Volume 154 — Pennsylvania State Reports

<p>Appeal, No. 86, Jan. T., 1893, by defendant, J. Edward Addicks, from judgment of C. P. No. 4, Phila. Co., June T., 1891, No. 38, overruling demurrer to statement.</p> <p>Assumpsit for interest on subscription to stock of corporation.</p> <p>Plaintiff’s statement was as follows :</p> <p>“ C. R. Hetfield, the plaintiff above named, on or about the first day of January, 1887, entered into a contract with the defendant above named. The said defendant being then and now chairman, one of the managers, holder of °f the capital stock, and then purporting to act for the Beacon Construction Company, Limited, a joint stock company formed under act of June 2, 1874, by which he, the said plaintiff, agreed to suscribe §8,000 for the purchase of certain preferred and common shares of the capital stock of a corporation whose shares were owned or controlled by the said Beacon Construction Company and then called the Bay State Gas Company, Limited; afterwards the Bay State Gas Company of New York, and finally and now the Bay State Gas Company of Delaware; formed for the purpose of holding in its treasury the securities of a certain other corporation called the Bay State Gas Company, incorporated under the law of Massachusetts. The plaintiff entered into said contract or subscription and made payments thereunder in pursuance and in consideration of the promises then and there made by the said defendant, and purporting to act on behalf of the said Beacon Construction Company, Limited, and for which the subscription paper was issued; to pay to the said plaintiff, interest at the rate of 4 per cent per annum upon said payments, from «the date of the same until the date of delivery to him of the stock of the Bay State Gas Company, Limited, aforesaid. Subsequently, by agreement of the parties, it was determined to issue income bonds of §1,000 each, in place of the preferred stock aforesaid, and the plaintiff made payments in accordance with the terms of said subscription for §4,000 in bonds and §2,000 in stock, the same being the full price of said stock and bonds, as follows : January 3, 1887, §4,500; March 3, 1887, §500; June 30, 1887, §500; February 13,1888, §500 ; receiving in return a receipt or receipts for 4 bonds and 80 shares.</p> <p>“ The said stock and bonds were not delivered to said plaintiff until May 1, 1889, wherefore, as the balance of interest exceeded $500, the said defendant became personally liable therefor and indebted to the plaintiff in the sum of $524.15, for said balance of interest at 4 per cent per annum as aforesaid, and which he, the said defendant, or the said Beacon Construction Company have failed to pay either in whole or in part. The said sum of $524.15 is now justly due and owing by the defendant to the plaintiff, and therefore he brings suit.”</p> <p>The contract of subscription was in part as follows:</p> <p>“ The Beacon Construction Company, Limited, hereby offers to sell to subscribers, at par, $2,000,000 of seven per cent, noncumulative preferred stock of the Bay State Gas Company, Limited, redeemable at the pleasure of the company, at par in cash after ten years, payable as detailed below at $100 per share, being par. Each subscriber is entitled, at the time of subscribing to the preferred shares, to subscribe for an equal number of full-paid, non-assessable common shares of the said Bay State Gas Company, Limited, at $50.00, per share, par being $100. Payments shall be made in ten equal monthly installments of $15.00 per share, the first payment being due and payable April 1,1885, and on the first days of each month following, up to and including Januarj^ 1, 1886. Those desiring to do so can pay in full at any time, interest being allowed at the rate of 4 percent per annum. All payments shall be made to The Fidelity Insurance, Trust and Safe Deposit Company of Philadelphia, or to the National Bank of Redemption of Boston, for account of the Beacon Construction Company, Limited, Robert C. PI. Broek, treasurer.</p> <p>. “ The right is reserved to withdraw this subscription at any time.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>j'Errors assigned were (1) in overruling defendant’s demurrer to plaintiff’s statement; (2) in 'entering judgment in favor of plaintiff, upon the statement and demurrer; (3) in entering judgment in favor of plaintiff, as follows: “ July 16, 1892, demurrer overruled and defendant has leave to plead within 15 days ; ” “ October 22, 1892, defendant not having filed a plea, judgment is entered in favor of the plaintiff on statement and demurrer; ” (4) in not entering judgment for defendant upon demurrer to plaintiff’s statement.</p>

<p>Limited partnership association — Contracts—Itatijication.</p> <p>Where a limited partnership association organized under the act of June 2, 1874, ratifies a contract entered into by one manager only, they will be bound by the contract.</p> <p>The decision in this cáse involves the conclusions of law stated in the second and third paragraphs of the syllabus of Hetfield v. Addicks, supra.</p>

<p>Taxation — Exemption—Municipal claim, — Purely public charity.</p> <p>On a municipal claim for water pipe filed against a portion of the land owned by a hospital for the insane, it appeared that the managers of the hospital maintained upon the land in question a building reserved exclusively for the use of patients paying a higher rate than any others. The object of the trustees in maintaining this department was to make a profit, but no actual profit was realized after taking into consideration the value of the ground and improvements and the cost of maintenance. The apparent profit was used in extending the hospital’s capacity for good among the destitute members of the community, and no portion of it enured to the benefit of any person concerned in administering the charity: Held, that the property was exempt from taxation, and that the municipal claim could not be sustained.</p>

Appeal, No. 41, July T., 1892, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1891, No. 154, M. L. D., on special verdict. Scire facias sur municipal claim. [Reported below, 1 Dist. R. 249.] On the trial before Gordon, J., a special verdict was rendered as follows: “ The jury find the following facts: That the defendant was incorporated October 12,1865.

<p>Appeal, No. 328, Jan. T., 1893, by plaintiff, David W. Mogel, from judgment of C. P. Berks Co., May T., 1891, No. 60, on verdict for plaintiff for part of his claim. Before</p> <p>Appeal by county treasurer from report of county auditors.</p> <p>At the trial, before Ermentrout, P. J., the court reserved the following points:</p> <p>“ 1. Order No. 97, for $217.86, disclosed upon its face that it was drawn upon the treasurer of the Berks county prison for Bertillon measuring instrument and expenses of the prison inspectors to Huntingdon; and as the law makes no provision for the payment of expenses of the prison inspectors, the treasurer was bound to take notice that the purpose of such expenditure was unauthorized by law, and he is not entitled to credit for the payment of so much of said order as was applied to such expenses, which the evidence showed was the sum of $177.86, and the verdict as to this item must be for the defendant.</p> <p>. ' “2. Orders Nos. 46, 82 [et al.], aggregating $132,- disclosed upon their face the fact that they were drawn upon the treasurer of the Berks county prison for inspectors’ meals ; and as the law makes no allowance for rations to the inspectors, the treasurer was bound to take notice that the purpose of such expenditure was unauthorized by law, and he is not entitled to credit therefor, and the verdict as to these items must be for the defendant.</p> <p>“ 3. Orders Nos. 187, 186 [et al.], amounting in the aggregate to $3,760, [of which sum $505.27 were disallowed by the auditors as not being sustained by bills or accounts,] disclosed upon their face that they were drawn for the construction of a cesspool; and as the prison inspectors are not authorized by law to expend money for any such purpose, the treasurer was bound to take notice that the purpose for which such orders were drawn was no.t within the powers of the prison inspectors, and, therefore, not authorized by law, and he is not entitled to credit for the payment of said orders, and the verdict as to this item must be for the defendant.</p> <p>“ 4. Section 9 of article 8 of the act relative to the Berks county prison and to discharged convicts, approved April 8, 1848, P. L. p. 399, by which the Berks county prison is governed, provides that ‘for the funds necessary for keeping, furnishing and maintaining said prison, in conformity with the provisions of this act, the inspectors are hereby authorized to apply to the commissioners of said county, and if it shall appear to said commissioners of said county, or to the court of quarter sessions of the same, that the sum applied for is reasonable, and that the accounts of said inspectors are properly kept and adjusted, the commissioners of the said county of Berks shall forthwith draw an order on the treasurer of the said county in favor of the treasurer of said prison, for the use thereof, for such sum as shall be necessary to satisfy such demands.’</p> <p>“None of the provisions of this section having been complied with and no warrant or order having been drawn by the county commissioners of the county of Berks on David W. Mogel, the county treasurer of said county, in favor of David W. Mogel, the treasurer of the Berks county prison, for the use thereof, the said county treasurer is not entitled to credit for the payment of any of the items amounting to disallowed by the auditors, and the verdict as to these items must be in favor of the defendant.</p> <p>“ 5. The county commissioners not having issued a warrant or order to David W. Mogel, the county treasurer, for the payment of any part of the item disallowed by the county auditors, and none having been shown, the county treasurer is not entitled to credit for this item disallowed by the county auditors, and the verdict must be for the defendant as to such item.”</p> <p>The court directed a verdict for plaintiff, subject to the opinion of the court upon the questions of law raised in the reserved points, with leave to enter judgment for the defendant non obstante veredicto, if the decision thereon be in favor of the defendant.</p> <p>The court entered judgment for defendant non obstante veredicto, in an opinion by Ermentrotjt, P.'J.</p> <p>Errors assigned were (1-5) entry of judgment non obstante veredicto on reserved points, quoting points.</p>

Appeal, No. 398, Jan. T., 1892, by Samuel C. Perkins, from order of C. P. No. 2, Phila. Co., Dec. T., 1891, No. 398, discharging rule to show cause why he should nob be allowed to intervene in the case of Amanda G. Harris v. F. E. Brewster. Petition for rule to intervene.

Appeal, No. 461, Jan. T., 1892, by John G. McAskie from decree of Q. S. Lackawanna Co., April T., 1891, No. 269, setting aside report of viewers. Petition of taxable citizens for annexation of land to city. The facts appear by the opinion of the Supreme Court.

Appeal, No. 262, Oct. T., 1892, by plaintiff, Elizabeth Hill, administratrix of Laban S. Hooper, deceased, from judgment of C. P. No. 3, Allegheny Co., No. 440, Feb. T., 1892, on verdict for defendant. Assumpsit on policy of life insurance. On the trial, before Kennedy, J., the following facts appeared : Laban S. Hooper, of Pittsburgh, Pa., became a member of United Life and Accident Insurance Association, a corporation of New York, appellee, on Oct. 23,1890.

Appeal, No. 221, Jan. T., 1893, by defendant, James H. Park et al., from decree of C. P. No. 2, Phila. Co., Dec. T., 1890, No. 601, on bill in equity in favor of plaintiff, Adam Tin del. Bill in equity for an account and receiver. The bill also asked for an injunction to restrain the use of the word “ imperial ” unless said trade mark and good will be accounted for by defendants as part of the assets.

<p>Parol evidence to vary written instrument — Lease.</p> <p>Where rent is reserved in money in a lease, parol evidence will not be admitted to show that, immediately prior to the execution of the lease, the lessee was induced to sign the lease by a statement that part of the rent was to be taken out in boarding.</p> <p>Landlord and tenant — Untenantable premises — Covenantn-Hvidence.</p> <p>A lease provided that the tenant should surrender the premises in as good state and condition “as the same are now or may be put into” by the landlord. In an action for rent the tenant offered to prove that at the time the lease began and during the period of his occupation the roof was leaky, and that the house could not be used as a boarding house in consequence. Held, that the evidence was properly excluded.</p>

<p>Equity — Deed—Principal and surety — Equitable estate — Costs.</p> <p>Gaffney purchased from Throop and others a lot of land for $800, and secured the vendors by a confession of judgment contained in the written agreement of sale. Gaffney erected a building upon the land, and a mechanic’s lien was entered therefor, upon which judgment was obtained. Execution was issued, and Gibbons, the owner of the mechanic’s lien, bid in the property for one thousand dollars. Out of the proceeds Gibbons was paid the amount of his lien, and a balance of $326 was left in the hands of the sheriff. Subsequently the vendors of the land assigned to Iiulslander et al. the balance of purchase money due, $298, and judgment was entered in their favor on the warrant of attorney contained in the agreement, and the fund in the hands of the sheriff was levied upon. The vendors did not deliver or tender a deed for the land. Held:</p> <p>1. Thatthe land in the hands of Gibbons was responsible for the balance of the purchase money, and that Gaffney stood merely in the relation of a surety towards it.</p> <p>2. That Hulslander et al. were not entitled to the fund in court until a deed was made by the vendors to Gaffney subject to the equitable estate in Gibbons, and an assignment was made by Hulslander et al. of the purchase money judgment to enable Gaffney to enforce it against the lands in the hands of Gibbons.</p> <p>3. That as Hulslander et al. had no right to enter up judgment and issue execution until they had brought into court a proper deed, two thirds of the costs of the audit should be imposed upon them, payable out of the fund which should be awarded to them.</p> <p>4. That the decree of the lower court ordering a tender of a sufficient deed within thirty days as a condition of the award of the fund to Hulslander et al. should be modified when affirmed in the Supreme Court so that the thirty days should be computed from the date of the affirmation of the decree.</p> <p>Debtor's exemption — Purchase money obligation.</p> <p>It seems that, although a debtor cannot claim the benefit of the exemption laws against a purchase money obligation which is being enforced against the land for which it was given, he can do so where the obligation is being enforced against other lands belonging to him, or against his personalty.</p> <p>Claim for exemption — Laches.</p> <p>It seems that a claim for the benefit of the exemption laws is too late where the fund has been paid into court by the sheriff, and an auditor appointed, and the audit nearly concluded before the claim is made.</p>

<p>Appeal, No. 94, Jan. T., 1893, by plaintiff, Jacob K. Shafer, from judgment of C. P. Monroe Co., May T., 1891, No. 19, on case stated in favor of defendant, Catharine M. McIlhaney et al., administratrices of Thomas M. McIlhaney, deceased.</p> <p>Case stated.</p> <p>The case stated was as follows :</p> <p>“ The said Jacob K. Shafer was sheriff of the said county of Monroe from the first Monday in January 1875, to the first Monday in January, 1878, when he was succeeded by W. T. Baker. As said sheriff he performed certain services for which there were due to him fees. That the said Thomas M. MeIlhaney was prothonotary and clerk of the courts of the said county of Monroe from the first Monday in January, 1876, to the first Monday in January, 1879, when he was succeeded by A. B. Shafer.</p> <p>“That during the whole of the term of the said Jacob K. Shafer the said Thomas M. Mcllhaney acted as his clerk and counsel and kept his dockets. That the said Jacob K. Shafer during the said period, or his term of office as sheriff, had his office with the said Thomas M. Mcllhaney and the said docket was always open and accessible to him, the said Shafer.</p> <p>“ That there were paid to the said Thomas M. Mcllhaney and received by him costs or fees of the said Jacob K. Shafer, as sheriff, amounting to the sum of seven hundred and eighty-three dollars ($783), as appears by a schedule of the same hereto attached. Very nearly all of which, as also appears by the said schedule, were paid to the said Thomas M. Mcllhaney while he was prothonotary and clerk of the courts.</p> <p>“ That the said Jacob K. Shafer was never notified by the said Thomas M. Mcllhaney that he had the said costs in his possession, nor did the said Jacob K. Shafer ever make any demand upon the said Thomas M. Mcllhaney for the same or any part of the same.</p> <p>“ That the said Thomas M. Mcllhaney died on the 15th day of December, 1885, and his estate, through his administratrices, has been in course of settlement ever since, and no demand upon the administratrices was made until April 1, 1891.</p> <p>“ The question in dispute is as to the liability of the estate of the said Thomas M. Mcllhaney, deceased, for interest on said sum of seven hundred and eighty-three dollars ($783).</p> <p>“ If the court be of opinion that the said estate of the said Thomas M. Mcllhaney, deceased, is liable for interest on the said costs so mentioned as aforesaid, then judgment to be entered in favor of the said plaintiff, Jacob K. Shafer, and against the said defendants for interest on the said sum of $783 from the 1st day of January, 1880, to the 15th day of December, 1885; but if not, then judgment to bb entered in favor of the said defendants, the costs of this case to follow the judgment.”</p> <p>The opinion of the court below on the case stated was as follows by Dreher, P. J.:</p> <p>“ The question raised by the case as stated is, whether the prothonotary who receives the fees of other officers of the court is liable, in the absence of a demand for payment, to pay interest on the money so received.by him. It has been the practice in this county, for upwards of forty years, for the prothonotary to receive from parties, and from the sheriff, costs and fees, belonging to the officers — ex-sheriffs and ex-prothonotaries — and also fees of the acting sheriff, and pay them to the persons entitled thereto, on demand. He also frequently receives the fees of witnesses named in the bills of cost, taxed to the parties litigant, and pays them to the witnesses or to the parties. This practice has grown up with the sanction of members of the har, because of the convenience to officers and parties; and generally a book has been kept by the prothonotary, in which he enters the fees and costs so received, and the parties to whom páid receipt therefor; but the practice has heretofore been that the prothonotary, on going out of office, at the expiration of his term, has taken this book, considering it his property, and would pay the money when called upon. This practice must hereafter cease. The act of assembly of April 14,1870, P. L. 1178, requires the prothonotaries and clerks of the court of quarter sessions and orphans’ court of Carbon and Monroe counties to keep a docket, in which shall be entered all costs received by them, in their official capacity, on judgments, decrees, sentences or otherwise, which shall be free to inspection, at all times, of the attorneys, witnesses, justices, or other parties who may consider themselves interested therein. This act makes the docket so kept a public record; and it should remain in the office as such.</p> <p>“ Several questions have been settled by the Supreme Court, which have a bearing on the question now under consideration.</p> <p>“ 1. That a payment of money by a defendant in a judgment to the prothonotary is not a legal discharge of the judgment, and that his sureties are not liable therefor, on his failure to pay the money to the plaintiff, and he may proceed by execution to collect the judgment: Tompkins v. Woodford, 1 Pa. 156; Wells v. Baird, 3 Ibid. 351.</p> <p>‘ “ 2. A sheriff who has collected money on execution is not relieved from liability to the plaintiff by payment to the prothonotary, without an order of the court to pay the money into court: Commonwealth v. Walter, 99 Pa. 181. “ 3. A prothonotary, as such, is authorized to receive the costs due his predecessor in office and the sureties of his official bond are liable for the amount so received: Watson & McFarland v. Smith, 26 Pa. 395, Knox, J.</p> <p>“ ‘ Besides, as a matter of public convenience, and in accordance with an almost universal practice, we are of opinion that a suitor may lawfully pay the fees due to a prothonotary, whose term has expired, to the actual incumbent of the office and, as a necessary consequence, the sureties of the officer receiving the money are liable for its repayment.’</p> <p>“ 4. In an action by a sheriff to recover the costs due to him for services, interest will not be allowed on the amount thereof: 95 Pa. 481.</p> <p>“Mr. Justice Green, after referring to several cases in which the general rule is stated that costs do not bear interest, says:</p> <p>“ ‘ We see no reason for changing the rule thus laid down. We understand it to be the uniform practice in all parts of the state not to allow interest on costs, to the officers to whom they are due. There is no statute, course of decision or practice authorizing or justifying such allowance. Nor is interest a natural or necessary incident to costs in any view of the subject; of course we except from these remarks the case of an actual payment of costs by a party. Then interest may be allowed as on money paid and expended. But that is not the case. This is an ordinary case of a claim by a sheriff for costs due him for services in a cause.’ ”</p> <p>After reciting the facts, the opinion continues:</p> <p>“ It is contended on behalf of the plaintiff that it was the duty of Mcllhaney to have notified plaintiff that the fees had been paid, and having failed to so notify him, his estate is liable for the interest on the amount received. The plaintiff does not claim interest after Mcllhaney’s death.</p> <p>“ If this contention of plaintiff be correct the prothonotary is bound, in all cases, to notify the parties entitled to fees paid to him or be liable to pay interest. This will be imposing upon the prothonotary much labor for which he receives no compensation, excepting that he may charge not more than twenty-five cents in each suit or case under the special act of April 14, 1870.</p> <p>“ It has not been the practice to charge for services in receiving and paying over costs and fees belonging to officers, witnesses and parties; of course if demand be made and the officer refuses or neglects to pay he should be charged with interest.</p> <p>“ In the case in hand the plaintiff was presumably cognizant of the practice in the prothonotary’s office as respects the receipt and payment of sheriff’s fees; and a simple demand or request, it may be assumed, would have been responded to.</p> <p>“ If there was neglect on part of Mcllhaney in not informing the plaintiff of the receipt of fees, there was also neglect on part of plaintiff to make any demand or inquiry. Under all the circumstances of this case we think the plaintiff is not en-ti tied to interest.</p> <p>“ And now, to wit, May 25, 1892, judgment is entered in favor of the defendants.”</p> <p>Error assigned was entering of judgment for defendants.</p>

<p>Judgment — Satisfaction of — Attorney at law — Agent.</p> <p>Where money is paid in good faith by the defendant in a judgment to an attorney who enters his appearance on record for plaintiff and the attorney satisfies the judgment and pays the money over to a person who is apparently plaintiff’s agent, plaintiff cannot, three years after the death of the attorney, have the satisfaction stricken off on the ground that he never received the money, that the party who received it was not his agent and that he had not employed the attorney, the evidence showing that the party who received the money acted as plaintiff’s agent in lending and collecting the interest.</p>

Appeal, No. 95, Jan. T., 1893, by Charles H. Birchard, from decree of O. C. Phila. Co., dismissing exceptions to adjudication of executors’ account in estate of Sibylla C. Birchard, deceased. Audit of executors’ account. At the audit, Charles H. Birchard, the husband of decedent, claimed to share in the distribution of the estate.

<p>Appeal, No. 75, Jan T., 1893, by plaintiff, to use of William A. Nestor, from order of C. P. No. 1, Phila. Co., Sept. T., 1891, No. 583, M. L. D., discharging rule for judgment for want of a sufficient affidavit of</p> <p>Scire facias sur municipal claim.</p> <p>The affidavit of defence was as follows :</p> <p>“ The claim on which this writ issued seeks to enforce a charge against the property therein described, to wit, on the south side of Spring Garden street, between Tenth street and Eleventh street, of which the defendant is the owner, for paving so much of the unpaved space of Spring Garden street as was reserved for market purposes and occupied by the old Spring Garden market sheds, and as was in front of the defendant’s property.</p> <p>“ Deponent further saith that at the time the paving of the market plots was authorized, and when the same were paved, Spring Garden street was occupied in front of defendant’s prop erty, and for a great distance east and west thereof by the tracks of the Union Passenger Railway Company, which company was incorporated by the act of April 8, 1864, P. L., 297, which act authorized said company to lay its tracks from Seventh street along Spring Garden street to Twenty-third street. Said act, by its 8th section, provided that the said company" shall be at the entire cost and expense of paving, repaving, and repairing that may be necessary upon any street where the tracks of said company may be laid.</p> <p>“ And deponent says that by reason of said act of assembly the ground of defendant is relieved of the cost and charge of the paving, if otherwise it was liable, and that the said railway company is, and that defendant is not, liable therefor.”</p> <p>The court, Allison, P. J., and Bregy, J., discharged a rule for judgment for want of a sufficient affidavit of defence.</p> <p>JSrror assigned was discharge of rule.</p>

<p>Sale — Affidavit of defence — Partnership—Parol evidence to vary written agreement.</p> <p>In an action for goods sold and delivered, an affidavit of defence is sufficient which avers that the goods were furnished defendant not as purchasers, but as managers of a business entered upon for the benefit of both parties, and as the contribution to the stock of that business which plaintiff had undertaken to make, and that this stipulation had been omitted by mistake from the written agreement between the parties.</p>

Appeals, Nos. 24, July T., 1892, and 194, Jan T., 1893, by Jeremiah C. Chance, executor of Wm. D. Jones, deceased, and Catharine B. Jones, widow, from decree of C. P. No. 3, Phila. Co., March T., 1891, No. 81, on interpleader, bill. Interpleader bill to determine ownership of fund. The case was referred to Dimner Beeber, Esq., as master, from whose report it appeared that, in 1885, Wm.

<p>Beneficial associations — Legal heirs — Distribution.</p> <p>Where a certificate of membership in a beneficial association provides for the payment of a certain amount to “ the legal heirs of the assured,” and the assured has made no change in the beneficiary in the manner prescribed by the rules of the association, the executor of the assured has no right to the fund.</p>

Appeal, No. 18, Jan T., 1893, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1891, No. 930, on verdict for plaintiff, John Barthold. Trespass for damages for death of plaintiff’s son. At the trial, before Hake, P. J., it appeared that, on July 1, 1891, William Barthold, a boy ten years and eight months old, fell into a well or pool of water situated on grounds belonging to the city of. Philadelphia continguous to Fairmount Park.

<p>Practice — Set-off—Two actions for same claim — Affidavit of defence.</p> <p>An affidavit of defence is sufficient which avers that the identical claim for which suit is brought had been used by plaintiff as a set-off in another action between the same parties, in which plaintiff was defendant.</p>

Appeal, No. 141, Jan. T., 1893, by plaintiff, Michael L. Kearney, from judgment of C. P. No. 2, Phila. Co., March T., 1891, No. 153, on verdict for defendant, Patrick Hogan. Assumpsit for balance of purchase money.

