary purposes. The act only excepts gifts of the character referred to where religious, charitable, or literary use is the sole and exclusive purpose of the accumulation. Anything beyond this would defeat the operation of the statute, which must, therefore, be understood accordingly.</p> <p>“ The will was executed, as already stated, four years before the death of the testator. The gift is for ‘ the use of Charles Joseph McBride, Catharine Philomena McBride, and Francis Aloysius McBride, children of my son John McBride, and such other children, lawful issue, which he may have, the said sum to accumulate until the youngest surviving of these children shall have attained the age of twenty-one years.’ This may mean ‘ such other children ’ as the son may have in the lifetime of the testator; such other children as he may have at any time while he lives; or such other children as he may have before the time of distribution. If it is to be understood as confined to children born during the lifetime of the testator, the three who have since been born must be excluded. If it is to be understood as including all who may by possibility be born in the son’s lifetime, the trust for accumulation fails altogether, the accumulations pass to the residuary legatees, and the grandchildren get not even a share of the principal until the death of their father. But, it will be observed, the period of distribution is not ‘ when the youngest child ’ who may be born to the son shall have attained the age of twenty-one yearn, but ‘ when the youngest of these.’ What is meant by ‘ these ? ’ The names of the children then in being had just been mentioned by the testator, and the words which follow were words of general description merely. The word 'these ’ may refer to the designated children or it may refer to the whole class. In the former case the intention bf the testator will be in accordance with the law, and may be fully carried into execution; in the latter it fails utterly. We are warranted, therefore, under the authorities referred to, in adopting the former as the proper construction. Benignos faoiendce sunt interpretaciones propter simplicitatem laicorum ut res magis valeat quwm pereat.</p> <p>“ Of the three children thus referred to by the testator, Catharine, the youngest survivor, attained the age of twenty-one in 1880. This was the time for distribution, and the class of distributees was then closed, no after-born' child being capable of taking (Iloste v. Pratt, 3 Vesey, 730; Picken v. Matthews, 10 Ch. Div. 264; Gray on Perp. § 379), though all born before then are. This will include John, Caroline, and Helen.</p> <p>“ Further authorities upon the subject of gifts of this description are Pemberton v. Parke, 5 Bin. 607; Gross’ Estate, 10 Barr, 360; Jenkins v. Fryer, 4 Paige Ch. 47; Butler v. Lowe, 10 Simons, 317 ; Tucker v. Harris, 5 Id. 538; Myers v. Myers, 2 McCord, 256; Swinton v. Legarge, Id. 440, 444, 445.”</p> <p>The auditing judge awarded the fund in equal shares to Charles J. McBride, Catharine P. McBride, John McBride, Jr., Caroline McBride, and Helen McBride.</p> <p>The following exceptions were filed by appellants:</p> <p>“ 1. The learned judge erred in deciding that the trust for accumulation is not preserved by reason of the bequest to St. John’s Orphan Asylum. [3]</p> <p>“2. The learned judge erred in deciding that the word ‘ these ’ in the will of the testator referred to Charles J ose ph McBride, Catharine Philomena McBride, and Francis Aloysius McBride only. [4]</p> <p>“ 3. The learned judge erred in deciding that the period of distribution of principal was when the youngest of these three children named attained the age of twenty-one years. [5]</p> <p>“ 4. The learned judge erred in not deciding that the period of distribution is. when the youngest child who may be born to the son shall have attained the age of twenty-one years. [6]</p> <p>“ 5. The learned judge erred in ordering distribution of the accumulations of the trust estate (beyond the period provided in the act of 1853) to the grandchildren. [7]</p> <p>“ 6. The learned judge erred in ordering distribution of the principal of the trust estate. [8]</p> <p>“ 7. The learned judge does not find that the grandchildren of the testator to whom he awards distribution of the principal and accumulations are members of the Roman Catholic Church.” [9]</p> <p>The exceptions were dismissed, and exceptants appealed.</p> <p>Errors assigned were (1) in confirming the adjudication; (2) in awarding distribution in accordance with the adjudication ; (3-9) in dismissing the exceptions, quoting them.</p>

<p>Appeal, No. 97, Jan. T., 1892, from O. C. Phila. Co., in above estate, by Francis P. McBride, a residuary legatee. Argued with preceding case.</p>

<p>Appeal, No. 86, Oct T., 1892, by defendant, Alex. W. Logan, trading as J. W. Logan & Sons, from judgment of C. P. Allegheny Co., Sept. T., 1890, No. 515, on verdict for plaintiffs, David McCauley et al.</p> <p>Trespass for injury to false works of bridge.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Collier, J., refused defendant binding instructions. [1]</p> <p>Verdict and judgment for plaintiffs for $2,332.15.</p> <p>Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of instructions, quoting point.</p>

<p>Appeal, No. 215, Oct. T., 1892, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1892, No. 410, overruling demurrer.</p> <p>Petition for alternative writ of quo warranto, to determine whether J. H. Dalzell, C. L. Magee, Joshua Rhodes, George B. Hill and Fred. Gwinner were entitled to act as directors of the Pittsburgh, Allegheny & Manchester Traction Company.</p> <p>From the petition it appeared that at a meeting of the stockholders of the said company held on May 16, 1892, the five respondents were declared elected to the position of directors. One of the candidates for the office of director was the relator, William Eberhardt, who, by proxies under seal, claimed the right to vote stock, held by Watson and Wood as trustees, and so registered in the stock book of the corporation. The votes were rejected. If they had been received relator would have had more votes than defendants. Further facts appear by the opinion of the Supreme Court.</p> <p>The case was heard upon petition setting out these facts and demurrer to answer. The answer denied the right to vote the stock in qüestion. The court overruled the demurrer, and entered judgment for defendants, in an opinion by Ewing, P. J., 1 Dist. R. 657.</p> <p>Errors assigned were (1) overruling demurrer and entering judgment for defendants; (2) not entering judgment of ouster ; (3) not declaring relator duly elected director.</p>

<p>Appeal, No. 129, Oct. T., 1892, by plaintiff, from order of C. P. Westmoreland Co., Feb. T., 1889, No. 88, striking off judgment against Margaret A. Fritz.</p> <p>On July 2,1887, judgment was entered on a judgment bond, given by plaintiff to defendant, in the following form-:</p> <p>“ And now, to wit, 2d July, 1887, I, John Chamberlain, prothonotary per warrant of attorney in said bond filed, hereby enter judgment against the defendant in favor of plaintiff for the penal sum of Sixteen Hundred Dollars, conditioned for the payment of Eight Hundred Dollars, with costs of suit, attorney’s commission of 5 per cent for collection and release of error. Inq. cond. stay of ex. and exemp. waived. Entered 2d of July, 1887.”</p> <p>The bond did not show for what purpose it was given. Subsequently defendant presented a petition to strike off the judgment. The court referred the petition to M. N. Me Geary, as auditor, who reported the facts as stated in the opinion of the Supreme Court. The auditor recommended that the judgment be stricken off. Exceptions to the auditor’s report were dismissed by the court, and a decree entered striking off the judgment.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>[Marked to be reported.]</p> <p>Repeal of statutes — General and special — Act of Feb. 24, 1871, and March 22, 1887 — Tax liens.</p> <p>A general affirmative statute will not repeal a previous particular statute upon the same subject, though the provisions of the former be different from those of the latter.</p> <p>The act of March 22, 1877, P. L. 16, entitled “An act in relation to cities of the second class providing for the levy, collection and disbursement of taxes and water rents,” does not repeal the act of Feb. 24, 1871, P. L. 126, entitled “ An act providing for the registration of lots in the city of Pittsburgh.” Nor does the act of May 5, 1876, P. L. 124, repeal the act of 1871.</p> <p> Statutes construed in pari materia. </p> <p>The fourth section of the act of Feb. 24,1871, P. L. 126, providing that no property returned and registered in accordance with the provisions of the act “ shall be subject to sale for taxes or other municipal claims . . . except in the name of the owner as returned,” may be construed in pari materia with the twelfth section of the act of March 22, 1877, P. L. 16. The former act applies to real estate returned and registered, while the latter act may with entire propriety be restricted to real estate which has not been returned and registered according to the provisions of the act of Feb. 24, 1871.</p> <p>Classification of cities — Local and special laws.</p> <p>A classification of cities for purposes of legislation cannot be sustained, unless the act relates to the exercise of a corporate power of such cities, or to the number, character, powers and duties of a municipal officer thereof, or to some subject under the control of city government.</p> <p>Constitutional law — Liens—Sales—Act of March 22, 1877.</p> <p>The act of March 22, 1877, see. 12, declaring that claims for overdue taxes and water rents in cities of the second class, filed in court, shall be ■liens on the real estate described therein without regard to whether the owner is named therein or not, and that a judicial sale of such real estate shall vest a good title thereto in the purchaser, is unconstitutional and void, for the reason that it offends against those clauses in section 7 article 3 of the constitution which declare that the general assembly shall pass no local or special law “ authorizing the creation, extension or impairing of liens” or “prescribing the effect of judicial sales of real estates.”</p>

<p>Appeal, No. 35, Oct. T., 1892, by defendant, Rose A. Trainor, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1884, No. 84, on verdict for plaintiff, James McKay.</p> <p>Feigned issue. By agreement of the parties a special verdiet was taken for plaintiff, subject to the opinion of the court whether he was entitled to recover on the facts. The special verdiet was as follows :</p> <p>Special Verdict.</p> <p>“ And now, to wit: October 22, 1891, the jury find in favor of the plaintiff, subject to the opinion of the court on the question of law reserved on the following facts found by the jury =</p> <p>“ 1. On March 31,1877, the owner of the property in dispute, as appeared upon the records in the recorder’s office of Allegheny county, and the registry in the office of the city engineer, of the city of Pittsburgh, were Eobert and Thomas C. Dickson.</p> <p>“2. On April 2, 1877, a deed was registered in the registry ■at City Hall from Eobert and Thomas O. Dickson to Eobert A. Dickson, which was subsequently duly recorded in the recorder’s office of Allegheny county.</p> <p>“ 3. The appropriation ordinance of the city of Pittsburgh by which the city taxes for the year 1877 were levied, passed councils and was approved by the mayor on the 31st day of March, 1877.</p> <p>“ 4. There were assessed for the year 1877 taxes against the lot in dispute and other properties of Eobert and Thomas O. Dickson which were unpaid and became delinquent.</p> <p>“ 5. In 1880, the delinquent tax collector of the city of Pittsburgh filed a lien for the delinquent taxes of 1877, in the prothonotary’s office of Allegheny county, at Delinquent Tax Docket, No. 15, September term, 1880, and said lien was filed under the provisions of the act of 22d of March, 1877, P. L. 16. That said lien was for taxes assessed against the lot in dispute, inter alia, and was filed against Eobert and Thomas C. Dickson. That a sci. fa. was issued thereon and the property sold by the sheriff as the property of Eobert and Thomas C. Dickson, and a deed made therefor by the sheriff to Michael Graver, and that the title of said Michael Graver became by sundry mesne conveyances vested in James McKay, the plaintiff in this feigned issue.</p> <p>“ If the court should be of opinion that on the facts found by the jury, the sheriff’s sale at No. 15, September term, 1880, divested the title of Eobert A. Dickson to said property, then judgment to be entered on the verdict, otherwise judgment to be entered in favor of the defendant, non obstante veredicto.”</p> <p>The court entered judgment for plaintiff on the verdict. Defendant appealed.</p> <p>Error assigned was entry of judgment, quoting decree.</p>

<p>Appeal, No. 210, Oct. T., 1892, by John McKirdy et al., relators, from decree of O. P. No. 8, Allegheny Co., Aug. T., 1892, No. 106, refusing peremptory writ of mandamus against David Maeferron, treasurer of the city of Allegheny.</p> <p>Petition for writ of mandamus setting forth that relators were owners in fee of certain real estate subject to taxation in the city of Allegheny, that David Maeferron was city treasurer and, under the act Feb. 27, 1860, P. L. 85, collector of taxes, that relators had tendered him taxes in said real estate, less five per cent discount, on May 18,1892, but he had refused to receive them.</p> <p>An alternative writ'was thereupon issued to which Maeferron returned that by the census of 1890 and the certificate of the governor entered on the minutes of councils of said city and duly recorded in the recorder’s office, the city was now in the second class of cities and subject to the laws . governing such class and was duly organized as such in 1891, and that the taxes are levied and collectable under the act of March 22,1877, and its supplements, by which taxes are payable one half, in March and one half in September; that he is city treasurer but not collector of taxes. . The offer to pay taxes by relators was admitted.</p> <p>The court, upon demurrer to this return and motion for a peremptory writ, overruled the demurrer, denied the motion and refused the writ, in an opinion by McClung, J.</p> <p>Error assigned was, inter alia, the decree, quoting it.</p>

Appeal, No. 154, Oct. T., 1892, by defendants, C. Denig et al., from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1892, No. 251, on verdict for plaintiff, James Wallace. Ejectment for undivided one half of farm. At the trial it appeared that plaintiff claimed a life interest in one half of the land in controversy as father of his child Margaret, who died in 1851. The facts of the case appear by the opinion of the Supreme Court.

