Volume 153 — Pennsylvania State Reports

<p>Appeal, No. 435, Jan. T., 1892, by defendant, Henry King, from order of C. P. No. 3, Phila. Co., Dec. T., 1889, No. 452, refusing to open judgment in favor of Frederick Fisher.</p> <p>Rule to open judgment entered on single bill.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court discharged the rule. Defendant appealed.</p> <p>Error assigned was, inter alia, order of court as above.</p>

Appeal, No. 103, Oct. T., 1892, by plaintiff, from decree of C. P. Armstrong Co., March T., 1892, No. 290, refusing to continue preliminary injunction against defendant, Geo. Poterie. Bill to restrain interference with leasehold premises.

<p>Appeal, No. 137, Oct. T., 1892, by defendants, J. M. K. Reed and Francis Cunningham, from judgment of C. P. Washington Co., Nov. T., 1890, No. 387, on verdict for plaintiff, Sarah Jane Scott.</p> <p>Assumpsit for value of certain promissory notes.</p> <p>At the trial, before McIlvaine, P. J., it appeared that the notes in controversy had been included in the inventory of the estate of David Perrine, deceased, but plaintiff claimed that they had been given to her by decedent. The notes were eleven in number, and were as follows: Note of Alex. Smith, dated Sept. 26, 1881, for $140.55 ; note of J. F. Scott, dated Dec. 2, 1884, for $100; note of J. F. Scott, dated Dec. 15,1883, for $40, note of J. F. Scott, dated April 16, 1887, for $50 ; note of J. F. Scott, dated Feb. 29,1888, for $50; note of J. Reasoner and Geo. Amspoker, dated Sept. 22, 1886, for $ ; note of Wm. Colo, dated Feb. 5, 1883, for $400; note of J. P. and Nancy Lawther, dated Sept. 26, 1881, for $49.20; note of F. Cunningham, dated June 21,1884, for $2,088; note of F. Cunningham, dated June 14, 1887, for $1,023; note of Thomas Donovan, dated April 11, 1881, for $100.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ request for binding instructions was refused. [2]</p> <p>Verdict and.judgment for plaintiff. Defendants appealed.</p> <p>Error assigned was (2) above instruction, quoting it.</p>

<p>Broker — Pledge of stock — Conversion to bailee’s own use.</p> <p>After an owner of stock deposited with a broker to secure advancements has paid all advancements, the broker has no right to pledge the stock to another person for his own indebtedness in such a way as to irrevocably pass the title; and if he does so he converts it to his own use, and is liable to the owner for its value.</p> <p> Parol evidence to vary written contract. </p> <p>The uncorroborated testimony of one witness is insufficient to vary or contradict the terms of a written instrument.</p>

Appeal, No. 107, July T., 1892, by defendant, John Byrd, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1891, No. 100, on verdict for plaintiff, Joseph T. Akin. Ejectment for strip of land in Philadelphia. The facts appear by the opinion of the Supreme Court. Defendant’s request for binding instructions was refused. [1] Verdict and judgment for plaintiff. Defendant appealed. Error assigned, inter alia, was (1) instruction, quoting it.

Appeal, No. 125, Oct. T., 1892, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1891, No. 20T, on verdict for plaintiff, Robert Winter. Trespass for injuries to horses. At the trial, before White, J., it appeared that, on April 1, 1891, plaintiff was engaged in moving the effects of a Mr. Hershberger to a house on Jackson street in Allegheny city. He had moved everything but a safe during the day.

<p>Appeal, No. 151, Oct. T., 1892, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1891,.No. 190, on verdict for plaintiff, George Schnur.</p> <p>Trespass to recover damages for death of plaintiff’s son, a boy six years old.</p> <p>At the trial, before Stowe, P. J., there was evidence to the effect that, on the morning of the accident, the mother of the boy permitted him to go down stairs from their rooms in the third story to a water closet, and that the child wandered into the street, and some five minutes after he left his mother was run over by one of defendant’s cable cars. The father was not at home. The evidence relating to the alleged negligence of the gripman appears by the opinion of the Supreme Court.</p> <p>Defendant’s request for binding instructions was refused. [3]</p> <p>Verdict and judgment for plaintiff for $600. Defendant appealed.</p> <p>Error assigned, inter alia, was (3) instruction, quoting it.</p>

<p>Neglige,nee — Street railway — Bight of public to use tracks.</p> <p>The public have a right to use street railway tracks in common with the railway companies, and it is the duty of the company to exercise such watchful care as may prevent accidents or injury to persons who, without negligence on their own part, may not at the moment be able to get out of the way of a passing car.</p> <p>Contributory negligence — Leaving horse unattended on track.</p> <p>A person is guilty of contributory negligence who leaves a horse and wagon unguarded upon the track of an electric street railway in a narrow and unlighted alley on a dark night, and he cannot recover for injuries to the horse and wagon, although the railway company was also negligent in running the car at a rate of speed that did not permit its stoppage within the distance covered by its own headlight.</p>

<p>Appeals, Nos. 270 and 271, Oct. T., 1892, by S. H. Young and Geo. Estep, from orders of C. P. No. 1, Allegheny Co., March T., 1892, Nos. 670 and 671, discharging rule for writ of mandamus.</p> <p>Petition for writ of mandamus.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below entered a decree discharging the rule for writ of mandamus, in an opinion by Stowe, P. J., 1 Dist, R. 857.</p> <p>Error assigned was, inter alia, decree, quoting it.</p>

<p>Appeal, No. 261, Oct. T., 1892, by defendants, C. C. Graft, burgess, and P. A. Bonebrake et al., members of town council, from judgment of O. P. No. 1, Aliegheny Co., Dee. T., 1892, No. 33, on case stated in favor of plaintiff, W. C. O’Reilly.</p> <p>Case stated to determine election of councilman of borough.</p> <p>From the case stated it appeared that the borough of Crafton was incorporated on Jan. 5, 1892, and that the decree of incorporation provided that the burgess should serve as a member of borough council; that at the election held on Feb. 16,1892, the qualified electors of said borough voted for six members of borough council to serve for the following named terms, to wit: Two members thereof for three years, two members for two years, and two members for one year; that at said election P. A. Bonebrake and James Munnell received the highest number of votes cast for candidates to serve for the term of three years in said borough council; Michael Breen and H. W. Holmes to serve for the term of two years, and John Campbell and G. W. Richards to serve for the term of one year, and to these several parties certificates of election were issued by the judge and inspectors of said election, and they now claim to be the lawfully elected council of the said borough of Crafton; that W. C. O’Reilly, a qualified elector of said borough, received the third highest number of votes cast at said election for councilman to serve for the term of two years, and a certificate of election to said office was issued to him by said election board, but he is now prevented from taking his seat as a member of said borough council by the persons named above, who claim to be the lawfully elected members of said borough council.</p> <p>The court decided that there wras no authority to elect any person to serve as member of council for the term of three years, and entered judgment for plaintiff on the case stated.</p> <p>Error assigned was above decree, quoting it.</p>

Appeal, No. 123, July T., 1892, by defendant, William H. Rosenberry, burgess of the borough of Lansdale, from decree of C. P. Montgomery Co., March T., 1892, No. 2, awarding an injunction. Bill in equity to restrain defendant from acting as member of borough council. The facts appear by the opinion of the Supreme Court. The court below entered a decree granting an injunction in an opinion by Weand, J., 1 Dist. R. 436. ¡Error assigned was above decree, quoting it.

Appeals, Nos. 12 and 13, Oct. T., 1892, by defendant, J. W. Cook, from judgments of C. P. No. 1, Allegheny Co., June T., 1885, Nos. 148 and 353, on verdict for plaintiff, J. R. Houston. Assumpsit on promissory notes. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 114, Jan. T., 1893, by plaintiff, from judgment of C. P. Montgomery Co., June T., 1892, No. 126, for defendant on quo warranto.</p> <p>Quo warranto against corporation.</p> <p>The facts appear by the following opinion of the court below, by Weand, J.:</p> <p>“ This is a proceeding to determine the right of the defendant corporation to occupy certain public roads .in Montgomery county, and comes before us on petition and answer and argument thereon, it being agreed that the case should be treated as if the commonwealth had demurred to the answer. The facts which raise the issue are as follows: The Bloekley & Mer'.on Turnpike & Plank Road Co. was duly incorporated by an act of assembly approved April 5, 1853, P. L. 291, ‘ to construct a stone road commencing at or near the three mile stone on the Lancaster turnpike in the county of Philadelphia, and terminating at or between the junction of Whiteman’s lane in the old Lancaster road with the said turnpike in the county of Montgomery, by such route as they (the managers) shall consider best and most practicable, and shall have power to lay the track of the same on the bed of the old Lancaster road, or any other roads, or on the ground contiguous to said roads as the managers may deem most expedient-,’ etc. Said turnpike was constructed and toll-gates erected. On Dec. 19, 1887, the court of common pleas of Montgomery county, upon petition presented for that purpose, amended said charter by, first, extending its route westward from Wister’s corner (Whiteman’s lane) to Haverford station, a distance of about one mile, in Montgomery county, on the old Lancaster road, now Montgomery avenue; second, by making a branch route in Montgomery county, from a point in the present route of the turnpike of the company at Merionville, extending thence along the line of Montgomery avenue and Conshohocken state road, or by such other route, in whole or in part, as may be determined by the board of directors of the company, to a point in the City Line road, near Bala station, a distance of about one mile. In pursuance of said authority, the company turnpiked said portions of said Montgomery avenue and of said Conshohocken state road, and erected toll-gates thereon, thus making it a constituent and continuous part of their road as originally defined by their charter. In doing so the company expended large sums of money without objection from any one until Dec. 7, 1889, when- the petition of certain citizens was presented to this court, praying that the amendment thus granted might be annulled and revoked. This the court declined to do, and, upon appeal, the Supreme Court sustained our decision (see decision of Bloekley Turnpike Co., Wilson’s Ap., 140 Pa. 177), upon the ground that the appeal had not been taken in time. In their decision the court said: ‘ The power to amend charters of such companies is conferred by the act of June 4, 1879, when the court of common pleas shall be of the opinion that said alterations are lawful and beneficial. It thus appears that the court below had jurisdiction.’ The present defendants succeeded to the rights of Blockley & Merion Co., and have been duly incorporated by letters patent dated Dec. 15, 1890.</p> <p>“ In the present proceeding it is alleged that ‘ the occupation by said turnpike company of said portions of Montgomery avenue and said Conshohocken state road, and its exaction of tolls for the use of the same, are without warrant of law,’ because the court of common pleas of Montgomery county had no jurisdiction or authority to grant to said turnpike company a right to occupy said highways or to exact tolls for the use of the same. The same reasons were assigned in the former proceeding. At the time the amendment was allowed we were satisfied of the regularity of the proceedings, and must decline to reconsider that matter; and the only question now before us is one of jurisdiction, and this resolves itself into two propositions :</p> <p>“1. Was the act of 1879 repealed by the act of June 13, 1883, P. L. 122, § 1?</p> <p>“ 2. If not, did the power of amendment conferred by the act of 1879 give the courts the right to amend charters of turnpike companies so as to extend their route beyond the original termini, and to take possession of free public roads for that purpose?</p> <p>“ By reference to the paper books before the Supreme Court in Wilson’s Ap., supra, we find that the first proposition was distinctly made before the court, and we might therefore rely upon the opinion of the court that the power to amend still rested in the court, and that we had jurisdiction.</p> <p>“ By referring to the act of 1883, it will appear that it does not in terms apply to this corporation, because it was not incorporated under the act of 1874, to which the act of 1883 was a supplement, nor has it accepted the provisions of said act of 1874 and its supplements, in which cases only does the act of 1883 apply. There is no repealing clause in the act of 1883, and, as it specifies distinctly the class of corporations to which it applies, we cannot hold that it repeals the act of 1879 by implication.</p> <p>“ This brings us to the remaining and most important question as to our power to extend the limits of the original charter, and to authorize the occupation of public roads. Prior to the adoption of the constitution of 1874 the power to incorporate turnpike companies rested with the legislature, and there was then no authority to amend in the courts or by the executive, but only by act of assembly. The new constitution deprived the legislature of the power ‘ to pass any local or special law creating corporations, or amending, renewing or extending the charters thereof.’ In consequence of this provision the corporation act of 1874 was passed, but it nowhere provides for amendments to charters of those of the second class, and corporations for-profit embraced within that class, whether incorporated by act of assembly or by the governor under the act of 1874, were, therefore, without the benefit of any general law conferring this power. By the act of June 4, 1879, P. L. 91, the courts of common pleas were authorized to amend charters of such turn-; pike companies as should be desirous of improving, amending or altering ihe articles and conditions of the instrument upon which said corporations are formed and established. Notice is to be given that an application has been made for such alteration, amendment or improvement of the charter of said corporation. After said amendments were made they are to be deemed and taken to be a part of the instrument upon which said incorporation was formed and established, to all intents and purposes as if the same had been made part thereof. It is argued that the amendments contemplated by this act are only those which relate to the rules and regulations governing the company, and are not to be extended to the power to change the limits. If we deny the power of the court to enlarge the territory of a turnpike company incorporated by special acts of assembly, they will be powerless to extend their limits except by the formation of a new company under the act of 1874, and they would thus have a dual existence, the parts being governed by different laws. The legislature never intended such a condition of affairs. There was a time, if not now, when turnpike companies were considered of great public benefit, as stated by Paxson, C. J., in his dissenting opinion in Groff’s Ap., 144 Pa. 150, and it is unreasonable to suppose that the legislature never intended or contemplated an extension to their limits. It cannot be denied that this could have been done by an act of assembly prior to 1874, and when this power was taken away from the legislature by the constitution, it remained with them to accomplish the same purpose by general laws, and they had the undoubted right to transfer their powers to the courts, and we think the act of 1879 expressly confers this right. It is the charter which is to be amended; in other words, the grant as a whole, and not some certain articles or parts thereof. The title of the act is ‘to enlarge the jurisdiction of the court to amend the charters of turnpike companies,’ and the act requires notice to be given ‘ that the charter has been asked to be amended, altered or improved,’ and whichever term is used can be clearly construed to cover a change or alteration of the route or distance of the road, and in the application for amendment in this case this was expressly stated to be the desire of the company, and the roads were named which it was proposed to occupy. There is no taking of property for public use. By the original act of incorporation the managers were expressly authorized to occupy any road which they might deem expedient, and if they had then occupied the roads in question, if within the limits of their charter, the case would clearly not have been covered by Groff’s Ap., 128 Pa. 621, both because there was an express grant, and because the franchise of another corporation was not invaded. In the amendment allowed, the roads to be occupied were designated and defined, and we cannot see how the case just cited can in any way apply.”</p> <p>“ In our view of the law it is not necessary to consider the question whether the laches of the commonwealth is an estoppel. Certainly those living in the neighborhood who saw the company spending many thousand dollars on this work, and who remained silent until they had secured good roads, ought not now to be heard in this proceeding after having had their chance in court. But we must treat the case as a commonwealth proceeding,- and, having considered it as a legal question involving a construction of the act of 1879, and of the jurisdiction of the court, we are of the opinion that the relator has no right to the judgment asked for.</p> <p>“ And now, to wit, Oct. 3,1892, judgment is entered for defendants, with costs of suit.”</p> <p>Errors assigned were, action of court' (1) in not ousting appellee from occupation of highways, which are the subject of said amendments to the charter; (2) in not declaring the right and franchise of exacting toll for the use of said highways invalid ; (3) in not declaring appellee in unlawful possession of any highway not within the limits of the original charter, (4) in not declaring that it had no jurisdiction or authority to grant appellee a right to occupy said highways; (5) in not declaring amendment to charter invalid; (6) in not entering judgment for commonwealth; (7) in entering judgment for the defendants with costs.</p>

<p>Ships and shipping — Lien—Act, April 20, 1858.</p> <p>Under the act of April 20, 1858, P. L. 363, giving a lien on vessels navigating the rivers Allegheny, Monongahela and Ohio for work and materials furnished, and limiting the duration of the lien to two years, a person having an account for materials furnished and work done in building a boat, and a subsequent later account for work and materials furnished in repairing the boat, cannot unite these accounts so as to extend the lien of the construction account two years beyond the date of the last item of the repair account; nor can separate accounts for repairs made at different periods be so consolidated.</p> <p>Statute of frauds — Promise to pay debt of another.</p> <p>Where a parol promise is to pay a debt of another composed of separate and independent accounts, some of which are liens on defendant’s property, and some of which are not, the promise is valid and enforceable only as to the account which was a lien when the promise was made.</p> <p>Affidavit of defence — Promise to pay repairs to boat.</p> <p>In an action to enforce a promise to pay for repairs on a boat, an affidavit of defence is sufficient which avers that defendant bought the boat upon the assurance of the seller that there was no lien or claim against it; that his promise to pay for repairs was intended to embrace only such claim as was then a lien on the boat, and that the accounts in suit, while for repairs upon it, related to repairs made at different periods, from one to eight months apart, and were separate accounts which did not extend the lien of the account for the first repairs beyond two years from the date of the last item in it.</p>

Appeal, No. 16, Jan. T., 1893, by plaintiffs, Thomas Brown et al., trading as the Phoenix Plumbago Mining Co., from decree of C. P. No. 1, Phila. Co., Sept. T., 1889, No. 587, dismissing bill in equity against E. B. Seidel et al., trading as the Solar Plumbago Manufacturing Co. Bill to restrain alleged imitation of trade-mark.

<p>Appeal, No. 247, Oct. T., 1892, by defendants, David H. Pierce et al., devisees of John Pierce, Jr., deceased, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1891, No. 354, awarding an injunction.</p> <p>Bill to restrain coal mining.</p> <p>From the bill and answer it appeared that John Pierce died in 1852, leaving a will dated Feb. 1,1852, by which he devised a farm known as the home plantation to two of his sons who were the plaintiff’s predecessors in title. By another clause in his will he provided as follows:</p> <p>“ 2. To my second son, John Peairs, I give and bequeath the farm or plantation he now occupies, that is, the land bought from David Drenin and Nelson Z. G. Wedale, to be enjoyed by him, his heirs and assigns forever, with free privilege of taking what coal he wants for his own use or plantation off the home plantation.”</p> <p>At the date of the will there was an open mine on the home plantation, but there was none on the farm occupied by John. John subsequently died, having devised the land to defendants, who contended that they had a right to take coal from the home plantation.</p> <p>The case was heard on bill and answer, and after argument the court entered a decree enjoining defendants from asserting any right to take coal from the home plantation.</p> <p>Errors assigned were, (1) above decree, quoting it; (2) in not refusing and (3) in granting the injunction.</p>

<p>Appeal, Nos. 164 and 165, July T., 1892, by Jacob Mann, trustee, a creditor of defendants, and W. W. Coxe, from orders of C. P. No. 4, Phila. Co., March T., 1892, Nos. 910 and 911, refusing to strike off judgments and set aside executions in favor of Boyd, Harley & Co., and Dornan Bros., plaintiffs, against Thompson & Coxe, defendants.</p> <p>Rules to strike off judgments, etc.</p> <p>By depositions presented at the hearing of the rules the following facts appeared:</p> <p>James R. Thompson and W. W. Coxe, under the firm name of Thompson & Coxe, were dealers in carpets in the city of Philadelphia.</p> <p>On May 19, 1892, a sealed note, signed Thompson & Coxe, promising to pay $6,770.62 on demand to Boyd, Harley & Co., was delivered to the latter by James R. Thompson, who alone had executed and sealed the same. This note contained a warrant of attorney to enter judgment for the amount thereof, by virtue of which judgment was entored on the same day. Damages were assessed for the amount thereof, with an attorney fee of five per cent for collection, namely, for $7,108.72. On the same day writs of fi. fa. and attachments sur judgment were issued. These writs were levied upon partnership assets belonging to Thompson & Coxe.</p> <p>On the same day a similar sealed note, with similar warrant of attorney for $4,607.16, was executed and delivered by Thompson alone to Doman Bros. On the same day judgment was entered for the amount of said note, with an attorney fee of five per cent for collection added, viz., for $4,837.51. Upon this writs of fi. fa. and attachments sur judgment were issued, which were also levied upon partnership assets of Thompson & Coxe.</p> <p>May 23, 1892, rules were taken, one by W. W. Coxe and the other by Jacob Mann, trustee, an execution creditor, in each of the cases, to strike off the judgments, or to open the same as to W. W. Coxe and as to the firm of Thompson & Coxe, and to set aside executions issued thereunder.</p> <p>By the depositions it appeared that Thompson had executed these judgment notes without any prior, or subsequent, authority of Coxe, and without his knowledge or assent; and that the amounts for which they were confessed were owing but “ not actually due.”</p> <p>Judgments were entered in the court below, not against James R. Thompson and W. W. Coxe, trading as Thompson & Coxe, but against “ Thompson and Coxe.”</p> <p>The judgment notes were in the following form:</p> <p>“16,770.62. Philadelphia, Pa., May 19th, 1892.</p> <p>“ On demand we promise to pay to Robert H. Boyd, Mil ton Harley and George C. Boyd, trading as Boyd, Harley & Co., or their assigns, six thousand audseven hundred and seventy and sixty-two one hundredths dollars, without defalcation, value received, with interest. And further, we do hereby authorize and empower any attorney of any court of record of Pennsylvania, or elsewhere, to appear for and to enter judgment against us for the above sum, with or without declaration, with costs of suit, release of errors, without stay of execution, and with five per cent added for collecting fees; and we do hereby agree and direct that said fees shall be taxed and regarded as liquidated damages, and not as a penalty; and we also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same, and authorize the Prothonotary to enter upon the fi. fa. said voluntary condemnation, and we further agree that said estate may be sold on a fi. fa., and we hereby waive and release all relief from any and all appraisement, stay or exemption laws of any state now in force or hereafter to be passed.</p> <p>“ Thompson and Coxe. [l. s.]</p> <p>“ Witness:</p> <p>“ Allen H. Gangewee.”</p> <p>The court refused to open the judgment as to Thompson & Coxe, and also refused to set aside the executions. Mann and Coxe appealed.</p> <p>Errors assigned were, (1) refusal to strike off judgment against Thompson & Coxe; (2) refusal to set aside execution against firm assets.</p>