<p>Appeal, No. 344, Jan. T., 1893, by defendant, from decree of C. P. Lycoming Co., June T., 1892, No. 5, on bill in equity.</p> <p>Bill in equity to enjoin defendant from laying and maintaining railway tracks on Market street in the city of Williamsport.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The opinion of the court continuing the preliminary injunction, after citing Edgewood Ry. Co.’s Ap., 79 Pa. 268; Boyer v. Savings Fund, 1 Leg. Rec. 251; Allegheny v. Ohio & Pa. R. R., 26 Pa. 358; Bank of Pa. v. Com., 19 Pa. 152; Pa. R. R. v. Canal Com’rs, 21 Pa. 9; Com. v. Erie & North-east R. R., 27 Pa. 339; Fertilizing Co. v. Hyde Park, 97 U. S. 659, was as follows, by Metzger, P. J.:</p> <p>“Under the rules of construction given in the authorities cited, the company defendant in this case takes nothing by construction. Its powers are those which are expressly given by its charter, and such implied powers as are necessary to the exercise of those expressly given. To this extent, and no further, the charter is a contract between the state and the company. Applying these rules of construction to the charter of the defendant company, has it the right to use Market street for the purpose of operating upon it a passenger railway ?</p> <p>“ Market street is not a street running eastwardly towards Montoursville or westwardly towards Newberry, but runs northwardly and southwardly, and at right angles with the streets running in the direction of the termini of the railway authorized to be constructed. The further you project the line of the railway on said street the further you get from the termini given in the charter. It is plain, therefore, that the use of Market street for such a purpose is not included in the principal grant. The primary object of the grant was to give the company, defendant, the right to construct a passenger railway to Newberry on the west and to Montoursville on the east, by way of Third or any other street, so as to have a main track by some street from Newberry to Montoursville via the corner of Third and Market streets. The streets named through which such railway may pass are “ Third street, or any other street running westwardly, and Third street or any other street or streets running eastwardly.” The termini of the railway and the direction of the streets to reach the termini are plainly expressed, and also the intermediate point by way of which the route must be selected. The defendant has the right, under this charter, to construct its line of railroad from the point given, eastwardly or westwardly to the termini, through any street of the city running in an eastwardly or westwardly direction. If either terminus cannot conveniently be reached by any one street, it has the right to use more than one street for that purpose, and, in that event, if a right were not expressly given to construct a branch over any cross street or streets necessary to connect its main track so as to form one continuous line, such, right would necessarily be implied.</p> <p>“ Thus far there seems to be no difficulty in the construction of the defendant’s charter. It may select any street running-in an eastwardly or westwardly direction, and, if necessary, may occupy parts of several streets running in the same direction, but it cannot build more than one railway between the points named.</p> <p>“ But it is contended by the defendant that the words in the charter, as follows: ‘With the right to construct branches to the main track of said passenger railway through any of the said streets of this borough of Williamsport,’ gives it the right to occupy Market street between the points named. In order to give its charter this construction, we will be obliged to conclude that it had the exclusive right to occupy all the streets in the city which were formerly within the limits of the borough of Williamsport. If the right to build a branch on Market street is conceded, the same right exists as to every other street running north and south which was within the borough limits. The effect of such a construction would be that no other company ever could build a railway over any of said streets. ' Whenever a charter would be applied for to construct a passenger railway through any of said streets, all that it would be necessary for the old company to do, in order to prevent the new company from constructing its road, would be to commence constructing a railway or branch through some portions of the streets covered by the charter of the new company. The company can prevent any competition without making a single move to give the public the advantage of railway transit over these streets, until a move is made by some other corporation, and then it is only necessary for the defendant to occupy a sufficient portion of such streets to make the charter of the new company valueless.</p> <p>“ More than twenty-eight years have elapsed since the defendant company obtained its charter, and no actual attempt was made to occupy Market street until after the commonwealth’s grant to the plaintiff. If the position of the company is correct, we must conclude that the legislature, when it passed the act incorporating the defendant, intended to preserve forever all the highways in Williamsport which were then within the borough limits, for the use of the company, until it might suit the pleasure of the stockholders to build street railways upon them. If so, the commonwealth of Pennsylvania parted with its right of eminent domain over all said streets to the defendant for railway purposes, and the defendant can go into all the streets in this city which were formerly in the borough of Williamsport, without the permission of the local authorities, and from time to time, whenever it chooses, and for all time to come, select therefrom just such street or streets as it may choose, and thereon, without let or hindrance, erect and maintain a street railway or railways. Whilst the legislature has this power undoubtedly, and could grant this privilege, yet, as Justice Strong, in Commonwealth v. Central .Railroad Company, 52 Pa. 506, said: ‘ It is still the duty of the courts to presume they have not conceded this power until the contrary is shown in unmistakable language.’</p> <p>“ Is the right to build branches on Market and other streets running north and south given to defendant by its charter in indubitable language? Can we say such right exists free from reasonable doubt? If the right is not expressed in unmistakable language, and we are left in doubt as to its interpretation, such doubt must be resolved against the corporation. To be in doubt in such a case is to be resolved. The words used in the charter cannot by any fair interpretation be made to include the right claimed by the defendant company; and we can neither add to nor take from the charter any words, nor can we change the meaning of its language. Taking the words of the charter as we find them in it, we must conclude that the language ‘ through any of said streets ’ can only refer to streets antecedently named in the charter. The streets named are certain streets running eastwardly and westwardly, from which the defendant company could select its route so as to have a continuous line from Newberry to'Montoursville. To give it any other interpretation is to give to the charter a meaning that the language used in it does not imply.</p> <p>“ It may be said that to give the language used a literal interpretation, makes the branching privilege useless to the defendant. If such were the case, it would not change the rule of construction. The defendant accepted the charter just as it reads, and it is likely that this clause may not at the time have been regarded as of any great importance. At most, the privilege intended to be granted by these words was only auxiliary to the principal grant which was the object of the charter. If the right to construct branches, confined as it is to streets through which the company has constructed its main track, is of no importance to the company, it at least can work no harm. It in no way conflicts with, or affects, the principal grant.</p> <p>“ Looking, then, to the language of the charter, we conclude that the words, ‘ to construct branches to the main track through any of the said streets,’ authorize the construction of branches through any of the streets occupied by the main track authorized by the principal grant.</p> <p>“ The contention by defendant, that if we construe the words ‘ said street ’ as referring only to the streets antecedently named, we must include Market street, would be true if Market street had been named as one of the streets through which the railway could be laid. This is not the fact. Market street is named only as a starting point from which the defendant can run its lines east and west to the points mentioned in the charter. It obliges the company to lay its main track from New-berry to Montoursville on some street by way of the corner of Third and Market, It does no more than limit the route.</p> <p>“ It is further contended by the defendant that the power to construct its railway eastwardly through Third street or any other street or streets in said borough as may be deemed advisable by said company, to and through the borough of Montoursville, necessarily includes the right to use Market street running north to a street, for example, Washington street, running eastwardly in the direction of Montoursville; or to use Market street running south from Third street to Front street, which latter also runs eastwardly towards said borough of Montoursville. It might be conceded that the company could originally have selected either of these streets through which to run their railway. It did not do so. As early as 1864 the company made its selection and constructed its railway on East Third street eastwardly to the Philadelphia & Erie Railroad, a distance of probably three fourths of a mile in the direction of Montoursville, and has operated it ever since. The wisdom of the selection made by the company is apparent when we consider the fact that East Third street is the only street leading in that direction which connects with the public highway running to and through the borough of Montoursville. Had Washington street been selected, it would have necessitated not only the branch on Market street running north a distance of about half a mile in a direction away from Montoursville, but the company would have been obliged, before reaching the borough limits, to return again to East Third street by another cross street. If Front street had been selected, the company would have been compelled to return to East Third street before reaching the present terminus of its main track as already laid on said street.</p> <p>“ But it is a sufficient answer to this claim of the defendant to say that the company, having long ago made its choice of routes given by its charter and constructed its railway thereon, it cannot now be permitted to select another route and construct another railway on some other street. Having determined its election and laid its track on East Third street, it has exhausted its power in this respect given to it by its charter. It can go to Montoursville by East Third street, or any other street or streets, but not by all the streets running in that direction. To hold otherwise would be to enlarge its charter privileges by implication, and this would violate the plainest rules of construction. The construction contended for would give the defendant company the right to build as many railways as there were streets and highways in the borough of Williamsport, running in the direction of Montoursville.</p> <p>“We are, therefore, of opinion that the defendant company has not the right to occupy Market street, in the city of Williamsport, for railway purposes. Such right is not expressly given by the charter, nor does it arise by necessary implication.”</p> <p>The case was referred to J. F. S trie by, Esq., as master, who recommended a decree in favor of plaintiffs.</p> <p>The court entered the following decree:</p> <p>“And now, to wit, Feb. 4, 1893, this case came on to be heard upon the master’s report and the exceptions thereto, and was argued by counsel for the respective parties, and thereupon, upon the consideration thereof, it is ordered, adjudged and decreed, that the exceptions be dismissed and the report confirmed, and that a permanent injunction issue restraining the Williamsport Passenger Railway Company, defendant, its officers, agents and contractors or employees, from digging up, excavating or occupying Market street, in the city of Williams-port, with its tracks or other materials, between the intersection of Market street and Hepburn street and the south line of said city. And that the Williamsport Passenger Railway Company is ordered and required to take up and remove the railway tracks by it laid down on said Market street, and also remove the cross-ties and other materials and incumbrances placed in, upon and along said Market street by said Williams-port Passenger Railway Company, between the intersection of Hepburn and Market streets and the south line of said city, and that the said Williamsport Passenger Railway Company, defendant, pay all the costs, including the examiner’s and master’s fees.”</p> <p>JError assigned, inter alia, was decree, quoting it.</p>

<p>Practice, G. P. — Service of copy of statement — Judgment.</p> <p>Where a statement is filed with the pneeipe for the writ, the fact that a copy of the statement was served upon defendant the da.y before service of the writ, is immaterial, and a judgment entered for want of an affidavit of defence will not be stricken off for this reason.</p>

<p>Appeal, No. 341, Jan. T., 1893, by plaintiff, Elmer Osborn, assignee for benefit of creditors of E. N. Frost & Son, from order of C. P. Bradford Co., Sept. T., 1892, No. 753, discharging rule for judgment for want of an affidavit of defence.</p> <p>Assumpsit to recover double the amount of usurious interest paid to national bank.</p> <p>Defendant refused to file an affidavit of defence, claiming that the suit being for a penalty, no affidavit of defence could be required.</p> <p>Opinion of court below was as follows, by Peck, P. J.:</p> <p>“ It is claimed by the defendant that’ no affidavit of defence is required in actions for a penalty. This was undoubtedly the law prior to the passage of the act of May 25, 1887, P. L. 271. The language of this act would seem to be broad enough to require an affidavit of defence in all actions of assumpsit, where a sufficient statement has been filed under that act. I am unable to find that this question has ever been raised in the Supreme Court, and the only case that has been cited to me where the question has been decided is the case of the Union Glass Co. v. First National Bank of New Castle, 10 Pa. C. C. 565, where Judge Hazen says that a suit under the National Banking Act to recover twice the amount of usurious interest paid, is a suit for a penalty and is ex delicto, and an affidavit of defence cannot be required.</p> <p>“ At common law the action of debt is the appropriate action for the recovery of a statutory penalty, upon the ground of an implied promise, which the law annexes to the liability. With the abolition of the action of debt in many of the states of the Union, the penal action in some jurisdictions is in form ex contractu, while in certain other jurisdictions is in form ex delicto. It is said that a statutory penalty may be recovered by indictment or information, where this mode of procedure is not excluded by the statute: Am. & Eng. Enc. of Law, vol. 18, page 274. In Boyd v. U. S., 116 U. S. 616, it was held that a proceeding to forfeit a person’s goods for an offence against the laws, "though civil in form, whether in rem or in personam, is a criminal case within the meaning of that part of the fifth amendment to the constitution of the United States, which declares ‘ no person shall be compelled in any criminal case to be a witness against himself.’ If this is a correct statement of the law, it is likewise against art. 1, § 9 of the constitution of Pennsylvania. This would seem to force us to one of two conclusions, that the act of May 25, 1887, is unconstitutional, or that the legislature did not intend to require an affidavit of defence in</p> <p>cases of this nature. In either case no affidavit of defence is required.”</p> <p>“ Rule for judgment for want of an affidavit of defence discharged.”</p> <p>Plaintiff excepted and took this appeal.</p> <p>Error assigned was above order, adopting rule, opinion, order and exception as part of assignment.</p>

Appeal, No. 240, Jan. T., 1893, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1891, No. 367, making absolute a rule for judgment for want of a sufficient affidavit of defence. Assumpsit for balance under contract for sale of iron ore. Rule for judgment for want of sufficient affidavit of defence.

Appeal, No. 158, Jan. T., 1893, by defendant, Henry C. Buchenliorst, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 841, for plaintiff on case stated. Case stated. The case was stated to determine whether defendant should pay to plaintiff, The Equitable Trust Co., guardian of Mary and Elizabeth Kelly, minors, the sum of one hundred dollars per annuzn, or the suzn of two hundred dollars per annum under the will of Mary Buchezihorst, deceased.

Appeal, No. 216, Jan. T., 1893, by defendant, Clarence M. Busch, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1891, No. 204, on verdict for plaintiff. Assumpsit on building contract. At the trial before Bregy, J., it appeared that defendant owed plaintiff $1,405 balance on building contract.

Appeal, No. 62, July. T., 1892, by defendants, Jacob D. Morris et al., partners, from order of C. P. Bradford Co., Feb. T., 1892, No. 898, discharging rule to open judgment. Rule to open judgment. From the record it appeared that on Jan. 25,1892, Julia A. Franklin entered judgment for $750 against Jacob D. Morris and Geo.

Appeal, No. 84, July T., 1892, by Baer & Miller, from decree of C. P. Berks Co., Eq. D., 1889, No. 480, in Aaron B. Wood v. Standard Mutual Live Stock Ins. Co. of Reading, levying an assessment. Petition for order levying insurance assessments.

<p>Appeal, No. 273, Oct. T., 1892, by defendants, from decree of C. P. No. 1, Allegheny Co., March T., 1891, No. 358, in favor of plaintiffs, Sarah C. King et al., on bill in equity.</p> <p>Bill in equity to restrain maintenance of gas pipes in street. The bill averred that plaintiffs were the owners in fee of certain land in the city of Pittsburgh upon which defendant entered and laid a twenty-four inch pipe line for the transportation of natural gas; that for part of the distance it is laid less than two feet below the surface, and where it crosses a ravine it is above the surface on a trestle. The bill prayed for an injunction (1) against defendants from further keeping and maintaining said pipe line on said land, (2) for an account and payment of damages, and (3) for general relief.</p> <p>Defendants in their answer averred that the pipe line in question was laid upon Negley avenue in the months of August and September, 1889, and the maintenance and use of the pipe line was a lawful exercise of the rights, powers and privileges of defendants under their charter and the ordinances of the city of Pittsburgh. The answer admitted that the pipe line was above the surface in crossing the ravine and only two feet below the surface for part of the way.</p> <p>The case was referred to William P. Schell, Jr., Esq., as master, who found the facts as stated in the opinion of the Supreme Court. The master recommended a decree as prayed for in the bill, citing Pa. R. R. Co.’s Ap., 115 Pa. 514; Ferguson’s Ap., 117 Pa. 426; Groff’s Ap., 128 Pa. 621; Barker v. Hartman, 129 Pa. 551.</p> <p>The following exceptions, inter alia, were filed to the master’s report:</p> <p>“ 1. The master erred in his finding and discussion of facts in giving undue prominence to the matter of notice given’ by Alexander King to the defendant in regard to defendant’s location and construction of its pipe line within the lines of Negley avenue as located and ordered opened by the city of Pittsburgh, especially in view of the fact also admitted and found that Alexander King recognized and acquiesced in the proceedings for the opening of said avenue by paying his assessments therefor, it nowhere appearing in the testimony that Alexander King ever suggested or asserted to the defendant any question as to the legal existence of said avenue as an opened street, or did more than warn the defendant off the property for reasons of his own, just as he might if so inclined have warned them off a street in actual use by the public.” [1]</p> <p>“ 3. The master erred in not finding distinctly as a fact that the board of viewers of the city of Pittsburgh, in their report as to the damages and benefits arising from the opening of Negley avenue from Bryant street to Butler street, assessed benefits against or damages in favor of the several or respective owners'of every piece of property abutting on the said avenue, and- that without appeal from the report of said viewers, and without otherwise in any manner contesting the validity and binding force of said viewer’s report all of said property owners without exception, and including the ancestor of the plaintiffs, paid the damages and accepted the benefits assessed or awarded by the viewers. [2]</p> <p>“4. 'The master erred in not finding as a fact that the defendant company received from the chief of the department of public works of the city of Pittsburgh its first information of the opening of Negley avenue, and the payment of the damages and benefits for such opening, and that it was upon the specific suggestion, recommendation and authorization of that officer of the said city that the defendant company proceeded to locate and construct its pipe line upon Negley avenue as a public highway. [3]</p> <p>1 “ 5. The master erred in holding as matter of law that under the legislation existing and in force in the year 1888, it was a condition precedent to the exercise by the city of Pittsburgh of the power to open a street, that a majority of the property owners abutting thereon must petition councils for such opening. [4]</p> <p>“ 6. The master erred in not holding as a matter of law, that whatever may have been the power and authority of the city of Pittsburgh or its officers, under the laws of Pennsylvania in 1888, as to the opening of streets, the owners of all the property abutting on Negley avenue between Bryant street and Butler street acquiesced in the opening of said avenue by the city of Pittsburgh, with like effect as if they had voluntarily dedicated the same to public use, or had by agreement among themsélves opened the same, and fixed the damages and benefits payable therefor. [5]</p> <p>“ 7. The master erred in holding as matter of law that after the payment of damages, and the receipt of benefits by all the owners of property abutting on Negley avenue, the legal existence of Negley avenue as a public highway can be -properly .called in question or passed upon in a bill filed by one property owner without making all the other property owners and the city of Pittsburgh parties defendant. [6]</p> <p>“ 8. The master erred in not holding as matter of law that all the owners of property abutting on Negley avenue between Bryant street and Butler street, including the plaintiffs, by their concurrent action in ratifying, adopting and acquiescing in the report of the viewers in the assessment of damages and benefits for the opening of said avenue, are estopped from asserting, as against defendant, that said Negley avenue is not a public highway located and opened. [7]</p> <p>“ 9. The master erred in not holding as matter of law that Negley avenue from Bryant street to Butler street is, as against the plaintiffs, and all other abutting property owners, a public highway located and opened, and that the defendant, under its charter, the laws of Pennsylvania and the city ordinances, had full power and authority to enter upon said avenue and to locate, construct and maintain.its pipeline thereon.” [8]</p> <p>Errors assigned were (1-8) in dismissing exceptions, quoting them; (9) in decreeing that defendant be enjoined and restrained from maintaining and using its pipe line; (10) in decreeing that defendant pay the costs of this case; (11) in not dismissing plaintiffs’ bill.</p>

Appeal, No. 129, Jan. T., 1893, by plaintiff, from decree of C. P. Lackawanna Co., March T., 1889, No. 3, refusing to grant mandatory injunction. Bill in equity for injunction to restrain encroachment on channel of river and for mandatory injunction to remove matter already deposited. Preliminary injunction as prayed for was issued, but the decree was modified March 11, 1889, by dissolving the mandatory injunction.

Appeal, No. 238, Jan. T., 1893, by Philip R. Muller, garnishee, from judgment of C. P. No. 3, June T., 1891, No. 429, on verdict for plaintiff, M. L. Kohler, in Kohler v. Thorn. Attachment sur judgment.

<p>Evidence — Competency of witness — Party dead — Payee of check.</p> <p>The payee of a check is a competent witness to prove that the check was drawn in the maker’s lifetime in order to enable the payee to collect the money and pay it over to another person to whom the maker intended to present the money as a gift.</p> <p>Gift — Equitable assignment — Check.</p> <p>Where a check is drawn for the whole amount of a deposit in bank, and the drawer intends, by means of the check, to make a gift to another of the whole fund, the check will operate as an equitable assignment of the fund.</p>

<p>Will — Distribution—Disinheriting heir at law.</p> <p>The heir at law is not to be disinherited by anything less than a clearly apparent intention to pass the estate to another line of succession.</p> <p>Testator devised his estate as follows: “To Martin Faulstich and Theresa Faulstich (children of my brother Valentine Faulstich) each of them the sum of one dollar. All the rest and remainder, of my estate aforesaid, not hereinbefore disposed of, I give, devise and bequeath to my other legal heirs and representatives not hereinbefore named, in equal proportions, share and share alike,” Valentine, who was the only heir mentioned in the will, survived his brother. Held, that he was not excluded from the residuary devise.</p>

Appeal, No. 36, Oct. T., 1892, by defendants, Jacob Kiehl and M. L. Hinderliter, from judgment of C. P. Jefferson Co., Sept. T., 1890, No. 266, on verdict for plaintiffs, G. W. Himes and A. J. Himes. Assumpsit for breach of warranty of steam engine.

<p>Appeal, No. 178, July T., 1892, by defendant, from order of C. P. Berks Co., June T., 1892. No. 56, making absolute a rule for judgment against defendant, Christian M. Groff.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit to recover .insurance assessments.</p> <p>The facts appear in the following opinion of the court by Endlich, J.:</p> <p>“ This suit is for the collection of a ten per cent assessment made June 10,1891, upon defendant’s policy, and an additional amount of twenty-five per cent thereof, chargeable on failure to pay on thirty days after notice. The affidavit of defence filed avers (1) that, on December 31,1891, the liabilities of the company are, in its report to the insurance commissioner, stated to be $13,897.85, and the insurance in force $603,026, an assessment of ten per cent of which, exclusive of penalties, would make over $60,000; (2) that the company does not require the assessment sought to be collected in this suit to pay losses and necessary expenses; and (8) that the twenty-five per cent addition is illegal, unconscionable and unauthorized penalty.</p> <p>“ 1. As a defence the first allegation seems irrelevant. The test of the lawfulness of the assessment, in so far as it depends upon percentages, would be the amount of the assets and liabilities at the time when it was made.</p> <p>“ 2. By act of May 1,1876, P. L. 53, § 56, it is provided as follows : ‘ That the certificate of any mutual fire insurance company .... setting forth that the assessment has been made .... and the amount due .... shall be prima facie evidence thereof in all courts of this commonwealth; but in all cases .... against any member in any such company in which such member .... may .... within the time prescribed by law, file an affidavit setting forth .... that the assessment is for more money than is necessary to pay the losses and necessary expenses of said company .... such certificate shall cease to be evidence of anything whatever, and said company shall be compelled to prove its claim as other claimants do.’</p> <p>“ The purposes to be served by this affidavit contemplated by this statute have reference to the method of proof upon the trial, and not to the exigencies of the affidavit of defence law. Whether or not an affidavit embodying the averment specified in the statute is also sufficient to prevent judgment under the affidavit of defence system, is to be determined by reference to the principles pertaining to the latter.</p> <p>“ It was decided in Ashman v. Weighly, 1 Adv. Rep. (L. I.) 487, that since the express terms of the procedure act of May 25, 1887, require the defendant to reply by affidavit to the plaintiff’s statement, all averments therein not denied by the affidavit must, upon a rule for judgment, be taken as admitted. The statement avers that the assessment was ‘ duly ’ made, i. e., properly, fitly, regularly, in a suitable or becoming manner: Beale v. Com., 25 Pa. 11, 21; according to law: Gibson v. People, 5 Hun (N. Y.), 543; in compliance with the requirements of the law: Dunning v. Coleman, 27 La. An. 48. There being in the affidavit no denial of this averment, it must be taken as admitted. If, however, the assessment, at the time when it was made, was lawful, then the fact that the company does not require the assessment sought to be collected in this suit can be no defence; for the liability of the defendant was complete at the time of the making of the assessment, and he cannot, in equity and fairness towards his fellows, be permitted to evade it now.</p> <p>“ But assuming that the affidavit is to be understood as declaring that, at the date of the assessment it was greater than what was required by the company for the payment of the losses and necessary expenses, it is still in no better case. As a member of the company the defendant has submitted himself to the acts of the managers, as his representatives, in making assessments to meet losses, etc.: Hummel’s Ap., 78 Pa. 320, 325. They may exercise a reasonable discretion in fixing the amount, having in view the losses and practical workings of the company: Rosenberger v. Ins. Co., 87 Pa. 207; and the possibility of making collections: Buckley v. Ins. Co., 9-2 Pa. 501. The presumption is in favor of the propriety of the assessment: Hummel’s Ap., ubi supra. Liability upon it can be avoided only by showing fraud or gross mistake: Rosenberger v. Ins. Co., supra, page 212; and it can only be where something is shown to ground an inference of the one or the other that the burden of proving the contrary can be imposed upon the company: Co. v. Dryfoos, 20 W. N. 38.</p> <p>“ Nothing that could serve as the basis of such an inference is disclosed by this affidavit. There is neither an inference of fraud or of mistake; nothing but a naked allegation of excess, which is not even stated to be gross, much less shown by a specification of amounts from which the court might judge as to its reasonableness. The condition of the company six or seven months later, when presumably a large part of the liabilities that called for this assessment had been paid off, and other insurance not bound to contribute towards them had been written, throws no light upon this' question. Nor is it ah answer to say it would be difficult to specify with exactness. If such were required, it is to be remembered that defendant is a member of the company, with right of access to its books. There is no pretence that this was denied him, therefore the contrary, is to be assumed: Kaufman v. Iron M. Co., 105 Pa. 537, 542.</p> <p>“ The twenty-five per cent addition is either to be regarded as a conventional sum added by way o,f liquidated damages to indemnify the company and its paying membership against loss, incapable of being otherwise ascertained, resulting from the tardiness or default of a member neglecting to pay within a stipulated time, and therefore lawful on the principle laid down in Westerman v. Means, 12 Pa. 97; Streeper v. Williams, 48 Pa. 450; Powell v. Burroughs, 54 Pa. 329; Wolf Creek, etc., Co. v. Schultz, 71 Pa. 180, and other cases. Or it is to be treated as a reservation of a commission for collection, similar to stipulations usual in mortgages, bonds and notes; in which case the question of reasonableness is not one for the jury: Daly v. Maitland, 88 Pa. 384; and therefore not one to be raised by affidavit of defence. In either aspect the propriety of a claim in this case is demonstrated by the circumstances to be found within the four corners of the record; and, in neither aspect, for more reasons than it would be profitable to enumerate, is the decision in Lynn v. B. & L. Association, 117 Pa. 1, cited by defendant’s counsel, at all applicable. There is nothing in this affidavit of defence that can stand in the way of the plaintiff’s demand. No other ground has been advanced for denying it the judgment it has asked, and therefore</p> <p>“ The rule to show cause is made absolute.”</p> <p>Error assigned was order as above.</p>

<p>Appeal, No. 314, Jan. T., 1893, by defendant, Marshall A. Phillips, from order of C. P. No. 2, Phila. Co., Dec. T., 1891, No. 538, entering judgment in favor of plaintiff, Alfred William Moore, for want of a sufficient affidavit of defence.</p> <p>Assumpsit on judgment entered in the High Court of Justice, Queen’s Bench Division, in London. Rule for judgment for want of sufficient affidavit of defence.</p> <p>The affidavit of defence averred that deponent had been visiting London, and whilst there resided temporarily at 139 Hopton road; that on March 15, 1891, deponent gave up his temporary residence on Hopton road, and sailed for New York, reaching home on or about March 23, 1891; that deponent is informed and believes that a copy of an alleged writ of summons from the High Court of Justice in England, Queen’s Bench Division, in an action brought by one Alfred William.</p> <p>Moore against deponent, was sent on April 13, 1891, by mail, in a letter addressed to deponent at his said former temporary residence at No. 139 Hopton road, London, as aforesaid; that no other writ was ever issued, and no other service of any summons in above case was ever made, “ and if an appearance was entered by Herbert F. Oddy for your deponent, your deponent had no knowledge of it whatsoever.”</p> <p>Rule for judgment for want of sufficient affidavit of defence made absolute. Defendant appealed.</p> <p>Error assigned was order of court as above.</p>

Appeal, No. 115, Jan. T., 1898, by plaintiffs, Isaac D. Weaver et al., from decree of C. P. Lebanon Co., No. 3, Eq. Docket, 1892, dismissing bill in equity filed against J. M. Shenk et al. Bill in equity to enforce specific performance of contract.