<p>Appeal, No. 230, Oct. T., 1892, by defendant, from judgment of C. P. No. 1, Allegheny Co., June term, 1885, No. 226, on verdict for plaintiffs, Chas. Wallace et al., children of Chas. Wallace and heirs of Geo. Wallace.</p> <p>Covenant for arrears of ground rent payable yearly.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, the court, Stowe, P. J., refused binding instructions for defendant, and directed verdict for plaintiff.</p> <p>Errors assigned were, (1, 2) such instructions, quoting them.</p>

<p>Appeal, No. 96, Oct. T., 1892, by plaintiff, Sarah Kramer, from decree of O. P. Jefferson Co., May T., 1889, No. 2, dismissing bill in equity filed against M. J. Dinsmore et al., trading as the Mahoning Bank.</p> <p>Bill to enforce specific performance of contract to convey land.</p> <p>The ease was referred to J. A. Scott as master, from whose report it appeared that in 1885 the Mahoning Bank, a partnership composed of a large number of shareholders, held several judgments against George Kramer, one of the original shareholders of the bank and husband of complainant. Execution had been issued on these judgments and certain portions of Kramer’s real estate levied upon, when he presented his petition to the court praying that the judgment should be opened. Rules to show cause were granted, and the executions were stayed until the rules should be disposed of. While the rules were pending Hon. Harry White, one of the directors of the bank, entered into an agreement under seal with Kramer, which was as follows :</p> <p>“Article of agreement made and concluded this 21st day of April, A. D. 1886, by and between Hon. Harry White, of Indiana, Pa., as representative of the board of directors of Mahoning Bank, of the first part, and George Kramer, of Henderson township, Jefferson county, Pa., of the second part.</p> <p>“ Whereas, M. J. Dinsmore, cashier, in trust for said Mahoning Bank, caused to be entered three several judgments against George Kramer and W. E. Bell, in the court of common pleas of Jefferson county to Nos. 186, 187 and 188 of September term, 1877. That afterwards said plaintiff caused writs of sci. fa. to be issued upon said judgments to Nos. 59, 60 and 61 of Dec. T., 1882, for the purpose of reviving and continuing the lien thereof. That said Geo. Kramer filed affidavits of defence in Nos. 59 and 60. That a judgment by default was entered Oct. 3, 1885, to No. 61 of Dec. T., 1882, for $16,590. That a fi. fa. to No. 42, Dec. T., 1885, was issued thereon and the personal property of said Geo. Kramer was sold by the sheriff and a levy made upon said Kramer’s real estate situated in Henderson township, Jefferson county, Pa., containing about 170 acres. That afterwards said. Geo. Kramer presented his petition' to the said court of common pleas of Jefferson county to have said judgment opened for the reasons therein set forth. And whereas, the said parties, viz., Hon. Harry White as representative of said directors of Mahoning Bank and said George Kramer are desirous of settling and adjusting amicably all matters in variance between them.</p> <p>“Now this agreement in consideration of said settlement and for the purpose of fully adjusting all differences witnessed as follows, viz.: .</p> <p>“ 1. The said M. J. Dinsmore, cashier, the plaintiff, by said Hon. Harry White, as representative aforesaid, agrees to enter a credit upon judgment No. 61, Dec. T., 1882, for the sum of Forty hundred and dollars as of date</p> <p>of Jan. 12, 1882, being the amount realized by sale of defendant’s real estate in Clearfield county, less the costs, etc., and judgment of revival this day to be confessed to Nos. 59, 60 and 61 of Dec. term, 1882.</p> <p>“ 2. That upon a discontinuance of the proceedings to open the said judgment by George Kramer, the said plaintiffs agree to issue a writ or writs upon said judgment at the earliest possible time thereafter and sell the said real estate of said George Kramer, and said Hon. Harry White as the representative of said bank agrees to purchase the same, provided said farm is not bid by some other party to more than said White considers it is reasonably worth, and to hold the same, allowing said Geo. Kramer and his wife, Sarah Kramer, to live lipón said farm for the period of two years from the date of the purchase, with the privilege to said Sarah Kramer of purchasing the same upon • the following terms, viz.: That at any time within the two years, if said Sarah Kramer shall pay or cause to be paid to-said Hon. Harry White or said bank the amount said White bid for said farm together with the interest thereon, then said bank through its representatives agrees to convey in fee simple by sufficient deed the above mentioned farm to said Sarah Kramer, or to such person or persons as she may name.</p> <p>“ 3. Should said Sarah Kramer be unable to pay all of said bid within said two years, then if said Sarah Kramer shall pay-, at least one half of the amount so bid by said Hon. Harry, White together with interest on the same, then the time for paying the balance of said bid shall be extended for the further, period of one year, and if at the expiration of said two years no purchase money is paid as herein provided, then said Kramer agrees to surrender up the possession of said farm in as good condition as it now is in, reasonable wear and tear excepted.</p> <p>“ 4. That if said Hon. Harry White, on behalf of said bank, should sell within the two years aforesaid the land he bought at sheriff’s sale in Clearfield county, Pa., Jan. 12, 1882, as the property of said George Kramer and W. E. Bell, for a sum sufficient to realize the debt, interest and costs of judgments-Nos. 186, 187,188 and 189, of Sept. T., 1877, in the court of common pleas of Jefferson county from Nov. 11, 1881, to date of said sale, together with such costs as may have been put upon said judgments since Nov. 11, 1881, and also expenses paid by the said bank about said lands, in taxes, litigation about title or in an effort to make sale of said lands, and any expenses necessarily incurred by said bank about said Clear-field lands, then the said Hon. Harry White, in behalf of said bank, if he purchases at the sheriff’s sale to be made as aforesaid the said farm of George Kramer, will convey the same to said Sarah Kramer or any person or persons she may name, by a sufficient deed or deeds, this provision to have no effect if the said Hon. Harry White or said bank cannot within said two years sell said Clearfield lands so as to realize the amounts aforesaid.</p> <p>“ 5. It is further agreed that should said George Kramer or Sarah Kramer make sale of any building lots in and about the station of Kramer on the B. R. and P. railroad the said Hon. Harry White or said bank agrees to make deed or deeds to the purchaser or purchasers thereof, upon the payment to said White or said bank the purchase money thereof, which sum or sums of money so to be paid shall be a credit upon the amount of purchase money hereinbefore agreed to be paid by said Sarah Kramer for said farm.</p> <p>“ 6. Said George Kramer in consideration of above stipulations and agreements hereby discontinues his rules to open said judgment, and this day fully settles, all differences of whatever nature or kind between him, said Kramer, and said bank, and withdraws his affidavits of defence filed as above stated and agrees to a revival of said judgments as per revival this day signed.”</p> <p>On the same day that the agreement was executed, Kramer • signed amicable confessions of revival in the judgments,. Nos. 59, 60 and 61, Dec. T., 1882. In May, 1886, execution, was issued and the farm in controversy and certain lots and houses in Big Run were levied upon and sold by the sheriff to defendants. The farm in controversy was sold for $100.</p> <p>The other' facts in the case were reported by the master as follows:</p> <p>“ On December 16, 1886, the petition of Hon. Harry White, on behalf of himself and his associates in the said bank, was presented to court, asking that the sheriff’s sale of said farm be set aside and that the said bid of flOO be stricken from the record, said petition alleging that at the time of the making of the contract with Kramer, the understanding and agreement between the parties was that the said farm was to be bid up to its full value, which was agreed to be not less than 14,000; that’ Kramer’s attorney, H. C. Campbell, Esq., wrote said contract, and that it was left in his possession with the understanding that he would within a reasonable time send a copy thereof to' said Hon. Harry White, at Indiana, or to the cashier of said-bank, or hand a copy to W. E. Stewart, Esq., the then attorney of the plaintiffs at Brookville; that said copy was not furnished to either of the parties named until a considerable time after the sheriff’s sale ; that said White could not be present at the’ sheriff’s sale by reason of having held court at Indiana, and that he thought Mr. Stewart, plaintiff’s attorney, had said copy and would be governed thereby in conducting said sale; that by reason of Mr. Stewart not having said copy or any knowledge of said contract, the property was bid off for the sum of one hundred dollars, instead of being bid to ■ its value according to the terms and understanding of said contract. A rule to show cause was granted on the petition, depositions were taken and the case argued, and on March 15,1887, the rule was discharged’ by the court.</p> <p>“ On Jan. 20,1887, W. R. Depp, for Mrs. Sarah Kramer, tendered to M. J. Dinsmore, at Mahoning Bank, the sum of one hundred and five dollars and demanded of him a deed for the farm in controversy to Mrs. Kramer. It was refused by Mr. Dinsmore. He then made same tender to Lon Pantall, the-cashier of the bank, and to Dr. Joseph Shields, both of whom refused the money. They all alleged that they had nothing to do with the matter. A like tender and demand of deed was made before the examiner and master by plaintiff to defendant’s counsel, plaintiff requesting a deed in pursuance of the terms of the contract; defendant’s counsel refused to receive the tender for the reason, as they alleged, that no such contract-was ever made either between the former partnership or the present partnership, known as Mahoning Bank, nor by any person having authority to represent either of them and Mr. George Kramer.</p> <p>“ The testimony in reference to the contract between Hon. Harry White and Geo. Kramer is substantially the same as that taken on the rule to set aside the sheriff’s sale. Although there is some conflict in the testimony, the preponderance of the evidence bearing upon this contraefc indicates that the intention of the parties to it was that the farm in question should be bid up at the sheriff’s sale to its full value, which was placed at four to five thousand dollars. It also shows that H. C. Campbell, Esq., Kramer’s attorney, who held the custody of said contract, was, within a reasonable time, to send a copy of the same to Judge White, at Indiana, or hand said copy to W. F. Stewart, Esq., the bank’s attorney, at Brookville-; at least it is proven and not denied that a copy was to be sent to Judge White, neither is it denied that no such copy was ever furnished to either White or Stewart. It is also quite clearly proven that W. F. Stewart, Esq., had no knowledge whatever of the existence of said contract until some time after the sheriff’s sale of the Kramer farm, and the weight of the evidence is that M. J. Dinsmore did not know of its existence until about the same time. He was present during some of the negotiations of the Commercial Hotel on April 21, 1886, but does not seem to have been present when the agreement was consummated, and the papers signed.”. ■</p> <p>The master, relying on Hart v. Withers, 1 P. & W. 285, held that the partnership was not bound by the agreement executed by Judge White, and recommended that the bill be dismissed.</p> <p>Exceptions to the master’s report were overruled by the court, Maybe, P. J., of the 25th judicial district, specially presiding, and a decree entered dismissing the bill.</p> <p>Mrrors assigned were, overruling exceptions, quoting them.</p>

<p>Appeal, No. 214, Oct. T., 1892, by plaintiff, Samuel M. Peart, from judgment of C. P. Armstrong Co., June T., 1892, No. 271, for defendant, Peter P. Brice, on case-stated.</p> <p>From the case-stated it appeared that o.n Sept. 29, 1856, Peter P. Brice and wife conveyed to Wm. McCutcheon certain land, described by metes and bounds, “And containing 48 acres and 157 perches of land more or less together with the right of mining and removing all the mineral that may be reached under said Brice’s land from the land above described and hereby conveyed except that said Brice reserves the right, to mine and remove what stone coal may be necessary for the use of his houses on the farm he now occupies together with all and singular,” etc.</p> <p>On July 11, 1885, Peter P. Brice by articles of agreement contracted to sell to Samuel M. Peart a tract of land bounded, and described in the agreement as follows: “ Southwest and • southeast by lands of Sloan Cochran and north and northeast by Peter P. Brice, grantor, and running back into farm of Peter P. Brice, sufficient with a line parallel to the line on the west to take in twenty acres of land after deducting all land occupied by roads.”</p> <p>It was claimed by plaintiff that defendant could not make . title, the land being included in the conveyance to McCutcheon • in 1856.</p> <p>It was agreed in the case-stated that it could be proven by parol testimony that the “ farm owned and occupied by Peter P. Brice is the same land that in the deed of September 29, 1856, is given as ‘ other lands of Peter P. Brice.’ That the twenty acres sold to Samuel M. Peart by Peter P. Brice by article of July 11, 1885, is a part of said farm and lies back from the line of the forty-eight acres on the hillside about eight rods. That said land of Peter P. Brice, including the said twenty acres, is underlaid with valuable minerals, to wit: coal, iron ore, etc. That by opening a mine on the forty-eight ■ acres on the hillside, conveyed by deed of 29th of September, 1856, the mine can readily be extended into the hill under the • said twenty acres sold to S. M. Peart, and all the minerals.under said twenty acres mined and removed. That while the aforesaid deeds and articles of agreement were recorded in the records of Armstrong county prior to the 11th day of July, 1885, yet at the time of the entering into said article of agreement Samuel M. Peart had no knowledge of the sale or agreement to sell the minerals under said twenty acres of land, and at the time of signing said article of agreement of July 11,' 1885, Peter P. Brice declared to Samuel M. Peart that he owned the materials under said land. That the sketch or draft of said lands hereto attached is approximately correct and shows the relative.location.”</p> <p>The court, in an opinion by Wickham, P. J., of the 36th. judicial district specially presiding, (1 Dist. R. 713,) entered judgment for defendant on the case-stated.</p> <p>Error assigned was, inter alia, entry of judgment as above, quoting decree.</p>

Appeal, No. 140, Oct. T., 1892, by defendant, from judgment of C. P. No. 1, Allegheny Co., on verdict for plaintiff, Frank Spisak. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Defendant’s points were as follows: “ 1.

Appeals, Nos. 309 and 310, Oct. T., 1891, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1891, Nos. 24 and 319, refusing preliminary injunctions.

Appeal, No. 249, Oct. T., 1892, by defendant, William B. Negley, from judgment of C. P. No. 1, Allegheny Co., March T., 1891, No. 706, on verdict for plaintiff, David M. McMasters. Ejectment for a lot of ground in Pittsburgh. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 166, Oct. T., 1892, by defendant, Samuel Feltyberger, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1891, No. 360, on verdict for plaintiff, David M. McMasters. Argued with preceding case.</p>

<p>Negligence — Railroads—Risk of employment.</p> <p>Plaintiff was a flagman employed on defendant's freight train. His position was on the rear car to protect the rear of the train. This car on the train in question was a box car with a door cut in each end like a caboose. At the time when plaintiff was injured the train consisted of from fifty to sixty cars, with an engine in front and two pushing engines behind. After the train passed the summit of the mountain on the trip, it was plaintiff’s duty to uncouple the pushing engines, and hang out a red light. Plaintiff testified that while engaged in the performance of this duty he had two lanterns in his right hand, and, leaning with his right hand against the jamb of the door, stooped to pull out the pin which coupled the engine with the box car or caboose, and after uncoupling it, and while in the act of rising up to go and hang out the red light, the train, in crossing the summit, gave a jerk caused by the front engine taking up the slack of the train, when he was thrown from the car to the engine, fell to the ground and both engines passed over his leg. Plaintiff’s statement alleged negligence in the construction of the box car, but the evidence showed that such box cars were in common use, not only as cabooses on this road, but on other roads. Held, that as plaintiff had assumed the risk of his employment, he was not entitled to recover.</p> <p> Negligence of co-employee. </p> <p>Even if the length of the train contributed to the accident, it seems that that would be no ground for liability, as the making up of the train was the act of a co-employee.</p>

<p>[Marked to be reported.]</p> <p>Appeal from justice of peace — Act May 18, 1871 — Filing transcript nunc pro tunc — Neglect of counsel.</p> <p>Where an appeal has been taken from the judgment of a justice of the peace in Allegheny county within the time required by the act of May 18, 1871, P. L. 938, but, through the forgetfulness of counsel, the transcript was not filed in the court of common pleas, until after an intervening return. day had passed, the court has no jurisdiction to permit the appeal to be filed nunc pro tunc.</p> <p>In such a case counsel was the mere agent of his client, and the neglect of the one was the neglect of the other.</p>