<p>Partnership — Dissolution—Powers of liquidating partner.</p> <p>Where a partnership is dissolved by death, and one of the survivors assumes the duty of liquidating partner with the knowledge of his late co-partners who make no objection, the latter will be bound by his acts.</p> <p>Banks and hanking — Liquidating partner — Statute of limitations.</p> <p>A partnership was engaged in the banking business under articles of association containing provisions looking to a-continuance of the business by the survivors in case of the death of any member. One member died and some of the survivors continued the business without objection by the others. Plaintiff, a depositor, allowed his deposit to remain in the ‘bank after the death of the member, and received interest regularly thereon. Held, that the payment of interest by the partners who continued the business prevented the running of the statute of limitations as to the others, if the partnership was dissolved by the death of a member; but whether so dissolved not decided.</p> <p>Special statute of limitations of March 28, 1887 — Partnership—Corporations.</p> <p>The act of March 28, 1867, providing that suits at law or in equity shall not be maintained against stockholders or directors in any corporation or association to charge them with liabilities of the corporation, or with any neglect of duty, except within six years after the liability has accrued or the neglect occurred, does not apply to au ordinary partnership, although the articles of association of such partnership provide for a board of directors, and designate the members as stockholders.</p> <p>The plain import of the language of this statute is that the associations whose stockholders are protected are such as can be sued without the joinder of their members, and the subjects of the suits barred are claims for which the associations are primarily, and the stockholders secondarily, liable: Per ITiíymíick, J.</p> <p>Principal and surety — Withdrawal of partner from firm — Assumption of debts by remaining partners.</p> <p>Where a partner withdraws from the firm, and the remaining partners assume its debts, the retiring partner becomes a surety to the firm creditors for the debts contracted before his withdrawal.</p> <p>Discharge of surety — Forbearance to sue — Extension of time.</p> <p>In such a case mere forbearance to sue will not discharge the surety ; nor will he be discharged by an agreement for an extension of time, unless such an agreement be upon sufficient consideration, and the time of payment definitely fixed.</p> <p>In au action by a depositor against a partnership engaged in the banking business, one of the defendants averred in his affidavit of defence that he withdrew from the firm in 1887, whereupon the remaining partners assumed the debts and continued the business thereof, and that plaintiff with full knowledge of the facts continued his deposit with them and received from them interest thereon at the same rate which had been previously agreed upon. Held, (1) that the affidavit disclosed facts which constituted defendant a surety for the payment of the deposit; and (2) that the continuance of the deposit was a mere forbearance which did not discharge him from liability.</p> <p>Practice — Entry of judgments against several defendants — Act of Aug. 2, 1842 — Liquidation—Amendment.</p> <p>Under the act of August 2, 1842, P. L. 459, authorizing the entry of judgment at different times against several defendants in the same action, judgment may be entered against some of the defendants for want of a sufficient affidavit of defence, while a rule for judgment is discharged as to others, but the liquidation of the judgments must be postponed until the final disposition of the case.</p> <p>In such a case if the liquidation of the judgment has been made by the prothonotary, the lower court will strike it off, or the Supreme Court will treat it as amended.</p>

<p>Practice, G. P. — Entry of judgments — Joint debts.</p> <p>In an action against several persons on a joint debt, judgment cannot be entered against certain of the defendants for want of a sufficient affidavit of defence, unless judgment is also entered against those of the defendants who have made no defence whatever.</p>

<p>Practice, O. P. — Entry of judgment against joint debtors.</p> <p>At common law a creditor was required to pursue all of his joint debtors pari passu so far as he could, and any severance by Ms own act, or connivance either before suit, or in the writ or proceedings at any stage of the case, was fatal; and this rule of the common law has not been changed by the act of August 2, 1842, P. L. 459.</p> <p>A judgment cannot be entered against one of several defendants for want of a sufficient affidavit of defence, where the plaintiff has taken no judgment against other defendants who have made no defence whatever.</p>

<p>Negligence — Street railways — Injury to passenger while alighting.</p> <p>In an action to recover damages for personal injuries against a street railway company, it is proper to submit the ease to the jury where the plaintiff testifies that while riding on the back platform of a cable oar he told the conductor to stop and leave him off at a certain street; that the conductor rang the bell and the car slowed up; that plaintiff stepped down on the lower step, holding his dinner bucket in his right hand, and taking hold of the car handle with his left; that the car did not stop, and just as plaintiff was about to step to the ground the car started ahead at full speed; that plaintiff held on a little bit, and then swung around and fell up alongside of the car, and dislocated his shoulder.</p>

<p>Eminent domain — Measure of damages in second condemnation proceedings — Benefits of defendant's structure — Bes judicata.</p> <p>Where, land has been condemned for the purposes of a bridge, and the damages paid to the owner, and subsequently, owing to change in plans, additional land of the same owner is condemned, the benefits, resulting to the owner’s property from the original construction of the bridge, cannot be considered in the adjustment of the damages in the second condemnation proceedings. In such case the special benefits from the construction of the bridge were settled in the original proceedings; as to them the former proceedings were res judicata; and in the second proceedings the inquiry must be limited to the damages sustained and the benefits conferred by the change in the plans, and the appropriation made necessary by such change.</p> <p>Practice, Supreme Courts — Error—Failure to print testimony.</p> <p>Where appellant has failed to print a witness’s testimony in chief, the Supreme Court will not consider an assignment of error based upon objections to questions complained of on the witness’s cross-examination.</p> <p>Evidence as to value of land — Competency of witness.</p> <p>In condemnation proceedings a witness who has known the property ten or fifteen years, and knew of sales of like property in the neighborhood, is competent to testify to the market value of the property condemned.</p>

<p>Appeal, No. 53, Oct. T., 1892, by defendants, Charles Jutte et al., from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1891, No. 332, on verdict for plaintiff, Theresa Sekerak.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Binding instructions for defendant were refused. [6]</p> <p>Error assigned was, inter alia, (6) instruction, quoting it.</p>

<p>Appeal, No. 161, Oct. T., 1892, by defendants, John G. Grogan et al., from judgment of C. P. No. 2, Allegheny Go., Oct. T., 1891, No. 209, for plaintiffs, Evans, Cunningham & Jones, on case stated.</p> <p>Scire facias sur mechanics’ lien. Case stated. Prom the case stated it appeared that plaintiffs furnished to Matthias Wagner, the contractor, materials used in the construction of three dwelling-houses belonging to defendant. The material portions of the contract between Wagner and defendant appear by the opinion of the Supreme Court.</p> <p>The court, in an opinion by Magee, J., entered judgment for plaintiffs on the case stated. Defendant appealed.</p> <p>No assignments of error appear in appellant’s paper book.</p>

Appeal, No. 272, Jan. T., .1893, by plaintiff, William Nice, Jr., from judgment of C. P. Montgomery Co., June T., 1891, No. 13, M. L. D., on verdict for defendants, Alpheus M. Walker et al. Scire facias sur mechanics’ lien. The facts appear by the opinion of the Supreme Court. At the trial, before Weand, J., the court gave binding instructions for defendant. [1] Verdict and judgment for defendant. Plaintiff appealed. Error assigned was, (1) instruction, as above, quoting it.

Appeal, No. 142, Oct. T., 1892, by defendants, Mary E. Ellis et al., from judgment of C. P., No. 2, Allegheny Oo., Oct. T., 1890, No. 500, on verdict for plaintiffs, H. Murphy et al. Scire facias sur mechanics’ lien.

Appeal, No. 71, Jan. T., 1893, by plaintiff:, E. Theresa Riegel, administratrix of the estate of Jacob Riegel, deceased, from decree of C. P. No. 4, Philadelphia Co., Sept. T., 1889, No. 350, dismissing plaintiff’s bill. Bill in equity to compel the reinstatement of policy of life insurance. The case was before the Supreme Court on demurrer to bill, and the decision overruling the demurrer, and directing defendant to plead or answer, is reported in 140 Pa. 193.

<p>Appeal, No. 88, Oct. T., 1892, by defendant, Henry D. Squires, from judgment of C. P, No. 2, Allegheny Co., Jan. T., 1891, No. 138, on verdict for plaintiff, John Shaw.</p> <p>Appeal from judgment of justice of peace.</p> <p>The facts as they appeared before Magee, J., are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the action of the court (1) in entering judgment for an amount greater than the judgment, with interest from the institution of the suit obtained before the aider-man ; (2) the alderman had no jurisdiction for the amount demanded in the statement of claim filed in court on appeal, hence the court erred in entering judgment for plaintiff for an amount not including interest from the institution of the suit greater than was within the alderman’s jurisdiction.</p>

<p>Appeal, No. 58, July T., 1892, by plaintiff, George K. Reed, from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1890, No. 555, on verdict for defendant, A. J. Cassatt.</p> <p>Assumpsit to recover semiannual interest accrued on sealed note before maturity.</p> <p>The note sued upon was as follows :</p> <p>“ I promise to pay George K. Reed, of the city of Lancaster, state of Pennsylvania, the sum of seven thousand dollars, with interest, on the twenty-fourth day of July, A. D. 1877, subject to agreements dated July 24th and August 8th, 1872, interest payable semi-anmially.”</p> <p>“ Witnesses: '</p> <p>“ The words ‘ subject to agreements dated July I 24th and August 8,1872,’ being first interlined.</p> <p>“ C. E. Morgan, Jr.”</p> <p>“A. J. Cassatt, [seal]</p> <p>“ Philadelphia, August 8, 1872.”</p> <p>The first semiannual interest was paid and indorsed on the note.</p> <p>The agreement of July 24th, after reciting the proposed formation of the Lancaster Manufacturing Co., by defendant and others, and the purchase from plaintiff of the Norris Locomotive Works, provided that in payment of the Norris Locomotive Works, the corporation therein referred to should “give Reed its bond for $20,000, .... and shall assign and transfer unto the said Reed twenty-one hundred shares of its capital stock, .... and that immediately upon the transfer .... he will transfer and assign unto each of the [individuals] four hundred and twenty shares of said capital stock, he Reed thereupon receiving from each of said parties his individual note, under seal and not negotiable, for $14,000, payable with interest, one half within three and the other half in five years from the date hereof, the same to be secured by capital stock of said corporation to the amount of $21,000, i. e., four hundred and twenty shares of the same; said stock to be held by said Reed in the name of the owner thereof with a blank power of attorney, and not to be transferred unless the note secured thereby should remain unpaid after the same shall become due and payable, and it is expressly provided that in case the said note or any of them should not be paid at maturity, the said George K. Reed shall look to said security alone for payment of the same, and he expressly waives all right to proceed at law or otherwise against any other property.”</p> <p>The court charged as follows, by Gordon, J.:</p> <p>“ This case, as yoxx have seen, is covered by documentary evidence, and it is a rule of law that all such evidence is for the eoixrt to construe. The notes given by the defendant were given after an agreement had been executed by all of the parties, providing that if any default was xnade in the payment of these xxotes the payee should only have recourse or satisfaction to the stock which was assigned as collateral security; that in no event would lie have recourse to the defendant personally, or out of any other property or thing; that being so, it controls the whole subject-matter of the notes, and hence I instruct you that you should find a verdict for the defendant.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above charge, quoting it.</p>

<p>Forgery — Evidence of other forgeries of same manufacture.</p> <p>On the trial of an issue to determine whether certain papers are forged or not, evidence of the forging of other papers of the same kind with those in question is admissible to demonstrate the means and the individual by which the forgery in the case trying was effected.</p> <p>In an action by a stockholder against a corpoi’ation to recover damages for the wrongful transfer of plaintiff’s shares upon a power of attorney which is alleged to have been forged, evidence is admissible to show that the desk of the alleged forger contained a genuine signature of the stockholder torn from his ledger, and that in the same desk were other completed and partly completed signatures, imitating the genuine signature; and such signatures are admissible.</p> <p>Measure of damages — Transfer of forged stock.</p> <p>Where stock is wrongfully transferred under a forged power of attorney, it seems that the measure of damages in an action against the company is the market price of the stock at the time of the transfer.</p> <p>Actions — Parties—Tortious conversion — Efew trustee.</p> <p>An action for an alleged tortious conversion of property while under the dominion of the executors and trustees is rightly brought in the name of the administrator and trustee d. b. n. c. t. a. after the removal of the original trustee.</p>

<p>[Marked to be reported.]</p> <p>Wills — Vested estates — Time of distribution.</p> <p>Testator by his will directed his executors to invest the residuo of his estate, the income to be paid to his wife, until his youngest child should, arrive at the age of twenty-one years. Testator further directed as follows: “When the youngest child.arrives at the full age of twenty-one years then I direct all my said real estate and investments to be converted into money by my executors and divided as follows: I give and bequeath to my wife out of said moneys the sum of fifteen thousand dollars, and all the rest, residue and remainder I direct to be divided among my said children, share and share alike, subject to the deduction which I have before directed to be made, should any of my said children die before the youngest child arrives at the age of twenty-one years leaving children, then the said share shall be divided among said children, share and share alike, or if he or she shall die without leaving children then his or her share shall be divided among the remaining children, share and share alike.” One of testator’s daughters married and died, leaving surviving her husband and one child who also died before the youngest of testator’s children came of age. Held, that the gift being to testator’s children as a class, the gift was contingent upon a child living to the period of distribution, or leaving a child who should live until such period: McClure’s Ap., 72 Pa. 414, distinguished.</p> <p>In this ease the child of testator’s daughter having died before the period of distribution, the husband took nothing as the heir or next of kin of his child.</p>

<p>Will — Gift of income — Restriction on alienation.</p> <p>A testator who has made an absolute gift of income to his widow for life cannot, by a subsequent clause in his will, restrain her from disposing by will of such portions of the income as she may not have used for her support and maintenance.</p> <p>Testator gave to his wife, “ for her sole and separate use during her natural life, all the rents, issues, profits, interest, income and dividends of all the rest, residue, and remainder ” of his estate, both real and personal. By a subsequent clause in his will he directed as follows: “In order to prevent misunderstanding in the construction of the bequest to my wife, it is not my intention to empower her to dispose of any part or portion of the interest and income of my estate bequeathed to her during her lifetime by any last will and testament she may make and execute, but that the same shall remain her support and maintenance. Any portion of the said income not so used to be considered part of my residuary estate.” It further appeared that the predominant intention was to give his wife an absolute estate in the income. The wife survived the testator, and at her death there was a large amount of accumulated income which she disposed of by her will. Held, that the wife had an absolute estate in the income, which she could dispose of by will: Jauretche v. Proctor, 48 Pa. 466, applied.</p>

Appeal, No. 26, July. T., 1892, by defendants, Charles M. Lukens et al., from judgment of C. P. No. 1, Phila. Co., Sept. T., 1889, No. 157, on verdict for plaintiff, Albert Herbert. Assumpsit for alleged neglect to transfer policy of insurance. The facts appear by the opinion of the Supreme Court.

<p>Implied covenants in deed — Payment.</p> <p>The covenant against incumbrances implied in the words “ grant, bargain and sell,” will not be enforced to compel the payment of a mortgage existing on the land but not mentioned in the deed, where, under an agreement between the parties, other land is subsequently conveyed to the grantee, as payment of the mortgage.</p> <p>Peed- — Implied covenant against incumbrances — Payment.</p> <p>Three sisters owned as tenants in common two mill properties known as mill A. and mill B. On mill A. was a mortgage for $37,250. The mills were idle and unproductive, and the three sisters with other parties formed a corporation, to which mill A. was conveyed for the consideration of $70,000 in the paid-up capital stock of the corporation at par. No reference was made to the mortgage in the deed, because it was agreed that mill B. should also be conveyed to the corporation to be used for the payment of the mortgage, and to help to secure a working capital. Subsequently mill B. was conveyed to the company for a nominal consideration of $20,000, no part of which was paid or secured in any manner to the grantors. The company failed to sell mill B, and the mortgage remained unpaid, and the corporation was without working capital. A failure resulted, and the corporate property was sold for the benefit of creditors. A bill in equity was subsequently filed by a creditor of the company against the three sisters to compel the payment of the mortgage on mill A. Held, that the conveyance of mill B. to the corporation effected a payment of the mortgage, and that under the circumstances the covenant against incumbrances, implied from the words “ grant, bargain and sell,” could not be enforced.</p> <p>Equity — Creditors' bill — Intervention of parties — Participation in fund— Costs.</p> <p>On a creditor’s bill to enforce payment of unpaid subscriptions to the stock of a corporation, where other creditors subsequently intervene, the court may compel the intervening creditors to contribute to expenses already incurred in raising the fund on which they seek to come, but will not exclude them from all participation in the fund until the original complainants in the bill have been paid in full.</p>

<p>[Marked to be reported.]</p> <p>Mechanic's lien — Married women — Record.</p> <p>Since the Married Persons Property Act of June 3, 1887, it is not necessary to aver in a mechanic’s lien filed against the property of a married woman that the owner is a married woman, and that the improvement is necessary for the preservation and enjoyment of her separate estate.</p> <p>It matters not, since the passage of the act of 1887, whether the erection of the building is necessary for the preservation and enjoyment of her separate estate. The act in question has made her the judge of its necessity. If we concede that it is not necessary, but on the contrary a foolish expenditure of money, it must be remembered that the act of assembly now permits her to do foolish things. It has emancipated her from the shackles of the common law, so far as her separate property is concerned, and permits her to stand alone, and exercise her own judgment: Per Paxson, C. J.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Railroads—Passengers —Alighting from train.</p> <p>A common carrier is not bound to protect its passengers from rudeness or bad manners on tlie part of strangers or other passengers, unless such conduct amounts to a breach of the peace.</p> <p>A woman is not entitled to recover damages from a railroad company for personal injuries where it appears from her own testimony that, when she was about to descend from the lower step of a car to the ground, she was jostled off by another passenger rudely pushing by her to enter the car.</p>

<p>Appeal, No. 18, Oct. T., 1892, by plaintiff, John Horberg, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1891, No. 16, on verdict for defendant, James May et al.</p> <p>Replevin.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Binding instructions were given for defendant by White, J.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

<p>Appeal, No. 233, Oot. T., 1892, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1891, No. 290, on verdict for plaintiff, John B. Greeley.</p> <p>Trespass for killing horse.</p> <p>The facts as they appeared at the trial before Me Clung, J., are stated in the opinion of the Supreme Court.</p> <p>Binding instruction for defendant was refused. [2]</p> <p>Verdict and judgment for plaintiff for $150. Defendant ap- . pealed.</p> <p>jError assigned was (2) above instruction, quoting it.</p>

<p>Appeal, No. 276, Jan. T., 1893, by Home for Aged and Infirm Colored People et al., from decree of O. C. Chester Co., dismissing appeal from register of wills.</p> <p>Appeal from refusal of register to probate will.</p> <p>In addition to the facts stated in the opinion of the Supreme Court, it appeared from the record that there were the following differences between the two wills :</p> <p>1st Will: Husband permitted to live at 811 Lombard street, Philadelphia.</p> <p>2d Will: Husband and Mary Jane Sipple permitted to live at 121 East Market street, West Chester.</p> <p>1st Will: Rachel Reasner, Edward Reasner, Mary Sipple, Theresa Trainer and Robert Clayton, each left $100.</p> <p>2d Will: Same bequests except Mary Sipple is omitted.</p> <p>1st Will: After death of husband, executors to pay Mrs. Sarah Frost, during life, the net income from 924 Lombard street.</p> <p>2d Will: Sarah Frost not mentioned.</p> <p>2d Will: Executors, after death of husband and Mary Jane Sipple, directed to annually hand over to the Second Presbyterian Church of West Chester, all the net income from Np. 121 East Market street, West Chester.</p> <p>1st Will: Such church omitted.</p> <p>1st Will: Residue divided into four equal parts, after $200 are paid annually for the diffusion of the gospel, etc.; each of certain charities to take one part.</p> <p>2d Will: Residue divided into four equal parts, after the payment of $200 annually as above, and after the payment of the net income of 121 East Market street to the Second Presbyterian Church as aforesaid; each of four charities to take one part.</p> <p>The four charities are the same in both wills, and are as follows, viz.: “ Home for Aged and Infirm Colored People,” Philadelphia; “The Lincoln University,” “ The Wilberforce University,” “ Biddle University.”</p> <p>1st Will: Executors, Rev. John B. Reeve and Thomas H. Boling.</p> <p>2d Will: Executors, Geo. A. Cook and Wm. H. West.</p> <p>The court, in an opinion by Waddell, P. J., dismissed the appeal.</p> <p>Errors assigned were (1) dismissing appeal; (2) deciding that later will revoked earlier will; (8) in not directing register to probate earlier will.</p>

<p>[Marked to he reported.]</p> <p>Landlord and tenant — Trade fixtures.</p> <p>A tenant for years may remove trade fixtures during his term, if, at the time he placed them upon the property, he intended to remove them before the expiration of his term.</p> <p>A tenant of a farm for a term of years tore down an old kitchen or shed, and erected in its place a large and substantial kitchen at an expense of several hundred dollars. It was partly stone and partly frame, and securely fastened to the main building. He also erected on the premises at his own expense a house in which to cure tobacco at a cost of about twelve hundred dollars. It was a frame building, sixty-two by twenty-four feet, resting upon stone walls. At the time the improvements were made the tenant expected that he would be permitted to purchase the property, and if he was not able to buy it he expected to stay there while he lived. The death of his landlord prevented his expectations being realized. Held, that he was not entitled to remove the buildings.</p> <p> Provision in lease relating to improvements. </p> <p>• A lessee covenanted that at the expiration of his term “ he will vacate said premises without further notice, leaving the same in as good condition as the same now is or may be made by improvements, natural wear and decay, and casualties by the elements excepted.” Held, that the lessee was bound at the expiration of his term to leave upon the premises whatever improvements he had made during his tenancy, and that it made no difference that he had insured his improvements in his own name with the knowledge and approval of his landlord.</p> <p> liights of agricultural tenants to remove fixtures. </p> <p>Hot decided whether agricultural tenants for years come within the rule relating to trade fixtures. McCullough v. Irvine, 13 Pa. 138, explained and distinguished.</p>

<p>[Marked to be reported.]</p> <p>Road law — Jurisdiction—Mandamus to supervisors to open roads.</p> <p>The court of common picas has no jurisdiction to enforce by mandamus an order of the court of quarter sessions directed to the supervisors of the township to opon a public road. The court of quarter sessions has ample power to enforce its own order.</p>

<p>Street railways — Carriers—Ejection of passengers.</p> <p>A street railway company is liable in damages for the ejection of a passenger for nonpayment of fare where it appears that the passenger had dropped his fare in the box in obedience to the posted rule of the company, and had no knowledge of private directions given to the drivers to go through the cars when crowded and collect the fares.</p> <p>Measure of damages — Injury to feelings.</p> <p>In such a case the passenger is entitled to recover for the injury to his feelings and the humiliation inflicted upon him by the trespass.</p>

<p>[Marked to be reported.]</p> <p>Landlord and tenant — Necessary repairs — Auditor's finding.</p> <p>A landlord authorized his tenant to make all necessary improvements. Under this authority the tenant put in a steam heater, and gave notes to plaintiff in payment therefor. Judgment was subsequently obtained on the notes, and the tenant’s personal property was sold by the sheriff. The landlord claimed the heater as a part of the real estate. Before the auditor appointed to distribute the fund, the tenant testified that the heater was not actually necessary at the time it was put in, but that it would have been later on. The auditor found that the heater was necessary and authorized by the landlord. Held, that the evidence was sufficient to sustain the finding and that the price of the heater was properly awarded to the plaintiff in the execution, in preference to tire landlord’s claim for rent.</p> <p>Auditor — Insufficient findings of fact.</p> <p>Where a fund raised by a sheriff’s sale is claimed by a landlord who has authorized a tenant to make improvements, and the fund is also claimed by persons who made improvements under an agreement with the tenant who was the defendant in the execution, the auditor should find the amount of rent due the landlord, and should also find whether the costs of the improvements were proper credits on account of the rent. In the absence of such findings the Supreme Court will refer the ease back to the auditor for a proper finding of facts.</p>

Appeal, No. 144, Oct. T., 1892, by plaintiffs, Susannah Hindman et al., from judgment of O. P. Armstrong Co., June T., 1891, No. 231, on verdict for defendants, Hiram Van Dyke and John Van Dyke. Issue devisavit vel non.