<p>Appeal, No. 256, Jan. T., 1893, by John Jackson, from decree of O. C. Northampton Co., refusing to award an issue to determine the right of a contestant of a will to be heard.</p> <p>Petition for issue devisavit vel non.</p> <p>The petition of John Tozer, sur appeal from decree of register admitting last will and testament of James Rogers, deceased, to probate, averred in substance:</p> <p>1. That James Tozer, known as James Rogers, died Sept. 6, 1887, seized of real and personal estate; that on Sept. 12,1887, a paper writing was, probated as his l.ast will and testament and letters of administration with the will annexed were granted to Richard Jackson, from which petitioner appealed; that at the time of execution James Rogers was not of sound and disposing mind, and was unduly influenced.</p> <p>2. That decedent left no heirs but petitioner and his sister,</p> <p>living in Merthyr Tydvil, Wales, and they had no knowledge of probate aforesaid until October, 1891. =.</p> <p>8. That there is a dispute whether said paper is the last will and testament; whether decedent was of sound and disposing mind, or was unduly influenced, and praying for an issue.</p> <p>The answer filed averred, inter alia:</p> <p>1. That respondent denied that James Rogers, the decedent,</p> <p>was identical with the person described as James Tozer ; that petitioners were not heirs at law of decedent, and were not “ persons interested ” under the act of assembly to take appeal from probate, but mere volunteers, and demanding, as a prerequisite, an ascertainment of that fact in an issue. -</p> <p>2. Averring that James Rogers was of sound and disposing mind; was not unduly influenced and that no application had been made to the register to revoke probate and letters testamentary.</p> <p>The opinion of the court below was as follows, by Schuyler, P. J.:</p> <p>“ This controversy comes before us on an appeal from the decision of the register admitting to probate as the last will and testament of the decedent a certain paper writing of which the following is a copy: ‘Pen Argyl, August 14, 1887. High James Rogers do give to John Jackson Sr. my property known as the Pen argyl Hotel and the land ajoining in Pen argyl Northampton Co. P. A. (Signed) James Rogers.’ We are now asked to direct a precept for an issue to the common pleas to try two questions, first, whether at the time said paper was executed by the decedent he was of a sound and disposing mind, and, second, whether said paper is the last will of the decedent. As to the first question we think the evidence is not up to the required standard to entitle the appellant to an issue. We so hold on the authority of Keating’s Appeal, 2 Mona. 4, a case in many of its features wonderfully like the present.</p> <p>“ Whether or not the probated paper is the last will of the decedent is a more serious question. On its face it certainly presents none of the characteristics of a will. ‘ It is true that no formal words are necessary in order to make a valid will; the form of the instrument is immaterial if its substance is testamentary:’ Patterson v. English, 71 Pa. 458. But here the substance is not testamentary. ‘ A gift or bequest after death is of the very essence of a will, and determines a writing, whatever its form, to be testamentary: ’ lb. Here we have no gift or bequest after death, but a present gift. It is claimed by the appellee, however, that the surrounding circumstances show that the gift was not to take effect until after the death of the decedent. We are by no means clear that the paper can be helped in this way, but, conceding that it may be, the inference from these surrounding circumstances, although the facts may be undisputed, must unquestionably be drawn by a jury. In questions of negligence certain facts when established amount to negligence per se, that is, where the precise duty is determinate and the same under all circumstances, and in such cases the court must determine the question; but intent is always a question for the jury, except where it is to be gathered from the terms of an unambiguous writing.</p> <p>“ In Patterson v. English, supra, an issue was granted to try the question whether a paper, not testamentary on its face, was a last will and testament; so in Murry v. Murry, 6 Watts. 353. We think it best to follow these precedents, although when the time comes it may be the duty of the court to direct the verdict, on the theory that the question whether the writing in controversy is the last will of the decedent must be decided on the contents of the writing alone.</p> <p>“ A point was made at the hearing that the appellant had not proved himself to be a party in interest. There is nothing in this point. The evidence shows that the decedent introduced the appellant to a number of different persons as his son. There is no evidence that he is an illegitimate son, and in the absence of such evidence we will not presume it. The presumption is in favor of innocence, which carries with it the presumption of legitimacy. That this preliminary question is for the court is clearly indicated in Taylor v. Com., 108 Pa. 101, if authority is needed for so plain a proposition.</p> <p>[“And now, June 13,1892, the court directs a precept for an issue to the court of common pleas to try the question whether the paper in controversy is or is not the last will and testament of James Rogers, the decedent, in which issue the appellees shall be the plaintiffs and the appellant the defendant.”]</p> <p>John Jackson, Sr., thereupon took this appeal.</p> <p>Errors assigned were (1) in directing a precept for an issue to the common pleas to determine whether the paper in controversy was the last will and testament of James Rogers, upon petition of John Tozer, before awarding an issue upon demand of respondent to determine whether said John Tozer was a person interested and not a mere volunteer; (2) in refusing to award an issue preliminary upon the request of appellee to determine the question whether John Tozer, the petitioner, was an heir at law of said James Rogers and a person interested under the act of assembly; (8) in assuming jurisdiction and awarding an issue, before the register had been petitioned to revoke the probate of said alleged will and testament of James Rogers, and letters of administration c. t. a. to Richard Jackson; quoting the decree, etc.</p>

<p>Witt — Issue devisavit vel non — Evidence—Submitting construction of paper to jury — Verdict—Amendment to verdict — Practice, G. P.</p> <p>On the trial of an issue devisavit vel non, the paper admitted to probate was as follows: “Pen Argyl, August 17th, 1887. High James Rogers do give to John Jackson Sr. my property known as Pen argyl Hotel and the land ajoining in Pen argyl in Northampton County, P. A. (Signed )</p> <p>James Rogers.” The issue turned upon the question whether the paper was testamentary in its character. Rogers committed suicide Sept, 6,1887, in his room, and the above paper was found lying on the top of a closed trunk in an unsealed envelope addressed to John Jackson, Sr. Plaintiff asked the court to charge the jury that if they believed James Rogers “ intended the paper, offered as his will, to take effect only after his death, the verdict must be for the plaintiff.” This was affirmed, and the jury ' were also told that if they believed under the evidence the paper was intended as a present gift at the time of its date, their verdict should be for the defendant. The jury returned a verdict as follows: “We agree that the document written by James Rogers was his wish that it should take effect at the time it was written.” The court amended the verdict so as to read, “verdict for defendant,”and upon this verdict judgment was entered. Held, that the judgment should be affirmed.</p> <p>It seems that the practice of submitting the construction of such a paper to the jury, is not to be commended.</p>

<p>Appeal, No. 160, Jan. T., 1893, by Susanna Walborn, legatee under the will of Henry Shubart, deceased, formerly Ressler, et al., from decree of O. C. Berks Co., overruling exceptions to adjudication.</p> <p>Audit of account of Serenus Ressler, surviving executor of Henry Shubart, deceased.</p> <p>The adjudication was as follows, by Bland, P. J:</p> <p>Findings oe Fact.</p> <p>“ From the evidence in the case pertaining to the claim of Prosper Shubart, the court finds the following facts :</p> <p>“1st. Henry Shubart, the decedent, died in the year 1866, leaving to survive him the following issue, viz : Augustus Shubart, a son; Prosper Shubart, a son ; Sarah Shubart, a daughter, and Susanna Ressler and Mary Ressler, children of a deceased daughter of the decedent, who at the time of her decease, in 1858, was the wife of Serenus Ressler, the accountant here.</p> <p>“ 2d. Sarah Shubart, one of the children of the decedent, was an idiot.</p> <p>“ 3d. In order to secure a home for his daughter Sarah, the decedent made the following provision for her support in his last will and testament:</p> <p>“ 3. I also direct that my daughter Sarah shall remain with my son Augustus, to be maintained by him in boarding, washing, mending and clothing, for which he shall receive the following compensation, viz.: the interest of the lien of one thousand dollars on the plantation and also the interest of one thousand five hundred dollars, the lien on the mill property, and hereby appoint my son Augustus and my son-in-law Sere-nus Ressler and Frederick Harner, trustees of my daughter Sarah, to see that she may be properly provided for according to my will and make such disposition as circumstances may require ; after the death of my daughter Sarah, after all expenses and her funeral expenses be paid — the remainder of the two thousand five hundred dollars, the lien on the plantation and the mill property, shall be equally divided between my sons Augustus and Prosper and the children of my late daughter Emeline, their heirs, executors or legal representatives.</p> <p>“ Frederick. Harner, one of the executors, died in 1870, and Augustus Shubart, another one of them, died in 1880, leaving the accountant the sole surviving executor and trustee.</p> <p>“ 4th. That after the death of the decedent in 1866, Sarah lived with Augustus Shubart, and remained with him until about the time of his decease, in 1880, when she was taken to her home by Henrietta Brown, a daughter of Augustus Shubart, .... a brother of Sarah, with whom she lived until about 1882, when she was taken to the home of Prosper Shubart, her brother, the claimant here, and with whom she remained until her decease, March 11, 1892.</p> <p>“ 5th. In 1882, when Sarah went to the home of Prosper Shubart, she was an idiot'without the power of speech. She had the sense of sight and could move about the house without assistance from others. When Sarah was removed from Henrietta Brown’s to Prosper Shubart’s she was in the same condition, physical and mental, as she was at the time the decedent executed his will, and as she had been during the entire period from the execution of the said will to said removal to Prosper Shubart’s. Sarah continued in the same physical and mental condition as she was in when she was removed to Prosper Shubart’s until three and a half years before her death.</p> <p>“ 6th. That three and a half years before her death Sarah Shubart became afflicted with paralysis and total blindness, and from that time until her death was entirely helpless. In addition to paz’alysis and blizidzzess she becazize the subject of chronic diarrhoea. From the tizne of her paralysis and blizzdziess she was utterly unable to do aizything for hez'self. She was, duzúng the whole intervenizzg period up to her decease — a period of three years and a half — nursed and waited upon by Prosper Shubart azzd a domestic izi his employ, a Miss Eisenhower. They lifted her out of her bed and placed her in a chair when she sat up; they dressed and undressed her; they conveyed her to the table; she was unable to cut her food, and they cut it; she was unable to cany her food to her mouth, and they fed her; she was unable to wash herself, and they washed her; having chronic diarrhoea, she was unable to control her stools and they were dischaz-ged in her bed, or clothing, and they removed her from her bed and changed azzd washed the bedding, and removed her soiled and substituted clean garznents, and washed the soiled ones. Her condition was so unfortuzzate that she required constant attention and nursing, and the services rendered by Prosper Shubart and his servant were of the most laborious and offensive character. Sarah Shubart was a heavy woman, weighing from 150 to 175 pounds, and her frequent removals involved much heavy lifting.</p> <p>“ 7th. The surviving executor and trustee gave no care or attention to Sarah Shubart during a period of ten years before her decease. He never saw her in that whole period; he had heard that she was blind and paralyzed, but he gave himself no concern about her; he lived a half square from her during those ten years and at the time of her death, yet never saw her during that time and did not attend her funeral or give himself any concern about her burial. When she needed a physician Prosper Shubart employed one, and when she died, he, Prosper Shubart, buried her. Serenus Pessler, the accountant, testified that the reason why he gave no attention to Sarah was that the relations between him and Prosper Shubart, her custodian, were unfriendly.</p> <p>“ 8th. Prosper Shubart received from the owners of the real estate, upon which the twenty-five hundred dollars, mentioned in the will of the decedent, was charged, one hundred and fifty dollars a year during the entire period of ten years that he had Sarah in his home, and has presented a claim for a medical bill and funeral expenses paid by him, and for nursing and personal services of himself and his employee, rendered after Sarah became paralyzed and blind and sick with chronic diarrhoea, claiming that the one hundred and fifty dollars which he received was for the objects specified in the will, i. e., boarding, washing, mending and clothing, and that, under the will of the decedent, funeral expenses, medical attendance and nursing were intended to be paid out of the principal of the twenty-five-hundred-dollar charge.</p> <p>“ 9th. That for the nursing, feeding, the carrying and removing from place to place of the said Sarah Shubart, and for keeping her person clean and her condition cleanly, Prosper Shubart earned five dollars a week for the period of three years and a half immediately before her death, and that he has paid for medical attendance to Sarah and the expenses of her funeral eighty-six dollars and twelve cents (#86.12).</p> <p>“;10th. That Prosper Shubart did not take Sarah Shubart into his house with a view to her living with him as a member of his family, and without compensation, but with the understanding and expectation that he would be compensated according to the terms of the will of the decedent for what he did for her.</p> <p>Conclusions op Law.</p> <p>“ 1st. That the interest of the twenty-five hundred dollars, charged by the will of the testator on his real estate during the, lifetime of Sarah, was intended by him to compensate the custodian of Sarah for her boarding, washing, mending and clothing, and for kindred services and expenditures, but was not intended to cover compensation for nursing and personal attendance upon Sarah in case she should become totally helpless, blind and otherwise seriously diseased; nor was it intended to reimburse such custodian of Sarah for medical and funeral bills paid by him.</p> <p>“ 2d. That under the will of Henry Shubart so much of the principal of the said charge of twenty-five hundred dollars, as is needed, is applicable to the payment of reasonable expenses for the funeral, medical attendance and nursing of Sarah Shubart.</p> <p>“ 3d. That Prosper Shubart is entitled to the sum of nine hundred and ten dollars for one hundred and eighty-two weeks’ nursing, personal attendance, etc., of Sarah Shubart, at the rate of five dollars per week, and the sum of eighty-six dollars and twelve cents for medical bills and funeral expenses paid.</p> <p>“ The testator says ‘ After the death of my daughter Sarah, after all expenses and her funeral expenses be paid, the remainder of the $2,500, the lien on the plantation and mill property, shall be equally divided between my sons Augustus and Prosper and the children of my late daughter, Emeline, their heirs, executors or legal representatives.’</p> <p>“ By the words, ‘ the remainder of the $2,500, the lien on the plantation and mill property,’ the testator meant what was left of the amount of the charge after something had been taken from it. What was this ‘ something ’ that the decedent had in contemplation ? It was not ‘ boarding, washing, mending and clothing,’ for they were fully provided for out of the income, and the decedent must have intended something else. Funeral expenses were surely one object to which the principal of the charge might be applied, for he expressly designated them. The clause in the will must receive a reasonable construction ; but such construction is required to be consistent with the rules of law. The intent of the testator, when it does not conflict with any rule or policy of law, is supreme in the interpretation of a will.</p> <p>“ Mr. Justice Coulter, in Hunter’s Estate, 6 Pa. 106, says : ‘ If anything is distinctly and authoritatively settled in our law, it is that, in the construction of wills, the intent of the testator, collected from the words and language of the whole will, must be the guide and legal conclusion, and the governing principle of judgment;’ and at page 107 he further says: ‘A man shall be allowed to speak his mind in his will, and the learned, accurate, and searching Mr. Butler in his note on Coke, Little-ton, 379, states “ that no rule of law has a more ancient origin than that if a testator expresses his intention defectively in using technical and artificial terms, or by using them improperly, yet if his intentions can be collected from his will, the law, however defective his language may be, will construe his words according to his intention.” ’</p> <p>“ Mr. Justice Sharswood in Provencher’s Ap., 67 Pa. 466, speaking upon the same rule of construction, says: ‘ There are no arbitrary or unbending rules in the construction of the words of a will. No two wills are in all respects alike. Nevertheless the cardinal canon still holds good, that the intention of the testator of each will, separately, is to be gathered from its own four corners. Hence almost every general rule has its recognized special exceptions, with exceptions to such exceptions which bring us back to the general rule again, and this may and sometimes has been carried even further in the vain attempt to generalize and classify all the decisions upon this most difficult and doubtful subject — the ascertainment of the intention from the words of a man who in many cases had no intention at all, the question not being present in his mind at the time the words were used.’</p> <p>“ In order to discover the intention of the testator, and to arrive at his true meaning in the use of words so defective as to require construction, the court will look at the circumstances under which the devisor made his will, as to the state of his property, or his family and the like : 3 Jarman on Wills, 705, Randolph & Talcott’s ed., 1881.</p> <p>“ Going back to the execution of this will, we see so far as the provision in regard to the charge of $2,500 is concerned, that, with respect to that fund, the first object of the testator’s solicitude, care and bounty, was Sarah. He knew she was an idiot, and he intended to set aside that fund for her maintenance and welfare. As to those in remainder, they were secondary objects in his mind, and he, in terms, gave them but the residue of the fund.</p> <p>“ Sarah being an idiot the deceased clearly foresaw that she must be maintained in ‘boarding, washing, mending and clothing,’ and to secure them for her he bequeathed the income of the charge. He also clearly foresaw that in the course of nature she must die, and to meet the expenses which would ensue upon her death, he provided for the payment of her funeral expenses out of the corpus of the fund. The future was hidden from him, but he knew, as all rational men know, that idiocy is incurable, and that death is inevitable. He made provisions, in terms, to meet the condition which he knew to be beyond relief, and the event which he knew was certain to happen.</p> <p>“ Sarah was, in his mind, the primary object of his bounty, and can it be doubted, that if he had had foreknowledge of her subsequent afflictions; that if he could have foreseen her helplessly paralj-zed, totally blind, the victim of chronic diarrhoea, absolutely dependent for food, for removal from place to place, for bodily cleanliness and comfort, for nursing, for medical attendance, indeed for life itself, upon the offices of others, that he would not have specifically provided for compensation to those who should render her such vital service ?</p> <p>“ He did not, in terms, provide for the payment of medical attendance, because he did not certainly know that she would need any. He did not, in terms, provide for the payment of compensation for nursing, because he did not certainly know that she would need any; but the general intent of the testator in relation to this fund seems reasonably clear, that it was devoted by him to the wants of Sarah, and to the payment of necessary expenses; to nursing and medical attendance, as well as the cost of the funeral.</p> <p>“ The law favors the first taker rather than the second taker. If that construction is not adopted in this case, then the physician who attended Sarah in her illness can claim nothing out of this fund; and, of course, those who nursed her and attended to her every want under such disagreeable and distressing cireumstances, can get nothing for their laborious services; but those who appear to have done nothing for her welfare, and who were but secondary objects of the testator’s bounty, take the whole fund, to the exclusion of those who worked so faithfully on the lines of the testator’s intention. We do not think that the exclusion of the medical and nursing bill would be the carrying out of the will of the decedent. His language is,6 after the death of my daughter Sarah, after all expenses and her funeral expenses be paid, the remainder of the $2,500, the lien on the plantation and the mill property, shall be equally divided between my sons Augustus and Prosper, and the children of my late daughter, Emeline.’</p> <p>“ Our courts have taken high ground in favor of carrying out the intention of the testator, and giving the full benefit of his bequests to the first as against the second taker, where power to consume the corpus has been given, and have laid hold of slight expressions in wills to effectuate the intention of the testator and benefit the primary object of his bounty as against the secondary one.”</p> <p>After citing and quoting from Gold’s Est., 133 Pa. 495 ; Markley’s Est., 132 Pa. 352; and Heppenstall’s Est., 144 Pa, 259, the court continued:</p> <p>“ It is a maxim of law (Broom’s Maxims, 453) that the meaning of a word may be ascertained by reference to the meaning of words associated with it. The testator says ‘ after all expenses and her funeral expenses be paid,’ etc. The general word ‘ expenses ’ is here to be interpreted by the words ‘ funeral expenses.’ . In other words it means expenses of kindred character, such as expenses incurred for medical attendance, nursing, etc. It certainly does not mean ‘ boarding, washing, mending and clothing,’ for they were payable out of the income; and to hold them as meaning expenses of settlement, is to put a very narrow construction on them and to ignore the general intent of the testator, which manifestly refers to expenses incurred in relation to the person of Sarah, and ejusdem generis . with funeral expenses.</p> <p>■“ As illustrations of the application of the principle of construction embodied in the maxim nosoitur a sociis, the following cases are pertinent: Pardee’s Appeal, 100 Pa. 412; White’s Appeal, 15 W. N. C. 313, and Assigned Estate of the Clymer Distilling Co., 17 W. N. 374.</p> <p>“ The claim of Prosper Shubart is resisted upon two grounds:</p> <p>“ 1st. That Sarah lived with him as a member of his family, and that the family relationship raised a presumption that the services rendered by Prosper were voluntary, and not done in expectation of payment.</p> <p>“ 2d. That Prosper, having received the one hundred and fifty dollars interest annually from the owners of the farm and mill, upon which the two thousand five hundred dollars were charged, the presumption of law is that he received it as full compensation for his services.</p> <p>“ As the first ground of objection, the court having found as a fact that Sarah was not taken by Prosper Shubart on the footing of a member of his family, and that he expected to be paid whatever the will allowed him for his services, it has nothing to stand on in the present state of the facts.</p> <p>“ But as between brother and sister, there is no presumption that they live together as members of a family; family relationship must be proved by the party who asserts it.</p> <p>“In Curry v. Curry, 114 Pa. 371, Mr. Justice Trunkey said: ‘ The performance and receipt of services generally raises an implied promise by him who receives, to compensate him who performs, but the implication may be rebutted.. When the parties are parent and child, or members of the same family, the relationship includes the implication of a promise. In all cases, except that of parent and child, there mast be evidence beyond the relationship that the creation of no debt was intended. Where the parties are brother and sister, the sister claiming compensation for her services, the burden.of showing family relationship, or other cause, to exclude the implication of his promise to pay for the services, is upon the brother. Because of the fact that they are brother and sister, less evidence, besides, would be required to establish that they lived together as a family than if they were strangers. If he shows that they so lived, the jury ought not to find an implied promise.’ To the same effect are Smith v. Milligan, 43 Pa. 108, and Mayfaith’s Appeal, 2 Atl. R. 28.</p> <p>“But what evidence is there here to rebut the presumption of law that payment was intended? None. It is all the other way. The claimant took an idiot sister, for whose maintenance provision had been made by her father’s will. Those from whom he received her had been paid for keeping her, and he received during a period of ten years one hundred and fifty dollars a year. Certainly such facts only serve to fortify and not to destroy the legal presumption of a contract to pay.”</p> <p>After reviewing the cases of Ann Pierce’s Appeal, 1 Chester Co. 11. 93; Rorer’s Estate, 5 Pa. C. C. R. 73; Neel’s Adm’r v. Neel, 59 Pa. 347; Neal’s Adm’r v. Gilmore, 79 Pa. 428; Bishop’s Est., 2 W. N. 557; Hartman’s Ap., 3 Grant, Pa. 271; Gifford v. Halfman, 3 Phila. 127; Ranek v. Albright, 36 Pa. 367; Carr v. Chartiers Coal Co., 25 Pa. 337, and Larkin’s Ap., 16 W. N. 544, the court continued:</p> <p>“ The Larkin’s case bears no resemblance to this one. The claimant here made no settlements. He had no opportunity given him to present his claim for nursing, feeding and caring for the bodily wants of Sarah Shubart. He never saw her trustee in the whole period of ten years during which he had her, about anything concerning her, and, so far as the evidence in this case goes, it does not appear that the trustee knew that Prosper was receiving even the interest on the charge.</p> <p>“ The interest of the trustee in this case was not aroused until a claim was made which, if allowed, would affect the amount of money which his children would receive from the charge. Certainly this claimant has done nothing to estop him from making this claim, if the claim is otherwise good.</p> <p>“ Gifford v. Halfman was a suit against a son for nursing his father. The claimant in that case had an express contract with the son, and had been paid in full according to the contract. Judge Hare, in refusing to take off a nonsuit, said: ‘ The court are clearly of opinion that there was no evidence for the jury, and that the case was properly withdrawn from their consideration. Without a contract the plaintiff could have recovered nothing, and under the contract the evidence was conclusive that she had been paid in full.’ Iir that case the measure of the son’s liability to the claimant was to be found in the contract he had made with her, and nowhere else; there was no footing for an implied contract.</p> <p>“ In this case the question is whether Prosper Shubart is entitled, under the will of this decedent, to be paid for anything but ‘ boarding, washing, mending and clothing; ’ for that he rendered services to her of a radically different character and of great value, cannot be disputed.</p> <p>' “ The remaining two eases cited by the learned counsel in support of their second objection to the claim seem to the court to favor the theory of the claimant. They are the cases of Ranek v. Albright and Carr v. Chartiers Coal Co. The principle of both cases is stated in Ranck v. Albright, 36 Pa. 367, i. e., that service demanded and performed, not anticipated at the time of hiring, is no basis for a legal implication of a promise to pay more than the contract stipulated, if the nature of the service be not different from that which the parties had in view when the hiring took place, and if the hiring was for a definite period of time.</p> <p>“ Tested by the standard of those cases, how does this one stand? When Sarah was taken to Prosper Shubart’s she was a mute idiot, with power of locomotion and of feeding herself. So far as the evidence throws any light upon her bodily condition when she was taken to Prosper’s, she required no special care1 or- attention. She seems to have been nothing but a harmless idiot, able to help herself to all she needed to supply her bodily wants. Six and a half years - after she came to him she was suddenly stricken with paralysis, involving a total loss of the use of her arms and legs; she became totally blind; she could not move herself from one place to another, but had to be carried; she could not feed herself; her paralysis and blindness were followed with chronic diarrhoea; she was unable to control the movements of her bowels, and habitually and frequently discharged their contents into her bed, where she laid powerless to move. Was her condition not radically changed and were not the duties and labors of those who had her in charge different in nature from those which the parties had in view when Sarah went to live with Prosper ? Surely so, and it is only by an utter distortion of ideas that ‘boarding, washing, mending and clothing ’ can be held to embrace the kind and nature of personal services rendered by Prosper Shubart to Sarah during the last three and a half years of her life.</p> <p>“ For the foregoing reasons the court distributes to Prosper Shubart the.sum of nine hundred and ninety-six dollars and twelve cents, in compliance with the third conclusion of law.”</p> <p>The amount allowed was afterwards reduced to three dollars per week.</p> <p>Exceptions to the adjudication were overruled.</p> <p>Errors assigned were in overruling exceptions, quoting them.</p>

<p>Appeal, No. 225, Jan. T., 1893, by plaintiff, Matthew Ash, by his next friend, James F. Ash, from judgment of C. P. No. 1, Phila. Co., March T., 1891, No. 943, refusing to take off compulsory nonsuit.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court. Plaintiff, in addition, produced evidence to the effect that it was not customary to employ children of plaintiff’s age at such machines. Plaintiff’s father testified for plaintiff that it was customary, although he attempted to correct himself afterwards.</p> <p>The court, Biddle, J., entered a compulsory nonsuit, which they subsequently refused to take off.</p> <p>Frror assigned was refusal to take off nonsuit.</p>

Appeal, No. 248, Jan. T., 1893, by defendant, John H. Scott, from order of C. P. No. 1, Phila. Co., Sept. T., 1892, No. 509, making absolute a rule for judgment for want of a sufficient affidavit of defence in favor of plaintiff, Ansley W. Bacon. Assumpsit on promissory notes by indorsee against maker. Defendant filed an affidavit of defence, and by permission of the court two supplemental affidavits of defence.