<p>[Marked to be reported.]</p> <p>Boad law — Beport of viewers — Designation of termini.</p> <p>A report of viewers and draft accompanying the report, which simply indicate the proposed road as starting from an undesignated and undescribed place on the side or margin of a road, and ending at an undesignated and undescribed place on a street, are fatally defective. Designating a point in a public road as near a borough or township line or near the corner oj a property owner seems to be too indefinite.</p> <p>A petition for a road prayed that viewers be appointed to view and lay out a road “ to begin at a point on the Pittsburgh and Freeport road, near corner of land of Mary Cyphers, and extending thence to a point in the northerly end of Eighteenth street in the borough of Sharpsburg near the line between said borough of Sharpsburg and said township of O’Hara.” The viewers reported that they located and distinctly marked on the ground a road “beginning at a point on the Pittsburgh and Freeport road near corner of land of Mary Cyphers,” then follow the courses and distances, “ to a point in the northerly end of Eighteenth street in the borough of Sharpsburg near the line between the borough and township of O’Hara.” In the draft annexed to the report two parallel lines at one end were marked “ Pittsburgh and Freeport road,” and two other parallel lines at the other end were marked “ 18th Street.” The courses and distances of the proposed road were given on the draft, beginning at the side of the Pittsburgh and Freeport road and ending in Eighteenth street; but there was no indication on the draft of any point of beginning, at any particular place, on the line of that road, or of any point of ending, at any particular place, on Eighteenth street. Meld, that the proceedings were fatally defective.</p> <p>Plot or draft — Failure to note improvements.</p> <p>Where a report states that a plot or draft of the road is returned “ showing courses and distances, and noticing briefly the improvements over which it-passes,” but in fact no improvements whatever are noted either in the report or in the plot, the proceedings will be set aside in the Supreme Court.</p> <p>Exceptions — Matters on face of record — Appeal.</p> <p>Exceptions as to matters appearing on the face of the record may be filed after final confirmation of the report; but the refusal of the court below to permit the exceptions to be filed nunc pro tunc does not deprive the exceptants of their right to assign error in the decree on appeal to the Supreme Court, where the record itself sustains the exceptions.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Bailroads—“ Stop, look and listen.” — Evidence.</p> <p>Where there is a doubt as to the proper place to stop, look and listen before crossing a railroad track, the question will as a general rule be referred to the jury; but where there is no such doubt, and it appears that the person injured stopped at a point where he could not see, it is for the court to determine whether the point was a proper place to stop.</p> <p>If a person in approaching a railroad track could have had an unobstructed view of the track for nineteen hundred and fifty feet, if he had stopped and looked at a point eighteen feet from the crossing, and he goes upon the track, and is injui'ed, it is in vain for him to say that he stopped, looked and listened at the point of unobstructed view.</p> <p>Evidence — Positive and negative — Binging of bell — Instructions.</p> <p>Where there is conflicting testimony as to whether a bell was rung or not. before a train approached a grade crossing, the court should pointedly call the attention of the jury to the difference between positive and negative testimony upon a question of this kind.</p> <p>One witness who hears the ringing of a bell is worth more than the testimony of a dozen witnesses who did not hear it, unless in some manner their attention had been especially called to it. The witness who heard the bell either tells the truth, or he tells a deliberate and willful falsehood, while the witness who did not hear the bell may be and is probably truthful. The bell may be rung or the whistle blown without attracting the attention of persons who are familiar with such sounds. Per Paxson, C. J.</p>

<p>Appeal, No. 132, Oct. T., 1892, by plaintiff, Julia McGill, from order of C. P. No. 2, Allegheny Co., Oct. T., 1890, No 353, refusing to take off compulsory nonsuit.</p> <p>Trespass to recover damages for the death of plaintiff’s husband killed at railroad crossing through alleged negligence of defendant.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, White, J., entered a compulsory nonsuit, and subsequently, in an opinion, refused to take it off.</p> <p>Errors assigned were, (1) entry of nonsuit; (2) refusal to take off nonsuit.</p>

<p>Appeal, No. 32, Oct. T., 1892, by defendant, Richard Arthurs, from judgment of C. P. Jefferson Co., Sept. T., 1889, No. 227, on verdict for plaintiff.</p> <p>Trespass to recover amount of judgment paid by defendant to Mamie G. Brosius for personal injuries sustained through alleged negligence of defendant in failing to keep a sidewalk in repair. See Brookville v. Arthurs, 130 Pa. 501.</p> <p>At the trial, before Wilson, P. J., the court admitted under objection and exception evidence that defendant had been notified to repair sidewalk where accident had occurred [1-7, 11] also record of proceedings in Brosius v. Brookville [8, 9]; the court refused to admit evidence of condition of sidewalk [10]; evidence that defendant was not in possession of the property, but that it had been leased to another and that sidewalk was in good condition at date of lease [12,13, 14, 16, 18, 20, 21] ; evidence that he had repaired the defect after he had been notified [15]; declarations of borough officials as to agreement by them that defendant should not be required to defend the case against the borough and that he would be relieved from liability. [17, 19, 22]</p> <p>Plaintiff’s points were as follows :</p> <p>“ 1. That under the ordinance of the borough of Brookville, adopted on the 15th day of July, 1873, it was the duty of the defendant, Richard Arthurs, to keep the sidewalk on Pickering street in repair and in a safe condition, so persons could pass along same with safetjq and if he through negligence suffered the same to become out of repair, or neglected to repair the same after notice from the borough officers so to do, he would be liable to reimburse the borough for any damages they may have sustained and been compelled to pay in consequence of his negligence.” Affirmed. [23]</p> <p>“ 2. If the jury believe from the evidence that the defendant, Richard Arthurs, had either notice or knowledge for some time previous to the trial of the case of Mrs. Brosius against the borough of Brookville that such suit was brought, and was set for trial, thereby giving him an opportunity to defend the same, and that he was present at the trial, and was examined as a witness, the verdict and judgment in that case is conclusive against said Arthurs as defendant in this case as to the facts adjudicated therein, and the plaintiff is entitled to recover the amount of said judgment, costs and reasonable attorney fees incurred in defending the same.” Affirmed. [24]</p> <p>“ 3. That if Richard Arthurs, the defendant, when notified to repair the sidewalk in front of his property on Pickering street, promised and agreed with Robert Stewart, a member of the council and street committee of the borough of Brookville, or Joseph Heasley, street commissioner of said borough, or either of them, that he would repair said sidewalk, and relay the same with a new pavement the next spring, and afterwards failed or neglected to repair and put in a safe condition said sidewalk, in consequence whereof Mrs. Brosius suffered and sustained the injury for which she recovered against the borough of Brookville, the plaintiff is entitled to recover the amount of the judgment and costs recovered against said borough, together with reasonable counsel fees, in absence of evidence excusing liability on the part of the defendant for negligence.” Affirmed. [25]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. That in order to recover in his action the plaintiff must show that the defendant was liable to Mrs. Brosius for the injury complained of, and that the injury was the direct result of the action of the defendant.” Affirmed.</p> <p>“ 2. That to recover upon a contract the plaintiff must prove and show that a complete and perfect contract was consummated, based upon a good and sufficient consideration, and mutually binding upon .both parties; and if the jury find from the evidence that Richard Arthurs, the defendant, made a proposition such as is testified to by Robert Stewart, one of the street committee, to wit: That if the council would give him until next spring he would build a stone pavement that would give no one any trouble, and in the meantime he would be responsible for all damages for injuries received on the pavement, and that unless they further find that the proposition was communicated to council, and accepted by them, and notice of that acceptanee communicated to Richard Arthurs, the defendant, then it does not amount to a contract, and there cannot be a recovery on it as such in this case.” Affirmed.</p> <p>“ 3. That the rule of law providing that if a 'municipal corporation be held liable for damages sustained in consequence of the unsafe condition of sidewalk, or street, it has a remedy over against the person by whose act or conduct the sidewalk or street was rendered unsafe, has reference to some positive act causing the sidewalk or street to be unsafe, or neglect to property guard an excavation or opening in the sidewalk or 6treet by the party making the opening, and if the jury find from the evidence that Richard Arthurs by no positive act caused the defect in the sidewalk in front of the Central Hotel on Pickering street, where Mrs. Brosius received her injury for which this action is brought, there can be no recovery in this action.” Affirmed.</p> <p>“ 4. That there is no implied liability on the part of the owner of the property in front of which the defect existed to the party injured, arising from the mere fact of ownership. Before the lot owner can be held responsible there must be some negligence on his part, or he must have trespassed upon the sidewalk by obstruction on the surface, or excavation beneath, and negligence, obstruction or excavation must have caused the injury.” Affirmed.</p> <p>“ 5. If the jury find from the evidence in this case that Richard Arthurs, the defendant, by no act of his caused the sidewalk in front of the Central Hotel on Pickering street to be out of repair at the place where Mrs. Brosius received her injury, and for which injury this action was brought, then the relation created between the plaintiff corporation and Richard Arthurs, the defendant, is purely statutory, and the law and ordinance provide a remedy which must be pursued, and no common law action can be maintained thereon. If the jury so find their verdict must be for the defendant.” Refused. [26]</p> <p>“ 6. That under the pleadings in this case there can be no recovery on any contract or agreement to indemnify, such as testified to in this case.” Affirmed.</p> <p>The court, in the general charge, after stating the nature of the claim and amount, concluded:</p> <p>“ The situation this case has assumed renders it unnecessary for the court to say more to you than what is contained in the points of the counsel on both sides. We presume that will be sufficient unless you desire something else.” [27]</p> <p>Verdict and judgment for plaintiff for $6,697.20. Defendant appealed.</p> <p>Errors assigned were (1-22) rulings on evidence; (23-26) instructions, quoting them ; (27) “ not instructing the jury upon the question to be decided and the issue being tried, the charge being as follows,” quoting it.</p>

Appeal, No. 51, Oct. T., 1891, by plaintiff, Eliza J. Reed, in ber own right, from judgment of O. P. No. 2, Allegheny Co., Jan. T., 1889, No. 465, on verdict for defendant, Albert L. Klaus. Assumpsit for balance of purchase money of realty. At the trial, before Magee, J., the evidence was to the following effect: In 1872, W. A. Reed, appellant’s husband, bought the property in dispute, paying $2,800 and giving a mortgage of $2,800.

<p>Appeal, No. 172, Oct. T., 1892, by plaintiff, from judgment of O. P. Venango Co., April T., 1891, No. 14, on verdict for defendant.</p> <p>Scire facias sur municipal lien for sewer assessments.</p> <p>. The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points were, among others, as follows.:</p> <p>“ 8. The uncontradicted evidence being that the main sewer on Duncomb street lies two hundred and twenty feet distant from the lands of defendant, against which claim is made herein, and can only be reached from said land by a lateral sewer, said main sewer does not afford local sewerage for said lands and the special assessment made against' said lands, including as it does the cost of construction of said sewer, is illegal, and plaintiff cannot, for that reason, recover.” Affirmed. [1]</p> <p>“ 4. Only one assessment can be levied for the cost of a lateral sewer, and that assessment must be only uppn the lots to which such sewer affords local sewerage.” Affirmed. [2]</p> <p>“ 5. The council of plaintiff exceeded their powers in said ordinance, by directing that both a general and special assess-merit, or assessment for main and local sewerage, be assessed to pay for the construction of the lateral sewers specified therein.” Affirmed. [3]</p> <p>“ 6. Councils of plaintiff exceeded their powers in directing by said ordinance: ‘ That the whole of said sewer and its branches be a main sewer and also that all thereof shall be a local or lateral sewer for lands abutting thereon or that may lie wholly or in part within one hundred feet of said sewer or any of its branches,’ and said ordinance with the assessment claimed herein, made pursuant thereto are therefore void, and plaintiff cannot recover.” Affirmed. [4]</p> <p>“ 7. The ordinance under which these sewers were constructed, with the assessment claimed herein made pursuant thereto, is void, because said ordinance provides, ‘That the cost and expense of work herein provided for, both for main sewerage and for local or lateral sewerage, be assessed on the property in the First Sewer District according to benefits.’ ” Affirmed. [5]</p> <p>“ 8. The 13th article of the act of assembly of May 23, 1889, being the same under which plaintiff attempted to act in the construction of said sewers and collection of the cost thereof, is contrary to the provisions qf^ § 11, article 1 of the constitution of this commonwealth, and void.” Affirmed. [6]</p> <p>“ 9. Under The evidence the verdict of the jury must be for the defendant.” Affirmed. [7]</p> <p>The court charged as follows by Taylor, P. J.:</p> <p>“ Under our view of the law, we affirm the defendant’s points here, and give the plaintiff the benefit of all there is in it. We will affirm the points of the defendant and instruct you to find a verdict for the defendant.” [8]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were, (1-8) instructions as above, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Duty of natural gas company as to pipes.</p> <p>It is the duty of a natural gas company to maintain pipes and fittings of such, material and workmanship and laid in the ground with such skill and care as to provide against the escape of gas therefrom when new, and also to maintain suph a system of inspection as will insure reasonable promptness in the detection of all leaks that may occur from the deterioration of the material of the' pipes, or from any other cause within the circumspection of men of ordinary skill in the business.</p> <p>Explosion of gas — Evidence sufficient for jury.</p> <p>In an action to recover damages for injuries to a house caused by an explosion of natural gas, evidence for plaintiff tended to show that on the day after the explosion defendant uncovered its main pipe in the street near the house, that, before it was fully uncovered, but after the digging had commenced, gas was seen to escape from the trench; that when the pipe was reached about thirty-six feet from the house, two or more holes or cracks were found in it, one of them having the appearance of being rusted or worn out, through which the gas poured in dense volumes; and that the street between the leak and the house was made ground, filled with' shale and broken stone so porous that gas could pass through it. Held, that, in the absence of any evidence that the gas could have reached the house from any other source, there was sufficient evidence to justify the jury in finding that the gas which had exploded had escaped from defendant’s main.</p> <p>Injury to gas main by construction of sewer — Notice to, and duty and liar bility of, gas company.</p> <p>If an injury to a gas main be a natural and probable consequence of the construction of a sewer, by reason of the settling of the ground in close proximity to the gas main, and the gas company had knowledge or ought to have had knowledge of the construction of the sewer, it was its duty to efficiently guard against the damage that was likely to result, and it cannot shift the responsibility upon the municipality or its contractor. The question of notice or knowledge was for the jury.</p> <p>Concurrent negligence — Action against wrongdoers.</p> <p>Where an explosion is caused by a stranger negligently striking a match in a cellar full of gas, and the presence of the gas in the cellar is due to the negligence of the gas company, the person injured has his redress against either of the wrongdoers, or both, at his election.</p>

Appeal, No. 436, Jan. T., 1892, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1891, No. 832, making absolute rule to strike off judgment against defendant, Emma James. Assumpsit on promissory note. From the record it appeared that on Oct. 31,1891, summons in assumpsit issued and a statement on a promissory note was filed. Nov. 2,1891, service of the writ and statement was accepted b)- John J. Clark, whose appearance was entered as attorney for defendant.

