Volume 155 — Pennsylvania State Reports

<p>Bes adjudicata—Judgment—Married women.</p> <p>A judgment was entered upon a bond and warrant of attorney aceompanying a mortgage executed by a married woman and her husband. The bond and mortgage were executed by the wife to secure her husband’s debt. Subsequently the court struck off the judgment as to the wife, but refused to strike it off or open it as to the husband. Held, that the adjudication of Üie court upon the application of the husband to open the judgment was a determination of all questions of fraud, want or failure of consideration, etc., in favor of the plaintiffs, and conclusive not only as to the husband, but also as to the wife, and that the wife could not subsequently in an action on the mortgage set up such matters as a defence.</p> <p> Mortgage—Certificate of acknowledgment—Married women. </p> <p>When a married woman joins her husband in a mortgage to incumber her separate estate to a bona fide mortgagee for value without notice of fraud or imposition in the procurement of the execution of such instrument, the certificate of the justice of the peace taking the acknowledgment is conclusive of every material fact expressed therein.</p>

<p>Appeal, No. 195, Oct. T.,1892, by defendants, Jennie F. Overbeck et al., from judgment of C. P. Cambria Co., Sept. T., 1891, No. 235, on verdict for plaintiff, Mary Overbeck.</p> <p>Feigned issue to determine ownership of fund paid into court by life insurance company.</p> <p>The jury found the following special verdict: “ That a ceremony of marriage was duly performed between William H. Overbeck and Miss Jennie F. Black on the 26th of July, 1875, in the city of Philadelphia; that as the result of said marriage the following children were born: Blanch B., on the 31st of August, 1876; Sallie M., on the 8th of June, 1878 ; William J., on the 2d of October, 1879; that they lived and cohabited together as husband and wife until the latter part of July, 1879; that William H. Overbeck then went to the city of Johnstown, where he engaged in his occupation as a plumber and remained until he lost his life in the flood of May 31, 1889; that during the time he was living in J ohnstown he visited Philadelphia and his family occasionally; that he contributed to the support of his family in Philadelphia for about two years after he went to J ohnstown and subsequently at intervals up to the time of his death; that on the 5th of January, 1881, a marriage ceremony was celebrated between the said William H. Overbeck and Mary Robb, at Pittsburgh; and as the fruits of said marriage there was a son born to them on the 28th of December, 1885 ; that from August following he and she continually lived and cohabited together as husband and wife, residing at several different boarding places and several years keeping house, he constantly introducing her to and holding her out to his friends and acquaintances as his wife, and they being commonly reputed in the city of Johnstown as husband and wife up until the day of his death; that on the 14th of June, 1886, William H. Overbeck effected an insurance on his life in the Northwestern Masonic Aid Association in the sum of $2,500, payable at his death to his wife—Mary Overbeck—or to the heirs at law of said William H. Overbeck, and that he showed Mary Overbeck the policy of insurance in the Northwestern Masonic Aid Association, and said to her that it was for her.”</p> <p>The court entered judgment for plaintiff on the verdict, in an opinion by Barker, P. J.</p> <p>Error assigned was entry of judgment as above.</p>

Appeal, No. 331, Oct. T., 1891, by plaintiffs, Gallagher Brothers, from order of C. P. No. 1, Allegheny Co., March T., 1890, No. 510, entering judgment of nonsuit in favor of defendant, Isabel A. Swan. Assumpsit for goods sold and delivered. The facts appear by the opinion of the Supreme Court. Errors assigned were (1) entry of nonsuit and (2) refusal to take it off.

Appeal, No. 83, Oct. T., 1892, by defendants, Ott Brothers, from judgment of C. P. No. 1, Allegheny Co., March T., 1891, No. 146, on verdict for plaintiff, William Johnston. Trespass for injuries by negligent construction of sewer. The facts appear by the opinion of the Supreme Court. At the trial, before Stowe, P. J., defendants presented the following points among others : 1. Request for binding instructions. Refused. [1] “4.