Appeal, No. 33, Jan T., 1893, by defendant, Nancy M. Chaffee, from order of C. P. Bradford Co., Dec. T., 1889, No. 480, discharging rule by plaintiff, Ettie Abell, to strike off judgment. Rule to strike off judgment. From an agreement of facts in the nature of a case stated it appeared that defendant, a married woman, borrowed from plaintiff $700 to pay off a lien upon her land, and that the money was applied to that purpose.

<p>Married women — Contracts—Judgment—Act of June 3, 1887.</p> <p>The rights and liabilities of married women in this state have been greatly changed and enlarged by the act of June 3, 1887. The authorities which were applicable to questions arising before the passage of that act are inapplicable now. The judgment of a married woman which was then presumably void is now presumably valid. It is no longer necessary to such validity to set out on the record the facts which before the act were necessary to the validity.of the judgment.</p> <p>Opening and striking off judgments — Practice, C. P.</p> <p>A judgment entered against a married woman was regular on its face, nothing appearing on the record even to show-that defendant was a married woman. On a rule to open judgment it appeared that defendant was a married woman and that the note on which judgment was entered was in part payment of furniture and household effects sold and delivered by plaintiff to defendant. A rule was also entered to strike off the judgment. The court made absolute the latter rule. Held, to be error.</p> <p>A motion to set aside or strike off a judgment must be on the ground'of irregularity appearing on the face of the record; a motion to open is an appeal to the equitable power of the court to let the defendant into a defence. There was nothing in this case to justify either striking off or opening the judgment.</p> <p>Contract■ — Immoral consideration — Executed contract.</p> <p>That part of the consideration of a contract is immoral cannot be set up as a defence to a judgment confessed, after the contract has been executed by delivery of goods representing the legal part of the contract.</p>

<p>Railroads — Connecting carriers.</p> <p>The liability of a connecting carrier does not begin, and the duty of the first carrier is not completed, until there has been an actual delivery to the connecting carrier.</p> <p>Negligence — Railroads—Connecting lines — Fellow servants — Act of 1868.</p> <p>Where no delivery of goods is intended at the point where two railroads connect with each other, but the delivery takes place in the yards of the connecting company beyond the point where the roads meet, the operation of trains by the first company in the yards of the second company is not in performance of a duty which the second company is required to do, and employees of the two companies are not fellow servants within the meaning of the act of April 4, 1868.</p> <p>The Lehigh Valley Railroad Company and the Central Railroad Company of New Jersey connect at Easton. The Lehigh Yalley Railroad Company has a yard with sidings on its own line at South Easton. Cars for the Lehigh Yalley Railroad are not delivered by the Central Railroad at the point where the roads connect, but beyond this point in the yards of the Lehigh Valley Railroad at South Easton. Plaintiff’s husband was employed by the Lehigh Valley Railroad as an inspector of cars in this yard. The Central Railroad Company moved a train into this yard, and the yard master designated by signals the siding to which the train was to be sent. The train was put into rapid motion and while thus moving the locomotive was out loose from it, and the train by its own momentum ran into the-designated siding. The conductor delivered his waybills for it to the, yard master of the Lehigh Valley Railroad Company, and then with his crew mounted the locomotive and left the train upon the siding. Upon the arrival of the train plaintiff’s husband began to inspect its-ears, and while so engaged under a car, the Central Railroad Company’s employees, \ finding that the train had not entirely cleared the siding, returned with their locomotive and pushed it forward. Plaintiff’s husband was unable to crawl out and was killed. Held, (1) that the Central Railroad Company, while hauling the train in question from the connection of the two roads to the siding in the yard was not an employee of the Lehigh Valley Railroad Company, and (2) that the act of April 4,1868, did not apply to plaintiff’s husband in this case.</p> <p>Gontributory negligence — Disputed facts.</p> <p>Where there is a reasonable doubt as to the facts or the inferences from, them, the question of contributory negligence is a question for the jury.</p>

Appeal, No. 289, Jan. T., 1893, by defendants, Harry B. French et al., from judgment of C. P. No. 2, Phila. Co., March T., 1890, No. 121, on case tried by court without jury. Assumpsit for goods sold and delivered. The case was tried by the court, Pennypacker, J., without a jury, under the act of April 22, 1874. The facts as found by the court are quoted in the opinion of the Supreme Court. Reported below in 1 Dist. R. 601.

Appeal, No. 173, July T., 1892, by Sarah Ann Merkel, administratrix of John Merkel, deceased, and Charles Folk, guardian of the minor children, from decree of O. C. Berks Co., dismissing exceptions to adjudication. Audit of account of Sarah Ann Merkel, administratrix of John Merkel, deceased. The facts as found by the auditing judge, Bland, P. J., are stated in the opinion of the Supreme Court.

<p>Appeal, No. 220, Jan. T., 1893, by defendant, John P. McGrath, from judgment of C. P. No. 2, Phila. Co., June T., 1881, No. 99, on verdict for plaintiff.</p> <p>Issue to determine validity of judgment.</p> <p>Judgment was entered in the penal sum of $10,000 on warrant of attorney, accompanying bond given by defendant as treasurer of plaintiff association. The judgment was open and plaintiff filed a statement claiming that defendant had “ wrongfully, illegally and unjustly ” paid “ over to a person or persons unknown to said plaintiff, out of the money of the said association, the sum of seventy-seven hundred and forty-five dollars, which sums of money were in no wise due by the plaintiff to anyone, and for which sums of money no order or orders had been drawn upon him by the board, or previously approved by said board, and the said sums of money the said defendant has wrongfully withheld and still does wrongfully withhold from plaintiff, and has failed and still does fail to pay and deliver unto his successor in office the sums wrongfully withheld as aforesaid.” Defendant pleaded non assumpsit and payment.</p> <p>The material portions of the by-laws of the plaintiff association were as follows:</p> <p>“The president shall sign all orders on the treasurer for appropriations made by the board, and he shall perform such other duties as usually pertain to this office or which may hereafter be prescribed by the by-laws of the association or resolutions of the board.”</p> <p>“ The secretary shall keep accurate minutes of each meeting of the board and read the same at the next meeting of the board. He shall also keep accurate minutes of each meeting of the association and read the same at the ensuing stated meeting of the board. He shall keep accurate accounts with all the stockholders and shall attest all orders on the treasurer for appropriations made by the board, and shall notify the stockholders of the annual meetings, by public notice in a newspaper published in the neighborhood, and also notify the directors of all special or adjourned meetings, at the expense of the association.”</p> <p>“ The treasurer shall receive all moneys paid into the association, and pay all orders drawn upon him by order of the board, if signed by the president and attested by the secretary. He shall have in charge all bonds, mortgages, searches, policies of insurance, etc., on all property upon which money is loaned by the association, first giving his receipt therefor to the secretary.”</p> <p>The orders which defendant paid to the secretary, and for which suit was brought, read : “ Mr. J. P. McGrath, treasurer, pay to ” the payee the sum named. They were signed by the president and attested by the secretary, and the indorsements of the payee were forged by the secretary.</p> <p>Defendant’s points were as follows:</p> <p>“ 1. If the jury find from the evidence that the defendant paid the orders in evidence, in good faith, and with no actual knowledge of any fraud committed by the secretary, and the jury find that the said orders were signed by the president and secretary, the verdict should be for the defendant.” Answered in charge. [3]</p> <p>“ 2. The defendant was only bound to use ordinary care under the circumstances, and if the jury find that the defendant honestly relied upon what the secretary told him, and paid the orders signed by the president and secretary, the verdict should be for the defendant.” Answered in charge. [4]</p> <p>“ 3. Under all the evidence the verdict should be for the defendant.” Refused. [6]</p> <p>The charge of the court was as follows, by Hake, P. J.:</p> <p>“ This suit is brought to compel reimbursement of money, paid by the defendant in his capacity as treasurer, to persons who were not entitled to receive it, or more accurately to the secretary of the association, who induced the defendant to make the payment by forgery and falsehood. The plaintiff contends that, however careful the defendant may have been, he is none the less answerable, because the money had not been appropriated by the board of directors, as the constitution and by-laws contemplated, and because the payments were made professedly for stock said to have been withdrawn, and a resolution of the board required that no such withdrawal should take place without their approval.</p> <p>“ I am unable to concur in this view, for the following reasons: The by-laws of the association provide that ‘ All orders on the treasurer for appropriations made by the board shall be signed by the president and attested by the secretary.’ The first steps, therefore, were to be taken by the president and secretary, and it would be their duty to ascertain that the money had been appropriated and was due before authenticating the order with their signatures. A man who signs a paper directing another to make a payment is as responsible as if the instrument were written by him, and when the secretary attested the order he became a voucher for its genuineness. It was consequently the duty of these officers to ascertain that all the requisites had been fulfilled; and the treasurer might regard their signatures as evidence which dispensed with inquiry.</p> <p>“ I do not think that the words 4 appropriations made by the board’ materially vary the case, because it was°the duty of the president and secretary to ascertain whether such an appropriation had been made before signing the order. The same answer may be made to the argument that the board had not sanctioned or approved of the withdrawal of the stock, because the signatures of the president and secretary justified the belief that they had looked into the matter and that all was right.</p> <p>[“ The remaining question ‘ was the treasurer negligent ? ’ does not appear to me so clear. It is said he was an unsalaried officer and therefore not bound to take as much care as if he had been paid. In many instances this argument holds good, but it is inapplicable where a different rule is laid down by the law or results from an express or implied agreement. A person who, with or without reward, has charge of the funds of others as a trustee or treasurer, should, I think, take as much care as does a prudent man in the conduct of his own affairs. He may not have the spur of self-interest, but he should reflect that if a loss accrues through his negligence it will fall on those who left their money in his hands.] [1]</p> <p>“ It is said had the defendant examined the books and minutes of the association he would have found that the board had not sanctioned the withdrawal of the stock in question, and that, in point of fact, it did not exist. In considering this argument we should remember what I have already observed, that the first steps were to be taken by the persons who drew and attested the orders. If such an investigation was requisite it should have been made by the president and secretary before directing the payment of the money, and the defendant might reasonably presume that they performed their duty.</p> <p>“ It cannot be said that he acted without inquiry, because he was informed in every instance that the money was wanted to pay for the withdrawal of stock, and he had no reason to suppose the secretary was guilty of fraud and forgery. Our conduct through life is founded on the belief that the persons around are fairly honest where there is no reason to think the contrary. Business could not be carried on if we could not accept and act upon the statements of those with whom we deal, without verifying their truth.</p> <p>44 Where a rule is laid down for our guidance it must be scrupulously followed, and if the defendant had parted with the funds of the association without an order from the president, it would be immaterial that he was deceived by the secretary. The course actually marked out was that they should draw and sign the orders, and the treasurer should pay them.</p> <p>“ The plaintiff does not impeach the defendant’s good faith, and [if you find that he acted with due care in making the payments the verdict should be in his favor.] [2]</p> <p>“ I decline the plaintiff’s points and the last point presented by the defendant, and in answering his remaining points substitute the word ‘ due ’ for ‘ ordinary.’ [The term 4 ordinary care ’ may have a definite meaning among lawyers, but does not, I fear, convey a clear idea to people in general. What care should be taken in each case depends on circumstances. I therefore say that if the defendant acted with due care in reliance on the orders drawn by the president and secretary he is not answerable for the loss of the money.” ] [5]</p> <p>Verdict and judgment for plaintiff for $1,292.34.</p> <p>A motion for a new trial was refused in the following opinion by Hare, P. J.:</p> <p>“ It seems proper to say in dismissing the motion for a new trial that had the case been left to me as one of law and fact I should have decided against the plaintiff. Still if there was evidence that the defendant was negligent, the question was eminently one for the constitutional tribunal, and we ought not to set aside the verdict. Whether there was enough to carry the case to a jury is to me doubtful; and, could the point have been reserved at the trial, our conclusion, I am inclined to think, would have been favorable to the defendant. The duty of a subordinate tribunal is, however, often best performed by putting the case in a shape that will facilitate a speedy decision by the tribunal of last resort. Should the Supreme Court be of opinion that the orders drawn on the defendant, John P. McGrath, in his capacity as treasurer, by the president and secretary of'the corporation plaintiff, and authenticated by their signatures, were a warrant for the payment of the sums therein specified, and exonerated McGrath from making the minute investigation into the underlying facts which would have revealed the fraud practiced on him and the stockholders, the judgment of this court .will presumably be reversed, without awarding a venire de novo.</p> <p>“ The plaintiff and defendant each asked for an instruction that the verdict must be in his favor, so that in any event and though the facts should be again left to a jury there will be a writ of error. The case has been tried twice, and granting a new trial might cause delay of months meanwhile, and leave the case less advanced than at present.”</p> <p>Errors assigned were (1-6) instructions, quoting them.</p>

<p>Appeal, No. 220, Jan. T., 1893, by defendants, Mills B. Weed et al., from decree of C. P. Lycoming Co., Sept. T., 1891, No. 2, in equity, in favor of plaintiffs, C. William Woddrop et al., dismissing exceptions to</p> <p>Ci editors’ bill for account, etc., by testamentary trustee.</p> <p>The bill averred that Mills B. Weed, trustee, under the will of Frederick ft. Weed, deceased, to carry on the business of the testator, did, at a time when he himself was insolvent, and when the trust estate was insolvent, confess judgment to the First National Bank of Owego and to J. J. Crocker, trustee, certain creditors of the trust estate, in order to give them a preference, and had subsequently made a general assignment for the benefit of creditors, as trustee, to J. C. Hill and J. J. Crocker; that execution had been issued under the confessed judgments, and a levy made. The bill prayed: (1) That the levy under the writs of fi. fa. be stricken off; (2) that the judgments so confessed be declared to have no preference to plaintiffs therein; (3) that the deed of assignment be declared void; (4) that the assignees be required to reconvey to the legal representatives of the estate of F. ft. Weed, deceased, all property conveyed to them thereby, and to deliver to said legal representatives all choses in action and property of every kind that may have come into their possession or control; (5) that said assignees be enjoined,.preliminary until hearing, and perpetually thereafter, from selling, conveying, or in anywise disposing of any of the real or personal property which may have come into their possession or control, and from paying out any moneys to any person whomsoever; (6) that said assignee be required to account to the legal representatives of said estate for all moneys paid to or collected by them under said assignment ; (7) further relief, etc.</p> <p>The case was referred to T. M. B. Hicks, Esq., as master, who reported the facts as stated in the opinion of the Supreme Court. The master recommended a decree in favor of plaintiffs. Exceptions to the master’s report were overruled, and a decree entered in accordance with the prayers of the bill, in an opinion by Metzger, P. J.</p> <p>Hrrors assigned were dismissal of exceptions and entry of decree, quoting them.</p>

<p>Appeal, No. 334, Jan. T., 1893, by-defendant, Mills B. Weed et al., from decree of C. P. Lycoming Co., Sept. T., 1891, No. 1, in equity, in favor of plaintiff, Benjamin F. Young, dismissing exceptions to master’s report.</p> <p>Creditor’s bill to strike off judgment and for reconveyance..</p> <p>The bill averred that Mills B. Weed, as executor and trustee under the will of Frederick R. Weed, deceased, carried on the business of the testator, as authorized by the will, from 1882 until 1891; that in March, 1891, after both the trustee and the trust estate were insolvent, the trustee confessed judgment in favor of L. Truman & Bros., in the sum of $100,446.15 ; that the trustee also conveyed to the said Truman & Bros, real estate belonging to the trust estate. The bill further charged that there was no valid consideration for the confession of judgment or the conveyance of the real estate. The bill prayed: (1) That the court will declare the said deed to be void; (2) that Frank Truman and George Truman be required by decree to reconvey to the legal representatives of the estate of F. R. Weed, deceased, all the property described in the deed of March 16, 1891; (3) that the judgment confessed by M. B. Weed, executor and trustee, to L. Truman & Bros, be stricken off; (4) that Frank Truman and George Truman be enjoined from making any sale or conveyance of, or encumbering the property described; and (5) that they may be required to account to the said legal representatives, for the proceeds of any sales of said property, and for the rents, issues and profits thereof.</p> <p>The case was referred to T. M. B. Hicks, Esq., as master, from whose report appear the facts as stated in the opinion of the Supreme Court. The master recommended a decree in favor of plaintiff. Exceptions to the master’s report were dismissed by the court, and a decree entered in accordance with the prayers of the bill, in an opinion by Metzger, P. J.</p> <p>Errors assigned were in dismissing exceptions, and in entering a decree for plaintiff, quoting them.</p>

Appeal, No. 211, Jan. T., 1893, oy defendant, John G. R. McCorkell, from judgment of C. P. No. 2, Phila. Co., June .T., 1891, No. 928, on verdict for plaintiff, Anna M. Jensen. Assumpsit against indorsee on promissory note. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 227, Jan. T., 1893, by plaintiff, George W. Finch, from judgment of C. P. No. 2, Phila. Co., Sept., T., 1890, No. 687, refusing to take off nonsuit in action against Thos. A. Redding, David Conrade’s executor.</p> <p>Assumpsit for commissions for sale of real estate.</p> <p>At the trial, before Hare, P. J., the evidence was to the effect that David Conrade, defendant’s testator, had employed plaintiff to sell a certain quarry property. He told plaintiff the property ought to bring $20,000, but he could take $16,000 for it. He also instructed him as to the terms of the payment, and agreed to pay $1,000 to plaintiff, if he should sell the property. Plaintiff communicated the lowest price and terms on which Conrade would sell, to David C. Cleaver, and entered into an agreement with Cleaver, by which they were to purchase the property jointly. It was also agreed between plaintiff and Cleaver that plaintiff should apply his commissions, in part payment of the interest he was to have in the purchase, and should afterwards operate the stone quarries for the joint account of Cleaver and himself. Conrade refused to carry out the agreement, or to pay the commissions.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeals, Nos. 43 and 96, by the Mercantile Library Company and the Free Library of the Philadelphia City Institute, from decree of O. C. Phila, Co., Oct. T., 1890, No. 233, distributing estate of George S. Pepper, deceased. Audit of account of John S. Gerhard et al., executors of George S. Pepper, deceased. (Reported below, 1 Dist.

<p>Will — Legacy—Deduction of debt due by legatee.</p> <p>Testator gave “ to the Academy of the Pennsylvania Pine Arts, $50,000, inclusive of the note of the Academy.” At the time of his death testator held the note of the Academy for the sum of $8,000 for money loaned to it. Held, that the amount of the note should he deducted from the legacy, and that the legatee was entitled to receive only $42,000.</p>

<p>Appeal, No. 258, Jan. T., 1893, by defendant, from judgment of G. P. No. 2, Phila. Co., Dec. T., 1889, No. 274, on verdict for plaintiff, Lewis Lang, trading as Lang, Burnheimer & Co.</p> <p>Trespass for loss of goods by common carrier.</p> <p>At the trial, before Fell, J., it appeared that the train containing ten barrels of' plaintiff’s whisky reached Conemangh at nine o’clock on the morning of May 31,1889. Owing to heavy rains the train was detained by a washout. At four o’clock in the afternoon of the same day the dam above Conemaugh broke, resulting in the Johnstown flood. About half of the cars of the train bearing the whisky were swept away, but the car containing the whisky was left uninjured standing upon the track. About six o’clock in the evening the waters subsided, and the crew of the train returned. What then occurred is described by the conductor as follows :</p> <p>“We came back to the train, and when we got there, there was men wading in back and forward; there were two or three axes; there was a kind, of clasp on some of these cars; these fellows didn’t understand how to open it; there was a talk about opening the door. They were there with some axes, hammering away. I said, ‘ Hello, boys, what is the trouble ? ’ He said, ‘Look here, young fellow, by God, there are five hundred people starving, and with nothing to eat, and if there is anything in the train they will have it.’ I said, ‘ I have no use for you.’ I walked about my business. In the meantime they had bursted open the car, loaded with hams and flour. I don’t know whether they had just this particular car bursted open or not; I think probably they had; we left and walked to Johnstown, and we could not do anything better; everything was washed out; we started to walk to Johnstown; that was in the neighborhood of 6 o’clock when we left there.”</p> <p>A guard of volunteer citizens of Conemaugh took charge of the train about eleven o’clock in the evening.</p> <p>Howard Davis, a citizen engaged in organizing a committee of protection, testified : “ When it began to get daylight the people off of Prospect came there — quite a lot of them — and they wanted provisions and stuff, and of course we didn’t allow them to break open any of the cars or anything. There was a few had been'broken open, but we got them away. They kept on coming thicker and thicker, and we could not protect it; we nailed the cars shut. They found this whisky, and we nailed the ears, I think, three or four times, where the whisky was in. Two cars had whisky in. There was the one car had about two or three barrels in it, probably more. They broke that open first. We nailed it shut, but they broke it open the second time. I told them to stay out, and I got in the car myself, me and another party. I ordered them out. They swore they would not go. I throwed one fellow out, and he turned and drew a revolver on me. The rest pushed him away from the car on one side of the car. We closed it again. That is about the third time. Then by that time they had broken open this other car of whisky in front. The first car they had broken open on the right hand, as you go in this direction, and the other car they broke open on the left, on the north side. When we came round on that side they mashed this one open, and were going for it red hot. There was a good many come over from Conemaugh town, and they consulted most of them that come down, and we did not believe we could do anything any longer; they were getting too many. There was about a hundred people there. Q. What sort of people were they ? A. People I never saw who came there. I don’t know how they got there or where they came from; they were the toughest class of people I ever saw. I never knew them and I have been raised in that neighborhood, but I don’t know where they came from. They swore they would have the whisky. We told them they could not have the whisky, that we would empty it first; but we would not leave them have it, for we could not protect it in any other way. Q. Why did you tell them that ? A. They were raising a fuss then. We were in danger at that time. We had enough to look after in the way of dead people lying around, and relieving the suffering of those left. We had no time to lose with the whisky, and they began to get so bad on our hands at the time we could not control them any longer, and we came to the conclusion, I and about a dozen of the citizens, the best thing to do would be to destroy the whisky. We done so as quick as we could destroy it. In an hour’s time it was quite a different place. It was all quiet.”</p> <p>Another witness, David D. Gogenaugh, testified that the committee, after consultation, came to the conclusion that the best thing to do was to destroy the whisky, “ in order to save property and life, because it looked very much as if there was going to be a riot there.”</p> <p>The bill of lading, contained the following stipulation: “ The carrier shall not be liable for loss or damage by causes beyond its reasonable control, by fire, explosion from any cause, and wheresoever occurring; by riots, strikes, or stoppage of labor, or for any of the causes incident to transportation, such as chafing, heating, freezing, leakage, rust, or any other reason not directly traceable to the negligence of the carrier’s servants.” The valuation in the bill of lading was $20.00 per barrel.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 2. The destruction of the plaintiff’s goods is affirmatively shown to have been produced by causes wholly beyond the defendant’s control, viz.: First, an unexpected flood, which interrupted the means of transportation ; and, second, the action of the persons who destroyed the goods as one of the necessary means of preserving the public peace and safety. Under such circumstances the verdict should be for the defendant.” Refused. [1]</p> <p>“ 3. It is affirmatively shown by uncontradicted testimony that the plaintiff’s goods were destroyed while in transit, without any fraud or gross negligence on the part of the defendant or its servants. Hence under the terms of the bill of lading the verdict should be for the defendant.” Refused. [2]</p> <p>4. Request for binding instruction for defendant. Refused. [3]</p> <p>“ 5. Under the circumstances of the present case there can be no recovery beyond the valuation in the bill of lading, namely, twenty dollars per barrel.” Refused. [4]</p> <p>The court left to the jury the question of negligence by defendant the day of the flood and the day after, saying, inter alia: “ Could they have protected it on June 1st, either from the mob or from this committee ? That is, could they have shown at that time such acts of protection as would have satisfied reasonable people that there was no danger of the mob-getting it? Could they have kept it from the mob at that time ? If they could it was their duty to have done so; if they could not, then the railroad company is not responsible.”</p> <p>Verdict for plaintiff for $926.47. Defendant appealed.</p> <p>Errors assigned were (1-4) instructions, quoting them.</p>

<p>Appeal, No. 247, .Jan T., 1893, by plaintiff, John T. Strickland, from judgment of C. P. No. 2, Phila. Co., June T., 1892, No. 173, for defendant on demurrer.</p> <p>Trespass for depriving plaintiff of use of stall in market.</p> <p>Plaintiff averred in his statement that after 1871 the Central Market Company was the owner of a property at Seventeenth and Market streets, in the city of Philadelphia. Prior to Jan. 21,1881, appellant rented certain stalls in the market from year to year. On that date, in order to retain appellant as a tenant, the market company leased to appellant, his heirs, executors, administrators and assigns, certain stalls therein, and the ground covered thereby, for a period of five years, and so on from one such period to another until notice as therein provided was given.</p> <p>The lease was as follows:</p> <p>“ The Central Market Company do hereby let and demise unto John T. Strickland, residing at No. 363 North 65th street, Philadelphia, Pa., the stalls numbers 91, 122, 124, avenues Nos. 2 and 3, in the market house on Market street, and S. E. corner Seventeenth and Jones streets, in the city of Philadelphia, for the term of five years from the first day of January, 1881, at the yearly rent of two hundred and ninety dollars, payable quarterly in advance, on the first days of January, April, July and October. The lessee having paid the quarter due in advance, seventy-two dollars and fifty cents, the receipt of which is hereby acknowledged, agrees to use the said stalls for the sale of such articles only as are allowed by the by-laws of the said company, and to comply with all the rules and regulations which are or may be made by the said lessors for the government of the said market house, and for the regulation of the business within the same. The lessee covenants and agrees to pay the said rent punctually, and not to assign this lease or to underlet the premises, and on the expiration of the term or other determination of this lease, to deliver peaceable possession of the premises. Should the lessee fail to pay the rent punctually, or to comply with any of the provisions herein contained, he shall forfeit his right to the said stalls and this lease shall forthwith determine, and the lessors may take possession of the said stalls or any attorney may thereupon, as attorney for the lessee, sign an agreement for entering in court an amicable action and judgment in ejectment against the lessee (without stay of execution) for the recovering of possession by the lessors of said stalls for which this shall be a sufficient warrant; and thereupon a writ of possession may forthwith issue; and the lessee hereby releases all errors and defects in such proceeding, and agrees that no objection or exception shall be taken thereto. All rights and liabilities herein given to, or imposed upon either of the parties hereto, shall extend to the heirs, executors, administrators, successors or assigns of such party. Should the lessee continue in possession of the said stalls with the assent of the lessors, after the expiration of the said term, then this lease shall continue in force for another term of five years, and so on, from term to term, until the lessors shall have given thirty days’ notice to the lessee of their intention to determine the lease, and thereafter, on the expiration of the then current term, the lease shall determine.” Plaintiff averred that defendant on April 4,1892, “ and thereafter entered into and upon said premises, and took forcible possession of said stalls, and of the ground upon which they are situate, and wholly excluded plaintiff therefrom, without having then or at any time before or since tendered plaintiff any bond to secure them in the damages he suffered thereby, and without having tendered him any payment therefor or having attempted to agree with him as to the amount of his damages.” Defendant filed the following plea to the statement:</p> <p>“ And the said defendant saith that the said plaintiff ought to be precluded from maintaining said action, because the market house wherein stalls 91, 122 and 124 were fixtures was appropriated for public uses, under the authority of an act approved April 10, 1867, entitled, ‘ A further supplement to an act to incorporate the Pennsylvania Railroad Company, approved April 18,1846, authorizing the Pennsylvania Railroad Company to construct additional railroad tracks, sidings, depots, workshops and other appurtenances, alóng, adjoining or contiguous to their own line of railroad, and the railroads now owned and leased, or hereafter to be owned and leased by them, and to straighten and improve the same, and to acquire the property upon which to construct the same, paying therefor the value of the property to be used or occupied,’ on the 80th day of January, 1892, and upon said date last named the court of common pleas Mo. 1, to Dec. T., 1891, No. 906, approved sureties on a bond then approved and filed, to secure compensation to the Central Market Company, the owner of said market house, wherein said stalls were erected, as by the record thereof will appear.</p> <p>“ And the said defendant saith that by virtue of the authority conferred in said act and after the filing and approval of said bond, it did enter upon said premises and take the same for its uses, and not otherwise. All of which defendant is ready to verify.”</p> <p>Plaintiff demurred to the plea because: (1) “ said plea does not traverse the causes of action set forth in plaintiff’s statement ; (2) the statement shows that the plaintiff has an estate in the land taken by the defendants, and the plea does not aver that a bond was given to plaintiff, or other proceedings had, which would justify defendants in entering into possession of plaintiff’s property without his consent; (3) in and by said plea it is admitted that the bond therein referred to was given only to the Central Market Company, and not to this plaintiff ; (4) said plea admits the taking and destruction of plaintiff’s estate in said land, and nowhere avers that security was either given or tendered him, or that any attempt was made to agree with him as to the value of his said estate; (5) the. record in said plea referred to, even if produced, would not justify the taking or destruction of plaintiff’s estate in said land; (6) said plea nowhere denies that defendant, with full knowledge of plaintiff’s estate in said land, and without securing him in any way, took forcible possession thereof, and excluded plaintiff therefrom ; (7) said plea is in other respects uncertain, informal and insufficient.”</p> <p>Judgment for defendant on demurrer. ■ Plaintiff appealed.</p> <p>JError assigned was overruling demurrer and entering judgment.</p>

Appeal, No. 263, Jan. T., 1893, by plaintiff, William B. Laucks, from order of C. P. Berks Co., June T., 1892, No. 19, dismissing exceptions to report of auditor. Distribution of proceeds of sheriff’s sale. The auditor, Samue'l L. Young, Esq., found that the fund in dispute here was realized from real estate sold by the sheriff as the property of Webster S. Michael.