<p>Appeal, No. 433, Jan. T., 1892, by defendants, Wm. M. Levering et al., from judgment of C. P. No. 3, Phila. Co., March T., 1891, No. 1030, on verdict for plaintiff, John McGinley.</p> <p>Trespass foi personal injuries. The negligence alleged in plaintiff’s statement was in ordering plaintiff to hold a steel hammer in a certain position while another workman struck it with another steel hammer.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $300. Defendants appealed.</p> <p>Errors assigned were, inter alia, (1) instructions recited in opinion of Supreme Court, quoting them.</p>

<p>Boroughs — Streets—Notice of opening — Local act of April 8, 1848.</p> <p>Where an act relating to the location and opening of streets provides that damages are to be assessed only upon the application of the owner, and he is liable to be barred if he does not apply, the owner is entitled to the notice provided by the act with all the accompaniments of time and circumstances that the statute prescribes in his favor.</p> <p>Under the local act of April 8, 1848, P. L. 415, providing that the council of a borough may “ direct and determine the location and limits” of a street, and that “apian or specification of such location shall be made and deposited in the office of the recording regulator of the borough for public examination or inspection, whereof notice shall be given in at least two newspapers,” a property owner is entitled to the notice provided by the act, and notice of the opening of the street will not answer for notice of its location.</p> <p>Plan of street — Notice—Estoppel.</p> <p>Where the plan of a street prescribed by the local act of April 8, 1848, P. L. 415, is in itself insufficient, and was not adopted or approved by the borough authorities, a property owner cannot be estopped to deny the validity of the location of the street by actual notice of the plan, and the proposed action of the borough.</p> <p>Dedication — Evidence—Public use.</p> <p>Where the dedication of a street is sought to be established either by the recording of a plan or by the actual use of the street by the public, or by such an acceptance by the public as would be binding upon the owner by estoppel, the evidence must be clear.</p>

Appeal, No. 91, Oct. T., 1889, by defendant, Peter S. Hay, from judgment of C. P. Somerset Co., Feb. T., 1888, No. 95, on verdict for plaintiff, Evora N. Smith. Feigned issue to determine whether defendant who had received $1,060 from Elijah Wagner on September 29,1884, was indebted to said Wagner in said sum with the interest thereon at the time of the death of Wagner on April 5, 1886.

Appeal, No. 324, Oct. T., 1891, by Peter S. Hay, executor of Elijah Wagner, deceased, from decree of O. C. Somerset Co., dismissing exceptions to report of auditor. Exceptions to report of H. L. Baer, auditor. The facts appear in the case of Smith v. Hay, supra. The auditor reported in favor of surcharging the executor with the debt claimed to be due by him to the decedent. The following exceptions were filed to the auditor’s report, all of which were overruled: “ 1.

<p>Appeal, No. 206, Oct. T., 1892, by Charles A. Anderson, defendant from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1892, No. 210, for plaintiff, Morton Hunter, trustee, etc., on ease-stated.</p> <p>Case-stated setting forth that one McCallin confessed judgment to Morton Hunter, trustee for the use of Gamble Weir et al., McCallin’s creditors, and that Morton and Weir purchased at sheriff’s sale McCallin’s real estate, sold under a fi. fa. at the suit of Hunter, trustee as aforesaid. That the purchase was made under an agreement executed by Weir et al., McCallin’s creditors, dated Dec. 31, 1891, duly recorded, but not signed by the wives of the cestuis que trust, giving to thé said Weir and Hunter full authority to sell and convey the said real estate and to distribute the money received for the same, after deducting expenses, to said creditors. The material clauses of the agreement are fully set forth in the opinion of the Supreme Court.</p> <p>Weir having since died, Hunter, the surviving trustee, sold part of the said real estate to defendant, and tendered him a deed for the same; but the defendant refused to pay the price agreed on, because (1) the surviving trustee had no power to convey,</p> <p>(2) such conveyance would not divest the dower interest of the wives of the cestuis que trust, and (3) such conveyance would not divest liens against cestuis que trust, there being liens not of record against Weir. If the court were of opinion that the agreement of Dec. 31, 1891, worked a conversion of the land into personalty, that there were no liens or dower attaching to the land, and that the surviving trustee had power to convey, judgment to be entered for plaintiff for the purchase money, otherwise for defendant. The court entered judgment for plaintiff.</p> <p>Errors assigned were inter alia (1) entry of judgment; and (3) as stated in opinion of Supreme Court.</p>

<p>Railroads — Passengers—Expulsion from train — Position of doubt — Contributory negligence.</p> <p>Where one is put in a position of embarrassment and difficulty by the negligence of a railroad company, he is not bound to use the best judgment, but only good faith and reasonable prudence.</p> <p>A woman was wrongfully ejected from a train upon which she was a passenger, at a regular stopping place where there was no station house, but only a box ear used temporarily as a station. A storm was approaching but she was not informed that she could find shelter in the box car, nor did she know that she would have been permitted to take the next train. She started to walk back to the station from which she had started, and on the way was overtaken by a heavy rain storm, and suffered in health therefrom. Held, that it was proper to leave the whole case to the jury, as the court could not say as a matter of law that plaintiff’s conduct under the circumstances was improper and negligent.</p> <p>Damages — Evidence—Loss of earning power.</p> <p>• Where a boarding house keeper is injured by the negligent conduct of another, it is proper to permit her to show that on account of the disability caused by the injury she had been deprived of carrying on her business of keeping a boarding house. Such evidence is not an effort to show loss of profits, but loss of earning power in her business or occupation.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Master and servant — Evidence.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, the mere fact of the accident is not enough to establish negligence. There must be additional and affirmative proof of the particular negligence which caused the accident'.</p> <p>■ Defects in machinery — Knowledge by master.</p> <p>In order that an employer may be held liable to an employee for negligence arising from some defect in the machinery or appliances used by the employee at the time of the accident, it is not enough to show that the defect existed at the moment of the accident. It must also appear that the master had an opportunity of previous knowledge, or that the facts were such that he ought to have known of the defect.</p> <p>In an action by a brakeman to recover damages for personal injuries, evidence that the brake was out of order at the time of the accident, and that the plaintiff was thereby unable to control the car, so that it rah away with him, is insufficient in itself to establish the negligence of the master.</p> <p>Practice in Supreme Court — New venire.</p> <p>Where an action against a master was tried upon an erroneous theory as to proof of negligence, no negligence in fact being proven, the Supreme Court will grant.a new venire in the interest of justice, so that an opportunity may be afforded to show other facts, if there are such, tend ing to show the master’s liability.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Townships—Highways—Traveler—Known danger — Assumption oj risk — Contributory negligence.</p> <p>In an action to recover damages for injuries to horses, it appeared that plaintiff was driving along a country road between eight and ten o’clock on a dark night. At the point where the accident occurred, the road was on the side of a hill, with a slope of six or eight feet to a fall. At this point the road curved. On the lower side of the road there was an embankment, or footpath, to protect it, upon which pedestrians walked. The embankment was one or two feet higher than the road, and served as a protection for wagons. As plaintiff approached the curve, he slackened the reins, and allowed the horses to go at will. One of them got on the embankment and fell from the slope, dragging the other with him. It appeared that plaintiff was familiar with the road. Held, that, as he negligently assumed a known risk, he was not entitled to recover, and that binding instructions in favor of the defendant should have been given to the jury.</p>

Appeal, No. 329, Oct. T., 1892, by James Evans, a lien creditor, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1890, No. 540, confirming auditor’s report distributing assigned estate of Daniel B. Brown. Claims for wages as preferred claims.

Appeal, No. 214, Oct. T., 1892, by plaintiff, Joseph Jackson, from judgment of G. P. No. 1, Allegheny Co., March T., 1890, No. 622, on verdict for defendant. Trespass for libel. At the trial, before Collier, J., it appeared that the alleged libelous publications declared upon were as follows: A DISGRACED OFFICER. Lieu. Jackson in a Drunken Fury has a Desperate Struggle with a Deputy Who refuses to pass Him. Branch Office of The Pittsburg Times, Johnstown, June 5.

Appeal, No. 254, Oct. T., 1892, by S. O. Lowry, assignee, as from decree in the same cause as the preceding case and argued with it.

<p>[Marked to be reported.]</p> <p>Deed — Misrepresentations—Assignment by married woman for the benefit of her husband’s creditors.</p> <p>An assignee for the benefit of creditors will be perpetually enjoined from selling the real estate of the wife of one of the assignors, where it appears that she joined in the deed of assignment upon the representation of her husband that the debts of his firm amounted to only two hundred and fifty thousand dollars, whereas in fact they exceeded six hundred thousand, and that if she joined in the deed she would save to her husband and her sons the business in which they were engaged, which in point of fact was untrue.</p>

<p>Appeal, No. 82, Oct. T., 1892, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1891, No. 719, on verdict for plaintiff, James B. Chilton, by his nest friend, John B. Chilton.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court. Defendant presented this point:</p> <p>“ 3. There is no evidence of any negligence on the part of the defendant company in this case, and therefore the verdict should be for defendant.” Refused. [8]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Error assigned, inter alia, was (3) instruction, quoting it.</p>

<p>[Marked to be reported.]</p> <p>Riparian owner — Trespass—High and low water marie — Navigation.</p> <p>A person or corporation which makes more than a temporary mooring between high and low water mark in a navigable river is a mere trespasser upon the owner’s right of property; and it is immaterial that the trespasser did not inconvenience the owner’s approach to the shore, or that the owner had in fact made no use of the property.</p> <p>Evidence — Measure of damages — Rental value.</p> <p>In such a case if the owner is prevented from renting his property by reason of the unlawful action of the person committing the trespass, the loss in rental value is a direct result and furnishes an essential element of damages.</p>

<p>Appeal, No. 81, Oct. T., 1892, from judgment of C. P. No. 2, Allegheny Co., April T., 1891, No. 426, on verdict for plaintiff for $400. Argued with preceding case.</p>

Appeal, No. 20, July T., 1892, by defendant, Robert E. Jones, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1890, No. 678, on verdict for plaintiff, Preston L. Hill. Assumpsit to recover damages for the breach of a contract for the sale of building lots. At the trial it appeared that plaintiff had agreed to sell a tract of land belonging to defendant which had been laid out in 449 building lots, for which he was to receive as compensation $10 for the sale of each lot.

<p>Pleading — Amendment—Non assumpsit and payment.</p> <p>Under the act of May 27, 1887, P. L. 272, and the statute of amendments, a defendant who has pleaded non assumpsit, has a right at the trial to add the plea of payment subject to such reasonable terms as the court may impose.</p> <p>Assumpsit — Affidavit of defence — Payment—Evidence.</p> <p>Plaintiff’s statement averred a loan to defendant. Defendant in his affidavit of defence denied that a loan had ever been made to him, and pleaded non assumpsit. At the trial plaintiff testified that he had used the sum loaned in paying a bill due by defendant, and that defendant had told him to make a due bill and put it in the cash drawer, but that, instead of doing so, plaintiff had credited himself in the regular books. Defendant testified that plaintiff, when he was about to leave his position as bookkeeper, stated that defendant owed him the sum claimed, which he had used in the business; that having confidence in plaintiff and no knowledge of the transaction, he told him to fill up a cheek for wages, and include his own claim in it. Plaintiff did so, and defendant signed the check. Plaintiff then went with the bookkeeper, who was to succeed him, to bank to cash the check. The money was handed to the bookkeeper, who absconded. Defendant requested leave to file a plea of payment, which the court refused, and gave binding instructions for plaintiff. Held, that the amendment should have been allowed; that the testimony of the defendant was relevant under the amendment; and that the case should have been submitted to the jury.</p>

Appeal, No. 417, Jan. T., 1892, by John F. McMenamin, executor and trustee of Patrick McHugh, deceased, and administrator of John Q. McHugh, deceased, and of Wm. C. McHugh, next of kin of John Q. McHugh, deceased, from decree of O. C. Phila. Co., Oct. T., 1891, No. 395, dismissing exceptions to adjudication. The facts appear by the opinion of the Supreme Court. The auditing judge allowed the claim.

<p>Vendor and vendee — Adverse possession — Title.</p> <p>A vendor of land can acquire no title as against his vendee by adverse possession where there is no change in the character of the possession. If the vendor wishes to change the character of the possession he must manifest his intention by some act of hostility to the title of his vendee, plainly indicating to the latter the intention to deny his right and to hold adversely to it: Olwine v. Holman, 23 Pa. 279.</p> <p>An owner of a lot conveyed it to another person by deed, with covenant of general warranty. At the date of the conveyance a portion of the lot was enclosed by a fence with other land of the vendor. The vendee entered into possession of the remaining part of the lot, but never had possession of the enclosed part. Held, that the vendor could not acquire title to the enclosed part by adverse possession.</p>