Appeal, No. 104, July T., 1892, by plaintiffs, H. L. Gaw & Co., from judgment of C. P. No. 3, Phila. Co., March T., 1888, No. 240, on verdict for defendant, Charles H. Bennett, administrator of Henry K. Bennett, deceased. Assumpsit on promissory note.

Appeal, No. 99, July T., 1892, by plaintiff, B. F. Bard, from judgment of C. P. Chester Co., Aug. T., 1891, No. 40, on verdict for defendant. Assumpsit on policy of fire insurance. At the trial, before Hemphill, J., it appeared that, on April 8, 1885, defendant took out a policy of fire insurance in defendant company for $2,500. On April 2, 1886, he had the same property insured in another company for an additional sum of $1,000.

<p>[Marked to be reported.]</p> <p>Sequestration of life estate — Priority of liens — Pailure to revive judgment — Act of October 13, 1840.</p> <p>Under the act of Oct. 13, 1840, P. L. 3, relating to the sequestration of life estates, and the payment of liens upon such estates according to their priority, the fund in the hands of the sequestrator is payable to the judgment creditors in the order of their priority at the time the fund is brought into court for distribution, and not at the time the sequestrator was appointed. A judgment which is not regularly revived during the term of the sequestration loses the priority of its lien, and will be postponed to later judgments whose liens have been continuously maintained by revival.</p> <p>A sequestrator was appointed in October, 1880, to sequester the rents of a life estate. No order of sale was granted, and the sequestrator leased the real estate, and applied the rents to the payment of liens and expenses. The sequestrator’s fourth account was filed in 1890, and distribution was made of rents which accrued before that time. The fifth account was filed in March, 1892. The fund was claimed for two judgments. The first or older judgment had not, and the lator judgments had,been continuously revived by writs of sci. fa. Held, that the older judgment had lost its priority of lien and that the fund should be paid to the junior judgment.</p>

<p>Appeal, No. 106, July T., 1892, by defendant, Mortimer H. Bickley, from judgment of C. P. No. 1, Philadelphia Co., June T., 1891, No. 988, on verdict for plaintiff, Mary Seddon.</p> <p>Trespass for personal injuries.</p> <p>The facts, as they appeared at the trial before Biddle, Jm are stated in the opinion of the Supreme Court.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 3. The plaintiff can only legally recover in this case by producing something more than a scintilla of evidence that her alleged injury was in consequence of some of the furniture, paraphernalia or appurtenances of the boat being out of order or out of place ; and having failed to produce any such evidence, the verdict should be for the defendant.” Refused. [1]</p> <p>4. Request for binding instructions. Refused. [2]</p> <p>Verdict and judgment for plaintiff for $300. Defendant appealed.</p> <p>Errors assigned were (1, 2) answers to points, quoting points and answers as above.</p>

Appeal, No. 116, Oct. T., 1892, by G. F. Myer et al., property owners, from order of O. P. No. 2, Allegheny Co., Oct. T., 1891, No. 125, confirming report of viewers to open street. Petition for the appointment of viewers to open street. To the report of the viewers G. F. Meyer et al., property owners, filed, inter alia, the following exceptions: “ 1.

<p>Contributory negligence — Pedestrians in streets.</p> <p>While the rule of “stop, look and listen” has not been applied to pedestrians as to travel on streets, yet, where a pedestrian is about to step into a cartway, he must remember that horses and vehicles have a right of way there, to which he must give due attention, or he will be barred of complaint as to the consequences.</p> <p>In an action to recover damages for personal injuries caused by collision with a wagon, it appeared from plaintiff’s testimony that the wagon was coming along the street very rapidly, and that plaintiff was struck by the wheel almost at the instant he put his foot on the cartway. One witness testified that he saw plaintiff “ leaving the curb, and almost instantly he was struck by the ice wagon.” Another witness testified that he saw plaintiff “ about putting his foot on the crossing, and just as he got his foot over, and he had hardly got his other foot over, the wagon struck him with the front wheel.” This testimony was not contradicted. Held, that plaintiff was guilty of contributory negligence, and that the case should be taken from the jury.</p> <p>Mr. Justice Sterrett dissented.</p>

<p>Appeal, No. 360, Jan. T., 1892, by defendant, Charles L. Loney, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1890, No. 519, on verdict for plaintiff, James McNutt.</p> <p>Assumpsit for work on houses.</p> <p>At the trial, before Pennypacker, J., defendant offered to prove that he was the builder of the houses for Mr. Henry. That among other mechanics he directed plaintiff to do the stair building; in fact employed him. That Mr. Henry ran short of money. He, Henry, practically paid all the money that was paid out, and plaintiff agreed if an outstanding note of $425, which was under protest, was paid, that he would sign the composition paper or release with the other creditors as to defendant and accept of a mortgage of $15,000 in trust as security with the other creditors. That the said note was so paid and the mortgage also made and executed in trust for tiie creditors, but that plaintiff, notwithstanding this, neglected and did not sign the composition paper, although previously requested so to do, saying that he thought he had signed it. Objected to, objection sustained and exception. [1]</p> <p>Defendant also offered to prove that plaintiff himself, when spoken to in reference to the noncompletion of his promise to sign the paper, stated that he thought he had signed it, and it was his intention to sign it and he was surprised to find that he had not. Objected to, objection sustained and exception. [2]</p> <p>Verdict and judgment for plaintiff for $464.08. Defendant appealed.</p> <p>JSrrors assigned were (1, 2) rulings on evidence, quoting offers but not bills of exception.</p>

Appeal, No. 177, Oct. T., 1892, by Commercial Bank of Titusville et al., from decree of C. P. Venango Co., Nov. T., 1887, No. 4, dismissing exceptions to account of R. G. Lamberton, receiver. Audit of receiver’s account. Exceptions to tbe account, by appellants, as creditors, objected to the receiver’s compensation and counsel fees and claimed a surcharge for interest.

<p>Mechanic's lien — Apportionment—Separation by public street.</p> <p>A mechanic’s lien cannot be apportioned among an entire block of houses belonging to the same owners, but separated from each other by public streets.</p>

Appeal, No. 38, July T., 1892, by defendant, Richard J. Dobbins, from decree of C. P. No. 3, Phila. Co., Sept. T., 1891, No. 758, on bill in equity. Bill to compel removal of cornice from building. The facts appear by the opinion of the Supreme Court. In 1881 the house and cornice again became vested in appellant.

<p>Negligence — Infants—Street railways.</p> <p>In an action against a street railway company for personal injuries to a boy eight years old, the case is properly submitted to a jury where there is evidence that the boy was upon the front platform of a car, and while there a dispute arose between him and the conductor about a transfer ticket, that the conductor approached the boy in such a manner as to frighten him, and that he jumped off the ear by reason thereof, and was injured.</p>

<p>Railroads — Common carriers — Bill of lading — Deviation from contract— Notice of claim — Public policy — Fraud.</p> <p>If a railroad company deviates from a contract to transport live stock by shipping it by freight service instead of passenger service as agreed upon, and the stock is injured by the delay and rougher service, the company cannot avail itself of the stipulations in the contract relieving it from liability as insurer at common law; but such deviation does not relieve the shipper from notifying the company of his claim for damages within five days, where the contract, provides for such notice.</p> <p>The reason for the rule holding the carrier to the common law accountability is public policy to prevent fraud on the shipper. While the reason for the rule would sweep away every stipulation of the contract in derogation of the duty imposed on the carrier, it has no application to a provision referring to an act on the part of the shipper subsequent to delivery — such provision being for the protection of the carrier against fraud on the part of the shipper. To abrogate such provision would open the door to fraud.</p> <p>Practice — Trial—Failure to charge on evidence — Appeal.</p> <p>In such a case the Supreme Court will not sustain a verdict for a shipper who has failed to give notice within the time required by the contract, even where there is evidence of waiver of such notice by the company, if it appears that no point was presented by plaintiff on the question of waiver, and the charge of the court contained no allusion to it; but a new venire will be awarded.</p>

<p>Appeal, No. 364, Jan. T., 1892, by defendant, Joseph H. Carter, from order of O. P. No. 4, Phila. Co., discharging rule to open judgment.</p> <p>Scire facias sur mechanic’s lien.</p> <p>The bill of particulars appended to claim was as follows:</p> <p>"Philadelphia, April 1st, 1891.</p> <p>"Joseph H. Carter, Owner and Contractor.</p> <p>To Caldwell and Johnson, Dr.</p> <p>"1890.</p> <p>"Aug. 30.—To Paper Hanging in 16 houses situate on the north side of Walnut street, between 51st st. and52d street, 27th Ward, Phila., from Aug 30, 1890, to</p> <p>March 21, 1891, . $400.00</p> <p>By cash on account, 200.00</p> <p>Balance due, $200.00 ”</p> <p>Judgment was entered for want of an affidavit of defence. The court granted a rule to open the judgment, which it subsequently discharged.</p> <p>Error assigned was the order of the court discharging the rule as above.</p>

Appeal, No. 121, July T., 1892, by plaintiff, Ellen E. MeCafferty, from order of C. P. No. 4, Phila. Co., March T., .1886, No. 652, making absolute rule to enter judgment on verdict without costs., Assumpsit for use of plaintiff’s yard and alley, by defendants, in removing barrels of oil and machinery, defendants agreeing to pay to plaintiff compensation for use of same, and also to pay any damage caused by such use.

<p>[Marked to be reported.]</p> <p>Libel — Private scandal — Newspapers. ></p> <p>An article published in a newspaper setting forth in a sensational manner the details of a private scandal, where none of the parties referred to occupy any public position, and where neither of them has been charged before a magistrate or other public officer with any offence known to the laws, is libelous per se, and an indictment based upon it should not be quashed.</p> <p>It is no justification for a publication of this kind that rumors relating to the scandal were floating about in the neighborhood, and were known to a number of persons.</p> <p>Refusal of defendant to plead — Entry of plea by court.</p> <p>Where the defendant in an indictment for libel refuses to plead, the court may direct a plea of not guilty to be entered for him.</p> <p>Discretion of court as to severance of parties — Practice, O. P. — Review.</p> <p>Where two persons are indicted for the same offence, it is entirely within the discretion of the court below to determine whether they shall be given separate trials. The exercise of this discretion is not reviewable by the Supreme Court.</p> <p>It seems that in such a case, where one defendant is attempting to escape by throwing the blame on the other, there is no reason why the court should grant them separate trials.</p> <p>Evidence as to other libelous articles — Malice.</p> <p>Upon an indictment for the publication of a libel, the commonwealth may give in evidence other libelous articles regarding the same defendants or the same subject-matter, for the purpose of showing malice.</p> <p>Where the attention of the public is called to a libelous publication in advance by “squibs” or “dodgers,” the latter may be admitted in evidence, for the purpose of showing malice.</p>

Appeal, No. 244, Jan. T., 1893, by plaintiff, from judgment of C. P. Lehigli Co., June T., 1892, No. 70, on verdict for defendant. Assumpsit for price of flues furnished for fire engine. The facts appear by the opinion of the Supreme Court. Ordinance No. 87, § 11, was as follows: “ Sec. 11.

<p>Mre insurance — Pleading—Averments not denied by affidavit of defence— Proof — Practice, C. P.</p> <p>In an action on a fire insurance policy where the only defence alleged in the pleadings is that the loss occurred after the expiration of the policy, defendant will not be permitted at the trial to prove that no proof of loss was made by plaintiff, where a rule of court provides that no evidence will be heard as to facts not alleged in the papers on file.</p>

<p>[Marked to be reported.]</p> <p>Partnership — Unincorporated joint stock company dealing in lands— Principal and income — Life tenant and remainder-men.</p> <p>An unincorporated joint stock company organized to trade in land is essentially a partnership, in which the shares of the members do not represent land as such but an interest in the venture; and dividends declared out of the proceeds of sales made by the association, are-to be regarded as profit made in the business, so long as the capital stock remains unimpaired.</p> <p>An unincorporated association was organized to buy land in large tracts, lay out streets and lots upon it, and sell the lots at such prices as to yield profits on the venture. The titles were not made to the, members of the association as tenants in common, but to trustees who conducted the business of making sales, executing and delivering deeds to purchasers, collecting the purchase money, and doing such other acts on behalf of the company as the nature of tho business required. The trustees rendered accounts at stated intervals, and dividends were from time to time declared and paid. The capital stock as originally invested remained unimpaired. Held, that as between the life tenant and remainder-man of the stock, the dividends were income and not principal.</p> <p>Oliver’s list., 136 Pa. 43, followed; Vinton’s Ap., 99 Pa. 434, and Hubley’s Est., 41 Leg. Int. 66; 16 Phila. 327, distinguished.</p> <p>Principal and income — Stock bonus — Life tenant and remainder-man.</p> <p>The price realized by the sale of a privilege incident to the ownership of stock of a corporation, to subscribe to the bonds of another corporation whose stock is to be given as a bonus to the subscriber, is not income from the stock to which the privilege is incident.</p> <p>The above stock bonus arrangement characterized as a gross violation of law.</p>

Appeal, No. 1, Jan. T., 1893, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1891, No. 218, on verdict for plaintiffs, Irwin N. Megargee & Co. Trespass for injury to horses, wagons and business by reason of non-repair of street. The facts as they appeared before Willson, J., are stated in the opinion of the Supreme Court. Defendant’s points were among others as follows : “ 1. The jury must find for defendant.” Refused. [1] “ 5.

<p>Appeal, No. 170, July T., 1892, by plaintiff, Samuel S. Sibbs, Admr. d. b. n. of Margaret Berger, deo’d, from judgment of C. P. No. 1, Phila. Co., June T., 1892, No. 138, discharging rule for judgment for want of sufficient affidavit of defence.</p> <p>Assumpsit to recover amount of bank deposit. Rule for judgment for want of sufficient affidavit of defence. The affidavit of defence set out the facts recited in the opinion of the Supreme Court. The court below discharged the rule.</p> <p>Error assigned was discharge of rule.</p>

Appeal, No. 275, Oct. T., 1892, by William Yelte, defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1892, No. 222, for plaintiff, Mary A. McIntyre, on case stated. Case stated. From the case stated it appeared that defendant agreed to purchase the property situated in Pittsburgh, from plaintiff, and that this suit was instituted to determine whether a mortgage of record against the property was a valid incumbrance or not.

<p>Appeal, No. 218, Oct. T., 1892, by-plaintiff, A. B. Young et al., from judgment of C. P. No. 2, Allegheny Co., April T., 1891, No. 843, on verdict for defendants, Frederick Senft and Mary Senft, his wife.</p> <p>Ejectment for thirteen acres of land.</p> <p>While the suit was pending, Frederick Senft, one of the defendants, and Mary Young, the plaintiff, died, and in place of the latter were substituted her heirs, A. B. Young and J. C. Young.</p> <p>At the trial, before White, J., it appeared that the land in controversy was bought by plaintiff at a sheriff’s sale in 1891, where it was sold as the property of Frederick Senft.</p> <p>Defendant offered to testify that she was the owner of property in Pittsburgh, in 1855, which had been conveyed to her by James Barr, that she continued to be the owner of that property until the year 1866; that in that year she conveyed said property to Frederick Gedikoe by deed dated June 18,1861, for the consideration of 16,000 ; that the money so paid by the sale to Gedikoe, from time to time, was used in the purchase of the property in dispute in this case; that the deed from Tidball and the deed from Edmundson was taken in the name of Frederick Senft, without her knowledge or consent, and that when she discovered the fact she requested the title to be put in her name, because it was her own money that had paid for it, and that in compliance with that request the deed to Michael Rodgers by Frederick Senft, already in evidence, and the deed by Rodgers to her, already in evidence, were made.</p> <p>Plaintiff objects to the witness testifying in the case, for the reason that it appears that she is a party claiming an interest adverse to the title of her husband, Frederick Senft, whose title we have by the act of law acquired and is in evidence, she being excluded as a witness by the provision of the act of 23d of May, 1887, and also that the testimony proposed to be given is incompetent and irrelevant, and especially that it would not lie within her mouth to show by the facts as stated that she had such a title as she now sets up against the creditors of her husband, whose interests are through the property which was sold to pay his debts, and title thereb}'- acquired by the plaintiff in this action. Objection overruled and exception. [8]</p> <p>The court charged in part as follows:</p> <p>“ The tract consists of two pieces, one was bought in 1866, the other part, and a smaller piece, bought in 1873. The first purchase was from a man by the name of Tidball, and the consideration for that purchase was $5,000. The second piece— the smaller one — was bought from Edmundson in 1873, and the consideration of that was $500, the consideration then of the two pieces, or of the whole tract now in dispute, $5,500. [In 1879 Frederick Senft made a deed to a man by the name of Rogers, who immediately transferred the title to Mrs. Senft, who is now the defendant. This deed was put on record, and was on record from 1879 until 1891, the time of the sheriff’s sale, and when Mrs. Young bought the property at sheriff’s sale. She is presumed in law to have known of that deed, and to know all that is recited in that deed. In the recital it sets forth — I mean the deed from Frederick Senft to his wife — that the property in Robinson township was bought with the money of his wife, and that the deed was made to him inadvertently and ought to have been made to his wife, and that this deed . in 1879 is executed so that the0 title would be in the wife, as she was really the owner of the property. I say that when Mrs. Young bought at sheriff’s sale in 1891 she is presumed in law to know of the recitals in that deed.] [11] Those recitals, however, are not conclusive against her. Being a voluntary deed, and from a man to a wife, she would have a right to call in question the validity of that deed, while it would be good against all the world, except the creditors of Senft at the time he, made that deed. A man may put property in the name of his wife, and if he has no creditors at the time it cannot after-wards be said that he had no right to put that title in his wife’s name. It is done every day. Yet if he has creditors, if he owes anything, or is liable for anything, he cannot do it to the prejudice of those creditors. ' Now, the allegation here is that this was a voluntary conveyance by the husband to the wife, and would not be good against the bond that Frederick Senft executed in 1872. If it had been to a stranger, for a valuable consideration, it would have conveyed the title clear of that bond, because, as I understand, the bond was not recorded. It was simply a liability on the bond, and being no notice to a purchaser, a purchaser for value in 1879 would have taken this property cleared entirely of this debt. But the conveyance, being a voluntary one to the wife, the burden of proof is on her to show that she was the person entitled to that property, and that that deed was for the considerations mentioned in the deed, and that is the great question in this case. Now the deed recites that the money that bought this property was hers. If it was, then, unless she knew at the time it was done, and abstained from saying anything until after the liability arose, it would be good. The first question is then, was this property paid for by the witness’s money, and even if it was, a second question arises, to which I will refer presently, whether she knew at the time the deeds were executed that they were in the name of the husband. [Now, what is the evidence as to the money that bought this property in Robinson township? We have the fact in evidence, undisputed, that the property in Birmingham was in the name of the wife, and that property was sold in 1868 for $6,000, just a short time before this property was bought in Robinson township. Now, it does not matter, gentlemen, whether the wife earned the money that bought this property in Birmingham, or whether it was the husband’s money. For the purpose of this case, we may admit that all the money that bought the lot and that built the house there was the husband’s money. Still, if he permitted the title to be put in her name — done with his consent — it would be good against subsequent creditors. It would not be good against any creditors that he had at the time. We need not therefore inquire as to whether the money was earned by the wife and the children, or whether it was earned by the whole family. The husband permitted the title to be made to the wife, and was in the wife, and the debt on which the plaintiff claims title here did not exist at that time. Therefore Mrs. Senft had the legal valid title to that property in Birmingham, and she had the legal, valid and exclusive right to control the money after it was sold. It was her money — the $6,000 got from Gedikoe. Now what paid for this property in Robinson township ? Did that money pay for it ? She testifies it did, and the son, although he did not see the money paid, said that it paid for it, because there was no other money, and the counsel, I believe, rather candidly admitted in his argument to you that the proceeds of that lot in Birmingham paid for these two properties in Robinson township. Now the deed was taken in the husband’s name. If it was taken in his name without her knowledge and consent, and her money paid for it, he, in law, would be on the footing of a trustee of the title for her benefit.] [9] He may not have intended to defraud her — hardly presumable that he did think of defrauding his wife, but it frequently happens that the husband thinks he ought to control the property of his wife, and then the title is made to the husband where the wife’s money pays for it. Sometimes in the partition of estates where the wife has property — where she has an interest in her father’s estate — we have known cases where the conveyance has been made to the husband in place of the wife. In all such cases, where in equity it is the property of the wife, although the title may be in the husband, he is looked upon in law rather as a trustee for her, and she has the right at any time to demand that the title be conveyed to her. Now if the wife’s money paid for this property in Robinson township, she is entitled to hold it, unless the deed was made'to her husband with her knowledge, or shortly after it was made she knew that it was in her husband’s name, and let it stand in her husband’s name until after her husband became liable on the bond of Edmundson. If she did know that the deeds were to her husband, and let it stand in the name of her husband until after he became liable as one of the sureties of Edmundson, she would then be estopped from setting up her title, because it would then rather be a fraud, and that is the second question for you to consider. Now it does not matter that in 1879 she may have known of the liability of her husband on the bond of Edmundson. The bond of Edmundson was executed in 1872. Her husband became one of the sureties, on that bond. Now if she never discovered that the deeds were to her husband until after that date, and as soon as she found out that they were in her husband’s name demanded the transfer to her, although that may have occurred several years before 1879, and in 1879, at the time the deeds were executed, she may have known it, still if the liability had accrued before she knew it, why she would have a right to insist upon her rights, and the property be conveyed to her. That, I say, is the point of time particularly yon are to look at. Before 1872, or at the time, did she know that these deeds — well, they could not both have been at that time, because the second deed to Senft was from Edmundson, in 1878 — before these two deeds were executed, did she know that the titles were in her husband, and let it remain so until after he became liable on these bonds? Or, it would be possible if she did not know that the first deed was to her husband, and did know that the second deed was to her husband at the time they were executed, she might have a good title to the first piece, but not to the second, but I do not understand there is any distinction between the two.</p> <p>“ Plaintiff’s claim is that before 1872 she knew that the deeds were in the name of her husband. Now, it is for you to say what the evidence is on that point. You have the testimony of the old lady, who says distinctly that she did not know it for a good many years after the deeds were executed — several years before 1879, and the son testified that it was a good many years — he could not give the exact date; and the old lady says she could not read English, that still she had the deeds and they were in her drawer all the time, and when the son was looking over the papers for some purpose — looking over these deeds — -then he discovered that the deeds, because he spoke of both, and she spoke of both the deeds, were to the husband, and as soon as she found that out, she says, she wanted her husband to make her safe, and the son spoke to him. Sometimes he promised he would do fit and sometimes he would not, and finally the son insisted, and insisted very strongly in 1879, that he ought to do right to his mother. Now, it maybe true that in 1879 they may have discovered his liability on the bond of Edmundson, but if they did not know that until after 1878, until after the second deed was executed, and as soon as they did find it out insisted upon the husband making the conveyance, his delaying it until 1879 would not deprive her of her rights. [If you'find that the wife did not know that the deeds were in her husband’s name until after they were both executed, and immediately asked her husband to make the conveyance, and the son did, and that the wife’s money paid for the property, then your verdict ought to be for the defendants.] [10] If you find, however, that it was not the wife’s money that paid for the property, then your verdict ought to be for the plaintiff. Or, if you find that it was the wife’s money that paid for these properties, yet, if at the time the deeds were executed to her husband she knew it, and let it remain so until after her husband became one of the sureties on the bond of Edmundson, then your verdict ought to be for the plaintiffs.” Plaintiff’s points, inter alia, were as follows :</p> <p>1. Request for binding instructions. Refused. [1]</p> <p>“ 2. Mary Senft, the defendant, was not a competent witness, and the jury should disregard her testimony, and without her testimony the jury should find for the plaintiffs.” Refused. [2] “ 4. That the fact that property acquired by the earnings of Mary Senft, or by her and her husband, was conveyed to her in 1855, and after being improved by them was sold for $6,000 in 1866, did not give Mary Senft such a right in the proceeds of the said property as to impose a trust in her favor upon the title acquired by her husband in the Tidball purchase in 1866 by the use of said proceeds, and that property is to be treated as his property and subject to his' debts and liabilities, and Mary Young acquired such title through the debt, judgment, assignment and sheriff’s sale in evidence, and is entitled to recover in this action. Answer : I will refuse all points, except the fourth, which I will affirm as to any debts of Frederick Senft existing at that time, but it would not avail against subsequent liabilities of Frederick Senft, and except the ninth point, which I will affirm.” [8]</p> <p>“ 5. The fact that the Tidball purchase was by a deed to Frederick Senft, and that it was upon time as to a part of the purchase money, and that Mary Senft, his wife, had possession of the deeds from that time, it must be presumed that she knew the deed was in her husband’s name, and that it so remained from 1866 to 1879, during which time he had incurred a liability upon which, by due process of law, the plaintiff has acquired a title, and she is estopped from setting up title in this action upon the claim that her money paid for the property.” Refused. [5]</p> <p>“ 6. The defendant has shown no evidence of any mistake in the execution of either the Tidball or the Edmundson purchase in the name of Frederick Senft, and therefore the jury should find for the plaintiff as to both properties.” Refused. [6]</p> <p>“7. The defendant must sustain her defence by adequate proof to sustain an equitable title as against her husband’s legal title, and in this she has failed, and the jury should find a verdict for the plaintiff.” Refused. [7]</p> <p>“ 8. The jury should under the evidence presume that Mary Senft knew her husband had taken the title of the land in dispute in his name.” Refused. [4]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>jErrors assigned were (1 — 11) rulings and instructions, quoting instructions and bill of exception, but not evidence.</p>