Appeal, No. 5, Jan. T., 1893, by plaintiffs, Anna Alberta Hoover et al., widow and minor children of Samuel L. Hoover, deceased, from order of C. P. Lycoming Co., Dec. T., 1888, No. 58, refusing to take off nonsuit. Trespass for death of plaintiff’s intestate.

Appeal, No. 329, Jan. T., 1893, by defendant, from judgment of C. P. Sullivan Co., Feb. T., 1891, No. 95, on verdict for plaintiff, Sevilla Hartzig. Trespass for personal injuries. At the trial, before Connolly, J., of the 45th judicial district, specially presiding, it appeared that on Jan. 20, 1891, plaintiff, a woman sixty years old, was a passenger on defendant’s train.

<p>Appeal, No. 182, Jan. T., 1893, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., March T., 1892, No. 637, refusing peremptory writ of mandamus.</p> <p>Petition for mandamus.</p> <p>The relator filed her suggestion April 2, 1892, setting forth the respective rights and. duties of the board of controllers of the city of Philadelphia and the school directors of its several school districts, touching the election of a supervising principal of the John Moiiet Combined Grammar School of the Seventeenth district, and that she had been duly elected thereto by the school directors, who had certified thg/t fact with her name an'd grade to the controllers, whose duty it was to certify the same to the city controller, which the controllers refused to do, and praying for a mandamus directing them to do so.</p> <p>An alternative mandamus was duly issued, to which defendants answered that they had refused upon the grounds, (1) because she had not then had five years of approved experience as a teacher, as provided by their by-laws, her experience having been prior to 1881; (2) because of her sex; and (3) because the controllers had destroyed the office of supervising principal by regrading the John Moffet School.</p> <p>The relator filed a replication, averring that she then had the requisite qualification of five years of approved experience provided by their by-laws, and that they had never issued any special certificate of that experience, but always issued the supervising principal’s certificate, if the holder had that experience, and if not, did not issue that certificate without suspending those by-laws. She also filed a demurrer, that the'controllers had no right to refuse on account of her sex and no right to regrade the school, without the request or approval of the school directors.</p> <p>Defendants at the hearing filed an affidavit of Mr. Abbott, a defendant, setting forth that Mr. Brooks, their new superintendent, had, March 14, 1892, reported: “I find, on examination of the records of the school department, that she has not been teaching in the public schools of the city since December 30, 1881. Since that time the work of instruction in our public schools has been completely reorganized. A new course of study has been adopted by the board and new methods of teaching introduced into the schools. In view of the fact that Miss Sherry’s term of service in the public schools expired before these changes were made, I am unable to certify that she is qualified to act as supervising principal of any public school of the city.”</p> <p>The court below, Biddle, J., refused the writ (in an opinion, reported 1 Dist. R. 481) on the ground of her alleged want of a requisite certificate of five years’ approved experience.</p> <p>Thereupon the relator filed a petition for a rehearing, and an amended petition, setting forth that the facts on the face of the pleadings showed that she had the requisite experience, and that she had since discovered that Superintendent MacAlister, had in 1886, -when she received her supervising principal’s certificate, certified to their committee on qualification of teachers that she had had more than five years’ approved experience as a teacher, which that committee then reported to the controllers, with their superintendent’s said certificate as required by their by-law, and recommended that she should receive her supervising principal’s certificate, which report was adopted by the controllers, and thereon that certificate issued to her. The court below refused to modify its order, without any opinion.</p> <p>The relator thereupon entered a formal rule on defendants to show cause why that issue of fact, whether she had the requisite qualification of five years’ approved experience, should not be placed on the trial list for trial. Rule discharged.</p> <p>By-law xxiv provides, in part, as follows: “ When the holder of a supervising principal’s certificate also holds the principal’s certificate heretofore mentioned in the provisions of this by-law, and has not less than five years of approved experience as a teacher in public schools (which shall be certified to by the superintendent of schools), he or she shall be eligible to the position of supervising principal or vice principal of any school or combination of schools which may be organized under the provision of rule xxn.”</p> <p>Errors assigned were (1) refusal of writ; (2) refusal of re-argument ; and (3) discharge of rule for issue.</p>

<p>Appeal, No. 172, July. T., 1892, by defendant, from judgment of C. P. No. 4, Pbila. Co., June T., 1890, No. 229, on verdict for plaintiff, Ellen Gilmore.</p> <p>Trespass for damages for death of plaintiff’s husband.</p> <p>At the trial, before Willson, J., it appeared that, Sunday evening, April 5,1890, plaintiff’s intestate died from injuries received by falling through an opening in the railing of a bridge over defendant’s railroad, at a point where a flight of stairs from a highway crossing the bridge descended to the platform of the station. In making some alterations in the station, defendant’s contractor had removed the stairway and replaced it by a narrower one. On account of the decreased width of the stairway, it was necessary to extend the hand rail on the bridge to fill the space left by the narrow stairway. This had not been done on Saturday afternoon of April 4th, but the contractor’s workmen when they quit work protected the opening by a piece of flooring board, which they drove into the hand rail and tied to the post. Several witnesses testified that on Saturday evening the opening was without a guard, and it was not contradicted that there was no guard or protection around the opening at the time of the accident. The deceased crossed the bridge in the evening, and descended the stairway to buy a ticket for a train which he intended to take the next morning. He purchased his ticket, reascended the stairs, reached the top, where he stopped to speak to some friends, and, not knowing that the old rail had been removed, fell through the opening, and died from his injuries. Defendant claimed that the alterations were being made by an independent contractor, but it appeared that, on the day of the accident and some days previously, the stairway had been in use and control of defendant, and open for all persons going to and from its station.</p> <p>Defendant’s points were as follows :</p> <p>“1. If the defendant, on quitting work on Saturday night, left the place where the accident occurred in a condition safe for the public, it had discharged its duty, and the plaintiff cannot recover, even though it was unsafe at the time of the accident.” Answer: Kefused. [1]</p> <p>“ 2. If you believe that the opening through which the decedent fell was properly closed on Saturday night, then the company is not responsible for the wrongful act of a stranger in making the opening after they had closed it.” Answer; I affirm that point. Óf course, the company would not be responsible for the wrongful act of anybody in removing the strip of wood, if it was placed there, provided it was not removed so long before the accident as to give them a fair opportunity of warning — imposing upon them a duty to close the opening. I have already intimated to you that if you see anything in the evidence which would lead you to the conclusion that that strip remained there from Saturday afternoon until a time very near the accident, and then that in some way it got out, you ought not to charge the railroad company with negligence, because it is entitled to a fair measure of time, in order that notice might be brought home, or that knowledge might come to those who were in charge of the premises that the guard which had been placed there had been removed.” [2]</p> <p>“ 3. The evidence shows that when the workmen left on Saturday night the opening complained of was closed. Therefore the plaintiff cannot recover, as no negligence is shown, from the fact that in some unexplained way the opening was made after Saturday night.” Ansiver: Refused. [3]</p> <p>“4. The negligence here, if any, is that of an independent contractor, and the plaintiff cannot recover against the railroad company, but must sue the contractor.” Answer: Refused. [4] “ 5. No negligence has been shown here, and your verdict must be for the railroad company.” Answer: Refused. [5] “6. Under all the evidence your verdict must be for the railroad company.” Ansiver: Refused. [6]</p> <p>Verdict and judgment for plaintiff for $3,664. Defendant appealed.</p> <p>Hrrors assigned were (1-6) instructions, quoting them.</p>

Appeals, Nos. 250, 251 and 286, Oct T., 1892, by Robert Lockhart, administrator of Mary E. Lockhart, deceased, and administrator of Maria J. Lockhart, deceased, and by James T. Gormley, executor of James Gormley, deceased, from decree of O. C. Allegheny Co., Jan. T., 1892, No. 87, dismissing exceptions to adjudication. Audit of account of James T. Gormley, executor of James Gormley, deceased.

<p>Appeal, No. 5, Jan. T., 1893, by defendant, from judgment of C. P. Chester Co., Jan. T., 1892, No. 12, on verdict for plaintiff, Wm. Pl. Fritz.</p> <p>Assumpsit on policy of fire insurance.</p> <p>At the trial, before Waddell, P. J., defendant claimed that no proof of loss had been furnished within fifteen days after the fire, as required by the policy. Plaintiff, however, offered evidence which tended to show that plaintiff, immediately after the fire, gave notice of the loss to A. T. Cross, the agent of defendant, who directed Shattuck, an adjuster of all the companies which Cross represented, to adjust the loss; that Shattuck did so and made report to Cross, who accepted it without objection, and forwarded it to defendant company. The proofs thus furnished were retained by the company, until a considerable time had elapsed and plaintiff had demanded payment. The fire occurred May 28,1891, the adjustment was received by the company July 18, 1891.</p> <p>Defendant’s request for binding instruction was refused. [10]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (2-4) rulings on evidence, quoting bills of exception but not evidence, and (10) above instruction, quoting it.</p>

Appeal, No. 21, Jan. T., 1893, by John Holmes from order of C. P. Bradford Co., Sept. T., 1886, No. 249, dismissing exceptions to auditor’s report. Distribution of proceeds of sheriff’s sale of real estate. The facts found by the auditor W. J. Young, Esq., were to the effect that in 1867 S. B. Harden and J. H. Harden acquired the real estate in question. On June 16, 1881, C. E. White obtained judgment against them for $700.

<p>Streets — Change of grades — Statute of limitations.</p> <p>A plea of “ not guilty within six years ” is an effectual bar to proceedings to assess damages for the change of grade of a street, where the proceedings are not commenced until more than eight years after the work of excavation was done. Such a plea may be filed at any stage of the proceedings prior to or pending the trial.</p> <p>Where a street has been dedicated to the public, subsequent proceedings to open the street afford no basis for damages for a change of grade of the street where proceedings to recover such damages are instituted more than six years after the work of excavation was done.</p>

<p>Appeal, No. 203, Jan. T., 1893, by defendants, Alfred G. Ehrlieher et al., from judgment of C. P. No. 4, Phila. Co., June T., 1891, No. 281 J, on verdict for plaintiff, Joseph Rosenthal.</p> <p>Assumpsit on check.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Yerdict and judgment for plaintiff for $155.26. Defendants appealed.</p> <p>Errors assigned were : (1) That the court erred “ in overruling the defendants’ objection to the plaintiff’s offer and submitting of check in evidence, as not being the check alleged in plaintiff’s statement of claim, and upon which this suit is alleged to have been brought.</p> <p>“ (2) In overruling defendants’ objection and allowing said check to be put in evidence by the plaintiff, as the holder thereof, without their first proving, or offering to prove, that the defendants as drawers thereof had sustained no loss or injury from any lack of diligence or due presentment and notice of the same by the plaintiff or his collecting agent or agents, before the failure of the bank on which said check was drawn, as they were required to do before they could be, or were in law, entitled to recover thereon.</p> <p>“ (3) In directing a verdict for the plaintiff, where by the evidence then submitted it appeared that three days had elapsed between the giving of the check to the plaintiff and the failure of the bank.</p> <p>“ (4) In directing a verdict for the plaintiff upon the testimony of plaintiff alone without allowing the defendants to offer evidence in support of their side of the case and in support of their affidavit of defence filed therein.</p> <p>“ (5) In refusing to allow the defendants to prove that said plaintiff’s son Morris was plaintiffs authorized agent, with authority to indorse all checks drawn to said plaintiff’s order and to present and draw the same at bank, and that said plaintiff’s son had repeatedly indorsed said plaintiffs name on checks so drawn by the said defendants and others, similar to the alleged check in suit, and had received, receipted for, and collected the moneys and amounts thereon as such authorized agent.”</p>

<p>Boroughs — Streets—Gutters—Damages.</p> <p>Where a borough constructs gutters in a street in such a way as to cause the surface water of a large territory to be diverted from its natural flow, and to be gathered into a body and precipitated on the premises of the owner whose property abuts on the street, and the property is thereby injured, the borough is liable in damages.</p> <p>Municipal corporations — Evidence of acts of.</p> <p>The acts of a municipal corporation may be proved otherwise than by its records or some written document.</p> <p>Evidence — Cross-examination.</p> <p>In an action against a borough to recover damages for injuries resulting to property from the negligent construction of gutters, a witness, in his examination in chief, testified as to the physical nature of the street along which the gutters were made, the effect of their construction on plaintiff’s property, and such was the general character and scope of his testimony fin chief that it might be fairly inferred that the work was done by or under the direction of the municipal authorities, although he did not testify by whom the work was done. Held, that the witness might be properly asked on cross-examination by whom the work of constructing the gutters was done.</p> <p>'Cross-examination — Review.</p> <p>The range of cross-examination must, to a very great extent, be left to the sound discretion of the trial judge, and, unless that discretion has been plainly abused to the injury of the party complainant, it is not ground for reversal.</p>

<p>Practice, Supreme Court — Opening judgment — Lost testimony.</p> <p>The Supreme Court will not review an order of the court of common pleas refusing to open a judgment, where the plaintiff's testimony is not brought up with the record.</p> <p>If such testimony has been lost or mislaid, it must be supplied in the proper way, and the alleged substance of the testimony, not assented to by the plaintiff, nor approved by the court below, will not be considered by the Supreme Court.</p> <p>Judgment — Estoppel—Declaration of no defence.</p> <p>A declaration by the maker of a judgment note to a person intending to purchase the note, that it was good and would be paid, followed by an offer to pay the holder of the note before or about the time of its maturity, will, it seems, estop the maker from instituting proceedings to open a judgment entered upon the note.</p>

Appeal, No. 395, Jan. T., 1893, by defendant, James Gorsucb, from judgment of C. P. Blair Co., Jan. T., 1892, No. 86, on verdict for plaintiff, John Ludwig & Son. Assumpsit for goods sold and delivered. The facts appear by the opinion of the Supreme Court. The court charged in part as follows, by Landis, P- J.: “ The real defence here is that the defendant is released from liability on the bill and that the plaintiffs agreed to look to Thomas Imler for the payment of it.

<p>Appeal, No. 294, Jan. T., 1893, by Caroline Lienbach and Lydia Hoch, daughters of Hannah Hoch, deceased, from decree of O. C. Berks Co., dismissing exceptions to adjudication.</p> <p>Adjudication of estate of Hannah Hoch, deceased.</p> <p>From the record it appeared that Hannah Hoch died on March 30, 1891, leaving to survive her, Caroline Leinbach a daughter, Lydia Hoch a daughter, and eight children of Joel Hoch, a deceased son. Her will was as follows:</p> <p>“ I make this my last will. I give devise and bequeath as follows:</p> <p>“ In the first place I devise and bequeath one good bead to Solomon Hoch'of Richmond township Berks Co.</p> <p>“ Second all carpets cloth linen and cotton quilts qunce ware stove and all other furneture which is left in the house all of which they due except I give devise and bequeath to my two doughters Caroline and Lydia if any article above mentioned they due not except it shall be publictly sold and devided with the rest of my property in equal shares to my legal hars.</p> <p>“ I appoint Ely Limebach of Bern Township James M. High of Earl and Jacob Hoch of Oley executors of this will.”</p> <p>The amount for distribution, apart from specific bequests, was $10,533.71. The court, Bland, P. J., distributed the estate per capita in equal shares among the children and grandchildren, on the authority of Thomas v. Hole, Talbot’s Cases, 251; McNeilledge v. Galbraith, 8 S. & R. 45; 1 Roper, Leg., p. 157; Bender’s Ap., 3 Gr., Pa. 210; Harris’s Est., 74 Pa. 452; Dible’s Est., 81* Pa. 279 ; Hicks’s Est., 134 Pa. 507 ; and Thomas’s Est., O. C. Phila. Co., 18 W. N. 28, the last case distinguishing Baskin’s Ap., 3 Pa. 304, and other cases.</p> <p>Exceptions to the adjudication were overruled.</p> <p>Errors assigned were dismissing exceptions, quoting them.</p>

<p>Appeal, No. 441, Jan. T., 1893, by defendant, from decree of C. P. Luzerne Co., March T., 1893, No. 2, equity docket, continuing preliminary injunction.</p> <p>Bill in equity for an injunction to restrain defendant from occupying Centre street in Foster township.</p> <p>The bill set forth the incorporation of plaintiff under the act of May 14, 1889, described the route authorized in their article of association, alleged an application for and grant of a right of way over the roads in Foster township, Feb. 13,1893, set forth a copy of the minutes of the supervisors of said township, authorizing such grant, averred an intrusion upon one of the roads, called Centre street, in Foster township, by defendant company, denied any right of way, in the latter, or that defendant had obtained the consent of the supervisors of the township as provided by § 15 of the act of May 14,1889. The bill was accompanied by a bond and two injunction affidavits No formal answer was filed, but the affidavit of defendant de* nied in detail every allegation of the bill, averred a prior incorporation to that of plaintiff, alleged a superior right to occupy the street called Centre street, both by reason of such prior incorporation and by the formal written consent of the supervisors dated Jan. 5,1893, a month before that alleged by plaintiff, alleged an actual occupation of said road and commencement of work thereon in reliance upon the written consent of the supervisors, the expenditure of $50,000 in cash and a liability of $50,000 more upon "contracts, made in good faith upon such written consent, which it is asserted was obtained from the supervisors without misrepresentation or fraud on the part of defendant company, and was given by the supervisors after due and proper deliberation and consideration, with full knowledge on their part of the import and effect of the written paper.</p> <p>The court granted a preliminary injunction and, on motion to continue, filed the following opinion, by Woodward, J.:</p> <p>“ The bill and affidavits in this ease present for our consideration at the present time a single question — which of the two companies claimihg the right of way over the road in Foster township has complied with the requirements of section 15 of the act of May 14, 1889, P. L. 211 ? This section provides that ‘ No street passenger railway shall be constructed by any company incorporated under this act, within the limits of any city, borough or township, without the consent of the local authorities thereof,’ etc.</p> <p>“ The plaintiffs allege that, on February 13, 1893, they applied to the supervisors of the township for the right of way in question, and they attach to their bill a copy of the minutes of the meetiug of the supervisors, which reads as follows :</p> <p>“ ‘ Freeland, Pa. February 13th, 1893.</p> <p>“‘A meeting of Foster township supervisors was held this evening at the house of Patrick McFadden, one of the supervisors; John Schnee and Patrick McFadden, the supervisors of Foster township, being present. An application for the right of way over the roads of Foster township was presented by Harry E. Sweeney, president of the Union Street Railway Company, and also read to the supervisors. After discussing the matter, Patrick McFadden, one of the supervisors, moved that the right of way be granted to the Union Street Railway Company. The motion was duly seconded by John Schnee, the other Foster township supervisor, and carried, after which both supervisors signed the following right of way: •</p> <p>“ ‘ To the Union Street Railway Company: Harry E. Sweeney, President:</p> <p>‘“We, the undersigned, supervisors of Foster township, do hereby grant the prayer of the foregoing petitioner, upon com dition that the said railway company shall, and will, at all times, save the township harmless from any suit and damage that may arise through the operation of said railway, and keep the surface of said roadbed in good repair.</p> <p>“ ‘ In witness whereof, we have set our hands and seals this 13th day of February, 1893. And said railway shall build and operate same by November or December 1, 1893. The right of way being as follows: (Then follows a description of the right of way.)</p> <p>“ ‘ There being no further business, the meeting adjourned.</p> <p>“ ‘ (Signed) Frank R. Welliver,</p> <p>“‘Township Clerk of Foster Township.’'</p> <p>“ The defendants produce an affidavit of Matthew Long, which states that, as the agent of the Hazleton and North Side Electric Railway, he called upon the supervisors, and procured from them the agreement for the right of way dated January 5, 1893, which reads as follows:</p> <p>“ ‘ Whereas, the Hazleton and North Side Electric Railway has obtained a charter, or letters patent under the provisions of the act of general assembly of the commonwealth of Pennsylvania, entitled “ an act to provide for the incorporation and government of street railway companies in this commonwealth,” approved March 14, 1889, to lay down, construct and establish a street railway and turnouts as may be necessary, through the township of Foster.</p> <p>“ ‘ And whereas it is provided, inter alia, in the 15th section of said act, as follows : “No street passenger railway shall be constructed by any company incorporated under this act, within the limits of any city, borough or- township, without the consent of the local authorities thereof.”</p> <p>“ ‘ And whereas, the consent of the authorities of the said township of , Foster has been requested by the said Hazleton and North Side Electric Railway to lay down, construct and establish a street railway track or tracks, with such sidings as may be necessary, on, over and along the public roads in said township of Foster, as hereinafter set forth.</p> <p>“ ‘ Now this agreement witnesseth, that we, Patrick McFadden and John Schnee, supervisors of said township of Foster, do hereby consent to the said request of the said Hazleton and North Side Electric Railway to lay down, construct and establish a street railway track or tracks, with such sidings and turnouts as may be necessary, on, over and along all the public roads of said Foster township, as follows, to wit: Beginning at a point on public road leading from Drifton to Freeland, on the line between Hazle and Foster townships, and extending along said road to the south end of Centre street, in the borough of Freeland, and also from the borough of Freeland, along a public road leading through South Heberton to Upper Lehigh, to township line of Butler.</p> <p>‘“In witness whereof, we have hereunto set our-hands this 5th day of January, 1893.</p> <p>“‘Witness: bis</p> <p>“ ‘ H. M. Breslin, “ ‘ Patrick X McFadden,</p> <p>“ ‘ James McHugh, mark</p> <p>“ ‘ John Schnee.’</p> <p>“ Mr. Long, being present at the hearing, was called as a witness for the plaintiffs. He stated that the agreement was signed by the supervisors at different times, and that he did not meet them together, but separately. It is not claimed that the supervisors acted in- pursuance of any resolution, adopted at a meeting of the board, but it is alleged that no deception or fraud was practiced in obtaining their signatures to the agreement, and that both supervisors fully understood its import and effect. And these allegations are sustained by the affidavits presented by the defendants, although denied by counter affidavits of the plaintiffs. The defendants claim that, by virtue of the agreement of January 5,1893, they are legally in possession of the right of way claimed by the plaintiff under the resolution of the supervisors, adopted more than a month later, on February 13, 1898.</p> <p>“ Assuming that the agreement obtained by the defendants from the supervisors, on January 5,1893, is not invalid because of any fraud or misrepresentation, and, also, that the meeting of the supervisors on February 13,1893, was properly held, and that the proceedings granting the right of way to the plaintiffs were had as certified to by township clerk, it then remains to inquire as to the legal force and effect of a contract entered into by township supervisors, separately, and without a meeting at which all were present for conference and consultation.</p> <p>“ The doctrine of the common law is, that when a power, authority or duty is confided by law to a number of persons, or' whenever a number of persons as officers are authorized or required by law to perform any act, such act may be done, and such power, authority or duty may be exercised and performed by a majority of such persons or officers, upon a meeting of all the persons or officers so entrusted or empowered, unless special provision is otherwise made: Keeler v. Frost & Worden, 22 Barb. 400. In this case an assessment of a school tax was made by two trustees, in the absence of a third. The two made out and signed the warrant for the collection of the tax, which was then carried by one of them to the third trustee, who also signed it. It was held that the assessment was'void, and that the trustees were trespassers in issuing the warrant, and seizing and selling property.</p> <p>“ And the rule of the law on this subject is stated by Judge Dillon (Dillon on M. C., vol. 1, p. 360), as follows: ‘ An act of a public nature, which is to be performed by a committee, may, where purely ministerial, be performed by members of the committee acting separately, and by a majority of the members. But, as a general rule, where the act requires the exercise of judgment, the members of the committee must convene, or be notified to convene, and confer on the subject, and a majority thus convened will constitute a quorum,’ etc. See Martin v. Lemon, 26 Conn. 192. And in Gallup v. Tracy, 25 Conn. 16, while, for special reasons existing in the case, the rule thus stated was held not to apply, Ellsworth, J., said: ‘We make no question that the general principle of the law is, that public agents may act by majorities where all are present, or where all have notice to be present; and generally not otherwise.’</p> <p>“ In the case of the turnpike road, decided by our own Supreme Court in 1813, and reported in 5 Binney, 484, Tilg-hman, C. J., said: ‘ When several persons are authorized to do an act of a public nature, which requires deliberation, they all should be convened, because the advice and opinions of all may he useful, though all do not unite in opinion.’' In this case a clear distinction is recognized between matters purely ministerial and those of a deliberative nature. See also Cooper v. Lampeter Township, 8 Watts, 128.</p> <p>“ In Union Tpwnship v. Gibboney, 94 Pa. 537, Trun key, J., said: ‘ One supervisor cannot bind the township for performance of a contract, the propriety of entering into which is the subject of deliberation and the exercise of judgment; but he may in matters purely ministerial. When the business requires deliberation, consultation and judgment all should be convened, because the advice and opinion of all may be useful. Before constructing a new bridge, they must meet and act as a hoard, for this can only be done on deliberation and consultation, and with the asseñt of both, or a majority. But the ordinary repairs of roads and bridges, and opening roads authorized by the court, are classed with ministerial duties, and may be performed by one.’ See also Hopewell Township v. Putt, 2 W. N. 46.</p> <p>“ In view of the rule thus established it would seem to follow that the contract entered into between the supervisors of Foster township and the Hazleton and North Side Electric Railway Company, on January 5,1893, was invalid and without force. It was not the joint act of the supervisors, authorized at a formal meeting of the board properly convened, after deliberate consideration, but the separate act of the two supervisors in their personal and individual capacities, and at different times. The only valid and lawful grant of the right of way over the road in question was that conferred upon the Union Street Railway Company by the resolution adopted at the meeting of the supervisors on January 13,1893, and for this reason the motion to continue the injunction must be granted.”</p> <p>Error assigned was in continuing the injunction.</p>

Appeal, No. 249, Jan. T., 1893, by Rose E. Lafferty and Patrick J. Corcoran, two executors and trustees of the will of Charles Lafferty, deceased, from decree of O. C. Phila. Co., ordering them to furnish a proxy to their cotrustee to vote certain stock belonging to the estate.