<p>Appeal, No. 176, Oct. T., 1892, by plaintiffs, Venture Oil Co. and C. D. Robbins, from judgment of C. P. Washington Co., Feb. T., 1892, No. 77, on verdict for defendants, A. E. Fretts et al.</p> <p>Ejectment.</p> <p>At the trial, before McIlvaine, P. J., plaintiff claimed title under a lease from Joseph M. Gamble, which was as follows:</p> <p>“ This lease made this 26th day of December, A. D. 1888, by and between Joseph M. Gamble of Cecil township of the county of Washington and state of Pennsylvania of the first part, and C. D. Robbins of Burgettstown, Washington county, state of Pennsylvania of the second part, Witnesseth: That the said party of the first part, in consideration of the stipulations, rents and covenants hereinafter contained, on the part of the said party of the second part, his executors, administrators and assigns, to be paid, kept and performed, has granted, demised and let, unto the said party of the second part, his executors, administrators and assigns, for the sole and only purpose of mining and excavating for petroleum, or carbon oil, gas or other valuable mineral or volatile substances : and for the laying of pipe, either under or on top of said surface, for transportation of oil or gas, all pipe laid for permanent use to be buried so as not to interfere with plowing all that certain tract of land.situate in Cecil township, Washington county and state of Pennsylvania and bounded and described as follows, to wit: [Here follows description of land.]</p> <p>“ It is further agreed by parties hereto that this lease is not to interfere with the sale of this farm until oil is found, and that the party of the second part is to stand between the party of the first part and any trouble or expense with the coal company, and that there is not to be a well within forty rods of any of the farm buildings without the consent of the party of the' first part.</p> <p>“ To have and to hold the said premises for the purpose only unto the said party of the second part, his executors, administrators or assigns, for, during and until the full term of twenty years next ensuing the day and year above written.</p> <p>“ The said party of the second part hereby covenant, in consideration of said grant and demise, to deliver unto the said party of the first part his heirs and assigns, the full equal one eighth part of the petroleum or carbon oil, gas or other valuable mineral or volatile substances, discovered, excavated, pumped and raised on the premises herein leased, as produced or pumped in the crude state; the part to furnish</p> <p>barrels or tanks for the same until proper pipe lines are provided.</p> <p>“ The said party of the first part is to fully use and enjoy the said premises for the purpose of tillage, except such part as shall be necessary for said mining purposes, and a right of way over and across the said premises to the place or places of excavating.</p> <p>“ The said party of the first part covenant to grant to the said party of the second part the right to remove any machinery or fixtures placed on said premises by the said party of the second part. The party of the second part covenant to commence operations for said mining purposes within six months ■from the execution of this lease on some one of the farms leased by said second party in this township and when oil is found in paying quantities then second party agrees to commence operations within sixty days upon the next adjoining farm leased by second party and so on until all lands leased in the township are tested to success or abandonment.”</p> <p>Defendants claimed title under an oil and gas lease made by grantees of Gamble. Other facts appear by the opinion of the Supreme Court. Plaintiff’s points were as follows :</p> <p>“1. The title acquired by Robbins under the lease made with Joseph M. Gamble, dated December 26, 1888, in the premises therein described, was a complete, unconditional and fully executed grant so far as the lessor was concerned, of a vested, legal estate in the said land for the full term of twenty years, and a failure on the part of Robbins to fully comply with the executory covenants which were to be performed by him would not defeat his right to recover the said land in an action of ejectment, and the remedy of the lessor in .such case would be an action for damages upon the covenants contained in his lease.” Refused. [1]</p> <p>“2. If the jury find from the evidence that Robbins commenced operations for mining purposes on the Joseph L. Scott farm in Cecil township within six months from December 26, 1883, and in due course of time completed the drilling of said well; and if they further find that no oil had been found upon any farm adjoining the Gamble farm or any of the other farms leased by him in Cecil township up to the date of the entry by plaintiffs upon the Gamble land, then he had fully complied with the covenants contained in the contract made with the said Gamble, and under such circumstances no presumption of abandonment could arise, and- the verdict of the jury must be for the plaintiffs.” Refused. [2]</p> <p>“ 3. The doctrine of abandonment is only applicable where the party against whom it is sought to be applied has been guilty of laches in the performance of a duty or obligation necessary to support his rights, and has no application to cases where the right or title arises out of an executed grant with all covenants performed; and if the jury find from the evidence that Robbins has fairly and honestly performed all the covenants made by him in the Gamble lease, then their verdict must be in favor of the plaintiffs for the land in dispute.” Refused. [3]</p> <p>■ “ 4. If the jury find from the evidence that Robbins, up to the time of bringing this action of ejectment, had complied with all his covenants made with Gamble with reference to his operations as required under his lease, then he had such an estate or interest in this land as could only be lost by his surrender or release thereof or by an adverse possession for such a length of time as to give title under the statute of limitations.” Refused. [4]</p> <p>“5. To sustain the claim of the defendants of an abandonment by Robbins of his right to the Gamble land, the burden is upon the defendants to show affirmatively an intention on his part to abandon altogether the further prosecution of his mining operations on the land leased; and if the jury find that from the date of the said lease on up to the date of this suit, he has been engaged from time to time in the drilling of wells for oil and gas in Cecil township, or any territory immediately adjacent thereto, these facts are strong evidence to repel any presumption of such abandonment.” Refused. [5] Binding instructions were given for defendants. [6]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>JErrors assigned were (1-6) instruction, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Trusts and trustees — Compensation of clergymen — Church law.</p> <p>Defendant, a clergyman of the Protestant Episcopal Church, desiring to establish a mission church in a suburb of Philadelphia inhabited by poor people, obtained the consent of the rectors of the three nearest parishes, in accordance with the canons of the church. One of these rectors and another clergyman agreed to act with the defendant as trustees. A deed to the trustees conveying the real estate for the church edifice provided that the incumbent should be independent in his pastoral functions, except to his canonical superiors. It was understood that defendant was to rely on the offerings of the people for his support, with such aid as he could obtain from outside sources. No pews were to be sold or rented in the church. The defendant assumed control, personally managing both the temporal and spiritual affairs of the church, and during his incumbency of eleven years collected $33,821.08, keeping accurate account of all receipts. Of this sum he paid over to his cotrustee $15,836.46, specially contributed for building or other trust purposes. He also paid out $2,100 for which he did not take receipts. The balance, $15,600, he claimed to retain for his salary during the time he was engaged in the work. There was no evidence that the salary claimed was excessive, but two clergymen testified that it was proper. The testimony showed that defendant had invested in his wife’s name $8,100. It also appeared that he had constantly given away food and money, which had come out of the balance retained on account of salary. During a portion of the time of defendant’s incumbency it appeared that the salary paid to missionaries by the Episcopal Church was $900 to $1,000. The master and court below allowed the defendant $1,000 a year, and surcharged him with the balance which he had retained. Held, to be error.</p> <p>Defendant’s cotrustees had no more control of the compensation of the incumbent than they had over the salary of any other incumbent in the diocese. If appellant had failed in his enterprise and been unable to obtain bread for his family, neither plaintiffs nor the church could have been required to furnish it. Having succeeded to a reasonable extent, and having provided the food for his family, neither the plaintiffs nor the church will be permitted to take it out of their mouths; and if by reason of economy and good management he has saved a little as a provision for his family, it is no concern of the plaintiffs, unless they first show that the savings referred to were filched from the money which was contributed for the specific object of erecting the church edifice and building of the church. This has not been done: Per Paxson, C. J.</p>

<p>Appeal, No. 129, July T., 1892, by the Union Trust Co., guardian of Richard and Louisa Lewis, minor children of John D. Lewis, deceased, from decree of O. C. Phila. Co., April T., 1891, No. 164, dismissing exceptions to adjudication.</p> <p>Adjudication of account of William H. Brown et al., executors of John D. Lewis, deceased.</p> <p>The facts of the case appear by the opinion of the Supreme Court.</p> <p>The auditing judge, Ashman, J., awarded the residue of the estate to the trustees named in the will for the charitable trust therein created. Exceptions to the adjudication were dismissed in an opinion by Hanna, P. J., 1 Dist. R. 423.</p> <p>Error assigned was in not holding the gift void, etc.</p>

<p>Appeal, No. 285, Oct. T., 1892, by defendant, from judgment of' C. P. No. 2, Allegheny Co., April T., 1892, No. 142, on verdict for plaintiffs, J. A. Nor-cross et al.</p> <p>Trespass for notifying debtor not to pay creditor.</p> <p>The facts appear by the court’s charge, as follows:</p> <p>“ The allegation of the plaintiffs is that they had the contract with the county commissioners-for the building of the county court house and jail; that they made a subcontract with Frederick Tudor for the heating apparatus and four elevators ; that the contract price for the elevators was $19,000, of the kind specified and eventually put in place; that the contract with Tudor was for a larger sum of money, but it was conceded that the portion for the elevators was $19,000; that the work proceeded for a time under the contract with Tudor, when Tudor became insolvent, having received from Norcross Bros, (as alleged by them) $14,500 of the contract price; that after the .failure of Tudor the- Otis Bros. & Co., who had the contract from Tudor for the building of the elevators, and had done all the work thus far, refused to proceed further with the work; that therefore negotiations began between the plaintiffs and the defendants in reference to the completion of this work; that the negotiations finally resulted in a contract between these parties whereby Norcross Bros, were to pay to Otis Bros. & Co. the sum of $9,000 for which-they agreed to finish and complete the elevators, with the stipulation that neither party to the contract agreement, which was reduced to writing and is Exhibit C, ‘is to be prejudiced by the agreement in respect of any action at law or in equity, either by way of prosecution or defence, and neither this agreement nor the fact of the completion of said elevators, nor the payment of said sum of $9,000, is to be pleaded or used in evidence by one against the other in action or actions at law or in equity between said parties hereto, provided that if recovery be had against Norcross Bros, in any proceeding as aforesaid against them by Otis Bros. & Co. judgment so secured shall be liquidated so as not to exceed $10,000, with interest.’ . . . The elevators were completed by the Otis Bros. & Co. under the provisions of the agreement made in writing, bearing date the 23d day of November, 1887. Norcross Bros, paid the money called for by the agreement, $9,000, and the same was accepted by the Otis Bros. & Co. . . . Two actions at law have been brought by the Otis Bros. Co. against Nor-cross Bros, to recover what they allege to still be due and owing to them for the erection of the elevators, to wit, the sum of $10,000. One of these actions was discontinued and the other is still undisposed of. Norcross Bros., upon the completion of the court house on March 10,1888, and upon final estimate, had coming to them from the county the sum of $26,800, the sum of $20,000 being for the furnishment of the court house, and $6,800 being for the balance due on the contract for the building of the court house and jail. Two warrants were given to the plaintiffs for these amounts, when the payment of one of the warrants for the $6,800 was stopped by the county commissioners, owing to a notice given to them by Mr. McKee, the attorney for the Otis Bros. Co., to withhold payment of the same for the reason that the labor rendered and performed, and the materials furnished and used in and about the construction of the said buildings, had not been fully ■ settled and paid for by Norcross Bros, in compliance with the provisions of their contract with the county, requiring such to be done before payment is made to said Norcross Bros, by the county, and in consequence the payment of $6,800 was withheld. . . .</p> <p>“ An important question for consideration under the evidence is whether the Otis Bros. Co. was confined to action at law and in equity and thereby were precluded, under their contract with Norcross Bros., from taking steps to have the county commissioners withhold payment to Norcross Bros, upon their contract with the county; until the alleged labor and materials of defendants in the erection of the court house and jail had been fully settled for and paid. This mode of proceeding, that is by the giving of notice, is not expressly forbidden by the contract of the Otis Bros. Co., as it authorizes any actions or proceedings at law or in equity to be instituted thereafter, without regard to the contract or any of its provisions, for the settlement of disputed questions of liability between the parties. [The language used in the contract, Exhibit C, will admit of a resort to the proceedings complained of, that is a notice to withhold payments as a lawful proceeding, that is they were not prevented from doing it, provided you do not find in the evidence from other sources the fact that the parties intended to refer any dispute between them, in reference to the payment for the elevators, to an action at law or a proceeding in equity in the ordinary form; they have some fact? that might enable you to form a conclusion as to that.] [7]</p> <p>[“ I may also say in my opinion that if a notice to the commissioners was given merely for the purpose of vexatious and malicious interference, and with the intent to secure an unfair advantage, with a knowledge that they had no claim on the fund in that way or right to stop payment or apply the funds otherwise than to Norcross Bros, on their contract with the county, the plaintiff would be entitled to recover for the damage thereby sustained. What I mean to say is this: that the notice to the commissioners under the contract was not, in itself, a violation of the terms of the contract; but that if you find from the evidence, outside of the writings, that the parties intended and did limit themselves in any dispute to actions at law or proceeding in equity, the plaintiffs may recover. Or if with knowledge that they had no remedy against the Nor-cross Bros.’ money in the hands of the county commissioners, they maliciously, vexatiously and unjustly interfered with and delayed payments to Norcross Bros, and counsel, and caused them litigation which otherwise would have been avoided, plaintiffs would have a right to recover the damages sustained. Now I used the words maliciously, vexatiously and unjustly because that is the foundation of the plaintiffs’ claim in their declaration, or, what is now substituted for a declaration, their statement. [8] ....</p> <p>“ This interference, however, in my judgment was not of such a character under the circumstances as would justify punitive damages ; if plaintiffs are entitled to recover they can only be such as are compensatory. The only damages therefore-to which the plaintiffs may be entitled, are the expenses to which they have been put by the litigation made necessary to recover their claim against the county, as a result of the notice given by the Otis Bros. Company to the commissioners upon which payment to Norcross Bros, was withheld.” . . .</p> <p>Binding instructions for defendant were refused. [10]</p> <p>Verdict and judgment'for plaintiffs, $577. Defendants appealed.</p> <p>Errors assigned were, inter alia, (7, 8,10) instructions, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Railroads — Eminent domain — Nature of estate.</p> <p>The estate acquired by a railroad company in condemnation proceedingS js more than a mere easement or right of way; it is a right to ex-elusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations, and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee.</p> <p>Ejectment — Adverse possession — Evidence.</p> <p>In an action of ejectment, title cannot be established by adverse possession where the proof consists merely of detached occupations of the property by different people, none of whom held under the paper title under which the property was claimed; and the evidence did not show that any of the people in possession were tenants of those holding the paper title, and there was no attempt made to connect one with the other, or to show that they were contiguous in point of time.</p> <p> Quantity of land required by railroad. </p> <p>When a railroad company condemns land, it is of necessity the judge of how much is required for its use, and this question should not be submitted to a jury in a subsequent action of ejectment against the railroad company.</p> <p> Land for future use. </p> <p>A railroad company has a right in condemning land to regard and make provisions for its future as well as its present needs, and nonuser of a portion of the land for certain purposes cannot be held to be an abandonment.</p>

<p>Municipal claim for sewer — Unopened street — Dedication—Acceptance by city — What constitutes.</p> <p>Whore a street has been dedicated by adjoining owners and laid out on the confirmed city plan, but not physically opened over the land, the passage of an ordinance for the laying of a sewer and entry upon the street-dedicated are as clearly an acceptance of the dedication and as unqualified a recognition of the street as an opened highway of the city as if an ordinance to open had been passed and damages assessed and paid.</p> <p>necessity of sewers — Discretion of councils.</p> <p>Councils having determined in their legislative wisdom to commence the improvement of the street by constructing a sewer thereon, their right to do so cannot be doubted, their judgment as to the propriety or necessity therefor being final and conclusive: Wain v. Phila., 99 Pa. 337; Michener v. Phila., 118 Pa. 535.</p>

<p>Equity — Jurisdiction—Review after final hearing.</p> <p>The Supreme Court will not necessarily reverse a decree on a bill in equity, if the bill has not been demurred to, and the case has been pursued to final hearing, although the bill merely sets forth facts which amount to a claim by an administrator for money of his decedent, for which assumpsit is an adequate remedy.</p> <p>Equity pleadingr — Responsive answer.</p> <p>A responsive answer denying the averments of a bill in equity is not made any the less responsive by setting forth all the facts, though some new matter may be incidentally introduced thereby.</p> <p>Contract for maintenance ■— Confidential relation —• Undue influence— Mental capacity.</p> <p>A bill in equity for discovery and an account by an administrator averred that decedent was of weak mind, incapable of transacting business, and unable to read and write; that defendant received her into his house, exercised great influence over her, and received from her large sums of money for which he had not accounted. The answer denied that decedent was weak minded, admitted the receipt of money by defendant from decedent, but averred that the money had been paid to defendant under a contract by which he agreed to support and provide a home for decedent during her life and give her suitable burial at death. The master found that decedent had sufficient mental capacity to make a contract. Held, that the answer was responsive to the bill, and that the decedent having made a contract satisfactory to her during her lifetime, it could not be attacked after her death.</p> <p>Where property is transferred in consideration of care and attention which are honestly bestowed, to the end of life, courts do not need to be astute in weighing the profit or loss of the bargain. Per Mitchell, J.</p>