<p>[Marked to be reported.]</p> <p>Municipalities — Eminent domain — Exclusive possession — Trespass.</p> <p>Where a municipal corporation condemns land for a public purpose, the municipality has the right to the exclusive possession of the land, and if the former owner attempts in any way to use it, even though his use may not interfere with the public use, he renders himself liable to nominal damages, at least, in an action of trespass.</p> <p>A portion of defendant’s farm was condemned by a municipal corporation for the purposes of a pumping station. About an acre of the land condemned was a narrow strip running alongside of a railroad, and used as a lane to connect the pumping station lot proper with a highway. Defendant was allowed to retain a right to cross the lane at a point where he had been accustomed to cross the railroad in passing from one part of his farm to the other. The lane in the narrow strip extended along the railroad back into the main part of the pumping-house lot. Without the city’s permission, defendant began to drive his wagons over the portion of the land in the main part of the pumping-house lot, but without interfering with the city’s use of the pumping plant. Held, that such use was an invasion of the city’s right of property, and that a judgment in trespass for nominal damages should be sustained against defendant.</p>

<p>Appeal, No. 49, Jan. T., 1893, by defendant, from judgment of C. P. Schuylkill Co., May T., 1887, No. 21, on verdict for plaintiffs, Henry Hauck and wife, in right of- wife.</p> <p>Case for injuries to land, springs and fish pond.</p> <p>At the trial before Pershing, P. J., it appeared that defendant, a limited partnership, without the right of eminent domain, constructed a pipe line for the transportation of oil from the oil region, and that at the time this suit was brought, March 7, 1887, the terminus of its line was at a point in Schuylkill county. At that point the oil was taken from the pipe and loaded upon tank cars for transportation by railroad. Defendant’s improvements, erected for the purpose of storing and shipping their oil, were entirely upon their own land, and separated from plaintiff’s land by the railroad tracks and by a public road. Plaintiff introduced evidence which tended to show that oil escaped from defendant’s pipes, percolated through the ground, and injured his springs and lands, destroyed the fish in a mill pond, and rendered a tenant house uninhabitable.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 2. The measure of damages sustained by plaintiff is the loss of rents for the tenant house so long as the coal oil shall render it unfit for occupation. (2) The loss in destroying the productive power of his field until such time as it will be restored to its former condition. (3) The inconveniences and loss by being deprived of the use of their springs and streams of water while the same continue unfit for use. (4) The value of the fish in the milldam destroyed by the coal oil as testified to by witnesses. Answer : We affirm this, referring to what we shall further say on the subject of damages, keeping in mind that the damages must have accrued before the 7th of March, 1887, how far the productive power of the land was destroyed at that time, the condition it was in on the 7th of March, 1887, compared with the condition it was in on the 7th of March, 1881, six years before.” [4]</p> <p>“ 4. That the defendant is not liable for damages resulting from its business by reason of oil escaping from its own lands where it is being handled, except such oil escapes through negligence of the company or its agents. Answer: We will answer this in the negative, saying to you, as has been said by our Supreme Court, in the case of the Pottstown Gas Co. v. Murphy, 39 Pa. 263, that the question is one of nuisance and not of negligence. ‘ The court was right in saying that this is not a question of negligence but of nuisance. The defendants think that as a corporation [this company is a quasi corporation simply], authorized by statute to carry on this business, and to purchase in fee simple such real estate as may be necessary for it, they are not answerable for such consequential damages as are complained of here ’ — this was destroying a well. ‘We cannot adopt this view. No such exemption is involved in the fact of incorporation, nor in the privilege of buying land. The principle they invoke applies only where an incorporation, clothed with a portion of the state’s right of eminent domain, takes private property for public use on making proper compensation.’ [5]</p> <p>“ 8. Nor is the defendant liable for injuries which result from accidents in carrying on their business with reasonable care,' and if the leak at the end of the bed pipe in 1886 was due to unavoidable causes such as expansion or contraction, having been originally properly capped and leaded, the defendant is not liable for any injury done to the plaintiff by reason of the oil escaping through such leak, if the defendant used due diligence in-discovering and stopping the leak when it was known there was a break in their pipes. Answer: We negative this in the terms in which it is put. We do not say to you as a matter of law that expansion or contraction was an unavoidable cause of that leak. It is well known that iron will expand in hot weather and contract in cold; and so far as we understand, in laying railroad tracks, that is always taken into account when the track is laid, the expansion and contraction at different seasons in the year, and has to be provided for the same as anything else in the business.” [6]</p> <p>“ 9. If the whole of the injury to the plaintiff’s house, springs and land arose from the accidents in 1884 and 1886, then the verdict of the jury must be for the defendant. Answer: We answer this as a whole in the negative. We have already said that for the loss of oil caused by the wreck the defendant company ought not to be held responsible. We do not think any of the witnesses have testified that the leak in the bed pipe was an accident.” [7]</p> <p>“ 11. That to recover any damages against the defendant, the plaintiff must prove that the defendant was guilty of negligence, and negligence must be proved and not assumed. Negligence is want of reasonable care, and if the jury find that the oil which flowed upon the plaintiff’s land was oil that escaped by the acts of persons not in the employ of the company defendant, or escaped while the defendant was exercising reasonable care, the verdict must be for the defendant.” Refused. [8]</p> <p>“ 15. That damages can be recovered in the action only up to the 7th of March, 1887, if the jury should hud the defendant caused any damages to the tenant house, springs or land by loss of crops of the plaintiff by the negligence of their agents. And if the jury find that the defendants have carried on their business with reasonable care the verdict of the jury must be for the defendants.” Refused. [9]</p> <p>The court charged in part as follows:</p> <p>[“ In explanation of these answers we will call your attention briefly to the rules of law governing cases of this kind. You will observe that the defendant here occupied its own land, it did not occupy with its business any portion of the land of the plaintiff. The rule upon the subject is that ‘ although a person may do any act upon his own land, and make any erections there which do not violate the rights of his neighbor, and to this extent has full dominion over his premises, and their uses, yet he has no right to make any erection there, a consequence of which is an invasion of the legal right of his neigh bor, and if he does make such use of his property, he does it at his peril, and no degree of care or skill on his part exercised to prevent injury will be of any avail to him as a defence, if injury actually results from the act. The act being of a character which may create a nuisance, he is liable' for all the injurious consequences that flow therefrom.’ An action cannot be maintained as a rule until the injury is evident. ‘ Therefore, whilst a person may erect a building upon the line of his land, yet he is bound at his peril to do it in such a manner that the water or snow and ice from its roofs shall not fall upon his neighbor’s land, or even upon his own, in such a manner as to escape upon his neighbor’s land in larger quantities or greater volume than would go there if no erection had been made.’ Wood on Nuis. § 108.</p> <p>“It has been laid down in a large number of cases that ‘ every person who, for his own profit or advantage brings upon his premises, and collects and keeps there anything which, if it escapes, will do damage to another, is liable for all the consequences of his acts, and is bound at his peril to confine it and keep it upon his own premises. If he does not, he is answerable for all the damages that result therefrom, without any reference to the degree of care or skill exercised by him in reference thereto. Therefore if a man brings water upon his premises by artificial means and collects and keeps it there in reservoirs or pipes, he is bound at his peril to see that the water does not escape to the damage of the adjoining owner.’ Otherwise a party’s land might be taken from him without compensation. Ib. § 115.</p> <p>“ If the mere fact that the business is a lawful business and has been conducted with care would be a defence where a neighbor’s land had been injured in consequence of the business carried on there, the escape of gas, for instance, or the escape of oil, the result would be that a man might lose his farm; might be compelled to leave it and have no compensation, simply because the business which brought about this loss was a lawful business and was carried on carefully. That is not the law. ' No man’s property can be taken, directly or indirectly, without compensation, under the law of this state. Hence there are cases, and a great many of them, -where a defendant is held liable in damages, although his business is lawful, and he has exercised care in carrying it on.</p> <p>“ A business which is visibly injurious to vegetation by preventing its growth, or seriously injuring or destroying it, or that produces a visible damage on other property, may be a nuisance, even though it does not render the enjoyment of life less comfortable or produce any ill effects on the occupants of surrounding premises. So it has been held that a gas company is bound to keep its pipes in good order and not permit the gas to escape. If it does, it is liable in damages. Wood on Nuisances, § 3.</p> <p>“ It is held in Wharton on Negligence, § 954, that ‘ A gas company is bound to be diligent in the structure and repairing of its pipes, which must be kept free from leakage, in the structure and repairing of its tanks and other apparatus. For these purposes the company is bound - to keep on hand a body of operatives sufficient for the ordinary contingencies of damage.’</p> <p>“ A party who makes erections on his own land which become an invasion of the legal rights of his neighbor, does so at his peril, and no skill or care will be a defence. The party whose land is invaded in this way is not bound to build an embankment, for instance, to keep off the water that his neighbor throws upon him illegally; he is not bound to make an embankment to prevent this precipitation or unusual flow of water from his neighbor’s premises on his own. The aggressor can never say that it was the duty of the assailed to ward off a blow unlawfully aimed at him. It is the duty of the party not to invade his premises in that way. Wood, § 121.</p> <p>“ Of coarse, the plaintiff in every case of this kind cannot by bis own act contribute to increase the damages that may be inflicted upon him. He must conduct himself in a reasonable wajr, but he is not bound to build an embankment to keep the water off that his neighbor unjustly throws upon him. He is not bound in anticipation of a flow of gas or oil to undertake to build a barricade against it. It is the duty of tlie party not to invade bis premises. That a plaintiff might have abated a nuisance, and did not, will not prevent his recovery, and will not necessarily mitigate bis damages. It would depend on circumstances.</p> <p>“ Tbe owner of oil stored in large quantities near a spring of water cannot resist a claim for damages by its leakage to the spring by the pollution of the underground currents of water that feed the spring, because he did not know the water was affected by it when the oil could be seen in puddles outside tbe building in which it was stored. Kinnaird v. Standard Oil Co. (Ky.), 7 L. It. Annotated, 451.</p> <p>“ These are the general rules of law upon the subject. You will take this case into your careful consideration. It has occupied considerable time. It is important to botli parties. Determine, in the first place, whether the plaintiff lias been injured by tbe business of the defendant, although conducted upon its own ground. If so, to what extent. What damages is she reasonably entitled to — compensation, not punishment— reasonable damages for any loss she has sustained. If you come to tbe conclusion that she has sustained no damage, your verdict would then be for tbe defendant.”] [10]</p> <p>Yerdict and judgment for plaintiffs for $1,052. Defendants appealed.</p> <p>Errors assigned were (1-3) admission of evidence, quoting bills of exception but not evidence; (4-10) instructions, quoting them as above.</p>

<p>Appeal, No. 75, July T., 1892, by plaintiff, Harold Whitton, from order of C. P. No. 3, Phila. Co., March T., 1888, No. 264, entering compulsory nonsuit.</p> <p>Trespass to recover damages for alleged illegal sale of goods distrained for rent.</p> <p>The facts appear by the opinion of the Supreme Court. The notice of distraint, signed by the constable, was served on plaintiff Feb. 1, 1888, and read :</p> <p>“ Take notice that by authority and on behalf of your landlord, William Milligan, I have this day distrained the several goods and chattels specified in the above schedule on the premises No. 1018 Chestnut street in said city, for the sum of $120, rent due him, the said William Milligan as aforesaid, or replevy the same goods and chattels according to law within five days hereafter: I shall, after the expiration of the said five days from the date hereof, cause the said goods and chattels to be appraised and sold according to the act of assembly in such case made and provided.</p> <p>“ Given under my hand the 2d day of February, 1888.”</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 712, Jan. T., 1893, by-defendants, from judgment of C. P. Wayne Co., May T., 1891, No. 115, on verdict for plaintiff, John Fisher.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Seelt, P. J., after charging that it was not negligence to employ plaintiff under the circumstances of the case, continued: “ There is another duty which the employer owes to a child or infant, and that is to inform the infant of the dangers connected with the services in which he is employed. If that information, taken in connection with what the employee must know from his personal and constant observation, is sufficient to enable him to understand clearly the dangers to which he is exposed, then that duty is discharged on the part of the employer. The testimony here is, on the part of Mr. Beard, that he warned these boys over and over again; my recollection is that he says almost every hour, but perhaps that is not correct. You will remember what it is. That he told them to be on their guard when they were running down cars, and to be also on their guard against the jerking of the cars when they were starting the train. Was this warning given as testified to by him ? And in connection with the' observation of these boys as to the running of these cars, was that all that was necessary to enable this boy to understand the danger of his situation ? The danger here was what we should ordinarily say was a manifest danger. The cars were constantly coming down and there was a constant reminder of the occasion of the danger. The question is, was this warning given, and was it sufficient under the circumstances to enable this boy to understand what his danger was, and guard against it ? He testifies himself that Mr. Beard from time to time would speak of some particular car and warn him against it, and according to his testimony this was the only warning given to him. Was that the warning simply, that Mr. Beard, when he saw a car coming with unusual speed, would call his attention to it? The question is not what warning was given to other boys, but what warning was given to the plaintiff, and that is to be determined from the evidence in the case. You have the evidence of Mr. Beard, the evidence of Mr. Fitch, the evidence of Mr. Stevens; and you may take into consideration, in connection with the testimony of these witnesses, the evidence of these boys who were there picking slate, so far as it contradicts the testimony of Mr. Stevens and Mr. Fitch.</p> <p>“We think that we cannot say to you as a matter of law that this plaintiff cannot recover. We think the evidence with regard to this warning is of such a character that it would be necessary to leave it to you to determine w'hether he was sufficiently warned of the danger of the employment in whicli he was engaged.”</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Errors assigned were (1, 2) instructions, recited in opinion of Supreme Court, quoting them.</p>

<p>Appeal, No. 273, Jan. T., 1892, by Rebecca E. Shugar, from order of C. P. Lebanon Co., March T., 1888, No. 13, in Weimer v. Karch, setting aside an auditor’s report.</p> <p>Distribution of proceeds of sheriff’s sale of realty.</p> <p>From the record it appeared that Joseph J. Karcb died intestate, May 22, 1886, leaving a widow; and a daughter, the appellant. Letters of administration on his estate were granted to his widow. She filed two accounts in the orphans’ court, which were referred to auditors on exceptions, whose reports have been confirmed absolutely, the last on Jan. 3, 1890. By these proceedings all the debts of the intestate were paid except a balance of $337.11 due the widow, a creditor of the •estate, and a mortgage debt of $1,503.78, created by the intestate. . The assignee of the mortgage instituted proceedings, recovered judgment, and caused the mortgaged premises to be sold by the sheriff on May 19, 1888, at which sale the administratrix became the purchaser for the sum of $8,150. She paid ten per cent of the purchase money, and on June 9, following, received her deed for the property from the sheriff. On the same day the sheriff took a judgment bond from her for $7,335, payable July 9, expressed as follows: “being balance of purchase money of real estate, the distribution of which is to be determined by the court.”</p> <p>On June 10,1890, she paid an additional $1,000 on the bond to the sheriff. On Oct. 4, 1890, the counsel of the sheriff, and for the estate of Joseph J. Karch, deceased, as well as the attorney for the guardian of the daughter, Rebecca Karch, who was then a minor, being all the parties in interest, agreed in writing that “ the amount due the sheriff on judgment entered in the court of common pleas of Lebanon county to No. 388, June term, 1890, together with such interest as may be due and owing thereon, if any is legally due thereon, is hereby considered in court, and A. Frank Seltzer, Esq., is hereby appointed auditor by consent to make distribution thereof.” Same day the court of common pleas appointed said auditor. When the auditor met the parties to distribute the fund, the attorney for the administratrix offered proof to establish two claims which the administratrix alleged were due her by the estate; these claims were disputed; and an issue was applied for in the same court which was granted, in which the widow Amelia S. Karch was made plaintiff, and herself as administratrix of said estate defendant. This issue was entered to No. 22, March T., 1891, and upon trial resulted in a verdict in favor of defendant, Dec. 7,1891. A new trial was granted. The case was again tried and resulted a second time in a verdict for defendant, upon which judgment was entered Oct. 27, 1892. After the issue was determined, the auditor met again and took additional evidence, after which the case was argued. The auditor made his report, exceptions to which were filed by Amelia S. Karch, and on behalf of Rebecca E. Shugar. The only contested question before the auditor was the liability of the administratrix to pay interest on the unpaid portion of the purchase money due by her for the real estate which she purchased at sheriff’s sale. This the auditor decided against her for the whole amount claimed tobe due, except such interest as accrued on the money due on the mortgage upon which the property was sold from the day after the sale (when the fund ceased to bear interest for the mortgagee), up to the time it was actually paid by her. After the case had been fully argued, the court, in an opinion by McPherson, J., determined the amount of money in the sheriff’s hands; deducted therefrom the sheriff’s costs; costs of audit; amount due the mortgagee and another small claim of $8.76, and then decreed the balance of the money ($6,283.46) to Amelia S. Karch, administratrix of Joseph J. Karch, deceased, upon her giving bond in the sum of $12,500, conditional for the legal distribution of the money. The court also struck off the judgment and all proceedings in the issue above referred to, entered to No. 22, March T., 1891, on the ground that the court of common pleas had no jurisdiction, under the act of Feb. 24, 1834, § 33, P. L. 77, to distribute the fund, except to lien creditors; and consent could not give jurisdiction. Rebecca E. Shugar, the daughter, took this appeal.</p> <p>Errors assigned were, inter alia, (2) setting aside auditor’s report because proceedings were conducted in common pleas instead of orphans’ court; and (5) striking off judgment and all proceedings in issue entered to No. 22, March T., 1891.</p>

Appeal, No. 14, Jan. T., 1898, by defendants, from judgment of C. P. Wayne Co., May T., 1891, No. 119, on verdict for plaintiff, Mary Groner. Trespass for personal injuries.