<p>Negligence — Injuries to wife — Release by husband — Act, June 11, 1879.</p> <p>Where an action is brought in the name of a husband for the use of his wife for injuries suffered by his wife, and the husband files a stipulation under the act of June 11, 1879, P. L. 129, releasing to his wife his right to damages, the wife is entitled to recover not only what her husband might have recovered in a suit brought in his own right for the loss of her services, including all her services as wife to the household, as well as her earning power in employments outside of strictly domestic duties, but also such damages as she is entitled to recover for direct injury to herself.</p> <p>The act of June 11, 1879, was not intended to change either the kind or quality of the evidence necessary to entitle the husband and wife respectively to recover in separate actions. After a stipulation is filed, the wife is entitled to recover not only for her own injuries, but also for whatever sum the husband was entitled to recover in an action brought by himself.</p> <p> Measure of damages to husband for injury of wife. </p> <p>In an action by a husband for an injury to a wife, the husband is entitled to recover the moneys he has expended or become liable to pay for the medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties; and in such a case the term “services” implies whatever of aid, assistance, comfort and society the wife would be expected to render to or bestow upon her husband, under the circumstances and in the condition in which they may be placed, and it is immaterial that services in the ordinary sense were not rendered at all.</p> <p>Constitutional law — Statutes—Title of act.</p> <p>The act of June 11,1879, P. L. 129, entitled “ An Act relative to actions brought by husband and wife, or by the wife alone for her separate property, in case of desertion,” providing for a recovery by the wife of the damages to which her husband is entitled for the loss of her services, where the husband by stipulation releases his right, does not violate § 3, art 3, of the constitution, relating to titles of acts.</p> <p>Township — Highways—Guard—Logway—Negligence.</p> <p>The duty of a township to guard a highway is not affected by the concurrent use of the way as a logway.</p>

<p>Corporations — Contracts made by defacto officers.</p> <p>A corporation may act by moans oi officers de facto as fully and effectually as regards the public and third persons as by officers de jure, in all matters within the scope of the corporation’s ordinary business ; and there is no distinction in this respect between de facto officers of public corporations, and de facto officers of private corporations.</p> <p>Directors of a corporation were ousted from their office by a decree of the court upon the ground of the illegality of their election. During the time they acted as directors they had control of the books of the company and of its property, real and personal. They made contracts for the erection of a building for a fair held under the auspices of the company, and offered premiums to exhibitors. Held, that the corporation was liable on the contracts and for the premiums.</p>

<p>Appeal, No. 414, Jan. T., 1893, by plaintiff, Mary J. Hawn, from order of C. P. Huntingdon Co., Sep. T., 1892, No. 19, making absolute rule to set aside service of process. Before Sterrett, C. J., Green, Mitchell, Dean and Thompson, JJ.</p> <p>Rule to set aside service of process in action of trespass.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was making rule absolute.</p>

<p>Principal and surety — Replevin bond — Res judicata.</p> <p>A surety in a replevin bond cannot set up in his affidavit of defence to an action on a bond matters that were controverted in the action of replevin, and settled by the verdict and judgment in that case.</p>

<p>Appeal, No. 468, Jan. T., 1892, by plaintiff, John Baird, from judgment of C. P.No. 1, Phila. Co., Dec. T., 1888, No. 670, on verdict for plaintiff.</p> <p>Appeal from award of jury assessing damages in the sum of $151,250.</p> <p>At the trial it appeared that plaintiff’s property was situated at Twenty-fourth and Locust streets, running westwardly to the Port Warden’s line on the Schuylkill river. It was occupied as a marble manufactory and yard. The business consisted largely of importing blocks of marble from Italy, and in manufacturing the marble for the market. A traveling crane was used in transporting the marble from the wharf to the mill. Plaintiff claimed that the space directly under the traveling crane or traveler was much diminished for storage purposes by the construction of the railroad.</p> <p>The court charged in part as follows :</p> <p>“ This particular property was a marble yard. You are not to consider what that property was worth only as a marble yard and factory — and when I say ‘ yard ’ I mean yard and manufacturing establishment — you are not alone to do that, either before or after the railroad came there, but taking it before the railroad came there to first consider that proposition and get at the value of that property as it stood before it was affected by the coming of the railroad, and what it was worth for the best uses to which it could be put. Then you will consider the next question, what was it worth after the railroad came there. Not necessarily as a marble yard and factory, but for the best use it could be put to. You can probably easily realize that there might be a condition of affairs where upon a lot of ground a dozen small dwelling houses were built that the coming of a railroad, either in front or behind them, might make them practically useless as dwelling houses, but yet that property might become very largely valuable as a manufacturing establishment; and if the owner of those houses should come into court and ask damages against the railroad company, a jury would have no right to consider simply their value as dwelling houses; but you ought to say what is the market value of that property before the railroad came there for all the purposes and for the best purposes to which it could be’ put before, and what is the value of it after the railroad came there. If the railroad increased the value of the property, although it may have destroyed the valúe of the houses for dwelling houses, for manufacturing or any other purposes, and that more money could be gotten for it than before, the plaintiff would have no proper claim for damages. . . .</p> <p>“ Mr. Baird contends, as one very large element of damage to his property, that the storage capacity, which be formerly had under his trestling, is very largely interfered with bjr the fact that the railroad tracks cross it. The fact that that amount of storage capacity is gone does not admit of any contention. The defendants attempted to show that that injury or damage can be supplied .by an additional track on the south side of his trestling, and in that way recovering the lost storage capacity by having a trestling there. You have seen the mechanism, and the models will be before you, and one set of engineers have given you their thought upon the subject, whilst other witnesses have condemned it, saying it is not practicable, and giving you their reasons. Now you will consider in that respect the amount of practical knowledge a man has in relation to the subject he speaks of, and when he gives his reasons you will .consider the soundness of those reasons as they appear to your understanding, and weigh him in that scale.</p> <p>“If you come to the conclusion that this property, as I have already said, is not depreciated in market value by the construction of the railroad, jrou, of course, will then give a verdict for the defendant. If you come to the conclusion that the property is worth less now than it was before the railroad came there by reason of the coming of the railroad, you will then give to the plaintiff that amount of damages, and you ought to endeavor to ascertain that as accurately as you possibly can. If this plaintiff has been injured, he is entitled to full compensation for his injuiy ; and, in that connection, without intending to indicate to you whether you ought to find for the plaintiff or for the defendant, but only to say if. you do conclude that the plaintiff is entitled to damages, or his property was injured by the coming of the railroad, you ought to give him that amount, and add to it interest, from the time the railroad occupied the property, in one sum as the amount of the damage that he has suffered.”</p> <p>Tl'.e defendant presented the following point:</p> <p>“ 15. If the jury believe from the evidence that the loss of storage space under the traveler is the principal cause of the plaintiff’s claim that the railroad has injured the property, and that such space under the control of the same traveling crane can be duplicated by suitable mechanical appliances so as to restore to the plaintiff the equivalent amount of storage space under the control of his machinery, rendering the mill property available for its full use, then the cost of such appliances can be considered, not as any item of damage, but as a measure of the injury, if any, to the land, due to the taking of a portion of the space controlled by the traveler, and heretofore used for the storage purposes.” Affirmed. [1]</p> <p>Verdict and judgment for plaintiff for $49,600, Plaintiff appealed.</p> <p>Error assigned was instruction, quoting it.</p>

Appeal, No. 469, Jan. T., 1892, by plaintiffs, John Baird & Sons, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1888, No. 671, on verdict for defendant. Appeal from award of jury awarding damages in condemnation proceedings. At the trial the facts appeared as stated in the preceding case. It further appeared that the firm of John Baird & Sons consisted of John Baird, the owner of the real estate, and his two sons, Thomas E. Baird and John E. Baird.

<p>Appeal, No. 92, July T., 1892, by defendant, from order of C. P. Delaware Co., Sept. T., 1891, No. 185, entering judgment for want of sufficient affidavit of defence.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit to recover license tax on telegraph poles.</p> <p>From the record it appeared the city of Chester, in 1884 and 1889, adopted two ordinances, by which it was provided that every telegraph company owning telegraph poles within the city should pay to the city treasurer a license fee of one dollar upon each new pole to be erected, and one dollar yearly for each pole maintained by the company, and providing penalties for failure to compty with the ordinance. This action was brought to collect from defendant the sum of $1,470, being license fees upon two hundred and forty-five poles for six years, from 1885 to 1891. The material averments of the affidavit of defence are stated in the opinion of the Supreme Court.</p> <p>Error assigned was entry of judgment for plaintiff for want of a sufficient affidavit of defence.</p>

<p>Will — Life estate — Fee simple.</p> <p>Testator gave all his estate real and personal to his wife during her natural life, to have and control the same and receive all the rents and revenue of the aforesaid estate, and after her death, to his sons, Daniel and George, “ the whole of the aforesaid property to them and to their heirs forever, to be equally divided between them, share and share alike.” A codicil directed as follows : “In order to prevent any strife or contention, and make more definite the division of my property on the demise of my widow, it is my desire and I do hereby bequeath the whole of the estate to the said Daniel Seitz and George Seitz (both real and personal), and each to have and possess one-half, and said Daniel Seitz’s share to be equally divided among his, the said Daniel’s children, and the other, or George Seitz’s share to be equally divided between them, his, the said George’s children.” Held, that there was nothing in the codicil showing an intent to cut down the fee previously given to the sons.</p>

<p>Appeals, Nos. 212 and 213, March T., 1893, by William Kalle and the Boston Dyewood & Chemical Co., from decree of C. P. No. 1, Phila. Co., Sept. T., 1891, Nos. 933 and 993, dismissing exceptions to report of master in equity proceedings against James Sibbald, Heft & Son, Henry Brooks, assignee in trust for creditors of Heft & Son, et al.</p> <p>Creditor’s bill to declare defendant Sibbald trustee ex maleficio.</p> <p>The case was referred to Geo. W. Reed, Esq., as master, who reported that, on June 4,1890, Henry Brooks, assignee for the benefit of the creditors of Jacob D. Heft and Alfred S. Pleft, trading as J. D. Heft & Son, sold at public sale certain real estate of the assigned estate. On one of the properties was a mortgage for $5,000, of which $2,500 had been paid. James Sibbald, one of the.defendants, learning this from J. D. Heft, secured the property for a sum $2,500 less than the apparent amount of his bid. After the bill was filed he paid over the difference, with interest thereon, to the assignee, making the actual cost of the property to him correspond exactly with the apparent cost.</p> <p>The master further reported as follows: “ Undoubtedly, tbe action of James Sibbald in bidding at said sale with said knowledge of the facts, afterwards concealing said facts, and then clinching his advantage by satisfying said mortgage of $5,000 by paying only $2,500, amounted to a fraud in law. ‘ Any discrepancy between the amount to be secured and that which is in form set forth as a debt of the mortgagor is a badge of fraud: ’ Bump, p. 48.</p> <p>“ Up to this point, therefore, the complainants would be entitled to a decree that Dr. Sibbald hold said property, as trustee ex maleficio, etc., at least to the extent of $2,500. But after James Sibbald had paid the $2,500 (which at first he had retained) to the assigned estate, the situation, in the opinion of the master, had materially changed; the assigned estate had thus received all that it was entitled to receive — no one had offered to give more at said sale than James Sibbald, except James Sibbald himself, but, as he was the highest bidder at said sale, the master is of the opinion that what he might have given, had the bidding warranted it, is not to be considered— he bid higher than anyone else — there was no reason for raising his own bid, such action on his part would have been absurd. Therefore, the matter now stands thus: James Sibbald was guilt}*- of a fraud in law, in that he retained to himself $2,500, which should have gone to creditors; he has now paid that $2,500, with interest, to those to whom it belonged. Though still guilty, has he not purged the wrong ? ■ What effect would a decree in complainants’ favor have? For how large a sum of money would defendant have to answer ? He has paid the full sum bid, nobody has been produced who would pay more; can he be made to pay more than complainants themselves show he ought to have paid? To all these queries the master answers in favor of defendants.</p> <p>“ A decree in complainants’ favor would be a brutum fulmen so far at least as they were concerned, but would seriously affect the defendant, would tie up the property without any way, either equitable or otherwise, to determine the amount to be paid, or to unravel the tangle thus made. The master, under these circumstances, is of the opinion that the rule laid down in Fowler’s Ap., 6 Norris, 449, relied upon by both complainants’ and defendants’ counsel, and a case in which the fraud was much more flagrant than this, should be followed, viz,. That the wrongdoer should pay back to the party wronged the amount out of which he was wronged. This has been done in this case. James Sibbald has made good to the assignee of said J. D. Heft & Son both debt and interest due from him to said assignee, and the master is of the opinion, and so finds, that nothing more can be required of him.</p> <p>“The master further finds as matter of law that even if James Sibbald had not made said payment of said $2,500, the complainants would have had no standing, nor could they have claimed anything as against James Sibbald under these bills. Only as creditors of Heft & Son can they recover at all. If therefore they fail to connect said James Sibbald fraudulently and collusively with said assigned firm (there is no contractual relation that has been even attempted to be shown), in a word, show something to make James Sibbald their debtor, they are out of court. Now, the master has found as matter of fact that there was no fraudulent or collusive connection between James Sibbald and Jacob D. Heft, or Alfred S. Heft, or either of them; that Sibbald alone was guilty of fraud; that if any suit at law or in equity had been necessary to compel James Sibbald to pay said $2,500 it would have to be brought in the name and for the use of the assignee of J. D. Heft & Son, and not by the complainants — they, the complainants, by their own testimony, could not recover against James Sibbald — he owed them nothing.</p> <p>“ The master therefore suggests that the following decree be entered as to both of these bills : That the bills in equity filed in above cases, as of C. P. No. 1, Sept, term, 1891, Nos. 933 and 993, be dismissed as to each, every and all of the defendants in said suits named, with costs to be paid by complainants.”</p> <p>Exceptions were dismissed, and decree entered dismissing bill.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

Appeal, No. 269, Oct. T., 1892, by Robert F. Clever, from decree of O. C. Allegheny Go., March T., 1891, No. 3, in partition. Petition for partition of real estate of David K. Clever, deceased. Appellant’s paper book did not contain the petition or any of the papers connected with the proceedings, except an oil lease on the property, the decrees and exceptions thereto and abstracts of the petition and answer. Errors assigned were dismissal of exceptions, etc.

<p>Municipality — Paving contract — Interest.</p> <p>Interest does not run upon a contract, until the time fixed for payment, unless especially provided for in the contract.</p> <p>A contract by a municipality to pay a contractor for paving when the assessments shall have been made and collected, and if the assessments shall not have been collected at the end of two years “ the whole amount then unpaid to the contractor shall thereupon become due,” does not bear interest prior to the end of the two years.</p>

Appeal, No. 461, Jan. T., 1893, by Rev. N. J. O’Reilly, legatee, from decree of O. C. Blair Co., June T., 1893, distributing estate of Ellen Hodnett. Adjudication of account of N. J. O’Reilly and M. E. Buckley, executors of Ellen Hodnett, deceased. The account was referred to A. J. Riley, Esq., as auditor, from whose report appear the facts as stated in the opinion of the Supreme Court.

<p>Appeal, No. 327, Jan. T., 1893, by Martha A. Meeker, formerly Mulholland, from decree of O. C. Centre Co., surcharging John G. Uzzle, guardian.</p> <p>Exceptions to audit of guardian’s account.</p> <p>On exceptions to the report of J. C. Meyer, Esq., auditor, the court filed the following opinion, by Furst, P. J. :</p> <p>“ The accountant was appointed guardian of said ward, Aug. 27, 1884. She arrived at age, Feb. 5, 1888. She was married in June, 1886, to Mr. Meeker at the age of nineteen years. [She remained with her mother as a member of her family until her marriage, and in addition to her support her mother supplied her with what money she needed, at one time giving her $100.] [1]</p> <p>“ [On Feb. 13, 1888, Mr. Uzzle, her guardian, and she had a settlement in the presence of Robert J. Haynes and her husband. At this settlement it was agreed that the guardian should claim no compensation for his time and trouble, and that he should not be charged with any interest on the funds in his hands.] [2] The guardian then paid her the balance which would be due her, allowing him credit with the payments he had previously made.</p> <p>“ It is only because of subsequent facts that a dispute has arisen between the ward and her guardian, and this arose through an error of guardian’s counsel in filing an account.</p> <p>“ On Feb. 26, 1889, an account was filed by the guardian showing a balance due him of $233.43, which balance arose by a charge of $196.81 commission, without allowing a corresponding credit for interest.</p> <p>“ On the argument of the case Judge Orvis frankly admitted the error was his, and it would have been corrected upon notice, but owing to the fact that a fieri facias was issued to collect said balance, a petition was presented to the court on June 3, 1890, a year and three months after confirmation of the account, praying the court to strike off said confirmation, etc.</p> <p>The petition alleged, (1) that there was error in the account in this, that accountant had charged compensation in violation oí the agreement referred to, and that this settlement was fraudulently procured for the purpose of taking advantage of the ward. (2) That the guardian failed to account for any interest on the funds in his hands. (3) That said guardian had taken credit with payment of moneys to Caroline Mulholland, widow of R. Mulholland, arising from the sale of timber, whereas the interest only on said funds was payable to said widow.</p> <p>“ The confirmation was stricken off, and the account was referred to an auditor to re-state. The auditor made a report of his findings, which, upon exceptions filed thereto, was recommitted to him for the purpose of taking further testimony. To his second report the guardian has filed exceptions, and these are the subject of consideration.</p> <p>“ The auditor finds a balance against the guardian of $973.93 and decrees that he shall pay the costs of audit, $141.72.”</p> <p>After approving a surcharge of interest, the court continues:</p> <p>“ The auditor, however, has carried the rule of surcharging the guardian to other matters which, properly speaking, were not part of her estate.</p> <p>“ So that our views are understood, it is proper to state that we consider the case as if presented upon a bill of review, which is the only way in which justice can be done to both sides.</p> <p>“ [Shortty after the death of R. Mulholland a cyclone and fire went through the timber, and a large quantity was blown down. The greater part converted into square timber by both the guardians for all the children, was timber that had blown down. Some standing timber was destined or injured by fire, and among this destruction of timber there were a few living trees standing. It was this timber the guardians, with the consent of the widow, and with the knowledge and consent of all the children, except one, not this ward, cut and manufactured into square timber, and which was sold by them and the money equally divided, one third to the widow and two thirds to the children.] [3] The guardians charged themselves with the two thirds as part of the estate of the ward, and the widow’s part they at once paid over to the widow. This was the condition of the estate when this guardian made the final settlement with his ward on Feb. 13, 1888, after she was of age. The learned auditor has in his account surcharged the guardian with what would be her share of the mone3r paid to the widow, if the payment were illegal, to wit, $679.72.</p> <p>“ [It is true the guardians did not previously apply to the orphans’ court for an order to allow them to convert this timber into money. It is equally true, if they had not acted promptly and converted it into square timber and sold it, that it would within a year thereafter have been an entire loss to the estate, whereas, by their prompt action, about $10,000 went into the hands of the children and their mother. It is equally true this ward knew all about the cutting of timber before she was of age, and also when she was of age on Feb. 13, 1888. She was also aware of the one third having been paid to her mother. There was something said about it that very day. She never objected to this.] [4] And even in her exceptions to the guardian’s account she only claims the interest thereon and not the principal. It is apparent this exception did not originate with her. Her complaint was a failure to charge himself with interest. Had that been the only exception to the account as filed, under the facts as presented, the confirmation of the account would not have been opened. .[The evidence clearly shows that the widow not only kept the children at her own cost and supplied them also with whatever was required, but that she, of her own means (very likely out of this ve^r money) built a new house on the property at a cost of about two thousand dollars, which enures to exceptant and her coheirs.] [5] [It is also a fact, undenied, that this ward, on the 5th day of November, 1888, by deed, sold and conveyed all her interest, real, personal and mixed, to George R. Boa-k. ‘ At that date the money sought to be recovered here against the guardian was in the hands of the widow, and the ward knew it.] [6]</p> <p>“ What is the legal character of timber blown down by storm ? Is it real or personal property, or does it partake of both characters, so that the owner may pursue the person who removes it either by an action of trespass de bonis asportatis or by replevin ? Can he not elect to treat it as personal property?</p> <p>“ We admit the owner can treat it still as real estate, but we also think he may elect to treat it as personal property, and recover its value against a trespasser in replevin.</p> <p>“ [The orphans’ court is also a court possessing chancery powers. When the storm and fire had swept this timber, would not the court, upon proper petition by the guardians, have authorized them to convert it into money for the benefit of the entire estate ? And under all the facts of this case should not the court on Feb. 13, 1888, upon proper petition by the guardian of Martha A. Meeker, with her consent have distributed the money in the guardian’s hands, just as the guardian distributed it, two thirds to the ward, and one third to the widow ? Surely Martha A. Meeker was then able to consent. She was not only of age, but she also had a husband able to protect her estate.</p> <p>“ There is no doubt that the court would then with her consent have made such a decree.</p> <p>“ The orphans’ court can now ratify what it would have previously ordered and authorized. This has been done from the very beginning in the settlement made on Feb. 13, 1888. There was therefore no wrong done to the ward, as to all of the settlement relating to the timber.] [7]</p> <p>“ [The ward got directly and indirectly her full share of the timber, and it would be inequitable to permit her to be twice paid for it, and especially in view of the fact that she on the 5th of November of the same year parted with all her interest in her father’s estate.] [8] If however this is not equitable and she desires still to pursue this claim, she can have her remedy against her mother to secure or invest the money, as she maj1- prefer. If the mother is not equitably entitled to this money, Martha is not yet barred from her action to recover it, and as her mother is solvent and living she ought to seek it there rather than violate her own agreement with her guardian and subject him to litigation and expense.</p> <p>“ [There was therefore nothing in the settlement of the timber that resulted in any advantage to the guardian, or of fraud to the ward, and to that extent the settlement of the 13th of February ought not to be disturbed.] [9]</p> <p>“ As at least one half of the litigation before the auditor arose upon this item, it is only fair that the costs should be equally divided between the guardian and the ward.”</p> <p>The court entered the following decree:</p> <p>“ And now, January 12, 1893, [it is ordered, adjudged and decreed in accordance with an opinion this day filed, that the surcharge of six hundred and seventy-nine dollars ($679.72) against John G. Uzzle, guardian of Martha A. Meeker, be stricken from the account filed by the auditor.] [12] It is further adjudged and decreed that there is due from said John G, Uzzle to said Martha A. Meeker, in the settlement of his account as guardian, the sum of two hundred and ninety-four T2ffV dollars ($294.21), and that one half the costs be paid by said guardian individually, [and that the other half be paid by the guardian out of the estate of Martha A. Meeker, in his hands.] ” [13]</p> <p>Errors assigned were (1-9, 12, 13) portions of opinion and decree in brackets, quoting them.</p>