<p>Appeal, No. 92, Oct. T., 1892, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1886, No. 119, for defendant on report of referee.</p> <p>The case was referred to J. A. Evans, Esq., as referee, who found the facts as follows :</p> <p>“ 1. That about the middle of January, 1882, the plaintiff issued an attachment against the Falls Wire Manufacturing Co., attaching certain property of said company on two promissory notes amounting to about $4,000, made by said wire company and duly indorsed to plaintiff, and it employed E. C. Ruggles, Esq., an attorney at Cleveland, to represent the said bank. At the same time plaintiff held a note for $714.40 made and indorsed as the other notes, which note was not then due, on which plaintiff had instructed its attorney to issue attachment as soon as it was due. Defendant at this time having a claim against the said wire company on notes of like tenor to those held by plaintiff, amounting to about $40,000, agreed with plaintiff that if its attorney, said E. C. Ruggles, Esq., would take defendant’s claim and issue attachment on it and plaintiff would withhold proceeding on its note for §714.40, defendant would pay the amount thereof out of the first money received on its claim.</p> <p>“ 2. That subsequent to said arrangement, the said E. C. Ruggles, Esq., sent to plaintiff requesting it to indorse said note for §714.40 to some third party and send it to him, and Lie note was indorsed to C. E. Cornelius and forwarded to Ruggles, for the purpose of bringing suit thereon.</p> <p>“ 3. That in March, 1883, defendant compromised its claim against the Falls Wire Manufacturing Co. and received §14,000, and the note for §714.40 was not paid to plaintiff out of said money, neither did defendant communicate to plaintiff the fact that it had received it.</p> <p>“ 4. That plaintiff, having information at the time that defendant had settled its claim against the Falls Wire Manufacturing Co., without consulting defendant, and making no demand on it for the note for §714.40, in the fall of 1883 compromised its claims against the said wire company, including the note in controversy, and released the said wire company from all claims on account of said note.”</p> <p>The referee reported the following conclusions of law.</p> <p>“ 1. The promise of defendant to pay the note in controversy was not within the statute of frauds.</p> <p>“ 2. Plaintiff released defendant from its promise to pay said note on its settlement with the Falls Wire Manufacturing Co.”</p> <p>Exceptions to the referee’s findings of fact were overruled and judgment entered for defendant.</p> <p>Errors assigned were entry of judgment for defendant,-and overruling exceptions, quoting them.</p>

<p>Appeal, No. 79, Oct. T., 1892, by plaintiff, from judgment of C. P. No. 2, Alleghney Co., Oct. T., 1890, No. 382, on verdict for plaintiff.</p> <p>Assumpsit on contract to furnish natural gas.</p> <p>At the trial, before Ewing, P. J., it appeared that, on Jan. 2, 1889, plaintiffs agreed to supply defendants with gas for the purposes of their manufacturing establishment, from Jan. 1, 1889, to July 1,1890. The contract was based upon the following application:</p> <p>“ The Peoples’ Natural Gas Co. :</p> <p>“ Application for gas is hereby made, to be used as hereinafter stated, subject to the terms and conditions on the back hereof, which are agreed to by the applicant.</p> <p>“ The gas to be used in our twenty (20) steam boilers and two (2) furnaces and necessary furnaces for annealing and drying wire, located at our works at Rankin Station B. & O. Railroad, near Pittsburgh, Pa.</p> <p>“ The furnaces to be used in heating iron and steel billets, for making wire rods and for annealing and for drying wire. Boilers to be used for making steam to roll, draw, twist and cut wire and to pump water for the works.”</p> <p>The wire company agreed to pay for the gas $1.90 per ton “for all iron or steel made from billets into wire,” and 95 cents per ton for all iron or steel made from billets into wire rods which is not made into wire; ” and wire made from rods not rolled in their mill was to be paid for at the rate of 95 cents per ton.</p> <p>Among the conditions which were made part of the contract, was the following:</p> <p>“ 4. Consumers will be permitted to use of the gas only as provided for in the contract, and if any additional privileges are desired, the written consent of the company thereto must first be obtained and an additional compensation paid therefor.”</p> <p>Defendants claimed that the tonnage upon which the gas was to be paid for should be the tonnage of the finished product, and not of the raw material.</p> <p>The court charged in part as follows:</p> <p>“ [The contract itself meant, and was intended to mean, that the tonnage on which the gas bills were based was not the steel billets that were used—not the raw material—but the product</p> <p>of it-] [1]----</p> <p>“ [The history of the transactions of these parties seems to throw light on this question. It seems that the company started to make wire rods alone in 1885 or 1886, the Peoples Natural Gas Company furnishing them gas. In November, 1887, a contract was made between the two for the year 1888, in which it is plainly contemplated that the product is to be not only rods but wire. That contract, so far as I recall it, and everything relative to this matter, is in the same words as the contract for the eighteen months beginning at the first of January, 1889. They operated first under a contract prior to that, and then under what, in the evidence, has been called the second contract, for the year 1888, and then under the third contract for the eighteen months ending July, 1890. They established a course of dealing with each other. The defendant company and its officers were intelligent men, and understood the business of the gas company, at least in a general way. The officers, some of the leading ones of the gas company, were very intelligent men. They were on the stand before you, and if you do not conclude that the president of the company especially, and one or two of the others, are very intelligent men, thoroughly well posted on the subject-matter, and understand machinery and mills, you will come to a different conclusion from what I anticipate you will. The evidence shows that, before and at the time of making this contract, the officers of the gas company were familiar with this mill and the manner of operating it. Some of the principal officers were there very frequently, and they knew it so well that they undertook to advise at different times in regard to the manner it should be run. They knew the boilers and engines, and knew the arrangement of the mill, and how it was run. I do not think there is any dispute or can be any doubt that that is the fact.] ” [7]</p> <p>Verdict and judgment for plaintiff for an amount based upon the tonnage of the finished product. Plaintiff appealed.</p> <p>Errors assigned were (1, 7) instructions, quoting them.</p>