<p>Appeal, No. 20, Jan. T., 1898, by-Thomas Cummings, from decree of O. C. Phila. Co., April T., 1892, No. 165, dismissing exceptions to adjudication.</p> <p>Audit of account of Philadelphia Trust, Safe Deposit and Insurance Co., executors of A. Boyd Cummings, deceased.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below [see report of opinions by Ferguson and Penrose, JJ., 1 Dist. R. 485] awarded five bonds of the Pennsylvania Canal Co., registered in the name of A. P. Glass to Elizabeth M. Glass, and ordered the trustee to purchase at market price bonds at the par value of $5,000 to make up, with the $48,000 in bonds, the amount of $48,000, mentioned in the will.</p> <p>The court also decreed as follows ;</p> <p>“ 2. It is further ordered that out of each of the shares of Clara C. Barrington and Thomas Cummings in the residuary estate, a portion equal to the value of their respective interests as heirs at law of decedent in the real estate at Washington, district of Columbia, devised in the will to Mary Boyd Cummings and Ella Cummings in fee, or attempted so to be, shall be retained by the accountants until the said Clara C. Barring-ton and Thomas Cummings execute proper deed of quit-claim, releasing unto said Mary Boyd and Ella Cummings all their right, title, and interest of, in and to the said real estate, or until the further order of the court.”</p> <p>Errors assigned were, inter alia, portions of decree involving the points herein decided, quoting them,</p>

<p>Will — Legacy to debtor — Release—Set-off.</p> <p>A legacy by a creditor to his debtor does not operate as a release or extinguishment of the debt, unless it clearly appears to have been the intention of the testator that it should so operate.</p> <p>Testator bequeathed to “Ebenezer Worth nine thousand dollars, to be held (in trust), pay the interest to him yearly. At his death pay this to Marshalton, West Bradford Meeting.” At the time the will was executed, and also when it took effect, the legatee’s indebtedness to the testator was so largely in excess of the bequest that the interest payable to him annually under the will was insufficient to pay the interest on his indebtedness to the estate. There was nothing in the will itself nor dehors the instrument, which showed any intention to release the legatee’s indebtedness. Held, that the debt could be set off against the legacy, and the legatee and his attaching creditors excluded from any. participation in the fund.</p>

<p>Appeal, No. 135, Jan. T., 1893, by defendants, Michael Hand et al., trading as the Scranton Brewing Company, from judgment of C. P. Lackawanna Co., Oct. T., 1889, No. 459, on verdict for plaintiff, James Guinney.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinon of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[“ Now, on the part of the defence it is alleged that the accident occurred not through the negligence of the defendants, but, if at all, it occurred through the negligence of their employee, Thomas Carroll, who was their driver. The defendants allege that they are not responsible for his conduct for the reason that at the time the accident occurred he was not acting within the scope of his employment.] [5] That he was on an independent message or errand for Patrick Loftus, a person to whom he was delivering a barrel of porter. Carroll testifies that about three o’clock in the afternoon he delivered a barrel of porter to Loftus, and that after he got it in the cellar he attempted to tap it, and Loftus said to look out, that the tap was defective or liable to break; it did break, and Loftus told Cai’roll to come down town and get another tap; that he started on the wagon with a two dollar bill which he had received from Loftus, and came to Hunt & Connell’s store and procured the faucet, and started back to Loftus’s. In the meantime he stopped to see what had occurred at this wood working place on Penn avenue, and from there he proceeded to Loftus’s.</p> <p>[“Now, we leave that as a matter of fact for you, gentlemen of the jury, to say whether or not the going for the faucet was not within the scope of his employment. He swears that he was obliged to tap ale or porter as he delivered it; that he swears was within the scope of his employment. Now, does it follow as a natural deduction from that, that this porter was not tapped when this faucet broke, and that he started back at the instance of Loftus to procure another faucet. We submit that as a question of fact for you, gentlemen of the jury, whether he was within the legitimate scope of his employment. If he was not, that is the end of this case.] [8]</p> <p>[“ Independent of that the plaintiff has made no case whatever until they offer the testimony of the plaintiff in this case, James Guinney, and his wife, who testify that on the morning following this accident both Mr. YanDyke and Mr. Hand came to their house, and they spoke with Mr. Guinney and told him whatever his doctor bill was, what his loss of time was, and what the damage to his clothing was, that they would pay; that Carroll was a good-for-nothing drunken loafer, and that they had discharged him the night before.</p> <p>“ Now, if you believe that testimony, that fixes their liability, because by that admission it shows that this man was in their employ, and by their further admission that he was acting within the scope of his employment. However, that will be a fact for you to determine, as both Mr. Hand and Mr. YanDyke swear that they made no such statement or made no such admission whatever to Mr. or Mrs. Guinney. Mr. Hand testifies that he did not hear such a statement made by Mr. YanDyke, and that no such statement was made by himself. Mr. YanDyke swears that he did not hear Mr. Hand make such a statement, and that- such a statement was not made by him. It will be for you, gentlemen of the jury, to reconcile this testimony and say whether you believe the testimony of Mr. and Mrs. Guinney, or whether you believe the testimony of YanDyke and Hand, the defendants.] [1]</p> <p>[“ The witnesses on the part of the plaintiff testify that this driver of Hand & VanDyke on this day was driving in a very reckless manner, and that he was intoxicated. Now, the question of 'his intoxication has nothing whatever to do with this case. It is a question of his recklessness; it is a question whether he was acting within the scope of his authority or his employment for YanDyke & Hand at the time; that is the test; not whether he was drunk or whether he was sober. The witnesses testify that he was endeavoring to run a race with the street car; that he was endeavoring to embarrass the driver of the street car by running the wagon zigzag across the railroad track, coming up Penn avenue, going on the track and then off, going zigzag over the tracks; that he was driving his horses in this manner, with the lines loose, and shaking them on the horses. That we say to you as a matter of law was recklessness and carelessness on the part of the driver. The witnesses testify that when the accident occurred that state of affairs existed — he was driving in that manner.] [4]</p> <p>“ Now, gentlemen of the jury, if you find that Thomas Carroll, the driver, at the time this man was struck, if he was struck, by the team or one of the horses of the firm of Van-Dyke & Hand, was in the employ of VanDyke & Hand, and that he was acting under the scope of his authority, then your verdict should be for the plaintiff.”</p> <p>Plaintiff’s point was among others as follows:</p> <p>“ 5. That if the jury believe the evidence of his witnesses, the plaintiff is entitled to recover the direct expenses incurred by him, and for his privation and inconvenience he has been subjected to, and for the pain and suffering, bodily and mental, which he has already endured or is likely to experience from the injuries received by him in the accident, as well as the pecuniary loss he has already sustained and is likely to sustain during the remainder of his life from his disabled condition.” Affirmed. [2]</p> <p>Verdict and judgment for plaintiff for $525. Defendants appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Mechanic’s lien — Equitable title.</p> <p>A mechanic’s lien can be filed against an equitable title, and a sale on a judgment thereunder, against the equitable owner, will enable the purchaser to bring ejectment against the legal owner in possession: Eberly v. Lehman, 100 Pa. ,*542.</p> <p>Equity — Laches—Bill to quiet title.</p> <p>A bank agreed to sell a lot of land in March, 1886, to Harriet Oates, a married woman. In May, 1886, Mrs. Oates contracted with McClure for the construction of houses on the lot. The houses were built immediately thereafter, and were completed in the following August. After the buildings had been practically completed Mrs. Oates released her title to the lot to the bank, the bank in consideration thereof repaying the money paid by her on account of the purchase. On Aug. 26, 1886, the bank conveyed the lot to defendant. At the time the bank accepted the surrender, it was aware of the improvements made by McClure, and defendant had also full knowledge of them. In September, 1886, McClure filed mechanics’ liens against the buildings and lots, recovered judgment on the liens, and subsequently purchased at sheriff’s sale the equitable title of Mrs. Oates, and in February, 1887, received a sheriff’s deed therefor. He thereupon entered into possession of the lot and buildings, and died in September, 1887. In March, 1888, his widow and heirs filed a bill in equity against the defendant, to quiet the title to the land. Meld, that there was no unreasonable delay in filing the bill, and that, under the circumstances of the case, plaintiffs were entitled to relief.</p> <p>Bower — Payment of one third of purchase money into court.</p> <p>In the above case it was not improper to decree that one third of the purchase money, payable by plaintiffs, should be paid into court as defendant’s wife did not join with her husband in the deed to quiet the title.</p>

<p>Negligence — Bailrouds—Grade crossings.</p> <p>The right of a traveler, on a highway crossing a railroad at grade, to use the crossing, is subordinate to the right of the railroad company.</p> <p>Grade crossings in open country — Signals—Negligence.</p> <p>Where a railroad train has given a proper warning signal as it approaches an ordinary grade crossing in the open country, it is not required to slow up or stop until a traveler, who has had opportunity to hear and see the train, has passed the crossing.</p> <p>In an action to recover damages for personal injuries, it appeared that plaintiff, while driving in a wagon over a grade crossing, was injured by collision with one of defendant’s trains. The place where the accident occurred was in the open country, about two miles from Pottstown, where a much frequented turnpike crossed the railroad at an acute angle. At a point on the turnpike two hundred and two feet from the crossing the railroad could be seen for about four hundred feet from the crossing, and at a point on the road seventy-four feet from the crossing the railroad could be seen for nine hundred and ninety feet. At a point somewhere between twenty-six hundred and thirteen hundred feet east of the crossing the steam whistle of the locomotive was sounded, and was heard by eleven witnesses. Plaintiff testified that he did not hear it. When the train went over the crossing it was running at the rate of fifty miles an hour. Held, that there was no evidence of negligence on the part of the company to submit to the jury.</p> <p>Contributory negligence — “ Stop, look and listen.”</p> <p>Where a person is injured at a railroad crossing by the negligence of a railroad company, the question whether the plaintiff stopped at a proper point is for the jury, and it is error for the court to undertake to determine the fact as a matter of law.</p> <p>Practice, C. P. — Reserving question of law.</p> <p>The court cannot reserve as a question of law “ whether under all the evidence the plaintiff is entitled to recover; ” but it may reserve the question “whether there is any evidence in the case to be submitted to the jury, upon which the plaintiff is entitled to recover.”</p>

<p>Principal and agent — Contract under seal — Evidence—Action.</p> <p>Whore a simple contract other than a bill or note is made by an agent in his own name, his undisclosed principal may maintain an action or be sued upon it; and an unauthorized and unnecessai'y addition of a seal to such a contract may be treated as surplusage.</p> <p>A husband as the undisclosed agent of his wife executed in his own name a duplicate bill of sale. The copy sent to the vendee was under seal, but the copy retained by the vendor was without seal. Subsequently the wife brought suit in her own name against the vendee to recover the balance of the purchase money. At the trial the court admitted in evidence under objection the unsealed agreement. Meld, not to be error. In such a case it was not necessary for the wife to bring the suit in her husband’s name to her own use.</p> <p>Itevoeation of agency — Notice.</p> <p>A husband acting as the undisclosed agent of his wife, the plaintiff, sold to defendants, through Chase & Son, a quantity of ice. A certain amount of the purchase money was paid, when plaintiff’s husband notified defendants not fo pay the balance to Chase & Son who had been previously authorized to receive the money. Notwithstanding the notice, defendants paid the balance to Chase & Hon. It appeared that the latter had not parted with value to plaintiff’s husband by the order given to them to collect the money. Meld, that the revocation of the authority to collect the money was sufficient, and that plaintiff was entitled to recover from defendants the unpaid balance of the purchase money.</p> <p>Me. Justice Mitchell dissented.</p>

Appeal, No. 230, Jan. T., 1892, by defendant, Jennie E. Hays, executrix of George F. Ulmer, deceased, from judgment of C. P. No. 1, Phila. Co., on verdict for plaintiff, Mary Carpenter. Assumpsit for services as nurse. At the trial it appeared that plaintiff, who was a cousin by marriage of testator, George F. Ulmer, went to live with him and nurse him in the early part of 1885, and remained until he died, Feb. 18, 1886.

<p>Appeal, No. 106, Jan. T., 1893, by plaintiff, John Webb, from judgment of C. P. Montgomery Co., Dec. T., 1888, No. 42, on verdict for defendants, Joseph Lees et al., trading as James Lees & Sons.</p> <p>Assumpsit for .wages.</p> <p>At the trial, before Weand, J., plaintiff testified that he was employed by the defendants to act as superintendent, at a salary of $35 per week, and if the mill ran over 60 hours per week he was to be paid a ratable increase for such extra time, but in any event, whether the mill ran or not, he was to receive $35 per week. Defendants testified that, by the terms of his employment, plaintiff was to be paid at the rate of $35 per week of sixty hours, for such time as he actually worked. It was not contradicted that plaintiff had accepted wages from week to week for a period of eighteen months, the whole time of his employment, at a rate in accordance with his own returns of time. It was claimed for plaintiff, however, that the return was merely the time of the running of the mill.</p> <p>Defendant produced book containing transcript made by himself from time book, and offered to testify as to the time from it. The Court: I suppose this is to be followed up by the testimony that he received pay accordingly ? Mr. Hunsicker: Yes, sir. Mr. Larzelere: I object to this evidence, upon the ground that it is not the best evidence of the return made by Mr. Webb, and because of the non-production of the book in which the return was made, which is in the defendants’ possession. Objection overruled, exception. [3]</p> <p>Plaintiff proposed to show that he, as superintendent of the new process, was required by defendants to experiment with different wools upon this machinery in order to obtain the best possible combination of wools, to produce the best products, and at many times, while his department was running for only a few hours in a day or a week, it was not done in producing, but was merely done in experimenting by him, in the selection of the kinds of yarns that would be suitable in the process ; if they succeeded in getting that combination of wools and the machinery adapted to it, then the mills were regularly started and run to full time or nearly so in the producing of yarns. Also when the witness produced samples by such experiments, he went to Philadelphia and elsewhere with those samples to introduce them to jobbers and others, to see how they would suit the market, for the purpose of having the mill produce the kind of yarn that the market would take. Objected to, objection sustained, exception. [4]</p> <p>Defendants’ point among others was as follows :</p> <p>“ 2. That, under the undisputed evidence of the case the plaintiff returned his own time, and drew his pay every two weeks, based on said return at tbe rate of $85 per week, each week consisting of 60 hours actual work, is convincing evidence that he was paid according to the time, and there being no explanation given by the plaintiff that does or ought to carry conviction, hence the verdict must be for defendants.” Affirmed. [2]</p> <p>Binding instructions for defendants were given. [1]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Urfors assigned were (1-4) above instructions and rulings, quoting them and the bills of exception.</p>

<p>Affidavit of defence — Suit for counsel fees.</p> <p>In an action to recover counsel fees, a refusal of judgment for want of a sufficient affidavit of defence will not be reversed where defendant avers that she never employed plaintiff, and only knew him as an assistant to counsel in the cases referred to in plaintiff’s statement.</p>

<p>Appeal, No. 25, Oct. T., 1892, by defendants, Chas. I. Travelli, C. P. Tiers and Geo. W. Irwin, trading as James Irwin & Co., from judgment of C. P. No. 2, Allegheny Co., July T., 1880, No. 447, on verdict for plaintiffs, W. R. McCloy et al., trading as Braddock Glass Co., Limited.</p> <p>Assumpsit for goods sold and alleged to have been delivered.</p> <p>At the trial, before Magee, J., the evidence tended to establish the following facts:</p> <p>On May 1, 1889, the senior member of plaintiffs’ firm went to the office of defendants, who were manufacturers of and dealers in chemicals in the city of Pittsburgh and offered for sale ten casks of soda-ash then in transit from Baltimore to Rankin station. Defendants agreed to purchase the soda-ash, provided they could induce their customer to take it and provided the delivery of the soda-ash should be promptly made to them at the 48d Street station of the Pittsburgh J unction Railroad in the city of Pittsburgh. The goods were not such goods as could be disposed of in the market. On the same day defendants consulted their customer and found him willing to purchase, and telegraphed to plaintiffs their acceptance of the proposition of sale. On May 13, the goods had not yet been delivered to them at the 43d Street station of the Pittsburgh Junction Railroad, and defendants notified plaintiffs in writing that the contract was rescinded on account of their failure to deliver. In the meantime defendants’ customer had made demand upon them for the goods, and compelled them to purchase elsewhere to fill his order. The witnesses differed as to the place at which, under the contract between the parties, the goods purchased by defendants were to he delivered, and to whom they were to he delivered, plaintiffs claiming that the delivery was to be made at Rankin station, and not at the 43d Street station aforesaid.</p> <p>Defendants’ points were as follows :</p> <p>“ 1. If the jury find from the evidence that the contract between the parties was that the plaintiffs should deliver the soda-ash at Forty-third street, Pittsburgh, then under the evidence in this ease there can be no recovery. Answer: This point is refused. I decline to say that there could be no recovery in this case if you should find that the contract called for a delivery at Forty-third street. In such ease it would, in my opinion, be your duty still to inquire from all the evidence whether or not the plaintiffs had made a delivery of the goods at that point, and that the goods were there awaiting removal by the defendants, or were negligently detained by the railroad at the place of delivery.” [1]</p> <p>“ 2. If the jury find from the evidence that the plaintiffs agreed to sell the soda-ash to defendants promptly delivered at Forty-third street, Pittsburgh, then under the evidence in this ease the verdict must be for defendants. Answer: This point is refused. I leave as a fact to be found by you, if you find the contract to be one of ‘ prompt delivery,’ whether or not under the evidence such delivery by the plaintiffs has taken place. Prompt delivery has no definite or fixed meaning, but will depend for its construction upon the circumstances and the extent of the delay complained of.” [2]</p> <p>The court charged in part as follows :</p> <p>[“ If the goods were at the Forty-third Street station on the 9th, and the plaintiffs had complied with a delivery at that place, if that was the contract place of delivery, and the delay was not owing to the fact that the goods were not there, but to the negligence of the railroad in delivering the goods, tbe fault would rest with the railroad and not with the shipper.] [3]</p> <p>[“ If, however, the agreement of the parties was that the goods were to be delivered to the defendants at Forty-third street, a delivery at that point would be required in order to subject the defendants to payment for the goods. In that event, however, the law would cast upon the plaintiffs the burden of a delivery at Forty-third street within a reasonable time, either as an ordinary delivery or a prompt delivery, according to the agreement and circumstances of this case. If the goods were at the appointed place, in proper time, and in the hands of the carrier agreed upon for delivery of goods, I take it to be the case that the delivery by the plaintiffs is completed, and the goods thereupon became the property of the purchaser, and for any delays in delivery, or loss sustained, as the owner of the goods, his remedy would be against the carrier and not against the vendor.”] [4]</p> <p>Verdict and judgment for plaintiffs for $380.61. Defendants appealed.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 126, Oct. T., 1891, by plaintiffs, M. A. Stewart and Amanda Stewart, his wife, in her right, from judgment of O. P. Mercer Co., Jan. T., 1887, No. 107, upon special verdict for defendant, Charles Madden.</p> <p>Ejectment in 1886 for undivided half of tract of land.</p> <p>On the trial, before Mehard, P. J., the jury found the following facts in the nature of a special verdict: On Nov. 17, 1854, Letitia Robinson and her husband Jackson Robinson made a deed to Chas. D. Everett, Jr., for the tract of laud in dispute. “Also all her right, title, interest, property, claim and demand of and in the moneys and property bequeathed to her herein by Dr. Charles D. Everett, late of Albemarle county, Virginia, in his last will and testament duly proved and registered in said county of Albemarle, to be held by the same Dr. Charles D. Everett for the following uses and trusts, to wit: To pay to the said Letitia Robinson the interest annually, and so much of the principal of said legacy from time to time as the said trustee shall deem necessary for the benefit of said cestui que trust; the balance remaining at her death to go to, and be vested in such children as were born after the 4th day of October, 1858, in equal shares, the children of a deceased child born after the 4th day of October, 1853, if any, to take by representation of their ancestor.</p> <p>“ The said trustee to have power to invest the amount received under said last will and testament, and to change said investment at pleasure, in such manner and as often as he may think proper, and the said trustee to have power to sell and convey the said real estate in the lifetime of the said Letitia Robinson and invest the proceeds in other real estate to be held in trust for the same purposes, or he may convert land into money and appropriate the interest and principal as hereinbefore directed as to personal estate, or money into land and hold the same subject to the same uses and purposes as hereinbefore prescribed as to real estate, and further the said Dr. Charles D. Everett shall have power at any time he shall think proper to renounce the trust herein created and to vest the same by deed in any other person he may select for the purpose, and by delivery and payment of said trust estate and property to said trustee, divest himself of the same, which said trustee thus appointed and invested with the trust shall hold the same, with the same proviso and for the same purposes as are hereinbefore set forth; and further it is declared and provided that the rents, issues and profits of the real estate held by the said trustee, or by any one appointed by him, shall be subject to the right of the said Letitia to receive and enjoy, and to be for her sole and separate use during her natural life, and the same as well as the residue of the personal property mentioned in the deed remaining at her death, shall be transferred and delivered to her children born after the said 4th day of October, 1853, in the absence of any testamentary provision by her, the children of any such deceased child if any to take by representation but should she make a valid last will and testament, then the said real and personal estate to go to her devisees and legatees.”</p> <p>Letitia Robinson continued to reside on this land until her death in October, 1859.</p> <p>By her will she devised the land to her husband for life, and after his death to her two sons Richmond Robinson and James Robinson in fee.</p> <p>Following the death of Letitia Robinson, her executor applied to the orphans’ court of Mercer county for an order to make sale of the land for the payment of her debts. Proceedings were had under this petition and an auditor appointed. After the report of the auditor, finding that debts existed, a decree was made for the sale of the land for payment of debts. Land was sold to Charles Madden, and conveyed to him by the executor by deed dated Sept. 9, 1862, made in pursuance of the sale in the orphans’ court. Thereafter the purchaser, Charles Madden, commenced proceedings before two justices of the peace to obtain possession by virtue of his purchase. These proceedings were against Jackson Robinson, who was then in possession of the land. After judgment in favor of the plaintiff in those proceedings, an appeal was taken by the defendant, Jackson Robinson, and they were brought into the court of common pleas. Judgment was recovered by Madden, and, on appeal to the Supreme Court, a non pros was entered. On a habere facias, verdict and judgment were had against Jackson Robinson, and defendant, Chas. Madden, obtained and entered into possession on Sept. 20, 1868, and has maintained possession ever since.</p> <p>Following the sale of the real estate of Letitia Robinson, an auditor was appointed. The executor filed an account embracing the very fund realized from the sale of real estate which was distributed to the payment of the debts of Letitia Robinson by the auditor.</p> <p>Jackson Robinson, the husband of Letitia Robinson, died May 17,1879, and, on Sept. 21, 1886, Richmond Robinson conveyed a one half interest in the land to plaintiff.</p> <p>The court, in an opinion, entered judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) entry of judgment for defendant; (2) failure to enter judgment for plaintiff.</p>

<p>Divorce — Desertion.</p> <p>In a libel for divorce by a wife on the ground of desertion, a decree will not be granted where it appears that the libelant had not spoken to her husband for two or three years before they separated, that she had rented his room in the house to a boarder, and had practically crowded him out of the house.</p> <p> Evidence of adultery. </p> <p>A charge of adultery against a husband in a libel for divorce is not sustained by the testimony of the wife to circumstances of suspicion alone.</p>