<p>Appeal, No. 265, Jan. T., 1893, by defendant, Albert Harris, from judgment of C. P. Erie Co.,Nov. T., 1890, No. 354, for plaintiff, Susie Harris.</p> <p>Issue to determine validity of judgment.</p> <p>From the record it appeared that the judgment in question whs opened on the allegation that defendant’s signature was a forgery, and that he never authorized the judgment note to be made or to be delivered to plaintiff. The court granted an issue to determine the question whether the note was signed by defendant, or by his authority, the note to stand as the declaration, and defendant to plead non-assumpsit.</p> <p>Plaintiff’s counsel first offered in evidence judgment No. 354, Nov. T., 1890, C. P. Erie Co., upon narr in debt with confession of judgment and original note, filed Dec. 22,1890 : Susie Harris v. Albert Harris, debt and collection fee, $1,260; interest Jan. 22, 1886, on $1,200, credit on note Feb. 3, 1886, $600 ; credit Sept. 4, 1886, $300. Showing balance due on said judgment of $300, with interest and collection fee.</p> <p>Objected to, for the reason that it is incompetent and irrelevant, the issue ordered by the court in this case being such that the note is to stand as the plaintiff’s declaration, and the defendant is to plead non-assumpsit. That places the issue in this case to be tried as if a suit had been brought upon this note in assumpsit and defendant had pleaded non-assumpsit, and that therefore this record and the offer of evidence is incompetent for the purposes of this issue. That it is to be governed by the specific order of the court, which is that the action shall be ordinary action of assumpsit with a plea of non-assumpsit, and the note to stand as the plaintiff’s declaration or copy of claim, and that the case must be tried the same as if a summons had been issued and narr in assumpsit filed and served, and the plea of non-assumpsit. That the plaintiff must prove the signature of the note and the consideration, and that it has not been paid. And further, that judgment has been entered upon this note when there is no evidence whatever of its execution, and that such entry is no evidence of its execution,, which is the question at issue.</p> <p>The Court: This being an issue to try the question arising upon a judgment that had been already entered, the presumption is in favor of the regularity of the judgment. The plaintiffs upon showing the judgment will have shown a prima facie case. The fact that in the issue it was directed that the plea of non-assumpsit be filed by the defendant does not change the rule in any way, the act of 1887 providing that that shall be the proper plea in all actions upon contract. It does not differ in regard to. the presumption in favor of the judgment from a case where, before the act of 1887 in granting a similar action, the court would direct that the plea of either non est factum or nil debet or payment should be entered. Before the act of 1887, the proper plea in an action of this kind would have been non est factum. The objections are overruled, evidence admitted and exception. [1]</p> <p>The court, Gunnison, P. J., directed a verdict for plaintiff. [8]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 3), ruling and instruction, quoting, instruction and bill of exception, but not evidence.</p>

<p>Appeal, No. 297, Jan. T., 1893, by defendant, Jennie A. Small, from decree of C. P. No. 1, Phila. Co., March T., 1890, No. 914, dismissing exceptions to master’s report in favor of plaintiff, Philip Reidy.</p> <p>Bill for revocation of voluntary deed of settlement.</p> <p>The case.was referred to John C. Grady, Esq., as examiner, and to Owen Wister, Esq., as master.</p> <p>The master reported the following facts:</p> <p>“ Philip Reidy, the plaintiff, came to America in 1849, and worked as a printer for a number of employers, chiefly Harper & Brothers, with whom lié stayed some fifteen jmars or more. He came to Philadelphia in 1867 or 1868, and was employed by James Elversou for about ten jrears as foreman of the press room of “Saturday Night.” His family consisted of a wife, now dead, her niece and nephew, and one daughter, a defendant in the present case, who married Dr. Small, the other defendant, in 1872. His wife took boarders and' helped support her niece and nephew, buy furniture and dress the daughter, whose sewing-machine earnings paid for some household expenses, and also contributed chimney-piece ornaments, pictures and a piano. About 1854, the plaintiff bought with his savings a property in Forty-fourth street, New York, which subse*quently was sold for more than double its cost. This, together with other properties in and near Philadelphia, at various times acquired by the plaintiff’s money, forms his estate. For many years previous to 1887, which was the year the deed of trust was executed, now sought to be canceled, he had been content to have his daughter, the defendant, manage all his affairs. His temperament was morbid, both by inheritance and disease, and it became a relief that some energetic person should take the burden of practical matters from his shoulders. When necessary, he gave Mrs. Small powers of attorney, and she exe-. cuted all sales, mortgages and purchases of his property, and even at times bought his clothes for him. It was when daughter and father had long stood in these relations to each other, that on the 12th of May, 1887, he made her his trustee by a deed that contained no clause of revocation. The notion of such a deed originated with neither father nor daughter. Early in the year 1885, during one of the fits of depression and apprehension to which the plaintiff has been subject, the plaintiff suggested' some arrangement should be made by his daughter by which his daughter could control his affairs, without the necessity of his consent to each act. What the plaintiff’s precise fears were, whether of extravagance, or insanity, or of being waylaid into marriage, or whether he feared his daughter might die and leave him without a manager, it is unnecessary to determine. It is clear that the plaintiff desired some arrangement that should save him from likely or unlikely dangers. Desirous of finding if such legal.arrangement could be made, his daughter told the circumstances to the trust officer of the Guarantee Trust Company, Mr. Winship, and he recommended a trust deed. Mrs. Small returned and explained to her father that something could be done, and the matter then rested till late in 1886, when Mr. Reidy and his daughter were in a law office in New York, and he suggested to her that it would be timely to complete the arrangement. Mr. Ogden, the gentleman in whose office they were, heard their views, and he also recommended a deed of trust. Early in 1887, this step was decided upon by father and daughter, and Mr. Roland Evans in Philadelphia drew a deed for them at the suggestion of his cousin, Mr. Ogden, in New York, who had there drawn a similar deed to cover the New York property. It was Mrs. Small exclusively wdio conducted all the talk and correspondence, and it was to her Mr. Evans wrote, appointing a meeting. Mrs. Small had no special instructions to give, except provision for a trustee to succeed in place of her death. This was the expressed wish of Mr. Reidy, who, beyond that, expressed nothing, and performed an entirely passive role throughout the transaction, going where his daughter took him, assenting to all things, and, when the time came, signing the deeds at Mr. Evans’s office, where his daughter had brought him from the hospital he was then living in. Mr. Evans saw the plaintiff. twice, once when the draft of the deed was submitted for his approval, and once when he signed it. But Mr. Evans’s dealings were entirely with Mrs. Small and not with Mr. Reidy, whom he never saw except in her company; and though the deed was certainly read to Mr. Reidy, its legal significance was not made clear to him, and nothing seems to have been said by anybody about the absence of the clause of revocation.</p> <p>“ Mr. Reidy became dissatisfied with the administration of his affairs. He found his income insufficient to support him, and finally desiring to control his property again, discovered that he could not do so under the deed, which he says he never would have signed had he understood it would be irrevocable.</p> <p>“ The master also finds that, whatever habits of intemperance the plaintiff may have had before 1880 or 1881, he succeeded in laying by money enough to acquire property as early as 1854; and, since 1881, the defendant herself admits repeatedly that he has been moderate. On the whole, the testimony does not show sufficient ground for bringing his case under the head of that class called ‘ spendthrift trusts.’ ”</p> <p>The master further found that there was neither fraud nor conspiracy on the part of defendants, and that the deeds created an active and not a passive trust. He also found “ that Mr. Reidy’s signing of the deeds was not his own act in the required legal sense of the word, because he was not ‘ protected by independent advice,’ and was not made to understand the legal effect of the instrument.” ....</p> <p>“ The master accepts the view of the defendant’s counsel, where he says that there are cases of this sort where deeds have been set aside without proof of fraud, when the party was not properly advised-as to the nature of his act. Russell’s Ap., 75 Pa. 269.</p> <p>“ Oa examining the English and Pennsylvania eases that apply, it is found that the latest view is not the extreme one of such a case as Mountford v. Keene, 19 W. R. 708, where it might seem that the mere absence of the clause of revocation is held enough ground for setting a deed aside. The words of Sir W. M. James, L. J., in Hall v. Hall, 8 Ch. Ap. 480, page 438, that such absence ‘ is a circumstance to be taken into account, and is of more or less weight according to the circumstances of each case,’ express the rule and follow Lord Justice Turner in Toker v. Toker, 8 De G. J. & S. 487, who also says, ‘ questions of the nature of that before the court must depend on the evidence.’ Another part of the rule in such cases can be seen in Phillips v. Mullings, 7 Ch. Ap. 244, where Lord Hatterly says that anyone taking an advantage under a voluntary deed and setting it up against the donor, ‘ must show that he thoroughly understood what he was doing, or, at all events, was protected by independent advice.’</p> <p>“ That the deed gives here only an indirect advantage to those who set it up against the grantor, namely the advantage of preventing him from using his capital in order that they may inherit it, is not a sufficient distinction to render it unnecessary for him to have been ‘ protected by independent advice,’ when he was tying up his property irrevocably ; or, in the language of Lord Eldon in Hatch v. Hatch (quoted by the Supreme Court of Pennsylvania in Greenfield’s Estate, 2 Harris, at page 507), a grantor should have taken ‘fair, serious and well-informed consideration ’ before assenting. To the same effect are Russell’s Ap., and Solms v. The Philadelphia Trust Company, 16 W. N. 80, where the court says, page 83 : ‘ Voluntary settlement is irrevocable .... unless it can be shown that it was obtained by fraud or imposition or executed under a misapprehension of fact or of its legal effect.’</p> <p>The master accordingly recommended a decree canceling the deed.</p> <p>Exceptions by appellant were dismissed by the court.</p> <p>Errors assigned were, (1) in not dismissing plaintiff’s bill; (2) in confirming the master’s report: (3) in decreeing a re-conveyance of the trust property; and (4-15) in dismissing exceptions, quoting them.</p>

Appeal, No. 218, Jan. T., 1893, by Monroe Armor et al., contestants, from decree of O. C. Centre Co., No. 5955, refusing issue upon question of undue influence in execution of will of Ruth B. Armor, deceased. Petition for issue devisavit vel non. The facts appear by the opinion of the Supreme Court.

<p>Will — Repubiication.</p> <p>When a testator republishes his will, the terms and words of the will are to be construed with regard to the property of which he is seized, and the persons named therein, at the date of the repubiication.</p> <p>Evidence — Intention of testator — Interlineation—Substitution.</p> <p>Extrinsic evidence cannot be adduced to qualify, explain, alter or contradict the language of a will, but it must stand as written, where the intention is clearly expressed, and the objects of the bounty are definitely ascertained; but to aid the context extrinsic proof of the circumstances and situation of the testator when the will was executed may be permitted at the discretion of the court.</p> <p>It is competent to show that, at the time of the repubiication of a will, the words “or to their heirs”were added; and that the word “ deceased” was added after the names of each of the legatees who were dead. The circumstances under which these additions were made by the testator may also be shown.</p> <p>In such a ease the testator intended the words “ or to their heirs ” as words of substitution; and by the use of the word “deceased” he indicated that as the legatees were dead they were not to receive the legacift.</p> <p>Will — Construction—“ And ” — “ Or. ”</p> <p>The courts will not construe “ or ” to be “ and ” and “ and ” to be “ or,” except where it is absolutely necessary to support the evident meaning of the testator.</p> <p>Bequest of personalty— “ Seirs ” — Statute of distribution.</p> <p>In a bequest of personalty, unless a contrary intent is indicated by the will, the word “ heirs ” signifies heirs as ascertained by the statute of distribution.</p>

Appeal, No. 365, Jan. T., 1892, by defendant, George B. Davidson, from order of C. P. Lackawanna Co., June T., 1891, No. 609, making absolute rule for judgment for want of sufficient affidavit of defence in action by Benj. B. Comegys et al., Trustee of Henry Beckett’s Estate. Rule for judgment for want of a sufficient affidavit of defence in scire facias sur mortgage for purchase money. The affidavit of defence averred inter alia: “ 3.

<p>Hoad law — Practice—Amended report of viewers.</p> <p>Where viewers fail to report the fact that the owner of land over which a proposed private road is intended to pass had personal notice of the time and place of meeting of the viewers, they may do so, by permission of the court, in an amended report, without having the original report referred back to them for correction; but it is better practice to refer back the original report.</p> <p>Appeal, No. 89, Oct. T., 1892, by A. W. Elliott et al., exrs. of Samuel Gibson, deceased, from Q. S. Allegheny Co., March T., 1891, No. 4, dismissing exceptions to report of viewers laying out private road.</p> <p>Petition for viewers to lay out private road.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The March term of court continues from the first Monday of March to the first Monday of June ; the June term from the first Monday of June till the first Monday of September; and the September term from the first Monday of September to the first Monday of December. The viewers were appointed April 18,1891, at March term; their report was filed June 6, 1891, at the June term; the exceptions were filed during June term, to wit, Aug. 29, 1891; and the amended report was filed Nov. 21, 1891, at the September term.</p> <p>Errors assigned were dismissing exceptions, quoting them.</p>

<p>Appeal, No. 252, Oct. T., 1892, by John G. Benzenhoefer, from order of Q. S. Allegheny Co., overruling exceptions to report of road viewers.</p> <p>Petition of Joseph Keller for private road.</p> <p>To the report of the viewers, various exceptions were filed which raised only questions of fact. The court overruled the exceptions and confirmed the report.</p> <p>Error assigned was dismissal of exceptions.</p>

<p>Appeal, No. 253, Oct. T., 1892, by plaintiff, Henry Warner, assignee in trust for benefit of creditors of Penn Bank, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1884, No. 170, on bill in equity against Thomas Hare et al., directors of Penn Bank.</p> <p>Bill for account. [See former writ, 2 Cent. R. 44.]</p> <p>From the record it appeared that defendants claimed credit for the amount of four notes which they had paid to the Ger-mania Savings Bank.</p> <p>The case was referred to Geo. B. Hamilton, Esq., as master, who reportéd the facts as follows:</p> <p>“ The claim of credit for the payment of four notes to the Germania Savings Bank, each for $10,625, aggregating $42,500, is the question involved in this case, and upon that question the master finds the facts to be as follows:</p> <p>“ Counsel for plaintiff and defendants agreed upon the statement of facts contained in ‘ Exhibit No. 1,’ of which the following is a copy:</p> <p>“ ‘ The account taken is of money collected on notes given by the Penn Bank to the accountants in May, 1884, as collateral to secure them as accommodation makers of certain notes for said bank, amounting in all to $289,000. The notes were indorsed by the Penn Bank, but shortly after they were given the bank closed its doors, and accountants proceeded to collect the collateral notes and pay the notes made by them, and have realized from these collections more than enough to pay all of said notes. Amongst the notes made by accountants for said bank were four promissory notes, which were discounted by the Germania Savings Bank a few days before the failure of the Penn Bank, but whose proceeds were never paid over to the Penn Bank by said Germania Bank, it having on the last business day prior to the Penn Bank failure given its cheek on other banks of that city to the order of the Penn Bank of said proceeds, but on the day of the failure, May 26th, stopped payment of said checks. The accountants were directors of the Penn Bank; had negotiated the discount of said notes by the Germania Bank, and knew the facts with respect to the nonpayment of said proceeds and the giving and stoppage of payment of said checks, and they also knew that the exceptant (the assignee of the Penn Bank) denied the liability of either the Penn Bank or the accountants upon said notes held by the Germania Savings Bank, and maintained that accountants had no right to and should not pay said notes out of .the proceeds of said collateral. Having such knowledge, accountants paid said notes out of said money at the following dates and in the following amounts, viz.:</p> <p>1886, February 11, cash . . . $33,000 00</p> <p>1888, “ “ “ . 6,300 00</p> <p>“ August 8, “ . . 1,500 00</p> <p>1889, February 9, “ ... 4,156 93</p> <p>$44,956 93</p> <p>and claim credit for said amounts in their account. To this credit the assignee excepts.</p> <p>‘“The above facts are admitted,.subject to the right of the accountants to introduce evidence showing upon what grounds the Germania Savings Bank based their claim to collect said notes, notwithstanding the nonpayment of the proceeds of said notes, and the stoppage of payment of said cheeks.’</p> <p>“The Germania Savings Bank, in connection with other banks of the city of Pittsburgh, agreed to discount $289,000 of the paper of certain of the directors of the Penn Bank to the order of the Penn Bank, to enable the said Penn Bank to resume payment, it having suspended.</p> <p>“ The Germania Savings Bank, May 23, 1884, discounted four notes, each for $10,625, made by W. N. Riddle, A. A. Hutchinson, J. O. Brown, F. B. Laughlin, T. Brent Swearingen, Geo. C. Davis, D. W. C. Carroll, S. Severance and Thomas Hare, to the order of the Penn Bank, and indorsed G. L. Reiber, cashier, payable, thirty, sixty, ninety days and four months; proceeds amounting to $41,942.21.</p> <p>“ On the books of the Germania Savings Bank, Majr 24, 1884, G. L. Reiber, cashier, is credited with the proceeds of the notes and debited with two checks, one on the German National for $20,000, the other on the Third National for $21,942.21.</p> <p>“ On the date of this discount the Germania Savings Bank held a cashier’s check of Penn Bank for $88,000, dated May 17, 1884, to the order of Charles Seibert, cashier, and signed by R. J. Edie, assistant teller. The Germania Savings Bank owned this check prior to the suspension of the Penn Bank, May 21, 1884, and had protested it May 21, 1884.</p> <p>“ On Saturday, the 24th day of May, 1884, the Germania Savings Bank had given to the Penn Bank two checks aggregating the sum of $41,942.21, and held a cashier’s check of the Penn Bank for $88,000. The latter check was on that day deposited with the Farmers Deposit National Bank and a deposit account opened. The Penn Bank cleared through the Farmers. These three checks, in the ordinary course of dealing, would have met in the clearing house Monday, May 26th, 1884, and the clearing house sheets as to these three checks would have shown the Germania Savings Bank debtor to the Penn Bank $41,942.21, and Penn Bank debtor to the Germania, $88,000, leaving a balance in favor of Germania of $46,057.79.</p> <p>“ The Germania Savings Bank ascertained on Monday, May 26, about noon, that the Penn Bank would not clear. When the Farmers Deposit National Bank presented the $88,000 check and demanded payment thereof, payment was refused, and the check protested. The Germania then stopped payment of the two checks given as the proceeds of the four notes discounted May 28, 1884. The Farmers Deposit National Bank then charged back to the Penn Bank these two checks.</p> <p>“ On May 26, 1884, when the Penn Bank account with the Farmers Deposit .National Bank was written up, there was a balance due the Penn Bank of $23,218.29.</p> <p>“On July 14, 1884, Henry Warner served a notice on the Farmers Bank that the two checks of the German National and Third National Banks, deposited by the Penn Bank for collection, had been improperly returned to said banks, and that the assignee would look to the Farmers Deposit National Bank to make good the amount of the same.</p> <p>“ On May 27, 1884, the Germania Savings Bank notified the Farmers Deposit National Bank to apply all money in its hands, or whatever might thereafter be received, for or on account of the Penn Bank, to the payment of the $88,000 cashier’s check.</p> <p>“ On May 26,1884, the Farmers Bank charged back to the Germania Savings Bank the $88,000 check, and also tendered back said check to said savings bank, which tender was refused.</p> <p>“ As against the deposit of the $88,000 check, the Germania Savings Bank drew a check or checks on May 26,1884, amounting to $2,447.50, and on May 27, 1884, deposited the same amount with the Farmers Deposit National Bank.</p> <p>“At No. 302, September term, 1884, of O. P. No. 1 of Allegheny county, the Penn Bank, .for use of Henry Warner, assignee, brought suit against the Farmers Deposit National Bank to recover the deposit of the Penn Bank, amounting to $23,218.29. The Farmers Bank claimed the right to set off the $88,000 check of the Penn Bank. This the court refused, and there was a verdict and judgment thereon in favor of plaintiff for $28,442.24. On a writ of error to the Supreme Court this judgment was reversed, and a venire facias de novo awarded: Farmers Deposit National Bank v. Penn Bank, 123 Pa. 283. On the second trial of the case the Farmers Deposit National Bank was allowed to set off the cashier’s cheek for $88,000 as against the deposit, and there was a verdict for defendant, with a certificate in favor of the. Farmers Bank, as against the Penn Bank, for $64,781.71. After judgment on the verdict a writ of error was taken to the Supreme Court, and the judgment affirmed. Penn Bank v. Farmers Deposit National Bank, 130 Pa. 209.</p> <p>“At No. 708, June term, 1885, of C. P. No. 1, the Farmers Deposit National Bank brought suit against the German National Bank to recover on the check of the Germania Savings Bank for $20,000, given to the Penn Bank.</p> <p>“Also, at No. 707, June term, 1885, of C. P. No. 1, said bank brought suit against the Third National Bank to recover on the check given by the Germania Savings Bank to the Penn Bank for $21,942.21.</p> <p>“ The case against the German National Bank was tried and resulted in a verdict and judgment thereon in favor of plaintiff for $20,080, which, on writ of error to the Supreme Court, was reversed without a new venire. The Supreme Court holding that under the clearing house rules the German National Bank had a right to revoke a conditional acceptance, and return the check before 1 o’clock p. M.; that the Germania Savings Bank, the drawer, had a right to notify the drawee to stop payment, and the holder, having received the check for collection, had no right of action against the drawee: German National Bank v. Farmers Deposit National Bank, 118 Pa. 294.</p> <p>“ The Farmers Deposit National Bank proved before the auditor appointed to distribute the balance, shown by the first account of Henry Warner, assignee, the check for $88,000, and received thereon December 5,1889, a dividend of $5,170. This dividend was paid over to the Germania Savings Bank; and, also, the certificate for $64,781.71, assigned to the same bank, December 5, 1889.</p> <p>“ It is thus seen :</p> <p>“ (1) That the Farmers Deposit National Bank paid out no money on the $88,000 check except the $2,447.50 returned to it; that it set off said check against the balance of the Penn Bank’s deposit of $23,218.29, and obtained a certificate against the Penn Bank for $64,781.71; that it obtained a dividend on the face of said check amounting to $5,170.</p> <p>“ (2) That the Germania Savings Bank paid out no money on the four notes discounted; that it received from the Farmers Deposit National Bank the $23,218.19 set off against the $88,000 check; an assignment of the certificate for $64,781.71; and the dividend of $5,170.</p> <p>“ (3) The four notes of $10,625 each were proved before the auditor to distribute the balance shown by the first account of Henry Warner, assignee, and the Germania Savings Bank received a dividend of $2,496.87 thereon.</p> <p>“ On the books of the Germania Savings Bank the proceeds were credited to G. L. Reiber, cashier, and, when he signed the proceeds cheek and received the checks on the Third National Bank and German National Bank, he was debited with the same.</p> <p>“ These two checks were not owned by the Farmers Deposit National Bank. The indorsement ‘ For Deposit Clearing House, May 26, 1884, C. F. McCoombs, A. Tell.,’ shows they weré for collection. The contention in the case tried was that they had been paid, because entered on the file and carried into the journal and not into the ledger.</p> <p>“ Under the decisions of the Supreme Court above set forth, the Farmers Deposit National Bank and the Germania Savings Bank had the right to act as they did.</p> <p>“To meet the foregoing facts it is claimed by accountants that the agreement of discount between the Germania Savings Bank and the Penn Bank was that the Germania Savings Bank discounted the four joint and several promissory notes of $10,625 each, made by Thomas Hare 'et al., to the order of Penn Bank, and that the Penn Bank would pay the $88,000 cashier’s check. That the Penn Bank failed to pay the $88,000 check May 26, 1884, and the Germania Savings Bank stopped payment of the two checks given for the proceeds of the discount. That the proceeds of the discount were to be applied to the $88,000 check, and that said bank did so apply them by giving credit on its books.</p> <p>“ In the original case the master found the facts :</p> <p>“ 1. That in pursuance to the agreement made between the Penn Bank of the one part, the defendants of the second part, and the ‘ outside banks ’ of the third part, and to carry the same into effect according to the foregoing resolution, $450,000 worth of the bills receivable of the Penn Bank were indorsed and delivered to Thomas Hare, agent for defendants, prior to the time the notes were signed' and delivered.</p> <p>“ 2. That Thomas Hare et al. were accommodation makers of the paper to the order of the Penn Bank, and received no part of the proceeds thereof.</p> <p>“ Coming now to the question of discount, there are four witnesses, Seibert, Brown, Laughlin and Meyran. An analysis of the testimony of these witnesses is as follows: Seibert: Discounted notes. Personally did not conduct negotiations. Only knew.what I heard and saw. J. O. Brown: On committee to go to banks and get proceeds of discount of $289,000 of "paper. Did not go to Germania. It was not on the list. When the committee returned to the Penn Bank they asked W. N. Riddle about the Germania, and received for a reply, that is another matter. We could get no money from that bank. Laughlin’s testimony is of the same 'import.</p> <p>“ Mr. Meyran, the president of the Germania Bank, and the man who carried on the negotiations, testifies that the discount was made on condition that the Penn Bank would pay the $88,000 check. ‘ We were to hand over $40,000 and they were to pay the $88,000 check.’</p> <p>“ The utmost that can be claimed, under the testimony, is that the Germania Savings Bank agreed to discount these four notes on condition that the $88,000 cashier’s check of the Penn Bank should be paid. The testimony of Brown and Laughlin amounts to notliiug as to the alleged agreement of discount, except as some evidence in corroboration of Mr. Meyran, that the discount was on condition that the $88,000 check should be paid. Mr. Meyran does not say that the proceeds of the discount were to be credited on the note of $88,000, or applied to its part payment. ‘ Q. In what way did you arrange to carry out the bargain that your check of $88,000 of the Penn Bank was to be paid, and, at the same time, the Penn Bank was to open and get the proceeds of these four notes ? A. Why, we just simply handed over our $40,000, the proceeds of these notes, and they would pay us our check of $88,000.’ When questioned by counsel, he says this was to be carried out through the clearing house. His bank depositing its $88,000 check in the Farmers Bank, through which the Penn Bank cleared, and giving two cheeks for the proceeds to the Penn Bank. Now, Mr. Meyran knew that there would be other checks of the Penn Bank that would meet in the clearinghouse, and the proceeds of the discount of the four notes would be as available to pay these as to pay the #88,000 check. That is the operation of the clearing house as explained by him,</p> <p>“Of course, if the Penn Bank had sufficient credits to meet the debits or supplied the cash to make up the deficiency, on Monda}»-, May 26, 1884, all the checks on it, including the #88,000 cashier’s check belonging to the Germania Bank, would have been paid. But such operation of the clearing house is certainly not an application, express or implied, of one particular check to another.</p> <p>“ The Germania Bank refused to receive back from the Farmers Bank the #88,000 check, and at No. 254 Sept, term, 1885, brought suit against the Farmers Bank for the amount of the deposit in the pass book received by it, when it deposited the #88,000 check. Mr. Meyran makes the affidavit of claim and counter affidavit, in which he claims for the whole amount. This is certainly inconsistent with a theory that the proceeds of the discount of the four notes were to be applied on this #88,000, for then there was a credit due on the check of #42,500 as the Germania Bank had not paid out one dollar on notes discounted. At that time, i. e., 1884, the Germania Bank claimed by its actions that it had not deposited the #88,000 check for collection, because it refused to receive back the check, objected to the Farmers Bank charging it back to it, brought suit against the Farmers Bank for the full amount of the check, and drew on it for the sum of #2,400. Such a course of action seems to the master to be inconsistent with an application of the proceeds of the discount to the #88,000 check, but it does seem consistent with Mr. Meyran’s testimony: ‘We were just to hand over our cash and they were to pay the #88,000 check.’ If that be not correct, why did they have Eeiber, cashier, sign a proceeds cheek, and then give him two other checks to get cashed? If the discount was not a cash one, why did the Germania Bank not at once credit the Penn Bank.with the proceeds of the four notes as against the #88,000 check it then had in its possession? The Penn Bank opened Friday, May 28,1884, about 2 o’clock p. M., and remained open all day Saturday; during all this time the #88,000 check could have been presented at the counter of the Penn Bank and the balance above the proceeds of the discount of the four notes would have been paid.</p> <p>“ The Germania Bank itself, as shown by its books, did not act on the theory that the proceeds were to be applied to the payment of the $88,000 check. It was not until December 5, 1889, that it made any application thereto on its own books.</p> <p>“ The master, therefore, finds the facts :</p> <p>“ (1) [That the discount of the four joint and several promissory notes of Thomas Hare et al. to the order of the Penn Bank for $10,625, each, at thirty, sixty, ninety days, and four months, was a cash discount,'on condition that the cashier’s check of the Penn Bank for $88,000, then in its possession, would be paid,] [2] but there was no express or implied agreement to apply the proceeds of the discount to the $88,000 check; that the Penn Bank did not pay said check for $88,000, and, thereupon, the Germania Savings Bank refused to pay the proceeds of the discount and stopped payment of the checks given therefor.</p> <p>“ (2) [That this agreement of discount was made by a committee of the directors of the Penn Bank, representing the Penn Bank and the makers of the notes, and that the makers of the notes were parties to the agreement.] [2]</p> <p>“ It is contended on the part of exceptant that the failure of the Penn Bank to pay the $88,000 check, and the stoppage of payment by the Germania Savings Bank of the checks given, was a rescission of the contract of discount, and there could be no recovery on the notes, either against,the Penn Bank or the makers.</p> <p>“ In Dougherty v. Central Bank, 98 Pa. 227, it was held upon analogy of the vendor’s right of stoppage in transitu that where a lender before he pays over money on a borrower’s note discovers that the borrower is insolvent, he may tender back the discounted note and refuse payment to the borrower, and the latter’s assignee has no superior rights to him in the matter. ‘ The consideration so failed that the defendant was warranted in tendering it (the note) back, and an equity arises against the legal plaintiffs which prevents their enforcement of the contract.’</p> <p>“The same principle is decided in Lancaster National Bank v. Huver, Assignee, 114 Pa. 216. In the latter case a voluntary assignment had occurred between the discount and before the withdrawal of the money. The assignee, however, had no higher standing than the assignor.</p> <p>“ Were there nothing more in this case than that Thomas Hare et al. were accommodation makers, and the proceeds of the discount had not been paid to the Penn Bank, the payee, the master would have no hesitation in holding that the action of the Germania Savings Bank was a rescission of the whole contract, and it should not only return the notes, but, also, charge off the discount.</p> <p>“ But [the makers of the notes were not only accommodation makers of the notes, but were also parties to the contract ‘ We will discount your paper if you pay our check.’ The Germania Savings Bank might well say: ‘ We will stop our monejr going into the coffers of an insolvent bank, and hold the makers of the notes to see to the payment of the $88,000 check.’] [4] The $88,000 check had not been paid.</p> <p>“ Again: The party now claiming that the contract of discount was rescinded is the assignee of the Penn Bank. He claimed that the banks upon which the Germania Savings Bank had given checks were liable to him for the amounts thereof, and compelled the Farmers Deposit National Bank to bring suits thereon. If he, as representative of the Penn Bank, had attempted to rescind, he would have had to tender back the two checks within a reasonable time. He was not in position to do so. It is not until after an adverse decision of the Supreme Court in January, 1888, that there is any suggestion that the contract was rescinded. The master is, therefore, of the opinion that the nonpayment of the proceeds of discount was not a rescission of the contract of discount.</p> <p>“ We come now to the consideration of the questions: (1) Did the failure to pay over the proceeds of discount give the Penn Bank, the payee, a defence to the payment of the notes? (2) Was such defence available to the makers? (3) Independently of the above, had the makers a defence?</p> <p>“The Penn Bank claims a defence in that it did not receive the proceeds of discount. The proceeds were carried on the books of the Germania Bank to the credit of G. L. Reiber, cashier.</p> <p>The accountant’s claim: (1) That the discount made the Germania Bank complete purchasers of the notes and the party for whom the discount is made the owner of the proceeds. This proposition is sustained by the cases of Heil v. Girard Bank, 80 Pa. 186 ; Carstairs v. Bates, 3 Campbell, 301; St. Louis, etc., Co. v. Johnston, 27 Fed. R. 243, but these were cases between the bank and its customer. The proceeds are credited to the account of the customer. He gets a new credit and can check on the same. In those cases, although the bank became insolvent, as in St. Louis, etc., Co., v. Johnston, before any of the proceeds were drawn, yet the maker could not get back his paper and be charged with the proceeds. The principle of those cases does not seem to the master to apply to this case because this was a special discount for a special purpose, and was for cash; the giving of checks for the proceeds shows that fact. The mere entry in the books of a charge does not vary the transaction. ‘ There is no magic in bookkeeping ’ — especially bank bookkeeping, as illustrated by the Penn Bank.</p> <p>“ (2) That in a suit by the Penn Bank against the Ger-mania Bank for the proceeds of discount the latter could have set off or defalcated the $88,000 check. That is, no doubt, true, if the Germania Bank had the check, but it did not, and at that time disclaimed ownership of it. At the time the notes were paid by the makers, the $88,000 check had already been set off against the Penn Bank deposit for $23,318.29, and a certificate for the balance in favor of the Farmers Deposit National Bank. The $88,000 check could not be set off again : Simes v. Zane, 24 Pa. 242.</p> <p>“ Thus far the Penn Bank, the pa}ree, had a defence to the notes, therefore the accommodation makers could avail themselves of such defence. They are treated as sureties. As a general rule, at least, a surety is allowed to stand upon the rights of his principal, and set up any defence that the principal could: Gunnis v. Weigley, 114 Pa. 191.</p> <p>“ So far the master has considered the case independent of the condition attached to the discount, to wit, ‘ we will discount your paper if jmu pay our $88,000 check.’ [As was said before, this was not an ordinary discount; it was coupled with a condition, and that condition had sufficient consideration to support it; that, even on the failure to pay over the cash proceeds of the discount, the Penn Bank could not have recovered either of the notes in an action of replevin, or their value in trover, without fulfilling the conditions of the contract.] [6] Thei’efore the Penn Bank had not a complete defence to the notes.</p> <p>“Assume, however, that the master is wrong in this, we come to the question, had the makers of the notes any defence thereto independently of the Penn Bank defences ? ; The mak-</p> <p>er of an accommodation note cannot set up the want of consideration as a defence against it in the hands of a third person, though it be there as collateral security merely. He who chooses to put himself in the front .of a negotiable instrument for the benefit of his friend must abide the consequences, and has no more right to complain if his friend accommodates himself by pledging it for an old debt than if he had used it in any other way.’ Accommodation paper is a loan of the maker’s credit without restriction as to the manner of its use: Lord v. Ocean Bank, 20 Pa. 384. As between the maker and the payee there is an available defence, but the maker cahnot complain of a subsequent holder when called upon to perform all that he has promised: Moore v. Baird, 30 Pa. 138.</p> <p>“ That, in the opinion of the master, is the decisive point in this case. While it may be doubtful whether or not the Ger-mania Savings Bank is a third party within the ruling of Lord v. Ocean Bank, and that line of cases; but assume that it is not, then the accommodation makers could have set up the failure to pay over the proceeds of discount; [but how could they defend against the other consideration, to wit: To pay the $88,000 check ? They were parties to this agreement, and until the $88,000 check was paid could not defend against payment of the notes.] [11] For this reason the master is of the opinion that the credit should be allowed.</p> <p>In answer to an exception by appellant, the master further found “ that the Germania Savings Bank knew at and after the time it agreed to discount the four notes in question that the makers of said notes were accommodation makers.”</p> <p>Exceptions, among others, to the findings as above in brackets, were dismissed, and a decree entered in accordance with the recommendation of the master.</p> <p>Errors assigned were dismissing exceptions, quoting them.</p>