<p>Appeal, No. 224, Oct. T., 1892, by-plaintiff, from decree of Q. S. Armstrong Co., Sept. T., 1891, No. 36, discharging rule to show cause why expenses incui-red in .maintaining pauper should not be paid.</p> <p>Rule on overseers of the poor of Valley township to show cause why they should not pay to overseers of the poor of Cowanshannoek township all sums of money necessarily expended for the support of Mary Beer, a pauper.</p> <p>It appeared, from the testimony, that, sometime prior to May 6, 1886, Mary Beer, the pauper, became a charge upon the poor district of Cowanshannoek, and at that time an order of removal was obtained removing her to Kittanning township. This order was appealed from by the overseers of Kittanning township and appeal sustained. While the proceedings on said appeal were pending the pauper died in J une, 1889. About the latter part of June, 1891, the overseers of Cowanshannoek township gave notice to the overseers of Valley township of the claim now sought to be collected. It was not disputed that from the time when Mary Beer became a charge upon Cowanshannock township until shortly before her death she was in such physical condition that she was capable of being taken from one district to the other, and she actually was removed from Cowanshannoek to Kittanning township, and while in the last named township was moved from one place to another some two or three times, when it became necessary to change her places of keeping.</p> <p>The facts relating to the settlement of Daniel Beer, the father of the pauper, appear by the opinion of the Supreme Court.</p> <p>The court, Rayburn, P. J., in an opinion, held that the appellant was barred by the lapse of time in giving notice, and made an order discharging the rule at the costs of the Cowanshannock poor district, who thereupon appealed.</p> <p>Error assigned, inter alia, was the order, quoting it.</p>

<p>Attachment against nonresident — Justice of peace — Jurisdiction by entry of bail on appeal and appearance in the common pleas — Act of May 8, 1874.</p> <p>By entry of bail for payment of debt, interest and costs, and general appearance for defendant in the court of common pleas, an attachment issued by a justice of the peace under the foreign attachment act of May 8,</p> <p>1874, P. L. 123, is dissolved and the goods of the defendant released from its grasp; and the appeal and unconditional appearance operate asa waiver of objection to the jurisdiction by reason of the residence of the defendant within the state.</p>

Appeal, No. 193, Oct. T., 1892, by defendant, Valentine Ganter, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1891, No. 362, on verdict for plaintiff, Henry Rea, Jr. Assumpsit for three months rent. The facts appear by the opinion of the Supreme Court. When the defendant was on the stand he was asked the question: “ What took place when the lease was signed or before it was signed ? ” [2] Objected to, objection sustained and exception.

Appeal, No. 198, Oct. T., 1892,. by plaintiffs, John Morrow et al., from order of C. P. No. 3, Allegheny Co., May T., 1892, No. 80, setting aside proceedings-in partition. Partition.

<p>Appeal, No. 185, Oct. T., 1892, by defendant, from judgment of C. P. No. 3, Alleghenjr Go., Feb. T., 1892, No. 458, for plaintiff, John C. May.</p> <p>Assumpsit for rental under oil lease.</p> <p>From plaintiff’s statement it appeared that on Nov. 4, 1886, John C. May executed an oil lease to the Hazelwood Oil Co., in which the lessee covenanted as follows :</p> <p>“ To deliver upon the premises, or in such pipe line or lines as may be connected therewith, the equal one-eighth part of all petroleum or carbon oil produced from the same, as produced.</p> <p>“ To use the premises herein demised in such way and manner as to occasion as little damage and inconvenience to first party as possible, consistent with the purposes of this demise.</p> <p>“ Said party of the second part is to have the free use of sufficient gas from the premises herein demised, to carry on the necessary operations thereon, and first party to have a concurrent right to use gas for household purposes, all expenses attendant upon such use to be paid by the party using the same, and further, if gas is takeu from said premises to be used elsewhere to pay first party at the rate of $50 per annum for each well from which gas is taken, so long as the same is so used. In ease gas is found in paying quantities in any well drilled on said kinds the first party to be paid by said- second party the one-eighth part of any sum received for the sale of such well or wells in case of a sale thereof.</p> <p>“ To begin the drilling of a well for oil or gas upon the above described premises within one year from the date hereof, and to prosecute the drilling of the same with reasonable diligence to completion, or thereafter to pay to said first party one dollar per acre per annum until such operations on said premises are begun and prosecuted as herein stated and a failure to pay the same, within three months after maturity, unless the time for such payment be extended in writing by first party, shall work an immediate forfeiture on this lease and thereafter the same shall not be binding upon either party.</p> <p>“ And it is further stipulated and agreed by said second party, its successors or assigns, that it will commence and prosecute to completion a test well for oil or gas on said premises, or upon other lands in the vicinity thereof within thirty days after leases to the amount of five thousand acres shall have been obtained by the same, or else forfeit the rights hereby granted, and should it fail to obtain leases covering five thousand acres by the first day of January, A. D. 1887, it shall thereupon elect to proceed and drill as last above stated, or at its option forfeit this lease, and further covenants to drill no well within one hundred yards of any dwelling house or other building appurtenant thereto, without the consent of first party, first had in writing.</p> <p>“ This agreement to be determined at the option of second party, its successors, or assigns, should a fair test fail to develop oil or gas in quantities to warrant further operations, notice of such determination to be given in writing to first party.</p> <p>“ This agreement to be binding upon the heirs, administrators, successors or assigns of the parties hereto.”</p> <p>The material averments of the affidavit of defence are stated in the opinion of the Supreme Court.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence.</p> <p>Error assigned was this order.</p>

Appeal, No. 153, Oct. T., 1892, by defendant, Jacob Goldstein, from judgment of C. P. VenangoCo., April T., 1890, No. 88, on verdict for plaintiffs, James B. Wilson, for himself and as next friend of Lydia C. Wilson and Mary F. Wilson, minors. Appeal from justice of the peace in action to recover stipulated damages in oil lease. The facts appear by the opinion of the Supreme Court.

<p>[Marked to be reported.]</p> <p>Equity — Specific performance — Discretion of court.</p> <p>A decree for specific performance is not-a matter of course, but rests in the sound discretion of the chancellor. Even when the agreement is perfectly good, the price adequate, and no blame attaches to the purchase, if the transaction be inequitable and unjust in itself or rendered so by matter subsequently occurring, specific performance may be denied, and the parties turned over to their remedy in damages.</p> <p> Improvident and oppressive contract by married woman. </p> <p>A married woman entered into a contract for the purchase of a tract of land for the price of $50,000. Eive thousand dollars were to be paid in cash, and the remainder of the purchase money was to be secured by a mortgage for $45,000 in annual payments of $5,000 and $7,000 respectively, with interest on all, and reaching over a period of seven years.</p> <p>The first two payments were to be secured by a mortgage for $12,000 on the purchaser’s other real estate. There was no evidence as to where the money for the other payments was to come from, nor did it appear that the purchaser had any of the essential qualifications either in capital or experience to conduct such an enterprise to a successful conclusion. Held, that a decree for specific performance should be refused.</p> <p>Evidence — Misrepresentations—Specific performance.</p> <p>Defendant in the above case testified that before the contract was made it was represented to her by the plaintiff or his agent that the property was underlaid with coal. Defendant’s testimony was corroborated by another witness, but was denied by plaintiff’s agent. As a matter of fact the coal had been almost entirely removed from the land. It was also a controverted question between the parties as to when the possession of the property was to be delivered to defendant. Held, that the condition of the proof on these questions was an additional reason for refusing a decree of specific performance.</p> <p> Married women's contracts. </p> <p>In determining whether a decree for specific performance shall be made against a married woman, the court will consider her state and condition as being a married woman, even if the contract in question was within her power to make.</p>

<p>[Marked to be reported.]</p> <p>Beneficial associations — Competency of witness — Act of May 23, 1887.</p> <p>Where a beneficial association has contracted to pay to a wife of a member a certain sum upon the death of her husband, members of the association arc competent witnesses, in an action by the widow for the benefit, to, show that the husband was not in good standing as a member at the time of his death.</p> <p>In such a case the act of May 23, 1887, does not apply because no right of the deceased to the subject in controversy had passed, either by his act or by the act of the law, to the plaintiff. The deceased never had any right to the benefit, which was to be paid exclusively to his wife.</p> <p>Evidence — Parol testimony to supplement minutes.</p> <p>In an action against a beneficial association for a death benefit, the defence being that the deceased member was not in good standing, parol testimony is competent to complete the evidence of the suspension of the deceased, where the minutes showed a motion to suspend, but did not show what action was taken on the motion.</p>

<p>Elections — School directors — Defective ballots.</p> <p>In an election for school directors, six directors were to be chosen, two for a term of three years, two for two years, and two fo.r one year. The ballots of the six persons having- a majority of all the votes cast, failed to designate the term, but the six persons having a minority of all the votes cast had a majority of all the votes on which the term was designated. jHeld, that the latter six persons were duly elected.</p> <p>Evidence — Caucus agreement — Act of April 11, 1862.</p> <p>In such a case it was incompetent to show that at the party caucus at which the first six persons were nominated, it was agreed that the persons receiving the highest number of all the votes should have the three years term, the persons receiving the next highest number should have the two years term, and the persons receiving th« next highest number should have the one year term.</p> <p>The act of April 11, 1862, P. L. 471, does not apply to such a case, because that act was operative only when the “ voters shall all neglect to designate on their tickets the term of office for which each person voted for is a candidate.”</p>

Appeal, No. 14, Oct. T., 1892, by plaintiff, Emily K. Smith, from order of C. P. Clarion Co., Nov. T., 1889, No. 96, distributing fund arising from sheriff’s sale of realty, on execution against defendants, Wm. Wilson et al. Exceptions to auditor’s report. The facts appear by the opinion of the Supreme Court. Hrror assigned, inter alia, was in not awarding the fund in court to the lien creditors according to their priority on the record.

<p>[Marked to be reported.]</p> <p>Criminal law-^Mxtortion — Definition of.</p> <p>Extortion at common law is the unlawful taking, by any officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due.</p> <p> Liability of person assuming to act as officer. </p> <p>Any person who acts as an officer, and has assumed an officer’s duties, cannot avoid liability by pleading the irregularity of his appointment; and he may be convicted at common law of the offence of extortion.</p> <p>Deputy constable under act of May 9, 1889.</p> <p>A deputy constable appointed under the act of May 9, 1889, is not an officer of the commonwealth within the provisions of the act of March 31, 1860, § 12, providing a penalty for the crime of extortion.</p> <p>Defendant was appointed deputy constable for Manor township. The order of court specified that he “is appointed deputy constable of Manor township in accordance with the terms and provisions of the act of 9th of May, 1889, and that he shall exercise and possess all the powers of policemen of the cities of the commonwealth and that said appointee shall be wholly paid by'private subscriptions, and the county of Armstrong, or the township of Manor shall in no way be responsible for his compensation.” Meld, that he was not liable under the act of March 31, 1860, § 12, but that he might be convicted o'f extortion at common law if the evidence justified it.</p> <p>Evidence — Indictment—Different offences.</p> <p>It is not competent, as a general rule, upon the trial for one offence to permit evidence to be given of another distinct and independent offence.</p> <p>Where a person is indicted for extorting money from three persons named in the indictment, it is error to admit evidence that he extorted money from a fourth person not named in the indictment.</p>

Appeal, No. 181, Oct. T., 1892, by defendants, William C. Kérr and C. M. C. Harper, trading as Kerr & Harper, and Oscar E. Kreuger, from decree of O. P. No. 2, Allegheny Co., Oct. T., 1891, No. 529, in bill in equity by Joseph D. Williams and wife. Bill in equity for reconveyance of land.

<p>Appeal, No. 194, Oct. T., 1892, by defendant, from judgment of G. P. No. 1, Allegheny Co., Dec. T., 1890, No. 760, on verdict for plaintiff, Sarah A. Wilson.</p> <p>Appeal from jury of view assessing land damages.</p> <p>At the trial, before Collier, J., a number of the witnesses testified to the value of the farm, before the location of the pipe line and after, basing their opinion, on cross-examination, on its division into building lots. This division had never been actually made upon the ground but was merely plotted on paper, and did not correspond with the street as laid out. The pipe line was laid along Spencer avenue, a street laid out by the city of Pittsburgh across the farm, but not opened.</p> <p>One of plaintiff’s witnesses, on cross-examination, testified:</p> <p>“Q. How do you arrive at yonr estimate? A. Well, the only way to get any value out of the property is to cut it up in lots and sell it. Q. And then how many lines do you consider affected by the pipe line ? A. Well, there is quite a good deal of frontage affected; all of the nice bench is cut through by this line. Q. What do you mean by the “ nice bench ? ” A. The lay of the ground is such there is a very pretty bench in which to build houses, and you have gone diagonally across that bench, spoiling that portion of the property. Q. Then you think we pass diagonally through a tier of lots ? A. Well, any person that would own the property would be obliged to lay it out in such a way to get the most money out of it, and they would have to run the streets in such a way to take advantage of the lay of the ground. Q. Is your opinion based upon a subdivision of the property into lots ? A. Certainly. Q. It is? A. You would have to do that in order to dispose of the property. Q. How many lots would be affected by the pipe line ? A. If you show me the plan I can show you the number of feet. Q. In making your estimate you had before you a plan showing the subdivision of the property into lots ? Is that correct? A. Yes, sir. Q. *And their you calculated upon how many lots would be affected according to that plan ? A. Yes, sir. Q. And how many lots did you find, according to that plan, would be affected? A. Well, there is a good many lots; it would depend upon how you wouid lay them out ? Q. Well, in making your estimate how did you lay them out ? A. Well, I would calculate there would be about 500 feet that would be badly affected. Q. That would be how many lots ? A. That wóuld depend upon how you lay it out. Q. How did you lay it out in making your estimate? A. Well, I figured it by the frontage. Q. Did you consider how many lots there would be in that frontage? A. You can make it hundred foot lots or you can make it fifty foot lots. Q. In making your estimate what did you do ? A. I figured it on being property which should be laid out in a large way, and lots of a hundred feet would be very well adapted to the location. Q. What damage did you estimate there would be to each .lot ? A. Well, it varies according to the lay of the ground. Q. How did you reach $4,000 ? A. I figured $4,000. There would be about five or six hundred feet would be damaged to the extent of five dollars a foot. Q. And that was because there was a tier of lots that would be crossed diagonally ? A. Yes, sir. Q. Did you consider how many lots there would be ? A. There would be about five or six hundred feet. Q. How many lots? A. Just according to the way you lay it out; in hundred foot lots it would be five or six lots. Q. Then your estimate was upon the ground that there would be a tier of lots crossed diagonally by this pipe line ? A. Yes, sir. Q. And that tier of lots would be damaged $4,000? A. Yes, sir. Q. Do you know whether or not the property is now divided into lots ? A. I don’t think it is.”</p> <p>Upon the conclusion of the cross-examination of each witness counsel for appellant made the following motion:</p> <p>“Counsel for defendant moved to strike out the testimony of the foregoing witness, on the ground that his estimate of damage is based upon a subdivision of the property into lots, and the effect the construction of the pipe line would have upon the lots in the subdivision of the property; and, also, that the streets are to be laid out over the property differently from those located by the city authorities.”</p> <p>Verdict and judgment for «plaintiff for $8,000. Defendant appealed.</p> <p>Errors assigned were refusal to strike out testimony of witnesses, quoting the testimony given on cross-examination.</p>