<p>Appeal, No. 25, Oct. T., 1893, by defendant, George Straesser, from judgment of O. & T. Allegheny Co., Sept. T., 1892, No. 34, on verdict of guilty of murder in the first degree.</p> <p>Indictment for murder.</p> <p>At the trial, before Kennedy, P. J., and McClung, J., evidence for the commonwealth tended to show that between 8 and 9 o’clock on the evening of Aug. 3,1892, Joseph Brandi, the deceased, was standing in the yard belonging to his boarding house, which was kept by Mrs. Stuekenberger, close to the gate leading into Holt street, along the side of which and next to the yard, was a boardwalk, on which Mrs. Stuekenberger was seated. Her son Frank was also near her, and her husband, George Stuekenberger, was in the yard near Brandi, who was clad only in his pants and shirt, and without hat, cap or vest, shoes or stockings. At this time there came along this boardwalk Johanna and Bose Straesser, mother and sister of the prisoner, who addressed some derogatory remarks to the Stuekenbergers in regard to a lawsuit or suits, between the parties, which they' had all been attending at the office of Alderman Beinhauer, including in these remarks the deceased, Joseph Brandi, to whom was applied some opprobrious epithets. These remarks were replied to by Brandi, who told Mrs. Straesser to go on or he would come out and strike her, and they (the Straessers) saying for him to come out and they would fix him, or he would be fixed. Brandi went out with nothing in his hands and struck or slapped Mrs. Straesser, when she, her daughter Bosa and her son J oseph Straesser, who came up at that juncture, all laid hold of the deceased Brandi, at the same time crying loudly for help. Immediately the prisoner, George Straesser, came up, armed with a knife and stabbed and cut the deceased, inflicting the wounds in the abdomen, some three inches in length on the outside, vertically, and extending in depth some six or eight inches, into and through the abdominal cavity, cutting through one of the large intestines or bowels, into the omentum and the peritoneum, and into the kidneys, extending to the backbone on which it impinged, causing the death of Brandi. He also inflicted other wounds on the deceased, two in the buttocks, one of which was a large and deep wound, one on the head, another on the arm, and another on the hand and linger. The bowels of the deceased, as well as a portion of the omentum protruded through the wound in the abdomen, and he lingered in great agony until early next morning, when he died from the effects of his wounds.</p> <p>Defendant claimed that he liad no knife in his hand, that he did not strike the blow which caused the death of the deceased, but that the wound that caused the death was inflicted by the fall of the deceased upon the knife, which the deceased himself had in his hand.</p> <p>The court admitted under objection and exception the dying statement of the deceased, which was as follows : “ Southside Hospital, Pittsburgh, Pa. August 8,1892. Mr. George Straesser come out and cut me. We had no words. Joseph Brandi, his mark. Witness his mark, G. J. Bleichner.”</p> <p>Objected to, because at the time it was made he was more or less under the influence of drugs. Objection overruled, and exception. [1]</p> <p>Defendant offered to prove that deceased, Joseph Brandi, was a man of a quarrelsome nature, vicious disposition, and was feared in the neighborhood as a person of dangerous character, and had on several previous occasions threatened to shoot and kill people.</p> <p>Objected to by the commonwealth as incompetent and irrelevant generally, and, secondly, because there is no proof contained in the offer to bring knowledge of these facts to the defendant. Objection sustained and exception. [2]</p> <p>The court charged in part as follows, by Kennedy, P. J: “ As a general rule it may be stated that every homicide is presumed to be murder of some degree, and where it has been shown that the prisoner committed the deed the burden of reducing the crime from murder to manslaughter rests upon him. But the burden of proof of the intention to kill and the disposition of mind constituting murder of the first degree under the act of assembly, which I have just quoted, lies on the commonwealth.....As I have already stated to you all homicide is presumed to be malicious or murder of some degree until the contrary appears in evidence, and therefore the burden of reducing the crime from murder to manslaughter lies on the prisoner, when it is proven that he committed the deed. But while it is presumed to be murder, it is only of the second degree, until it is shown by the commonwealth to be murder of the first degree.” (Then follows a statement of the facts of the case.) “Butif you are satisfied beyond a reasonable doubt that the prisoner did strike the blow which did cause Brandi’s death, then the presumption is that the crime is murder.” (Followed by a statement of the law of manslaughter.) “ But the burden of proving this is on the prisoner, as you will recollect. If he has not so proven, then the crime is murder of some degree, and it is your duty to determine whether of the first or of the second degree.” [6]</p> <p>Verdict, murder in the first degree. Defendant appealed.</p> <p>Errors assigned were, inter alia, (1, 2, 6,) rulings on evidence, and charge, as above, quoting bills of exception and charge.</p>

<p> Affidavit of defence to part of claim. </p> <p>An affidavit of defence in an action to recover the price of goods sold and delivered is insufficient to prevent judgment where defendant admits the receipt of goods, and avers that he has disposed of about two thirds of them, although for a less sum than that charged by plaintiffs, but not naming the sum, and that the goods furnished were of much lower grade than those of the samples from which they were purchased. As the defence was to only a part of the claim, the affidavit should have set forth the amount admitted to be due so that plaintiffs may have judgment for that amount, if they see proper to accept it.</p>

<p>Appeal, No. 87, Oct. T., 1892, by defendant, Margaret Basendorf, from order of Q. S. Allegheny Co., Dee. T., 1881, No. 1, making absolute a rule for judgment for want of sufficient affidavit of defence.</p> <p>Scire facias sur recognizance.</p> <p>The record showed that defendant had, on Feb. 16, 1891, entered into recognizance for the appearance of Kate McNamara before the court of quarter sessions. The following entry appeared, “ Recognizance forfeited, IMay 5, 1891.”</p> <p>The defendant averred in her affidavit of defence that Kate McNamara, the prisoner, had a hearing before John Gripp, Esq., alderman, within and for the city of Pittsburgh, and was, by the said alderman, on Jan. 26, 1891, committed to the jail of Allegheny county, for trial at the following March term of the court, whereupon the jurisdiction and power of the aider-man and the recognizance afterward taken by him on Fob. 16, 1891, on which the scire facias issued is void.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence, in an opinion by MoClunu, J., on the authority of Moore v. Com., 6 W. & S. 314; 2 Pars. 458; Fox v. Com., 81* Pa. 511.</p> <p>Error assigned was entry of judgment as above.</p>

Appeal, No. 103, July T., 1892, by defendant, James B. Smith, from judgment of C. P. Montgomery Co., Oct. T., 1891, No. 43, on verdict for plaintiffs, George C. Williams et al. Trespass for conversion of two horses. At the trial, before Weand, J., it appeared that Matthias Bennett, a horse drover and dealer, brought a lot of horses to the borough of Jenkintown and stabled them at the hotel kept by defendant in the month of March, 1891.

Appeal, No. 48, Jan. T., 1893, by plaintiff, William F. Weld, from order of C. P. No. 1, Phila. Co., Dec. T., 1891, No. 1251, discharging rule for judgment for want of sufficient affidavit of defence. Assumpsit to recover price of certain stocks and bonds. From the record it appeared that on April 21, 1890, plaintiff purchased from defendants, Barker Bro. & Co., certain stocks and bonds under an agreement in writing which contained the following clause:. “ 4.

<p>Appeal, No. 166, July T., 1892, by plaintiff, Henry T. Atkinson, from order of C. P. No. 1, Phila. Co., June T. 1891, No. 161, making absolute rule to show cause why judgment should not be marked satisfied of record.</p> <p>Rule to show cause why judgment should not be satisfied of record.</p> <p>Defendant, in his affidavit for the rule, averred, “that on July 16, 1891, plaintiff obtained judgment against defendant in the sum of $2,584.04, said judgment being obtained upon a draft drawn by one John Streight, dated Dec. 10, 1890, in the sum of $2,544.60 and accepted by defendant. That plaintiff also obtained judgment upon said draft against John Streight, the drawer thereof, which said judgment has since been fully paid by the said John Streight. That defendant avers that the judgment against him has been fully paid by the payment of the judgment against said John Streight, the judgment against deponent and said Streight having been obtained upon the one and same draft. That deponent has requested that the judgment against him shall be satisfied of record, he having offered to pay all legal costs thereon; that plaintiff refuses to satisfy said judgment unless defendant pays to him the attorney fee charged to plaintiff in the suit and collection of said judgment against John Streight, amounting to over $200.</p> <p>Plaintiff filed an affidavit, in which he averred that defendant “ came to him and asked him to bring suit in Cincinnati against the drawer of the draft upon which judgment was obtained, the drawer being John Streight, of Cincinnati, and the defendant thereupon promised the plaintiff, this deponent, that if he would bring suit against the said John Streight and collect the amount of the draft from him, that he, the said defendant, would pay to this deponent all the costs, charges and expenses that would be incurred by him in the collection of the said draft from the said John Streight, that thereupon, this deponent, relying upon defendant’s promises, and upon the said defendant’s express request, retained counsel in Cincinnati, and had suit brought against the said John Streight upon the aforesaid draft; that the said suit was bitterly contested, but finally, after much labor, the said attorneys succeeded in obtaining judgment against the said John Streight and collecting the amount of the same, which they remitted to this deponent, less the sum of 1261.68 costs, charges and expenses incurred by them in and about the said suit and judgment against the said John Streight; that the said amount of 1261.63 is still due.”</p> <p>The court made the rule absolute. Plaintiff appealed.</p> <p>Errors assigned were (1) making absolute above rule; (2) not awarding an issue.</p>

<p>Appeal, No. 91, July T., 1892, by defendant, John Yewdall, from order of C. P. No. 2, Phila. Co., March T., 1892, No. 145, making absolute rule for judgment for want of a sufficient affidavit of defence, in action by plaintiff, Charles H. Krumbhaar.</p> <p>Assumpsit to recover money paid under mistake. Rule for judgment for want of sufficient affidavit of defence.</p> <p>Prom the record it appeared that plaintiff, while sheriff of Phila. Co., sold certain real estate under levari facias issued in an action of scire facias sur mortgage in which John Yewdall was plaintiff. The property was bought in by the execution plaintiff, who subsequently transferred his bid to John L. Hogan. Hogan paid Yewdall for the property, and the latter made settlement through his attorney with the sheriff, furnishing the usual distribution searches. The sheriff’s deed was made to Hogan. The amount disclosed by the searches as due to the execution plaintiff was paid to him by the sheriff. Three months after the sheriff’s sale a city claim for paving was filed against the property, and this claim, being a prior lien to the mortgage, the sheriff was compelled to pay. At the time of the sale neither the execution plaintiff, his counsel, nor the sheriff knew anything of the claim.</p> <p>Defendant filed an affidavit of defence which was in part as follows:</p> <p>“ The property was sold at sheriff’s sale on November 3,1890, and purchased by my attorney for me for $600. Subsequently one J ohn L. Hogan offered to purchase the property from me and I agreed to sell it to him upon the payment to me of the full debt, interest and costs in the case and no more. He purchased the property from me upon the above terms and upon December 13, 1890, a deed was made and delivered to the said John L. Hogan by the sheriff for the said premises. The amount of the bid at the sheriff’s sale was paid to the sheriff and the balance of the consideration was paid to me partly in cash and partly by a bond and mortgage given by the purchaser. I am informed and believe and therefore aver that subsequently on December 31, 1890, Charles E. Lex, Esq., called upon the sheriff to make distribution of the funds in his hands and furnished the sheriff or his deputy, Henry C. Olmsted, Esq., acting in his behalf, with such searches as he required and at the same time there was assigned to the sheriff a policy of insurance issued by the Real Estate Title Company. The searches required by the sheriff did not disclose any municipal claim for paving filed against the said premises ; I did not know that there were any unpaid paving bills against the premises in question, nor did my counsel know of the same. Upon request of my counsel the money was voluntarily paid by the sheriff through his deputy to my counsel. Had I known that a lien was to be filed or that any money was due for any municipal improvement of any kind whatsoever I should have taken that into consideration in settling with the said John L. Hogan when he purchased the property and required of him to pay the amount of such paving lien. The matter has been long since closed with the said John L. Hogan and I am powerless to recover the money from him and if I am obliged to pay it to the plaintiff in this case it will be a direct loss to me through no fault of mine, and for which [ am advised that I am not legally or morally responsible.”</p> <p>Rule for judgment for want of sufficient affidavit of defence. Rule absolute. Defendant appealed.</p> <p>Error assigned was making above rule absolute.</p>

<p>[Marked to be reported.]</p> <p>Assignee for the benefit of creditors — Sale—Notice.</p> <p>Where a statute requires that the notice of a sale by an assignee for the benefit of creditors must be given for twenty days, a purchaser at such a sale will be justified in declining to take title where only fifteen days notice was given.</p> <p> Confirmation of assignee’s sale. </p> <p>A sale by an assignee for the benefit of creditors must be reported to and confirmed by the court before it is complete, and until the sale is thus confirmed a purchaser will be justified in declining to take the title.</p> <p>Resale on different terms — Liability of first purchaser.</p> <p>Where a resale is not on the terms of the first sale, the basis is shifted, and the purchaser at the first sale cannot be held liable for any difference between the prices at the two sales.</p> <p>At the first of two sales an assignee for the benefit of creditors advertised and sold a complete and absolute legal title. At the second sale he sold only the right, title and interest of the assignor in the property. At the first sale the property was advertised as having two slaughter houses upon it; at the last sale it was sold as having only one. Held, that the purchaser at the first sale was not liable for the difference between his bid and the decreased price which the property brought at the second sale.</p>

<p>Appeal, No. 152, July T., 1892, by plaintiff, from order of C. P. No. 3, Pbila. Co., March T., 1892, No. 993, making absolute rule to strike off judgment against defendant, John F. Rau et al.</p> <p>Rule to strike off judgment.</p> <p>From the record it appeared that judgment was entered on a warrant of attorney accompanying a bond. The bond was as follows:</p> <p>“ Know all men by these presents, that we, John F. Rau, Peter Rau. William H. Snowden and Edwin S. Bon bright, all of the city of Philadelphia, are held and firmly bound unto The Integrity Title Insurance, Trust and Safe Deposit Company in the sum of $4,800 lawful money of the United States of America, to be paid to the said The Integrity Title Insurance, Trust and Safe Deposit Company, their certain attorney, successors or assigns; to which payment well and truly to be made we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, dated the 2nd day of February, in the year of our Lord 1892.</p> <p>“ Whereas, the said The integrity Title Insurance, Trust and Safe Deposit Company are the holders of twenty-three certain promissory notes, dated respectively the first day of February, 1892, drawn by the said John F. Rau, to the order of himself, and by him indorsed : [describing the notes, maturing at different dates.]</p> <p>“ Now the condition of this obligation is such, that if the above bounden John F. Rau, Peter Rau, William II. Snowden and Edwin S. Bonbright, their heirs, executors or administrators, or any of them, do and shall well, and truly pay, or cause to be paid, to the above-named The Integrity Title Insurance, Trust and Safe Deposit Company, their successors or assigns, the aforesaid several promissory notes when and as the same shall respectively become due and payable, without any fraud or further delay, then the above obligation to be void, or else to be and remain in full force and virtue.</p> <p>“ And it is hereby expressly agreed and understood by and between the said parties hereto that in case default shall be made in the payment of any one of the said notes when the same shall become due and payable, then all of the said notes, or such of them as may not have been previously paid, shall become due and payable in like manner as if all the said notes had been drawn payable on • the day that such default was made.”</p> <p>The warrant of attorney accompanying the bond was as follows :</p> <p>“ Whereas, We, John F. Rau, Peter Rau, William H. Snow-den and Edwin S. Bonbright, all of the city of Philadelphia, in and by a certain obligation bearing even date herewith, do stand bound unto the Integrity Title Insurance, Trust and Safe Deposit Company in the sum of $4,800 lawful money of the United States of America, conditioned as in the condition of the said obligation is mentioned and expressed: These are to desire and authorize you, or any of you [attorneys of the court of common pleas of Philadelphia county, or of any other court], to appear for us and each of us, our and each of our heirs, executors or administrators, and in the said court or elsewhere, in an appropriate form of action there or elsewhere brought, or to be brought against us, our and each of our heirs, executors or administrators at the suit of the said The Integrity Title Insurance, Trust and Safe Deposit Company, their successors or assigns, on the said obligation, as of any term or time past, present, or any other subsequent term or time there or elsewhere to be held, and confess judgment thereupon against us and each of us, our and each of our heirs, executors or administrators' for the sum of $4,800 lawful money of the United States of America, debt, besides costs of suit, by non sum informatus, nihil dicit or otherwise, as to you shall seem meet; and for you, or any of your, so doing, this shall be your sufficient warrant.”</p> <p>At the time judgment was entered three of the notes had become due and were paid, but no note was due and unpaid at the time of the entry of judgment. A number of other judgments, however, had been entered against John F. Rau. Rule to strike off judgment made absolute. Plaintiff appealed.</p> <p>Error assigned was above order.</p>

<p>Guardian and ward — Collateral attack upon decree appointing executor as guardian.</p> <p>A decree of the orphans’ court, appointing as guardian of minors the executor of the estate in which the minors are interested, cannot be collaterally attacked in an action of ejectment by the minors to recover land sold by the guardian under a decree of court.</p> <p>An executor of an estate, fourteen years after his active duties were ended, was appointed guardian of minors interested in the estate. Under a decree of court he subsequently sold at private sale certain real estate belonging to the minors. No fraud was alleged or proved. After the minors came of age they brought ejectment to recover the land, alleging the invalidity of the guardian’s appointment. Held, that they were not entitled to recover.</p> <p>Lull’s Ap., 108 Pa. 604, appears to treat such an appointment as this as an irregularity and not as absolutely void. The orphans’ court having jurisdiction to appoint a guardian, the purchaser had a right to rely upon the record of such appointment and was not bound to inquire further.</p>

Appeal, No. 149, Oct. T., 1892, by plaintiff, D. E. Moore, from order of C. P. Beaver Co., Dec. T,, 1890, No. 257, distributing the proceeds of a sheriff’s sale of real estate of J. W. Moore & Co. Distribution of proceeds of sheriff’s sale of real estate.

<p>Appeal, No. 29, Oot. T., 1892, by defendants, Angelo Zappe and Joseph Zappe, from judgment of O. & T. Allegheny Co., Sept. T., 1892, No. 36, on verdict of guilty of murder in the first degree.</p> <p>Indictment for murder.</p> <p>At the trial, before Kennedy, P. J., the evidence tended to show that on July 4, 1892, Frank Helmstetter was stabbed by defendants, and died from the result of his wounds. The evidence also tended to show a deliberate intent to kill.</p> <p>The court charged in part as follows :</p> <p>“ [If you are satisfied beyond a reasonable doubt, that the killing was willful, deliberate and premeditated, and that the intention to kill existed in the minds of these two defendants when they came from their house and made the assault upon the decedent, as claimed by the commonwealth, then your verdict should be guilty of murder of the first degree as to both of them, because the killing, if done only by one, was done in pursuance of the common purpose and plan agreed upon between them.] [6] If, however, you should find that Joseph Zappe had no such purpose or intention, and did not participate in any way in the assault which resulted in the death of Helmstetter, your verdict as to him should be not guilty. Although there may not have been any intention to kill — if there was no willful or premeditated killing — then was the killing done under such circumstances as would constitute murder of the second degree, by both or either of these defendants? Was it done “ under circumstances of depravity of heart and a disposition of mind regardless of social duty, but where no intention to kill existed or could be reasonably and fully inferred ? ” If so, then your verdict should be murder of the second degree, as to both or either of these defendants, as you find their participation in the commission of the crime. If you find that the circumstances do not exhibit wickedness of disposition, depravity of heart, recklessness of consequences or cruelty, your verdict should be that of manslaughter as to both or either of these defendants, as you find their participation in the commission of the crime. But, as I have said to you, the burden of reducing the crime from murder of the second degree to manslaughter rests upon the defendants, that is, if you find that murder has been committed.</p> <p>“ In considering this case, gentlemen, you start with the presumption in favor of the innocence, of the prisoners. The first question will be, are they, or 'either of them, guilty of murder? [If they, or either of them, formed the design to kill Helmstetter, and in pursuance of this purpose they, or either of them, prepared the weapon, carried it with them and used it on the occasion, then that is murder.] If, at the time, they, or either of them, thought of this purpose to kill, and had time to-think that they, or either of them would execute it, and formed fully in their minds the conscious design of killing, and had time to think of the weapon they had prepared, and that they would use, and so did use it, that would be murder of the first degree.] [7] But if, although they had prepared the weapon intending to use it, the attack was made upon them and they' had no real intention of killing Helmstetter, did not deliberate upon the act, but in the suddenness of the occasion, and impetuousness, intending only to cut or wound, or do some bodily' harm, that would be murder of the second degree. If, however, you believe that the weapon was not prepared at all for the occasion, that there was no previous purpose or intention to kill or to do great bodily harm, but that it was done under the impulse of passion caused by the blows, as I have said, upon Angelo Zappe, and the blow was struck without any malice at all, the crime would be manslaughter.”</p> <p>Verdict, murder in the first degree. Defendants appealed.</p> <p>Errors assigned were: (1) “The evidence in this case does not justify nor sustain the verdict. The verdict is against the law; ” (2, 3, 4) in not sustaining challenges to jurors; (5) in not granting a new trial; (6, 7) portions of charge, as above ; (8) in not instructing the jury that their finding on the question of intention to take life should rise out of the evidence and not rest upon theory; (9) in not instructing the jury' fully as to the law of self-defence, and as to the rights of a husband in defence of his wife ; (10) in not giving full instruction to the jury ás to the value of the element of previous good character in a case ; (11) the manner in which the district attorney argued it to the jury : (a) Exhibiting to the jury a knife which had not been offered in evidence. (5) Saying to the jury that “ one wound was upward and the other downward, and therefore they were made by two different hands.” (e) In stating to the jury that the purpose to kill Helmstetter was formed in the house between Angelo Zappe and Joseph Zappe before they came out. Reasons for challenges were not given.</p>