<p>Negligence — Street railways — Passenger—Getting on front platform.</p> <p>Where a child, between seven and eight years of age, attempts to get upon the front platform of a street car when the ear has stopped to let off a passenger, but neglects to signal to the driver or conductor, or in any way announce his intention to become a passenger, and he is injured by the starling of the car in its ordinary course, there can be no recovery of damages from the railway company, where the evidence fails to show that the driver or conductor saw him.</p> <p>The company was entitled to some kind of notice of his intent to assume the relation of a passenger before being charged with the duty of taking care of him as a passenger. So far as the suggestion is concerned that the driver ought to have seen him, it is enough to say that the duty of the driver was to attend to and look after his horses. Per Mr. Justice Greer.</p> <p>Mr. Chief Justice Sterrett and Mr. Justice Dean dissented on the ground that, under the evidence, the case should have been submitted to the jury.</p>

<p>' Appeals — Bes judicata — Acts of May 9, 1889, and May 20, 1891</p> <p>' A judgment upon an appeal taken by one of the parties is no bar to a subsequent appeal by the other party, in which different errors are assigned. . In an action for damages against a railroad company, the defence was (1) that the action should have been against the township, inasmuch as the accident occurred within the lines of a public highway, and (2) that plaintiff’s contributory negligence was a bar to his recovery. The court submitted the second question to the jury and reserved the first. The jury rendered a verdict for plaintiff, but the court entered judgment for defendant non obstante veredicto. Upon appeal by plaintiff the judgment was reversed, and judgment was entered upon the verdict. Subsequently defendant appealed, assigning as error the submission of the question of plaintiff’s contributory negligence to the jury. Held, that defendant was entitled to an appeal. There is nothing in the acts of May 9, 1889, P. L. 158, and May 20, 1891, P. L. 101, to prevent such appeal.</p> <p>Negligence — Contributory negligence — Evidence—Question for jury.</p> <p>Where the measure of duty is ordinary and reasonable care, and where the degree of care varies according to the circumstances, the question of negligence is for the jury; but where facts constituting negligence are either admitted or conclusively established by undisputed evidence it is the duty of the court to declare the law applicable thereto.</p> <p>A railroad company constructed an overhead bridge for the passage of a public highway, leaving the wing walls running out from the end of the bridge unguarded by a railing. Plaintiff, employed as a carpenter by the railroad company, while on his way to his work before daylight on a winter morning, fell over one of the wing walls and was injured. He testified that he was walking rapidly, thinking he would “ strike the bridge near about its centre,” but ran against something on the left side and fell. Held, that the question of plaintiff’s contributory negligence was for the j™7-</p>

Appeal, No. 1, Oct. T., 1892, by defendants, Francis M. Null and Hester Null, from judgment of C. P. Westmoreland Co., Aug. T., 1886, No. 124, on verdict for plaintiff, Jesse Fries. Scire facias sur judgment in ejectment. The evidence on the trial, before Doty, P. J., was to the following effect: F. M. Null, Jr., one of defendants, became the owner in severalty, on March 28, 1871, of a tract of land in East Huntingdon township, Westmoreland county.

<p>Practice — Bill of exceptions — Evidence—Act of May 24, 1887.</p> <p>The only way by which matters of evidence may be placed upon the record in the'Supreme Court is by bill of exceptions.</p> <p>The legislation in regard to stenographers has merely changed the mode of making up the bill of exceptions while leaving its substance untouched. 'It is equally indispensable as it was before, and though noted by the stenographer, it is not his act but that of the judge. It is the duty of the judge to see that the bill is correct, and that his signature to it is a certificate of correctness on which the Supreme Court may rely.</p> <p>Although the actual signing of an exception by the judge is not necessary when the exception is noted by his direction, yet such signing is the better and more desirable practice, for which the signature to the general certificate at the end of the record is by no means an adequate substitute.</p> <p>Charge — Points—Assignments of error.</p> <p>Where the judge does not sign a bill of exceptions as to the charge and answer to points, it should appear in some way afiirmatively on the charge as reported by the stenographer that it was approved by the judge as correet, and filed by Ms direction. Without this, the filing by a stenographer is a nullity.</p> <p>If the assignments of error are such as depend, for the correctness or their application to the case, on the evidence, and the evidence is not presented in a bill of exceptions, they cannot be considered, for they have no basis on which to rest.</p> <p>Execution — Death of defendant — Practice, C. P.</p> <p>A valid levy in execution is not destroyed by the death of the defendant.</p> <p>Execution — Seasonable stay.</p> <p>The lien of a levy is not lost by a reasonable indulgence to the execution defendant, given him in good faith to allow him to raise money to save his goods from sacrifice.</p>

Appeal, No. 270, Jan. T., 1893, by defendant, Davis Pennoelc, from order of C. P. Chester Co., Oct. T., 1892, No. 17, refusing to strike off judgment in favor of William R. Newbold, trading as Hoopes & Newbold. Rule to strike off judgment for plaintiff, in assumpsit by indorsee against maker of promissory note.

<p>Negligence — Municipalities—Obstruction on sidewalk — Notice.</p> <p>In an action against a municipality to recover damages for personal injury sustained from falling over an obstruction on a sidewalk, the case cannot be submitted to the jury unless there is evidence, (1) of unlawful obstruction of the sidewalk, and that this caused the injury; and (2) that the city had notice of this obstruction and was negligent in not removing it.</p> <p> Evidence as to continuous obstruction of sidewalk. </p> <p>Plaintiff’s intestate was killed by falling over a casting of iron works placed on the sidewalk by the owners of the works. There was evidence that the street where the accident occurred was much frequented by day and night; and that castings or machinery were upon the sidewalk all the time, and had been for months before the accident. No witness could say positively that the same pieces were there for any considerable time, but several said that substantially the same obstruction was there, the product of the manufactory. Held, that it was for the jury to determine whether the constant repetition of the act of placing machinery and castings upon the sidewalk was such as to amount to substantial continuity of obstruction, as distinguished from the lawful temporary use of the sidewalk.</p>

<p>Appeal, No. 94, July T., 1892, by M. B. Simrell, from decree of O. C. Lackawanna Co., admitting to probate a paper writing alleged to be the will of Phoebe Ann Simrell, deceased.</p> <p>Appeal by M. Byron Simrell from probate of will.</p> <p>The writing admitted to probate was as follows:</p> <p>“ The last Will and Testament of Phebe Ann Simrell.</p> <p>“ Whereas, I, being in good health and of sound mind, do declare this to be my last Will and Testament.</p> <p>If my Husband Walter Simrell should survive me, I will wish him to have his living and to be well taken care of by my son Charles W. Simrell, whom I desire to take charge of my property and to live on it until my husband’s death; Six months after his death I desire my property to be sold and to be equally divided between my children and my Grandson Frank D. Thomas whom I desire to share equally with the rest. But if my son Charles, should not be living at that time, I then desire that my husband should chose between any of my children except my son Byron Simrell, and the one that he desires to live with shall take charge of my property and live on it until my husband’s death.</p> <p>“ But if I should survive my husband, Walter Simrell, at my death I desire the one that is living on my property to dwell' thereon for six months after my death, at the expiration of which time I desire my property to be equally divided between each of my children that are living and my grandson Frank D. Thomas whom I desire to share equally with the rest, and I appoint Deodat Smith and Francis Miller to kindly act as my administrators and to this I add my signature</p> <p>“ Phcebe Ann Simrell.</p> <p>“ Witness</p> <p>“ Ruth Arnold Barney</p> <p>“ Frank D. Thomas</p> <p>“ June 11th, 1880.”</p> <p>The parts of the paper printed in italics were erased. Other facts appear by the opinion of the Supreme Court.</p> <p>The court, in an opinion by Archbald, P. J., sustained the appeal to the extent of striking out the portions printed in italics, and placed one half the costs on appellant and one half on the estate.</p> <p>Errors assigned were, (1) in refusing to strike off probate of will; (2) in correcting and modifying the will on the unsupported testimony of Louisa McDonald; (3) in declaring the will as thus corrected and modified to be the last will and testament of deceased; (4, 5) portions of opinion of court below; (6) in directing that appellant pay one half the costs.</p>

<p>Practice — Service of process — Judgments, void and voidable.</p> <p>Where a summons shows a return of “ served by copy,” the presumption is that the service was in compliance with the act, and the judgment subsequently entered cannot be attacked in an action of replevin to recover the goods sold on execution under the judgment, although the docket of the justice of the peace who issued the execution contains the entry “ served by leaving copy at place of business.” The justice had jurisdiction and the judgment was not void but merely voidable, and it would therefore support the execution and sale.</p> <p>Partnership — Sale of firm goods under judgment against single partner— Holding out — Evidence for jury.</p> <p>In an action of replevin to recover goods alleged to be the property of a partnership but sold under an execution against one of the partners individually, both plaintiffs testified that they were partners. There was some evidence that the partner against whom the judgment was entered held himself out as the sole owner of the goods. Held, that the case was for the jury to determine whether the execution defendant had been permitted to hold himself out as the real owner of the goods.</p>

Appeal, No. 116, Jan. T., 1893, by plaintiff, A. F. Volkenand, from judgment of C. P. Luzerne Co., Oct. T., 1887, No. 576, on verdict for defendant, Milton Drum. Issue to determine validity of judgment note. At the trial, before RrcE, P. J., it appeared that the note in question was given as part of the consideration in a sale of a bottling establishment.

<p>Appeal, No. 315, Jan. T., 1893, by the State Society of the Cincinnati of Pennsylvania, from decree of C. P. No. 1, Phila. Co., March T., 1880, No. 357, refusing to modify decree previously entered.</p> <p>Petition for modification of decree.</p> <p>The petition of the Society of the' Cincinnati averred:</p> <p>“ On the thirtieth day of April, 1880, your petitioners presented their petition to your honorable court, setting forth, inter alia, that there had been then collected and in the hands of the petitioners, the sum of one hundred and thirty-seven thousand dollars, more or less, for the purpose of the erection of a monument in memory of General George Washington ; that a fund amounting to the sum of about fifty thousand dollars, and which had been raised and collected for a similar purpose, was in the possession of the Pennsylvania Company for Insurance on Lives and Granting Annuities, trustees, and your petitioners then prayed, that as the object of the subscribers to the said two funds was the same, it might be carried out by uniting the two funds in the hands of the petitioners so as to enable them to erect one grand monument with the said united fund, rather than by a division of the same to multiply the monuments at the sacrifice of dignity and beauty. And on the coming in of the answer of the said The Pennsylvania Company for Insurance on Lives and Granting Annuities, trustees, your honorable court, after considering the testimony taken in support of the petition, upon the 19th day of June, 1880, entered the following decree:</p> <p>“‘And now, this 19th day of June, 1880, this cause coming on to be heard upon petition, answer and report of the examiner, it is ordered, adjudged and decreed, the respondents, The Pennsylvania Company for Insurance on Lives and Granting Annuities, by their answer assenting to their discharge, that the said respondents be discharged as trustees for said fund; that the petitioners, the State Society of the Cincinnati of Pennsylvania, be appointed trustees in their place, and that security be entered by the said newly appointed trustees in the sum of sixty thousand dollars to be approved by the court for the faithful performance of their' duties, and that upon the payment and delivery to the said successors of the said company, of the cash, securities and other assets in their hands, the said respondents shall be discharged from all further liability and accountabilitj’- therefor; and it further appearing to the court from the proof taken that it was the intention of the party holding and representing the funds of the said Washington Monument Fund, that the same should be united to the funds of the State Society of the Cincinnati of Pennsylvania, and together applied to the erection of one grand monument in honor of General Washington, and the court having verified, through its examiner, the funds and securities in the hands of the State Society of the Cincinnati, held by the said society for the purpose of being so applied, and found that the same amount to the sum of one hundred and thirty-seven thousand five hundred and forty-one dollars, being rather more than the sum stated in the petition of the said society, and no objection being made to the proposed union of the fund, it is further ordered, adjudged and decreed that the moneys and securities belonging to the fund known as the Washington Monument Fund, be applied by the State Society of the Cincinnati of Pennsylvania in conjunction with the funds now in their own hands as aforesaid, to the purpose of the construction and eiec* fcion of a monument upon a suitable spot in tbe park of the city of Philadelphia in honor of the memory of Gen. George Washington, the said construction to be made under the direction' of the State Society of the Cincinnati of Pennsylvania.’</p> <p>“ Subsequently, on the 1st day of July, 1880, the said decree, was modified as follows :</p> <p>“ ‘ That the order for the entering of security in the sum of sixty thousand dollars, to be approved by the court, by the said State Society of the Cincinnati, the newly appointed trustees, be rescinded, and in lieu of security to be entered by the said society, the cash, securities and other assets directed to be paid and transferred to said society by the old trustees, the Pennsylvania Company for Insurance on Lives and Granting Annuities, who were discharged from their trust on transfer of said securities, etc., be retained by the said company under the direction of this court, and that leave be given to the said State Society of the Cincinnati to apply from time to time to this court, during the progress and erection of the said monument for the payment and delivery to them of so much cash and securities as may be needed in the prosecution of the said work, until the whole amount be paid out and delivered.’</p> <p>“ Subsequently from time to time, sur petitions duly presented to your honorable court, decrees were entered directing the expenditure of the fund originally known as the Washington Monument Fund, until at the present time the entire fund has been expended in the preparation of the monument. As appears by the decrees aforesaid and by the petition upon which the said decrees were founded, it was proposed in 1880 that the monument should be erected in the park of the city of Philadelphia, if a suitable site could be obtained. Since which date, after many thorough investigations, the committee of your petitioners, to whom was intrusted the final selection of a site, reported that in their judgment the Fairmount park of the city of Philadelphia did not contain a location suitable for the erection of such a monument.</p> <p>“ And further it appears among the records of the State Society of the Cincinnati of Pennsylvania, published by order of the society for the use of its members, 1891, page 86, taken from the original records of the society, ‘Pursuant to public notice the society met in the state house in Philadelphia on Wednesday, the 4th day of July, 1810, at 10 A. M. On motion of Charles Biddle, seconded by Major Jackson, the following preamble and resolutions were unanimously adopted:</p> <p>“ ‘ To establish a permanent memorial of their respect for the memory of the late Father of his Country, General George Washington, by the erection of a monument in the city of Philadelphia, has long been the wish of those who are desirous of perpetuating the recollection of his virtues. ...</p> <p>“ ‘ This society resolves, That a committee be appointed to prepare a plan for raising, by subscription, such sums of money as they shall deem sufficient for the purpose of erecting a monument to the memory of General Washington. That the plan, when prepared, shall be submitted to the standing committee, and when approved by them be carried into effect.</p> <p>“ ‘ That Major Lenox, Judge Peters, Major Jackson, Mr. Biddle and Mr. Binney be a committee for the above purposes, and that they also be authorized under the direction of the standing committee, when the subscriptions have been completed, to procure a proper site for the monument and have it erected.’</p> <p>“And further, That it appears from this extract that this fund known as the Washington Monument Fund, raised under authority of this preamble and resolution, and held by your petitioners, was created for the erection of a monument in the city of Philadelphia, and that, by virtue of this authority vested in it, the standing committee are carrying out the expressed intention of the donors of the fund by selecting Independence Square as the site for the erection of the monument of your petitioners.</p> <p>“ And it is clear that the 4 park of the city of Philadelphia,’ to wit, Fairmount park, now a part of the said city, was at the time of the creation of the said fund, to wit, in the year 1810, not within the limits of the said city, the first acquisition of land therein, known as 4 Faire Mount,’ being made in 1812 for the purpose of obtaining a supply of water free from impurities, and that the councils of the said city by ordinance, September 15,1855, 4 devoted and dedicated ’ the 4 Lemon Hill Estate,’ purchased by the said city, July 24, 1844, to public use, to be known by the name of Fairmount park.</p> <p>44 On the first day of March, 1892, the councils of the city of Philadelphia passed an ordinance, which was subsequent^ approved by the Hon. Edwin S. Stua,rt, mayor of the said city, as follows:</p> <p>“ ‘ An ordinance, granting permission to the State Society of the Cincinnati of Pennsylvania, to erect a monument to General Washington in Independence Square.</p> <p>“ ‘ Section 1. The select and common councils of the city of Philadelphia do ordain, That permission be and is hereby granted to the State Society of the Cincinnati of Pennsylvania to erect in Independence Square a monument to the memory of General Washington ; said monument, when erected, to be the property of the city of Philadelphia.</p> <p>“ ‘ Section ,2. The director of the department of public safety is hereby authorized and directed to indicate a suitable spot in Independence Square, on which the monument shall be erected : Provided, The city of Philadelphia shall be under no expense for the erection of the same.’</p> <p>“ Your petitioners, therefore, having received permission by the said ordinance, now intend to erect a monument, to be purchased by the joint funds, in Independence Square, in the city of Philadelphia ; and they, therefore, pray that the decree heretofore entered on the 19th day of June, 1880, by your honorable court, shall be modified so far as it contains the words for the erection of a monument in the park of the said city, and that a decree be now entered authorizing your petitioners to expend the Washington Monument Fund in conjunction with the fund held by your petitioners, in the erection of a monument in Independence Square, pursuant to the leave granted by the said councils and the mayor of the city aforesaid.”</p> <p>The court refused the prayer and dismissed the petition in an opinion by Biddle, J., 1 Dist. E. 477.</p> <p>Errors assigned were, (1) in not modifying the decree of 1880, as prayed for in the petition; (2) in dismissing the petition of the appellant; (3) in entering an order that the petition of the appellant be dismissed; (7) in not holding that the selection of the site was an unimportant incident to the first decree.</p>

Appeal, No. 225, Oct. T., 1892, by plaintiff, George Kramer, from judgment of C. P. Jefferson Co., Feb. T., 1886, No. 96, on verdict for defendant, R. C. Wins-low. Assumpsit to recover balance of purchase money of real estate alleged to have been retained by defendant as agent of plaintiff. The case was previously before the Supreme Court, and remitted for a new trial: See Kramer v. Winslow, 130 Pa. 496.