<p>Appeal, No. 118, Jan. T., 1892, by-Andrew J. Loecber, terre tenant, from judgment of C. P. No. 1, Phila. Co., March T., 1892, No. 633, against Aaron G. Graver, defendant, with notice to Andrew J. Loecber, terre tenant, sci. fa. sur mortgage.</p> <p>Sci. fa. sur mortgage for state tax.</p> <p>The following facts appear from the record:</p> <p>On April 2,1892, plaintiff, as assignee of Joseph S. Keen, caused a writ of scire facias sur mortgage to issue out of the court below, reciting an indenture of mortgage dated March 20, 1878, and given by defendant to Joseph S. Keen to secure the payment to said mortgagee, his executors, administrators or assigns, of the principal sum of $2,000, with interest, and “ in addition to the said interest all sums which may be assessed by or under the laws of this commonwealth for taxes upon the said loan or sum of $2,000, as upon the said interest whenever and as often as the said taxes shall be payable by the said Joseph S. Keen, his executors, administrators or assigns, without any fraud or further delay; ” and providing that if default shall be made in the payment of interest “ or in the payment of any sum assessed for taxes as aforesaid for the space of thirty days after notice in writing of its assessment shall be left upon the premises hereinafter described and mortgaged, then and in such case the whole principal debt aforesaid — the said sum of $2,000, lawful money aforesaid — shall, at the option of the said Joseph S. Keen, his executors, administrators or assigns, become due and payable immediately ” and Droviding further that it shall and may be lawful for the said mortgagee, his executors, administrators or assigns, in case of default in the payment of said principal sum or in the payment of interest, “ or of any sum assessed for taxes as aforesaid for the space of thirty days after notice in writing of its assessment shall be left upon the above described premises, to sue out forthwith a writ or writs of scire facias upon this indenture and proceed thereon to judgment and execution for the recovery of the said sum of $2,000, —lawful money aforesaid, — and all interest and taxes due thereon together with an attorney’s commission of five per cent on the said principal sum besides cost of suit,” etc. And further, reciting an assignment of said mortgage on Feb. 7, 1879, to said plaintiff, and averring default to have been made in the payment of said taxes, “ according to the terms and conditions in the said obligation and indenture contained;”</p> <p>A copy of this scire facias was served upon the terre tenant, Andrew J. Loecher, who filed an affidavit of defence setting forth the following defence:</p> <p>“ Deponent paid in lawful money to said plaintiff the full sum of $2,000, the principal of said mortgage and the sum of $61.50, the full interest at the rate of six per cent, accrued, due to March 25, 1892. That said plaintiff demanded in addition the sum of $86.00 to cover alleged payment of taxes by him on account of or upon said mortgage debt. That deponent declined to pay the same, upon the ground that said plaintiff had no claim against deponent for or by reason of any taxes as aforesaid. That when deponent as purchaser of the property covered by said mortgage bought and paid for the same, a receipt was produced by the owner or his agent as follows, viz.: [The receipt was headed ‘monthly statement’ and was for ‘six months’ interest ’ on the house, Sept. 20, 1891.]</p> <p>“ That this deponent relying on said receipt in full to that date for all charges for or on account of reservation of interest and taxes in said mortgage up to said 20th day of September, 1891, made settlement accordingly with the vendor of the property. That deponent was informed and avers that for a number of years statements were made out and receipts given every six months covering every demand made for or on account of the reservation of interest and taxes in said mortgage. The plaintiff, if he ever paid any taxes for or on account of said mortgage by giving receipts and statements as aforesaid, es-topped himself from making any claim for taxes against this deponent who was thereby misled. That said statements and receipts running through a series of years was in effect a waiver of any further claim. But no allegation or averment has been made in this suit of any payment of any taxes by the plaintiff, and deponent is advised that in the absence of such averment no further affidavit of defence is necessary. That if any claims for taxes had been made and the same had not been waived the whole mortgage would have been paid.”</p> <p>A copy of the prsecipe for the sci. fa. having been afterwards served upon the terre tenant, specifically claiming $60.00 for ten j’-ears, taxes at six dollars per year, averring that they had been paid by plaintiff and also claiming interest and attorney’s commission of $100 — five per cent on the principal sum which had been paid — defendant filed a supplemental affidavit of defence, averring: “ That by the terms of the mortgage the state taxes sued for shall have been assessed under the laws of the commonwealth upon the said loan, and that notice in writing of such assessment shall be left upon the mortgaged premises for the space of thirty days, in order to constitute a default on the part of the mortgagor or his assigns. That no averment is made in the sci. fa. or in the prsecipe therefor, of the assessment of said taxes or that notice in writing of such assessment has been left on the mortgaged premises for the space of thirty days. Wherefore deponent is advised and believes that plaintiff is not entitled to judgment for want of an affidavit of defence.</p> <p>“Deponent further claims that said sci. fa. and prsecipe are defective in not stating the time or times of payment of said taxes by said plaintiff, so that said payments may be presumed to have been made in the several years specified, and as to years anterior to six years from the commencement of this suit deponent claims the benefit of the statute of limitation, viz., for the years 1883, 1884, 1885 and 1886.</p> <p>“ Deponent is also advised and believes that if said taxes were assessed in the several years specified, it was the duty of plaintiff to give notice and collect the amounts from the terre tenant for the time being, and that he is estopped by his failure so to do from recovering the same out of the premises in the possession of this deponent by deed dated September 20. 1891.”</p> <p>A rule for judgment for want of sufficient affidavit of defence was made absolute and the damages assessed at $174.96. The attorney’s fee was afterwards reduced to $50.00. The terre tenant appealed.</p> <p>Errors assigned were, (1) making rule absolute; (2) not discharging rule; (8) allowing an attorney’s commission; (4) not holding affidavits good; (5) not holding that sci. fa. and prsecipe did not show a good and complete cause of action.</p>

<p>Appeal, No. 69, Jan. T., 1891, by plaintiff, John McLeod, from order of C. P. Clinton Co., May T., 1890, No. 114, making absolute rule to strike off mechanics’ lien.</p> <p>Scire facias sur mechanics’ lien. Rule to strike off lien.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was making rule absolute.</p>

<p>Appeal, No. 89, Jan. T., 1893, by plaintiff, Francis Charles Hughes-Hallett, and the Union Trust Co., trustee in the ante-nuptial contract, from decree of C. P. No. 4, Phila. Co., Dec. T., 1890, No. 815, sustaining demurrer to a bill in equity.</p> <p>Bill in equity to compel payment of portions of income provided in ante-nuptial agreement.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>Tbe Fidelity Insurance, Trust & Safe Deposit Co., trustees under the will of James Page and George Page and tbe Fidelity Insurance, Trust & Safe Deposit Co., and John Cadwalader, trustees under tbe will of Emily Page, and Emilie Page HughesHallett, filed separate demurrers to tbe bill. The court sustained tbe demurrers and dismissed tbe bill. n</p> <p>Error assigned was decree dismissing bill.</p>

Appeal, No. 44, Oct. T., 1892, by defendants, Eugene Walker et al., from decree of C. P. No. 3, Allegheny Co., Feb. T. 1892, No. 32,… Held: Y. B. Williams, Frank Lewis and Edward G-lennen, restraining them and each of them from gathering at and about plaintiffs’ place of business, and from following the workmen employed by plaintiffs, or who may hereafter be so employed, to and from their work, and gathering at and about the boarding places of said workmen, and from any…

<p>Appeal, No. 231, Oct. T., 1891, by defendant, John H. McDaniel, from judgment of C. P. Venango Co., on verdict for plaintiff, W. P. Shaffstall.</p> <p>Assumpsit on agreement of suretyship.</p> <p>On the trial before Taylor, P. J., it appeared that defendant had indorsed a judgment note under seal of which he was the payee and over his indorsement was written, it did not clearly appear by whose direction, the following: “ I guarantee the within note’s payment.” The other facts appear in the opinion of the Supreme Court.</p> <p>Defendant’s points were, among others, as follows:</p> <p>“ 1. That under the law and the evidence the verdict of the jury should be for the defendant. Answer: We submit that question to you.” [1]</p> <p>“ 2. If the jury believe the evidence, that Frazier, who held the note when due, extended the time of payment thereon ten days, and, during the said ten days, Deming, the maker of the note, so disposed of his property that nothing could be collected from him by process o’f law, McDaniel was thereby relieved from any contract he may have entered into guaranteeing or securing the payment of said note. Answer: That is true if you find it was a contract simply of guaranty, as expressed on the back of that note. But if you find it a contract of surety-ship, it would make no difference whether he gave him time or not. He would be liable at all events.” [2]</p> <p>“3. If the jury believe the evidence that when the note in question fell due, and for sometime thereafter, Deming, the maker, had property which could have been seized and sold in satisfaction of a judgment entered thereon, and that no attempt was made to collect said note from him, either then or at any time thereafter, their verdict should be for the defendant. Answer: That is affirmed if you find that the contract was, as expressed on the back of this note, of guaranty.” [3] Plaintiff’s points were as follows:</p> <p>“ 1. If the defendant guaranteed to plaintiff that if the note in evidence was not paid when due he would pay it himself, this was a contract of suretyship and not of guaranty, and plaintiff could proceed at once against defendant, as soon as the note became due and unpaid, without regard to the solvency or insolvency of Deming. Answer: That is true. There is a good deal of difference between a man guaranteeing the payment of a note and guaranteeing the payment of a note when due. This is affirmed with that qualification.” [4]</p> <p>“2. That an extension of time by a creditor to release a surety must be upon a consideration, and one that can be enforced against the creditor. Answer : If the contract was one of suretyship, that is correct.” [5]</p> <p>“ 3. That the alleged extension by Frazier, if made at all, was made after the note was due, and without any consideration, and cannot therefore have the effect of releasing the defendant. Answer: That is true. If made afterwards there must be a new consideration for it in order to make it binding.” [6]</p> <p>Verdict and judgment for plaintiff for $139.18; defendant appealed.</p> <p>JErrors assigned were (1-6) instructions, quoting them.</p>

<p>Appeal, No. 204, Oct. T., 1892, by defendant, J. F. Marshall, from judgment of C. P. Indiana Go., June T., 1891, No. 48, on judgment for plaintiff, David R. Pringle, to use of South Mahoning Twp. Overseers.</p> <p>Assumpsit on covenant alleged to run with land.</p> <p>At the trial, before White, P. J., it appeared that David Pringle died in 1872, leaving a will by which he provided inter alia as follows:</p> <p>“ I give and bequeath to my beloved wife, Elizabeth Pringle, as much of the household property as thinks proper to keep or need absolute : One horse, and cow, four sheep, for her own use ; the residue of my personal estate to be appraised and sold, and after all my just debts and funeral expenses are paid, then the balance be equally divided among all my children, share and share alike. Also, my wife shall have as much room of the house as she may need, or as my son David and her may determine, also barn room for her stock. I further give and devise to my son, David R. Pringle, his heirs and assigns, all that messuage and tract of land situate in South Mahoning township, and county aforesaid, together with all my freehold estate whatsoever, to hold to him the said David R. Pringle, his heirs and assigns forever, he shall give unto my beloved wife, Elizabeth, one-third of all the grain and hay that is raised on said farm during the minority of my youngest child. At the time said youngest child shall become twenty-one years old, then my son David shall have full possession of said farm and shall pay to my executor or heirs, the rate of five dollars per acre of said farm, which amount shall be equally divided among all my children share and share alike. I will that my son David shall give unto my beloved wife the one-third of all the grain and hay above specified as long as she shall live or remain my widow also the use of said part of the house.”</p> <p>By a codicil testator directed as follows :</p> <p>“ And I hereby commit the guardianship of my son John Pringle as long as he shall live unto my son David Pringle of all the sums of money hereby provided for his benefit respectfully, and that my son John shall remain on said farm with my beloved wife and my son David Pringle, who shall care for him in all his actual wants.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>It further appeared that John came back from Cambria county in 1888, and an order of relief was obtained placing him as a pauper on the township. The overseers of the poor took him to defendant, claiming that the farm was charged with his support. Defendant agreed to keep him if he would work. After a short stay John voluntarily left, and the overseers took charge of him, presenting their petition to the orphans’ court for an allowance out of the land. The Supreme Court held that the orphans’ court was not the proper tribunal: 138 Pa. 570. This action was then brought.</p> <p>Defendant’s point was as follows, among others :</p> <p>“ 2. The duty of caring for John was imposed by the will upon Elizabeth Pringle and David Pringle jointly, and is so clearly and emphatically personal in its character that it could not be assigned to another person, and therefore the plaintiff cannot recover. Ansiver: The care of John imposed by the will of his father upon the mother and David was personal, to wit: Elizabeth was confined to care, to make a consistent construction of the will and codicil; but as to David, we think it was more. David owned the farm, as we have said, and he had the control of the farm ; John had a right to remain there and to his personal care for his actual wants ; and David could sell them to another person, and, when so sold and assumed, would be a competent contract, and John, if he accepted that provision and was willing to take it on his behalf, could enforce it against David’s assignee.” [2]</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Error assigned, inter alia, was (2) instruction, quoting it.</p>

Appeal, No. 203, Oct. T., 1892, by-defendants, George Kutruff et al., from judgment of O. P. Cambria Co., No. 26, Sept. T., 1889, upon verdict for plaintiff, E. A. Irvin, in ejectment. Ejectment. The facts appear by opinion of Supreme Court. Errors assigned were as follows: “ 1. The court erred in affirming the plaintiff’s points. “ 2. The court erred in not affirming the 5, 6, 7 and 8 points presented by defendants. “3.