<p>Appeal, No. 163, Jan. T., 1893, by defendant, A. Loeseb, from judgment of Q. S. Montgomery Co., June T., 1892, No. 81, on an indictment for selling liquor without a license.</p> <p>Indictment for selling liquor without a license, and on Sunday.</p> <p>The facts appear by the charge as follows, by Swartz, P. J.:</p> <p>“The Germania Turnverein, a chartered organization for gymnastic training and social enjoyment, has its hall or place of business in Philadelphia. A committee of the organization leased the grove atFairview Heights, Montgomery county, for holding its annual picnic. The picnic was held on Sunday, May 29, 1892. The society has a membership of six or seven hundred. The lease stipulated that the picnic grounds for the day should be under the possession and control of the organization.</p> <p>“ The society purchased seventy-five kegs of lager beer, the greater part being quarter barrels and the balance contained each one sixth of a barrel. This beer was carried to the grounds on the day previous to the picnic.</p> <p>“ Tickets were sold by the defendant and others who were all members of the society. These tickets entitled the holder to purchase five cents worth of refreshments on the grounds, that is, the ticket was good for five cents worth of eatables or for a glass of lager beer, or the ticket could be used in payment for amusements.</p> <p>“ The picnic grounds were inclosed with a wire fence, and at the gate or entrance the society stationed persons whose duty it was to admit members and exclude others. On the way to the grounds from Philadelphia, badges were distributed to such as were members. The organization was so large and the membership so changeable from time to time that the president of the society says no one can determine without the books whether the persons attending the picnic were all members. And the defendant also says he could not tell whether all the persons to whom he sold tickets were members, as he did not know all the members, but he assumed all were members who applied for tickets because be supposed none but members were in the grove, as the society decided to admit only members to the ground.</p> <p>[“ J. M. Randall and A. F. McConnell were employed as detectives] [5] to ascertain whether there was a violation of the liquor laws upon the grounds on Sunday, May 29,1892. They came up to the gate of the grove from Philadelphia. They had no badges, but when they came to the gate they declared they belonged to the party, or at least said they came from Philadelphia, and produced their return coupon of the railroad ticket. When the return ticket was seen by the gate-men, badges were placed upon the applicants for admission and then they entered the grounds.</p> <p>[“ During the day they bought tickets from the defendant, and then went to the beer stand and exchanged some of the tickets for lager beer,] [5] and some of the tickets so purchased they produce here in court.</p> <p>“We are asked to instruct you that the sale of tickets to members upon which lager beer was obtained is not a violation of the law under the facts as shown in this case. The proceeds of the sale of these tickets went into the treasury of the society, and the beer was sold according to the testimony of the president at a profit. The money realized at these picuies over and above expenses went into the treasury and helped to maintain the society. Teachers were employed at its rooms in Philadelphia at considerable expense. We do not think it necessary to decide whether such a sale to a member constitutes a violation of the law, but for the purposes of this ease we charge you that a sale to members is not a violation. [If you believe the evidence then there were sales to persons other than members and such sales clearly constitute a violation of the law.] [6]</p> <p>[“ When the defendant undertook to assist in the sale of lager beer on Sunday or any other day, he must be held to the responsibilities of his position. When he undertakes to sell to a particular class he must see that he does not sell to a prohibited class. A licensed dealer is liable if he sells to a minor, although at the time of such sale he may think the person of full age. A dealer is liable to punishment if he sells to a person of known intemperate habits; although he may not know of such habits, it is his business to know if he has such a reputation in the neighborhood. So here the defendant could not sell to persons not members of the society. If he sold to them he is liable, for it is his business to know whether the person is entitled to buy.] [1]</p> <p>“ It may be said that this is imposing an undue hardship. But we answer the defendant assumed the position voluntarily. It seems to us if the commonwealth were required to prove that the sale to outsiders or persons not members were under such circumstances made knowingly, few convictions could be sustained, although the violations in fact might be numerous. The defendant may say I believed the person was a member, and how can this declaration be disproved where he admits that he does not know the members of the organization ?</p> <p>[“ But what precautions were taken in this case ? Randall and McConnell came to the gate without the badges of membership. Suppose they did make statements that were intended to mislead the gate-man? They had no proofs of membership and none were demanded other than the railroad tickets, and these might be produced by any person coming from Philadelphia. Suppose false statements were made to secure admission? There was no effort made to have them verified, although there was nothing to distinguish the applicants from any other strangers who might desire admission. When once in the ground, no effort whatever was made to determine the right of the parties to buy beer. The tickets were sold to any adult offering to buy.] [2]</p> <p>[“ Statements may have been made that were calculated to mislead the persons in charge of the gate, but this fact will not justify the sales that were made by the defendant. If you believe the evidence, the defendant is guilty on each bill in mariner and form as he stands indicted. You, it is true, are the judges of the law as well as of the facts, but this means that you are to look to the court for the best evidence of the law, just as you are to look to the witnesses for the best evidence of the facts.”] [3]</p> <p>Defendant’s point was as follows :</p> <p>“ The uncontradicted evidence being that the defendant is a member of the Germania Turnverein, a bona fide organization for gymnastic training and social enjoyment, having a valuable building for club and educational purposes, which organization was holding its annual picnic on Sunday, May 29, 1892, in Montgomery county, on which occasion the defendant sold tickets to fellow members for amusements, which tickets were also available for procuring refreshments, including lager beer; this does not constitute an infraction of the law and the verdict should be not guilty.” Affirmed.</p> <p>Verdict, guilty, on each bill. Sentence, $500 and three months imprisonment.</p> <p>Errors assigned, were (1-3, 5, 6) portions of charge in brackets, quoting them ; (4) in not adhering to the affirmation of defendant’s point, quoting point and answer.</p>

Appeal, No. 399, Jan. T., 1892, by the Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee under the will of… Held: whether vested, contingent, present, or future, which may belong to me at the time of my decease, I direct my executors to sell and convert into money (excepting only such personal investments which they may deem suitable to enter into the trust provided for in item fourteenth) and then reinvest the same in such bonds, loans or other…

<p>Appeal, No. 214, Jan. T., 1893, by plaintiffs, A. J. Smith et al., from judgment of C. P. Montgomery Co., June T., 1892, No. 15, on verdict for defendants, Howard R. Levick, owner, and Frank R. Hill, contractor.</p> <p>Scire facias sur mecbanic’s lien.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, [ilaintiff, in rebuttal, called William 'A. Common, who was asked: “Q. Do you know how long the original contract made between these parties existed and what became of it, and when this alleged contract was substituted? A. I know what Mr. Hill told me.” Objected to. Mr. Larzelere: We propose to show that in August, Mr. Hill told this witness that the original contract had been surrendered and he had signed a new one at the earnest request of Mr. Levick and Mr. Albright, the architect, for his protection against mechanics’ liens. That it was done in August of that 3rear, and up to that time they were working under the original contract that was originally executed between Mr. Hill and Mr. Levick; this to be followed by other witnesses that when he made the bids, as late as the last’ of May, the original contract was in their hands, shown to them by Mr. Hill and upon which they bid, and that this witness himself worked under the original contract until August. The Court: Do you propose to show that the original contract was different from this ? Mr. Larzelere: Yes, different in that it did not have the supplemental agreement. Offer overruled. Exception. [2]</p> <p>Under objection by plaintiff and exception the court admitted in evidence the second contract. [3, 4]</p> <p>The material portions of the contract, dated April 28, 1890, were:</p> <p>“ 6. The owner will not in any manner be answerable or accountable for any loss or damage that shall or may happen to the said works or any part or parts thereof, respectively, or for any of the materials or other things used and employed in finishing and completing the said works.</p> <p>“ 9. In consideration of the foregoing the said party of the first part agrees to pay to the said party of the second part, upon certificate of said architect that the terms of this contract are complied with, within three days after the receipt of the same, said certificates, however, in no way lessening the entire and final responsibility of the party of the second part, and upon sufficient evidence that all claims upon the building for work or materials up to the time of each and every payment are discharged, or if the said party of the first part shall require it either a full or partial release at the option of and satisfactory to the said party of the first part of all liens against said premises on the part of all persons, if any, who up to that time have delivered materials for use in, or performed work upon the said building and before the final payment hereafter specified shall become due to furnish to the said party of the first part a full, complete and perfect release of all liens which may lie against the building or premises on account of work done or materials furnished thereto, including the liens of the said party of the second part, said release or releases to be accepted by the said party of the first part in writing^as satisfactory,” etc.</p> <p>The new contract below the first signatures was as follows:</p> <p>“ It is further agreed that said building shall be built, finished and delivered over to the party of the first part free of all liens and incumbrances or any claims whatever, that may arise under any action of the party of the second part or his legal representatives under this contract, and that the provisions of the ninth section of said contract shall not be taken to subject the said buildings to any liability for the payment for labor or materials furnished in and about the erection thereof, or the said party of the first part to anjr liability therefor other than the payment of the contract price to the said party of the second part, as therein provided.”</p> <p>The date of the supplemental contract was recited as “ the date of the foregoing contract.”</p> <p>Binding instructions for defendant were given. [1]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1) instructions, (2-4) rulings on evidence ; quoting instructions and rulings, but not evidence.</p>

Appeal, No. 21, July T., 1892, by defendant, Leonard Frankenfield, from judgment of C. P. Northampton Co., Oet. T., 1889, No. 54, on verdict for plaintiff, Owen Oden welder. Appeal from judgment of justice of the peace. At the trial, before Reeder, J., it appeared that plaintiff and defendant were owners of adjoining farms, the division line between them being along the west side of a private lane.

<p>[Marked to be reported.]</p> <p>Statute of limitations — Promissory note — Collateral Security.</p> <p>The deposit of collateral securities for the payment of a promissory note has no effect to prevent the running of the statute against the right of action upon the note. The pledge, however, survives; and the debtor cannot demand a return of the collaterals until the debt has been paid, notwithstanding the statute may have run upon his creditor’s right of action against him.</p> <p> Acknowledgment to toll statute. </p> <p>The opinion of a witness that the debtor did not deny his liability or that he admitted it, is not sufficient unless the words on which the opinion is based are given, so that the court and jury may determine whether the opinion is well founded.</p> <p>A promise to make a renewal note or to waive the statute by an instrument in writing to be executed in the future, will not amount to a renewal or a waiver, when it appears that the instrument was prepared, but its execution postponed or “ put off from time to time,” and finally left undone.</p> <p>The statute of limitations is not tolled by the evidence of a witness who testified that the debtor “ never disputed the correctness of these notes and expressed his willingness to pay if he was able. He admitted the debt and said, have new notes fixed and ho would fix it when he came in again. He said he would sign new notes. He said he would renew this indebtedness. I can’t tell why he did not sign the notes; he put it off from time to time.” At the time of conversation the debtor owed three notes, one of which was subsequently renewed.</p>

<p>Appeal, No. 233, Jan. T., 1893, by defendant, Pietro Buccieri, from judgment of O. & T. Berks Co., Sept. T., 1892, No. 98, on indictment for murder.</p> <p>Indictment for murder.</p> <p>The facts as they appeared at the trial before Endlich, J., are stated in the opinion of the Supreme Court.</p> <p>Verdict, guilty of murder in the first degree. Defendant asked, to have the jurors polled. Some of the jurors answered, “ Guilty in the first degree.” Defendant objected to the recording of the verdict. The Court: “The jury may be polled again and each juror as he answers will say by his voice whether or not he finds the defendant ‘guilty of murder in the first degree.’ ” One juror answered again: “ Guilty in the first degree.” The Court: “ Guilty of what ? ” A. “ Guilty of murder in the first degree.”</p> <p>Errors assigned are stated in the opinion of the Supreme Court.</p>

<p>Appeal, No. 321, Oet. T., 1892, by defendant, M. Sharp, from judgment of C. P. Washington Go., Nov. T., 1891, No. 26, for plaintiff, Stephen Sanders, for want of a sufficient affidavit of defence.</p> <p>Assumpsit for rent on oil lease. Rule for judgment for want of sufficient affidavit of defence.</p> <p>The affidavit of defence was in part as follows:</p> <p>“ 3. A short time prior to the date of said lease this deponent, A. M. Brown, Isaac Sharp, Isaac Lehman, James P. Sayers, A. B. Caldwell and John Waterhouse agreed to become associated with each other and with other persons that might become associated with them and to form an c il and gas company for the purpose of drilling an experimental well to test the territory for the production of oil and gas lying in the neighborhood of Amity in said county, including the farm of the said Stephen Sanders there situate, and as preliminary to forming the company an effort was made to secure leases of a number of farms or tracts of land near where the test well was to be drilled, and Stephen Sanders and other farmers in the neighborhood were consulted and found willing to make leases of land to promote the development of the territory for a rent or royalty of one eighth of the oil and $500 for each gas well if found sufficient to justify in utilizing off the premises, and the leases were drawn in the name of this deponent to be by him assigned to the company as soon as it should be legally incorporated, and the said Stephen Sanders understood that the Lease from him was taken for the proposed corporation, that this deponent had no interest therein other than as one of the promoters of such company and enterprise, and that it was for the use of and to be assigned to the corporation.</p> <p>“ The aforesaid A. M. Brown, Isaac Sharp, and other promoters of said corporation proceeded with tire plan of forming an oil and gas company, and a corporation with a capital stock of ten thousand dollars was duly formed and incorporated under the laws of Pennsylvania of the name and style of the ‘Ten Mile Oil and Gas Company of Washington, Pa.,’ and after its incorporation and in pursuance of the understanding and agreement with the said Stephen Sanders, this deponent did, on the 30th day of June, 1886, for a nominal consideration make an assignment indorsed on said lease to the Ten Mile Oil and Gas Company of Washington.</p> <p>“ And deponent saith that his consent to accept the lease of the said Stephen Sanders till after tire said company should be formed and transfer the same to it, was voluntarily obtained without consideration and with the end in view as well on part of plaintiff as of this deponent of promoting the raising of capital by stock subscriptions forming the said company and developing the territory as aforesaid for mutual advantage; and from information of the acts and declarations of the said Stephen Sanders which information deponent believes to be true, this deponent saith that said Stephen Sanders would not have made any lease of his land to deponent if he had not known and fully understood that the same was for the use and benefit of a company to be so as aforesaid formed and that the same was to be absolutely assigned to such company, that deponent acquired and transferred only the legal estate therein for the-purposes aforesaid, the equitable title thereto being in the promoters and members of said corporation, and deponent saith that the legal theory, contention and demand now made by the plaintiff which seeks to hold this deponent absolutely bound to perform the alleged covenants in the said agreement are against equity and good conscience.</p> <p>“ 5. In making the said oil and gas lease intended as aforesaid for the use of such corporation it was agreed that if the lessee or his assigns should commence work of drilling for oil in the neighborhood of said farm of Stephen Sanders, to wit: On the farm of Cyrus Meloy or John Johnson within sixty days from the date of the lease and cause no cessation of work for more than sixty days at a time the said lessee should have the period of one year to commence on the farm of Stephen Sanders and should have the right to further delay by paying therefor the sum of four hundred dollars per year in advance; a printed form of lease was procured and used without advice of counsel, and by inadvertence it was not expressed in the lease that the payment for delay was due in advance for the year, a mistake which was not discovered or understood by this deponent or the said Stephen Sanders for more than a year after the making and execution of the lease as hereinafter more fully shown, but it was distinctly understood that the money was to be paid at the election of the party of the second part at the beginning of the year and sixty days delay in payment was to work an immediate forfeiture of all rights under the lease.</p> <p>“ 6. The said the Ten Mile Oil and Gas Company of Washington, Pa., commenced a well on the farm of Cyrus Meloy within sixty days from the date of said lease and prosecuted the work to completion and made a test of the territory for the production of oil and gas. No oil was found and although gas was found in considerable quantities, the situation was not such as to justify the company in attempting to use it' at any point not on the premises. At the expiration of the year from the date of said lease the said Ten Mile Oil and Gas Company elected to pay the said sum of four hundred dollars and eontinue the lease in force for another year, and afterwards paid to said Stephen Sanders the said sum, which he accepted and signed in writing indorsed on said lease an acknowledgment, of which the following is a true copy:</p> <p>“ ‘ I Stephen Sanders hereby acknowledge to have received of the Ten Mile Oil and Gas Company the sum of four hundred dollars as required by the terms of the within lease.’ [With signature, witnesses, etc.]</p> <p>“ And the said Stephen Sanders expressed himself as well pleased and said it was more than he ever expected to get out of it; but the said Stephen Sanders and others to the number of ten or more who had given similar leases of land for the same purpose understood and claimed that the money was payable in advance and such was the understanding of this deponent. The reason it was not paid within the sixty days was that there were some whose leases were of more recent date and a time was agreed upon to meet them at Amity and pay all at once; but it is was not claimed by anyone that the money was not due, or that the company did not have the right of electing to pay the money or let the lease be forfeited.</p> <p>“ 7. That afterwards one R. H. Brown procured from said Ten Mile Oil and Gas Company an assignment of all its right, title and interest in the said oil and gas lease. Neither the said corporation nor the said R. H. Brown paid the said sum of four hundred dollars at the end of the second year or for sixty days thereafter, and the said lease became and was forfeited to the said Stephen Sanders. Nevertheless the said R. H. Brown and others associated with him desired to make a further test of said territory for the production of oil and gas, and the said Stephen Sanders encouraged such further experiment; and the said R. H. Brown and others leased some other lands in close proximity to the farm of said Sanders and formed a joint stock company called the Prosperity Oil and Gas Company for such purpose, and said Stephen Sanders waived to them the forfeiture of said leasehold and accepted from them the sum of four hundred dollars and thereby gave to them the privilege of holding his land for another year. A large sum of money was raised by the said Prosperity Oil and Gas Company, and a large expenditure made in drilling another well close to the farm of said Sanders, and the result of the experiment was entire failure, the well producing neither oil nor gas, and no further effort has been made and deponent verily believes that any effort to produce oil or gas on the farm of said Stephen Sanders above mentioned would be a useless expenditure of money.</p> <p>“ 8. And this deponent further shows, as he is informed and believes, that the said R. H. Brown and the said Prosperity Oil and Gas Company make no claim to any leasehold or mining right in the said farm of the plaintiff, and are ready and willing to formally surrender and release to plaintiff all right, title, and interest thereto, but refuse to pay any money to continue the same in force; yet the said plaintiff refuses to accept a surrender thereof or treat the same as forfeited, and brings this suit and claims that he has in and by the premises acquired the legal right to compel this deponent to pay to him the sum of four hundred dollars per annum for the residue of the term of twenty years mentioned in said lease.</p> <p>“ 9. And this deponent charges that the interpretation, contention and demand of the plaintiff in this regard are illegal and unjust in view of the facts and premises, to wit: That it was agreed and understood that this deponent was not to hold the said lease for his own benefit and as his own property; that the purpose in making it on part of said Stephen Sanders was to have a test of the territory made, and if oil and gas should be found derived his advantage and consideration from his rent and royalty from the oil and gas produced on his said farm ; that it was not proposed or at any time agreed that this deponent was to drill a well on the farm of said Sanders and to pay to said Sanders the sum of four hundred dollars until such well should be commenced, and deponent in fact saith that if any such agreement had been understood to be contained in said oil and gas lease he would not havesigned it; that the said sum of four hundred dollars which was to become due and payable at the beginning of each year for which the said proposed company might elect to continue the lease was not rent either for the land or the mining right but was an agreed sum which the owners of the mining right could pay to gain time for their operations or not pay by incurring an immediate forfeiture ; and deponent saith that he is advised and believes that lie cannot be held liable to pay as in case of rent the said sum after the assignment of the lease in good faith in accordance with his agreement and understanding with the said Sanders at the time the lease was executed as hereinbefore stated, aud that the same cannot be recovered for the residue of the term as liquidated damages; that the said defendant fully performed his agreement and undertaking with the said Stephen Sanders as the same was understood between them ; that the said plaintiff has had the benefit and advantage of having two tests made to develop his said land for oil and gas and has had and received the sum of eight hundred dollars derived from the said venture and undertaking, and has contributed nothing thereto except the option of holding the oil and gas right in his land for the period of three years; that it has been shown with reasonable certainty that oil and gas cannot be found in his land in paying quantities ; and that this deponent has acted in good faith and derived no benefit or advantage from said agreement.</p> <p>“ And finally deponent saith that if any such agreement and obligation as that contended for by the plaintiff is found and contained in the said oil and gas lease it is the result of mistake, accident and misadventure, and the demand of the plaintiff is contrary to good conscience and tends to the manifest injury of this deponent in the premises and further saith not.”</p> <p>Opinion of court below was as follows, by McItVArNB, P. J.:</p> <p>“ This action was brought upon the covenants contained in a certain lease, dated February 1, 1886, by Stephen Sanders to M. Sharp, of a certain tract of land in this county containing four hundred acres, for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil or other valuable mineral or volatile substances and for the removal of the same. The term of the lease was for twenty years. In consideration of this lease, the lessee agreed ‘ to commence operations within one year from the execution thereof or thereafter pay to the party of the first part four hundred dollars per annum until work is commenced.’ The lessee has not commenced work upon the farm leased, — nor had his assignees, — and this suit is brought to recover the money due and payable, on account of the delay in commencing operations, for the two years ending February 1,1890, and February 1,1891, respectively,— the four hundred dollars due on February 1,1888, and the four hundred dollars due on February 1, 1889, having heretofore been paid by the Ten Mile Oil and Gas Company and the Prosperity Oil and Gas Company.</p> <p>“ The defendant denies his liability and by way of defence sets up (1) a certain clause in the written contract and (2) certain facts which rest in parol.</p> <p>“In the lease, immediately following the covenant to commence operations within one year or thereafter pay four hundred dollars per annum until work is commenced, we find these words: ‘ A failure to pay within sixty days after maturity works an immediate forfeiture of this lease. A cessation of work for sixty days, unless unavoidably hindered, shall forfeit this lease. A failure to commence work on the farm of Cyrus Meloy or John Johnson for sixty days from the date of this lease forfeits the lease.’</p> <p>“ It is contended by the defendant that the first clause of forfeiture, to wit: ‘ A failure to pay within sixty days after maturity works an immediate forfeiture of this lease,’ can be invoked to terminate his liability, or, in other words, that it was the express intention of the parties to the lease to make the lessee’s failure or that of his assignees to perform his covenants a defence against their enforcement.</p> <p>“ A reading of the lease shows that the lessor wished to have his tract of four hundred acres of land speedily developed. And as a spur to the operator and to compel this development an annual payment of four hundred dollars for delay was imposed upon the defendant. Anticipating however that he might not only fail to put down a well, but, through insolvency or otherwise, might become unable to pay the money, the lessor provided in the contract for a forfeiture of the lease if payment was not made within sixty days after maturity. This clause of forfeiture was inserted wholly in the interest and for the protection of the lessor, and it was competent for him to dispense with its provisions and to affirm the continuance of the contract. His right was optional or elective, and when the defendant failed to commence a well and failed to pay the four hundred dollars, the plaintiff might either forfeit the contract or affirm its continuance as he chose. This question was definitely settled by our Supreme Court in Wills v. The Manufacturers Nat. Gas Company, 180 Pa. 222. We cannot see, as was argued, how the fact that the lease sued upon provides for a forfeiture only upon the nonpayment of the four hundred dollars distinguishes this case from the Wills case. The language of the two leases are not exactly the same but they are identical in meaning. They both provide for a forfeiture after there has been a failure to commence a well within a specified time and a failure to pay the money which became due and payable by reason of the failure to drill. Clearly the forfeiture in both leases was intended, as said by Mr. Justice Clark, ‘ as a spur to the operator.’ The enforcement of the payment of the money was intended as a means of enforcing the commencement of operations. A forfeiture upon a failure to drill a well or pay a sum of money is in effect the same as a forfeiture upon the failure to pay money which is only payable upon a previous failure to drill a well. Neither do we see anything in the suggestion that a failure on the part of the defendant to commence a well within one year necessarily fixes upon him a liability to pay to the plaintiff annually four hundred dollars for the remainder of the twenty years which the lease has to run, for the express terms of the lease are that the four hundred dollars are to be paid annually ‘ until work is commenced.’ But it is said that the defendant assigned the lease within six months after its date and that he no longer has a right to go upon the plaintiff’s land to drill a well and that there is no way for him to perform his covenants except to annually pay four hundred dollars until the lease expires. Suppose he does not have any control over the present holder of the lease and suppose he has parted with his right to enter upon the plaintiff’s land, does that relieve him from the performance of his express covenants ? Can a lessee voluntarily assign his lease and then set up that assignment as a discharge of his liabilities under the lease? Surely not. In Frank v. Maguire, 42 Pa. 82, Mr. Justice Strong, says: ‘ It surely is not necessary to cite cases to prove that a tenant is bound by his express contract to pay rent, even after he had assigned the term with his landlord’s assent and though the landlord has accepted the assignee as his tenant and received rent from him.’ In the Washington Nat. Gas Co. v. Johnson, 123 Pa. 576, it is held that ‘ owing to his privity of contract, a lessee’s liability upon his covenants in an oil and gas lease continues after his assignment of the lease.’ The defendant knew or ought to have known that the law continued his liabilit}1- notwithstanding his assignment, and he cannot now set up the failure of his assignees to commence operations under the lease as a defence in this case.</p> <p>“ Thus far we have been considering the defence set up upon the theory that the lease sued upon and as written expresses the contract between the parties; and upon the face of this lease as exhibited to the court in pursuance of the defendant’s prayer of oyer and upon the undisputed averments of the plaintiff’s statement we are of opinion he is entitled to judgment.</p> <p>“ This brings us to the second branch of the defence.</p> <p>“ A number of facts resting in parol are relied upon to defeat the plaintiff’s claim. It appears that the defendant took this lease with a number of others in the same locality with the view of having the territory tested and developed by a company which he and some others were about to organize and have incorporated; that when the lease in suit was taken it was his purpose to assign it to the company when organized, and of this fact he informed the plaintiff; that the company was organized and the lease assigned in accordance with the understanding of the lessor and lessee when the lease was taken. It further appears that the plaintiff would not have leased his farm to the defendant had he not been assured that the defendant had arrangements made with other persons to assist him in developing the land and that the lease would be assigned to the company that the defendant and others were about to organize for that purpose. From these facts it is contended that the company which was afterwards incorporated under the name of the Ten Mile Oil and Gas Company and which took the lease by assignment is tbe real lessee, and tliat the defendant in executing the lease assumed no personal liability by reason thereof; that until the company was incorporated he held the lease as tbe trustee of the plaintiff Stephen Sanders, and when be assigned it to the company his trust was fully executed, and that the company was tbe party that was first liable under the covenants of the party of the second part, the defendant, by assigning the lease, having done all that the plaintiff expected him to do; and that to now hold him absolutely bound to perform the covenants of the written agreement would be against equity and good conscience.</p> <p>“ Granting the facts to be as set out in the affidavit of defence —and waiving the question whether an express agreement resting in parol made at the time the written lease was delivered can be set up to change the lessee’s liability (Act of 1856, P. L. 533; Balbec v. Donaldson, 2 Grant, 459) we do not think they are sufficient to justify a chancellor in modifying the written contract sued upon so as to relieve the defendant from the performance of the covenants which he therein took upon himself personally and without condition. The fact that he told the plaintiff that a company would be organized to develop the land and that the lease would be assigned to it was nothing more than an inducement for the execution of the lease to the defendant. The plaintiff wanted his land developed, and having this in view he might not have been willing to lease to the defendant unless he knew or was assured that the defendant had backing. Such a precaution on the plaintiff’s part and his refusal to make the lease until he was assured that the land leased would be developed by a company cannot in any way affect the true interpretation of the written contract afterwards entered into by the parties and which is unambiguous in its terms.</p> <p>“ The language of the written assignment of this lease made by the defendant six months after its execution in no way suggests that he was the trustee of the plaintiff or that he was anything else than the bona fide lessee and owner of the estate therein created, or that under it the Ten Mile Oil and Gas Company took title except as an assignee. If the defendant was not the lessee and the company only held as assignee, then no one sustained a contract relation to the plaintiff which could be made the basis of a suit to enforce the performance of the covenants of his lease; only through the privity of estate could he call anyone to account in an action at law. It is hardly to be presumed that the plaintiff who appears, by the terms of the lease, anxious to have his farm developed would so contract for its development as to leave no one responsible to him as a lessee and with whom there was privity of contract.</p> <p>“Neither can it be held that the defendant is not liable because he was the agent of the Ten Mile Oil and Gas Company wdiich had no existence at the date of the lease, nor because he was the agent of the persons who afterwards did organize this compauy. Having taken the lease in his own name he cannot rid himself of personal liability by showing such agency. ‘ Where parties contract as agents and for the benefit of a company but the contract was under their own hands and seals they were individually liable and an action of covenant was properly brought against them as individuals: ’ Quigley v. Deilass, 82 Pa. 267; Ulam v. Boyd, 87 Pa. 478.</p> <p>“Having disposed of the contention that the defendant was not acting for himself when he took the lease, but was a trustee of the plaintiff, or if not a trustee then an agent for other parties, let us now notice two or three other matters set out in the affidavit of defence.</p> <p>“ 1st. It is averred that the copy of the lease attached to the plaintiff’s statement is not correct. In compliance with the defendant’s prayer of oyer the lease sued upon was produced in court and it appears that this allegation is not well founded.</p> <p>“2d. The facts averred in the 7th paragraph of the affidavit of defence do not in our opinion constitute a good defence. This paragraph, if we understand its purport, attempts to set up a forfeiture of this lease, but it nowhere avers that the plaintiff ever elected to or did in fact forfeit it while in the hands of the Ton Mile Oil and Gas Company. It simply avers that c said lease became and was forfeited to the said Stephen Sanders.’ Taking the whole affidavit it is clear that this averment of the defendant is but his opinion of the legal effect of the nonpayment of the four hundred dollars due February 1, 1889, and is not intended to convey the idea that Stephen Sanders in any way actually elected to forfeit the lease. The fact that it is stated in the affidavit that the Ten Mile Oil and Gas Company assigned the lease to the Prosperity Oil and Gas Company shows that it was not actually forfeited by the plaintiff while in the hands of the first named company, and the 8th paragraph sets out that the lease is still in the hands of the last named company and that it stands ready to formally surrender it.</p> <p>“ 8d. The 9th paragraph of the affidavit does nothing more than set up that defendant did not fully understand the legal import of the written contract which he executed, and that if he had he would not have signed it.</p> <p>“ Tins may be and no doubt is true. The defendant with many others in our county prior to the ruling of the Supreme Court in the Wills case believed the clause of forfeiture in leases like the one sued upon inserted therein for the benefit of both parties, and that the lessee by his own default could put an end to his own covenants. In three different cases appealed from this court, the Supreme Court has said this is not the law, and in interpreting this written contract we must follow the interpretation given by the Supreme Court and not that put upon it by the defendant in his affidavit of defence.</p> <p>“ 4th. It is alleged that by a mutual mistake of the parties the four hundred dollars, which are to be paid if a well is not completed within one year, is made payable at the end of the year, when it should have been made payable in advance. Granting that this is so, and amending the lease in this particular, we cannot see how it affects the plaintiff’s case. In the Wills case the money due on account of delay in commencing operations was payable in advance. It would be useless to submit to a jury the question whether there was a mutual mistake made in drawing the lease in this particular, when it is immaterial to the issue here joined whether such mistake was made or not. In disposing of this case we have taken it for granted that such a mistake was made.</p> <p>“ On the whole case we are of opinion:</p> <p>' “ 1st. That the benefit of the clause of forfeiture in the lease sued upon cannot be invoked by the defendant to relieve himself of liability.</p> <p>“ 2d. That it is not averred in the affidavit of defence with sufficient clearness and distinctness that the plaintiff before this suit was brought elected and did by his own act take advantage of this clause and forfeit the lease to require that question to be submitted to a jury.</p> <p>“ 3d. That the defendant in face of the terms of the written lease and his written assignment thereof cannot relieve himself of personal liability by showing that he was acting as the agent of a proposed corporation or the persons who were about to organize such a company.</p> <p>“4th. That the facts set out in affidavit of defence do not make the defendant a trustee of the plaintiff whose only duty was to assign the lease to the Ten Mile Oil and Gas Company when formed.</p> <p>“ 5th. That the facts set out in the affidavit of defence are not sufficient in equity to move a chancellor to so modify and change the express terms of the written contract as to relieve the defendant of the liability which it under the law imposes.”</p> <p>“ And now, Sept. 25th, 1891, judgment entered in favor of the plaintiff and against the defendant for want of a sufficient affidavit of defence.”</p> <p>Jflrror assigned was above decree, quoting it.</p>