<p>Appeal, No. 3, Oct. T., 1892, by W. F. Morgan & Co., creditors, from order of C. P. No. 2, Allegheny Co., Oct. T., 1891, No. 45, refusing an issue.</p> <p>Petition for an issue to determine the validity of a judgment confessed by William E. Schmertz to William Loeffler.</p> <p>The court below filed the following opinion, by White, J.:</p> <p>“The affidavits on which an issue is demanded set forth many facts, which, if true, would indicate fraudulent conduct on the part of W. E. Schmertz in purchasing goods and carrying on his business when he was insolvent and must have known that fact. [But there is no averment of any fraudulent act on the part of the plaintiff, Loeffler, and no averment that the judgment given to the plaintiff was fraudulent, or that he was knowingly a party to any fraudulent acts of - Schmertz.] [2] The only ground on which it is assailed is, that it was given for a larger amount than was necessary to cover his liabilities for Schmertz. [And that question is to be determined by his answer, for there is nothing to contradict the answer and affidavit of Loeffler.] [3]</p> <p>“ In his answer he says that when Schmertz asked him on the 13th June, 1891, to indorse notes for the amount of $13,000, he said ‘ he woujd indorse the paper to the amount of $13,000, if he, Schmertz, would secure him not only against the loss of that sum, but would also, through him, secure the firm of Robt. C. Schmertz & Co., Limited, against all loss and liability by reason of money loaned him by said firm, and indorsements then made or that might thereafter be made for him by affiant as secretary and treasurer of said firm; and secure affiant against all loss and liability individually upon all indorsements, loans and advances made or that might thereafter be made by said affiant for him; and against all loss and liability by reason of his suretyship in said bonds mentioned or by reason of any and all payments made by affiant to him as guardian aforesaid. To this, ¥m. E. Schmertz then and there assented and agreed. With this understanding and for that purpose, the judgment note was signed by the said Wm. E. Schmertz and delivered to affiant; whereupon affiant indorsed three additional notes,’ etc., for the $53,000. The suretyship referred to was on bonds of said Schmertz, as guardian of the minor children of Robt. C. Schmertz.</p> <p>“ At the time said judgment of $100,000 was given, June 13, 1891, the claims and liabilities of said Loeffler for said Schmertz were as follows:</p> <p>Endorsements for R. C. Schmertz & Co., Limited, $30,950 00</p> <p>Note to firm, borrowed money, .... 2,500 00</p> <p>Individual endorsements for Schmertz, .. . 6,000 00</p> <p>Debit due to Loeffler,...... • 1,200 00</p> <p>Endorsements of June 13, 1891, . 13,000 00</p> <p>$53,650 00</p> <p>250 shares of stock in Standard Plate Glass Co., afterwards sold to Schmertz, . . . 25,000 00</p> <p>$78,650 00</p> <p>The real estate sold by W. E. Schmertz as guardian of minor children of R. C. Schmertz, . . 22,966 66</p> <p>Total liabilities, . . . $101,616, 66</p> <p>“ The loan of the 250 shares of stock of Standard Plate Glass Co. was after the giving of the judgment note, but as that note was expressly to cover future accommodations as well as present liabilities, it was valid and lawful as between the parties, and would be good against other creditors, unless they had some intervening equities, and that does not appear and is not averred in this case. The stock was pledged by Schmertz for loans he obtained, and is still in pledge.</p> <p>“ The amount of this stock added to the actual liabilities of June 13,1891, amount to more than the money realized on the said execution and now in court.</p> <p>“ The plaintiff is entitled to hold his judgment as security for his suretyship on the guardian bonds. He may not be entitled to collect that amount of money, if it can be realized on the judgment given directly to the minors or their guardian ; or, possibly, until it is absolutely certain he will have to pay it. But that question is not involved in this rule. [The only question before us is, was the judgment to Loeffler fraudulent, given for a fraudulent purpose, or fraudulently given for an excessive amount ?] [7] I think there is no evidence that would justify such an inference. As Loeffler sets forth all the facts in the case, the amount due, if any, on this account, can be ascertained, when the time arrives, without an issue. Rule for issue discharged.”</p> <p>The court entered a decree Oct. 24, 1891, ordering payment of money in court to plaintiff. Appellants, creditors, appealed from the decree refusing issue.</p> <p>Errors assigned were, inter alia, (1) in refusing an issue (2, 3, 7) portions of opinion in brackets, quoting them.</p>

<p>Liens — Distribution—Purchase money — Mortgage not recorded in sixty days — Equitable estate.</p> <p>A purchase money mortgage not recorded until more than sixty days-from its execution will have no preference over mechanics’ liens which have attached in the meantime, and although the liens were filed against the equitable estate.</p> <p>Interest on mechanics' lien — Distribution.</p> <p>In distributing afund raised by sheriff’s sale, interest should be allowed on a mechanics’ lien to the date of the sale only, and not to the date of the distribution.</p> <p>Assignments of error — Exceptions to auditor's report.</p> <p>An assignment of error which simply states that the court erred “ in-overruling the exceptions of the appellant to the report of the auditor,” without setting forth the exceptions, does not conform to the rules of court, and will not be considered.</p>

<p>Appeal, No. 145, Oct. T., 1892, by plaintiff, T. J. Wolfe, from order of C. P. Cambria Co., Dec. T., 1890, No. 4, refusing an issue.</p> <p>Application by plaintiff, mechanic’s lien creditor, for issue to determine disputed facts arising before auditor appointed to distribute fund arising from sale of real estate of Evaline S. Oxnard.</p> <p>The opinion of the court below was as follows by Barker, P. J. :</p> <p>“The petition of T. J. Wolfe for an issue sets forth that the material facts in dispute are : ‘ (1) Whether the lien contains all the averments requisite to bind the estate of the defendant; (2) whether or not the work and labor were done, and the materials furnished at her request, and for the improvement of her estate, the truth thereof being disputed by other claimants.’</p> <p>“The 28th section of the act of June 16, 1836, directs that an issue shall be awarded to try any disputed facts connected with a distribution, at the request in writing of any person interested, and the 2d section of the act of April 20, 1846, provides that before an issue shall be directed the applicant shall make affidavit that there are material facts in dispute, and shall set forth the nature and character thereof, and that the court shall determine whether such issue shall be granted upon said affidavit.</p> <p>“ It will be seen at a glance that the matters alleged to be in dispute in the petitioner’s first specification are questions of law, and not ‘ matters of fact,’ and hence not sufficient to warrant an issue.</p> <p>“ The claim presented before the auditor by T. J. Wolfe, the petitioner, was a mechanic’s lien; the fund for distribution was the proceeds of a sale of the real estate of a married woman, Mrs. Evaline S. Oxnard; and the learned auditor very properly disallowed the same because it did not contain the necessary averments to bind the separate real estate of a married woman.</p> <p>“ A mechanic’s lien against a married woman must show on its face that the work or material was necessary for the improvement or repair of her separate estate, and was in fact so applied : Kuhns v. Turney, 87 Pa. 497 ; Loomis v. Fry, 91 Pa. 396. It must explicitly appear that she was a married woman .- Schriffer v. Saum, 81 Pa. 385; Dearie v. Martin, 78 Pa. 55; Van Roden v. Sterritt, 7 W. N. 196. The claim must set forth that the erection or repair of the building took place with the authority and consent, or on the request of the wife : Dearie v. Martin, 78 Pa. 55; Lloyd v. Hibbs, 81 Pa. 306. Naming the husband as contractor is not sufficient: Dearie v. Martin, supra; Ward v. Black, 7 Phila. 342.</p> <p>“ It is not necessary for us to go into the reasons for such requirements ; suffice it to say, that it is well settled law that a mechanic’s lien cannot stand and will not bind the separate real estate of a married woman unless it contains every one of the above averments.</p> <p>“The alleged mechanic’s lien of T. J. Wolfe contains none of them, hence it was fatally defective, and could have been stricken off on application, and would not be sufficient to sustain a scire facias, if a proper defence were made ; but counsel for petitioner argued that there are ‘facts in dispute,’ and hence, under the 28th section of the act of June 16, 1836, an issue must be granted; we read the 2d section of the act of April 20, 1846, with the above section of the act of June 16, 1836, and conclude that the facts in dispute must be ‘ material,’ and conclude that it is not ‘ material ’ whether or not the work and labor were done and the materials furnished at her (Mrs. Oxnard’s) request, and for the improvement of her estate, because it is not so alleged in the lien. This must not only be proven on the trial, but alleged in the lien, and it would certainly be a vain thing to encumber the trial list and involve the parties in costs and expense by granting an issue to try a disputed fact that could not possibly affect the decision as to the rights of the Wolfe lien to participate in the distribution ; even though all the facts alleged to be in dispute were decided in his favor, it would not permit him to participate, because his lien was fatally defective.</p> <p>“We are sustained in the view that we are not bound to grant an issue in a case like this by Souder’s Ap., 57 Pa. 498, where Justice Agnjew says: ‘Where the request does not come in proper form, or where it embraces questions of law instead of fact, or it is manifest that the matter to be tried cannot affect the decision, the demand may be refused.’ April 17, 1892, prayer for issue refused.”</p> <p>Error assigned was order refusing issue, without quoting it.</p>

Appeal, No. 24, Jan. T., 1893, by plaintiffs, Helen Huber et al., executors of Anna C. Huber, deceased, from order of C. P. No. 3, Philadelphia County, discharging rule for judgment for want of a sufficient affidavit of defence in an action against Geo. Baum et al. Assumpsit for rent. The facts appear by the opinion of the Supreme Court. The court discharged a rule for judgment for want of a sufficient affidavit of defence.

<p>Appeal, No. 57, Jan. T., 1893, by defendants, George Baum et al., from order of C. P. No. 4, Philadelphia County, making absolute a rule for judgment for want of a sufficient affidavit of defence. Argued with preceding case.</p>

<p>Mechanics’ lien.s — Release of liens — Defalcation—Practice.</p> <p>Where a building contract provides that the balance of the contract price shall be paid only on receipt of releases' from all parties furnishing labor and materials, it is no objection to a recovery by the contractors that a lien was filed against the building and reduced to judgment. In such a case one judgment may be set off against the other,, and the court will adjust the amount actually due the contractors when execution is issued upon their judgment.</p> <p>Written agreement — Parol evidence.</p> <p>In an action upon a building contract defendants claimed as an offset the liquidated damages per day provided by the contract for delay in executing the work. Plaintiffs averred that the inducement for signing the contract was a promise by defendants to put in a railroad siding to facilitate the work, and that defendants had failed to put in the siding for four or five weeks. Declarations of defendants and their architect to third parties as to the terms of the contract were admitted to corroborate the direct testimony of plaintiffs. Held, that the evidence was rightly admitted, and that the case was properly submitted to the jury.</p> <p>Letter written by plaintiff — Making evidence.</p> <p>A letter, written by plaintiff' to defendants shortly after the execution of the contract and before there was any appearance of delay in performance of the work, complaining of the failure of defendants to put in the siding, is admissible. As it was not post litem motam it cannot be excluded as an effort to make evidence.</p> <p>Building contract — Dispute—Architect’s findings.</p> <p>A building contract provided that the architect should decide all questions as to work omitted. A dispute arose as to the supply of some rosin. The architect’s finding on the question was an item in the credits as follows: “By amount retained until rosin filling is properly put under floors, or until ascertained by whose fault the rosin was not properly put under the same.” Held, that this was not a finding of the value of the rosin, but a liquidation of defendants’ damages, and the amount of the credit they were entitled to on this item of the contract, if the failure of proper performance was not their fault. The latter question was left open, and was rightly submitted to the jury.</p>

Appeal, No. 221, Oct. T., 1892, by Thomas H. Baird and Alexander & Co., judgment creditors of John A. Ford, from decree of O. P. Washington Co., Feb. T., 1886, No. 248, distributing a fund raised by sheriff’s sale of realty, on execution, Thomas H. Baird v. John A. Ford. Exceptions to auditor’s report distributing fund raised by sheriff’s sale.

<p>Appeal, No. 184, Oct. T., 1892, by A. J. Ford, a judgment creditor, from decree of C. P. Washington Co., Feb. T., 1886, No. 248, distributing a fund raised by sheriff’s sale of realty, on execution, Thos. H. Baird v. John A. Ford.</p> <p>Exceptions to auditor’s report, distributing fund raised by sheriff’s sale.</p> <p>From the report of the auditor, H. J. Yan Kirk, Esq., it appeared that, on Aug. 17, 1891, the real estate of John A. Ford was sold at sheriff’s sale. At the time of the sale there were several liens against the property, among them A. J. Ford’s judgment for $2,522.50 with interest from March 4, 1890 ; Alexander & Co.’s judgment for $185, with interest from Feb. 10, 1891, and Thomas H. Baird’s judgment for $1,641.84, with interest from April 6, 1891. Two pieces of real estate were sold at the sale, Thomas H. Baird, a judgment creditor, purchasing one piece, and A. J. Ford, a judgment creditor, pur chasing the other.</p> <p>From the evidence before the auditor it appeared that in 1887 John A. Ford held a judgment against Sarah E. Tidball amounting to $1,291.17. At John A. Ford’s request, A. J. Ford bought in the Tidball property at the sheriff’s sale, with the understanding that when the property was resold he was to reimburse himself, and pay over the surplus to John A. Ford. The property, however, was never resold. The lien of A. J. Ford’s judgment against John A. Ford having expired on Jan. 27,1887, it was amicably revived on March 4, 1890, and liquidated at $2,522.50, no credit being allowed for the amount of John A. Ford’s judgment against Sarah E. Tidball.</p> <p>The auditor decided that the amount of John A. Ford’s judgment against Sarah C. Tidball should be entered as a credit on A. J. Ford’s judgment as of date May 13, 1887, and allowed the balance with its interest from said date to be a preferred claim on said fund. Exception by appellant to this allowance was dismissed by the court, in an opinion by Mc-Ilvaine, P. J.</p> <p>Error assigned was, inter alia, dismissing exception, quoting it.</p>

<p>[Marked to be reported.]</p> <p>Contract — Clause referring dispute to chief engineer of one of the parties —Effect thereof on right to sue — Evidence.</p> <p>A contract for building a reservoir specified the manner of its construction minutely and provided that the chief engineer of one of the parties should decide all questions that might arise, and that his estimate and decision should be final. In an action for the balance of the contract price, it appeared that the engineer, after repeated requests, neglected to sign final estimate, but there was evidence to show the presence of the engineer while the work was progressing, and the acceptance of the plant as a whole by the officers of defendant. Held, that it was a question for the jury, upon the credibility and weight of the testimony, whether the chief engineer and the defendant had in fact accepted the work.</p> <p>Substantial pérformanee — Changes and repairs.</p> <p>It is not error to instruct the jury that if they find plaintiffs tried in good faith to construct and did in fact construct the work in conformity with the contract, they were entitled to a verdict; and that if they find there had been a substantial compliance, and the repairs and changes subsequently made were not due to defective work of plaintiffs, they were not chargeable with the cost thereof.</p>