<p>Criminal law — Murder—Criminal pauper — Costs.</p> <p>The recovery and payment of costs in criminal cases ai-e so entirely dependent upon statutory regulations, that it is indispensable for every claimant to be able to point to the statute which entitles him to receive what he claims.</p> <p>Although a prisoner is entitled to compulsory process, there is no liability on the part of the county, in the absence of express enactment, for either witness fees or officer’s costs; the witness must attend at his own expense, because of the duty he owes tire community; the officer must execute process at his own costs, for he takes his office cum onere.</p> <p>Costs — Printing of paper books on appeal.</p> <p>The Supreme Court has no authority to make an order to compel a county to pay fdr the printing of paper books on an appeal by a criminal pauper convicted of murder.</p> <p>The act of March 31, 1860, § 59, authorizing the Supreme Court to make special allowance of a writ of error in indictments for murder and manslaughter, and providing that the court shall make all “ proper orders touching notice to the commonwealth and paper books as may be necessary,” has been superseded by the act of Feb. 15,1870, which enacts that “ a writ of error in all cases of murder and voluntary manslaughter shall be a writ of right to be sued out upon oath of defendants, as in civil cases.” In such case the Supreme Court has no longer any duty to perform as to allowance of writs, notice to commonwealth or printing of paper books.</p> <p>Doubted whether the right to make an order “touching paper books” includes the right to make the county pay for them.</p>

<p>Refusal to taka off nonsuit — Demurrer to evidence.</p> <p>A refusal to take off a peremptory nonsuit is in the nature of a judgment for defendant on demurrer to plaintiff’s evidence; and hence, in testing the correctness of such refusal, the plaintiff is entitled to the benefit of every fact and inference of fact which might have been fairly found by the jury, or drawn by them from the evidence before them.</p> <p>Principal and agent — Power of agent to sign promissory note.</p> <p>In an action on a promissory note against three persons trading as “ American Plumbago Mining Company” it appeared that the note was signed as follows: “ American Plumbago Mining Co., William P. Bard, Manager.” From the evidence of one of the defendants it appeared that Bard was the manager of the firm, and used the name of the firm in making notes, borrowing money and chocking money out of bank. It also appeared from the copartnership agreement that Bard was authorized “ to sign all notes, cheeks, drafts and other obligations, and to execute all papers under seal or otherwise, necessary for conducting said business.” Held, that there was sufficient evidence to carry to the jury the question of his authority to make the note in suit.</p>

<p>[Marked to be reported.]</p> <p>Judgment — Conclusiveness of — Appeal.</p> <p>A judgment entered for want oí a sufficient affidavit of defence, and affirmed by the Supreme Court on appeal, is conclusive of the matters that were actually considered and those that might have been considered if the defendant had exercised the vigilance the law requires of parties litigant in the preparation and trial of their cases.</p> <p>After a judgment entered on an affidavit of defence is affirmed by the Supreme Court, an appeal cannot be taken from a subsequent order of the lower court refusing to open the judgment where the only ground alleged is' after-discovered evidence, which was not offered before “on account of the unwillingness of witnesses to give information.”</p> <p>Opening judgment — Appeal—Act of May 20, 1891.</p> <p>The act of May 20, 1891, P. L. 101, does not extend the power of the common pleas to open, vacate, or strike off a judgment, but simply extends the right of appeal to certain orders which had been previously regarded as within the discretionary powers of the lower court.</p>

<p>Appeal, No. 331, Jan. T., 1893, by plaintiff, from order of C. P. Northampton Co., June T., 1891, No'. 26, discontinuing condemnation proceedings.</p> <p>Appeal from report of viewers condemning land for street. Petition for mandamus execution.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were, (1) in discontinuing condemnation proceedings ; (2) without requiring defendant to pay plaintiff’s costs and expenses; (3) in refusing to award mandamus execution ; (4)- in refusing to amend decree so as to include plaintiff’s costs and expenses, asked for the additional reason that defendant’s answer shows that defendant was advised by counsel that defendant had not sufficient resources to pay, within the constitutional prohibition, etc.; quoting decree and exceptions.</p>

Appeal, No. 67, Jan. T., 1893, by plaintiff, Andrew Boland, from order of C. P. Lackawanna Co., Sept. T., 1892, No. 72, discharging rule to show cause why money paid into court should not be withdrawn. Rule to show cause why money paid into court by garnishee should not be withdrawn by defendant in the execution.

<p>[Marked to be reported.]</p> <p>Equity — Specific performance — Assignment of patent.</p> <p>A court of equity will enforce an agreement to assign a patent by a decree for specific performance.</p> <p>Agreement to assignpatent — Partnership—Responsive answer — Evidence. On a bill to compel an assignment of a half interest in a patent, plaintiff alleged that, in consideration of his admitting defendant into a half interest in Ms business defendant agreed to assign to Mm one half interest in a machino, and in the letters patent that should be granted for the machine, and for improvements upon it. Defendant denied that any such agreement had been made. The master found that plaintiff’s testimony was corroborated by the fact that defendant was allowed, without objection by plaintiff, to uso the firm’s money, property, employees’ time and room space, and also his own time, for the purpose of perfecting the machine, and securing patents for it. It also appeared that when foreign patents were taken out on the machine, plaintiff was allowed to participate in them without any question being raised as to his right of ownership. A number of witnesses testified that they always understood that the machine belonged to the firm. Defendant and wife contradicted the testimony of plaintiff, and a number of witnesses for defendant stated that they understood that the machine belonged to him. The master found as a fact that the agreement set forth in the bill had been made. Held, that the evidence was sufficient to sustain the master’s finding.</p> <p>Improvements at termination of partnership — Modification of decree.</p> <p>In above case the court below entered a decree ordering defendant to assign a one half interest in the machine and patents and in all improvements and patents which might thereafter be granted for improvements. Held, that the decree should be modified so as to except improvements made after the termination of the partnership.</p> <p>Evidence — Cross-examination—Impeaching veracity of witness.</p> <p>It seems that where a witness has testified in his examination in chief that he would not believe another under oath, and that he based his opinion upon the person’s general reputation for veracity, the witness may on cross-examination be questioned as to his business and social relations with the person whose veracity is impeached, in order to show bias.</p>

<p>Appeal, No. 139, Jan. T., 1893, by plaintiff, Thomas Knappenberger, from judgment of G. P. Le-high Co., Jan.'T., 1892, No. 56, for no more costs than damages, on verdict for plaintiff, against Paul Roth.</p> <p>Appeal from justice of the peace.</p> <p>The facts as they appeared in the court below before Al-bright, P. J., are stated in the opinion of the Supreme Court,</p> <p>Errors assigned wore, (1) entry of judgment as stated below, (2) not entering judgment for full costs.</p>

<p>Opening judgment — Payment—Meceipts—Principad and agent — Possession of securities — Evidence.</p> <p>A judgment entered on a scire facias sur mortgage will be opened where the evidence for defendant tended to show that the money was borrowed from the plaintiff’s assignor under an agreement that it should be repaid in installments, that the assignment was not recorded but the securities were delivered to plaintiff, that various payments on account of principal were made to the assignor and receipts given, some of which were signed in the assignor’s name, some in the name of both plaintiff and her assign- or, and one by the assignor for plaintiff, and from the admission of plaintiff it appeared that the assignor had been her guardian and had full charge of her financial affairs, and that the money borrowed had really been furnished by plaintiff. While the evidence was sufficient to put defendant on inquiry as to plaintiff’s title and the extent of the assignor’s authority to act for her, it was proper for the jury to pass on the question of agency or whether plaintiff knowingly or negligently permitted the assignor to act so as to mislead defendant to suppose he had authority.</p> <p>Laches — Delay by defendant to make application to open judgment.</p> <p>A delay of two months to make application to open judgment will not bar defendant, where it appears that the suit was pending for three years before plaintiff became urgent for judgment.</p>

<p>Appeal, No. 78, Jan. T., 1893, by plaintiff, George J. Wadlinger, from judgment of G. P. Schuylkill Go., Nov. T., 1888, No. 207, on verdict for defendant.</p> <p>Assumpsit for value of stock in building association.</p> <p>At the trial, before Bechtel, J., plaintiff claimed to recover the value of five shares of stock in defendant association, which the association refused to transfer to him. The facts of the case appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, inter alia, was above instruction, quoting it.</p>

<p>Appeal, No. 260, Jan. T., 1893, by plaintiff, Howard Sensinger, from judgment of C. P. Lehigh Co., Nov. T., 1890, No. 13, in favor of defendant, on ease tried by the court without a jury.</p> <p>Trespass for wrongful levy and sale, tried by the court without jury.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The am. sci. fa. agreed “ that judgment be entered in favor of plaintiff and against defendant above named; that the above stated judgment be revived, and continue a lien on defendant’s real estate for another period of five years,” etc. Sensinger was named as terre-tenant. The court found that Sensinger owed the debt, as part of the purchase money.</p> <p>Plaintiff’s points were as follows :</p> <p>1. Request for binding instructions. Refused. [1]</p> <p>“ 2. There was no personal judgment held by the defendant against the plaintiff, and consequently the goods and chattels of the plaintiff could not have been levied upon under the judgment in evidence. As the defendant caused a general fi. fa. to be issued on his judgment, and caused the goods and chattels of the plaintiff to be sold by the sheriff, he is a trespasser, and liable to damages in this action.” Refused. [2]</p> <p>The court, Albright, P. J., found in part as follows:</p> <p>“ I think the plaintiff is estopped from asserting that his goods were wrongfully sold by the defendant. He assented to a sale of his goods in part satisfaction of a debt he owed, and which he ought to have paid before the execution was issued. Repudiation of this action would result in serious injury to Boyer.” [3]</p> <p>Judgmont was entered for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) instructions; (3) above finding; quoting them; (4) in not entering judgment for plaintiff.</p>

<p>Appeal, No. 136, Jan. T., 1893, by-defendant, Jacob L. Stadelman, from order of C. P. Montgomery- Co., Oct. T., 1892, No. 110, making absolute a rule for judgment.</p> <p>Assumpsit by indorsee against maker of promissory note.</p> <p>From the record it appeared that suit was brought upon the following promissory note:</p> <p>“ $2,500. March 8, 1892.</p> <p>“ Five months after date I promise to pay to the order of A. A. Cadwallader Twenty-five Hundred Dollars at Merion Title and Trust Co., at Ardmore, Pa., without defalcation, for value received. J. L. Stadelman.”</p> <p>The following indorsements were on the note:</p> <p>“A. A. Cadwallader.</p> <p>“ Pay W. H. Slingluee, Cashier.</p> <p>“ For collection andrem. account of Superior National Bank, West Superior, Wis. Thos. G. Alvord, President.</p> <p>“ Endorsements cancelled.</p> <p>“For collection for account of Montgomery National Bank, of Norristown, Pa. W. II. Slingluee, Cashier.</p> <p>“ For collection and credit of Bryn Mawr National Bank, Pa.</p> <p>“ J. W. Matlack, Cashier.”</p> <p>Plaintiff in its statement averred that it became the owner of said note before maturity for its face value less legal discounts, in the regular course of banking business, with averment as to amount due, etc.</p> <p>On Aug. 30, 1892, defendant filed an affidavit of defence, containing the following averments:</p> <p>“ 1. There was no consideration for said note.</p> <p>“ 2. The plaintiff had notice that there was no consideration for said note.</p> <p>“ 3. The plaintiff never paid this defendant any money for said note.</p> <p>“ 4. The said A. A. Cadwallader, the payee, was an officer of said plaintiff bank and had notice of the entire transaction.</p> <p>“ 5. The maker of said note was not to be held liable upon it.</p> <p>“ 6. The bank plaintiff, by its officers duly constituted, accepted said note without any liability on the part of the maker.</p> <p>“ 7. The maker was discharged from liability by the plaintiff.</p> <p>“ 8. The said note never passed out of the possession and control of the original holder, the plaintiff.</p> <p>“ 9. The proceeds of said note, if discounted, never passed out of the plaintiff to any third partjn”</p> <p>On Oct. 5,1892, plaintiff entered a rule to plead. On Oct. 27, 1892, plaintiff entered a rule for judgment for want of a sufficient affidavit of defence. On the same day defendant filed a plea of non-assumpsit. The rule for judgment was subsequently argued upon its merits, and, on Nov. 21, 1892, was made absolute by the court, Weand, J.</p> <p>Errors assigned were (1) in making the rule for judgment for want of sufficient affidavit of defence absolute-; (2) in entering judgment for want of a sufficient affidavit of defence ;</p> <p>(3) in not deciding that the affidavit of defence was sufficient;</p> <p>(4) in not deciding that plaintiffs had waived their right to ask for judgment for want of a sufficient affidavit of defence ;</p> <p>(5) in not dismissing the rule.</p>

Appeal, No. 43, Oct. T., 1892, by plaintiff, Ann L. Fowler, executrix of James Fowler, deceased, from judgment of C. P. No. 1, Allegheny Co., June T., 1890, No. 653, on verdict for defendant, Zant. McD. Smith. Scire facias to revive judgment.

<p>Contracts — Mutuality—Married women — Equity.</p> <p>Where there are mutual covenants stipulating reciprocal benefits in an executory contract, and where one of the parties who is a married woman, under disability, has performed her part of the contract, equity will compel performance on the part of the other.</p> <p>Option to buy land — Married women.</p> <p>An agreement by which the owner of land gives to another the right to buy the land on or before a certain day, and declares that if the option is not exercised there shall be no right of action against the person to whom the option is given, does not lack mutuality in the sense of equality of benefit. Nor where such a contract is signed by the grantor alone and the person in whose favor the option is made is a married woman, is there any want of mutuality in the remedy.</p> <p>Parties to action — Agent—Amendment—Reversal with new venire.</p> <p>Where the Supreme Court reverses a judgment with a new venire, it is immaterial whether the action brought in the name of an agent is in proper form, as the record can be amended in the court below.</p> <p>Assignment of error — Exception to judgment of nonsuit.</p> <p>An objection to an assignment of error, that no exception was taken to the judgment of the court refusing to take off nonsuit, will not be noticed where the exception in form has been filed since the record was made up in the common pleas.</p>