Appeal, No. 129, Oct. T., 1892, by defendant, Peter Stinner, from judgment of C. P. No. 1, Allegheny Co., March T., 1891, No. 520, on verdict for plaintiff, Charles F. Goldstrohm.- Assumpsit for goods sold and delivered. At the trial, before Stowe, P. J., defendant claimed that the goods were sold to his sons, and not to himself. Defendant’s counsel, in his address to the jury, argued that the reason defendant was sued was because the sons were irresponsible.

Appeal, No. 186, Oot. T., 1892, by defendant, James M. Eccles, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1891, No. 54, on verdict for plaintiff, William S. Miller. Assumpsit on contract of guaranty.

<p> Jurisdiction—Waiver by plea—Action on oil lease. </p> <p>Where a court has jurisdiction, of the subject-matter, and is only restricted from entertaining the individual case by some circumstances peculiar to itself, the objection to jurisdiction maybe waived.</p> <p>In an action on a covenant in an oil lease brought in a county other than the county in which the land subject to the lease is situated, objection to the jurisdiction of the court must be made before a plea is filed. If the defendant has failed to do so, he has waived his privilege.</p> <p> Oil lease—Covenant running with the land. </p> <p>The assignee of an oil lease is liable for the payment of all rents or royalties which accrue while he holds the assignment of the lease.</p>

Appeals, Nos. 178 and 274, Oct. T., 1892, by plaintiff, C. P. Klopfer, from orders of G. P. No. 2, Allegheny Co., July T., 1891, No. 261, aud April T., 1878, No. 588, making absolute a rule to open judgment. Rules to open judgments.

<p>Vendor and vendee—Failure of sale—Improvements„</p> <p>In an action by a vendee of land against his vendor to recover taxes and improvements on land sold under a contract insufficient under the statute of frauds, a notice by the vendor that he would not convey, and that he would consider plaintiff’s entry a trespass, will not prevent a recovery by the vendee of expenses incurred after the notice, if the vendor withdrew the notice or encouraged the vendee to believe that the original contract would be carried out.</p> <p> Fvidence—Rebuttal—Review. </p> <p>It is not ground for reversal that a witness was permitted in rebuttal to repeat a portion of the testimony which he had already given in his examination in chief.</p> <p> Practice, Supreme Court—-Assignment of error to admission of testimony. </p> <p>An assignment of error to the admission of testimony which fails to set forth the testimony admitted under the exception, does not conform to the rules of court, and will not be considered.</p>

<p>Appeal, No. 231, Oct. T., 1892, by-defendant, Martha C. Williams, executrix of L. Halsey Williams, deceased, from judgment of C. P. No. 2, Allegheny Co., July T., 1891, No. 144, on verdict for plaintiff.</p> <p>Assumpsit on guaranty of promissory notes.</p> <p>At the trial, before Ewing, P. J., plaintiff offered in evidence judgments against the Diamond Coal Co. on various promissory notes. The following correspondence was also offered:</p> <p>“Pittsburgh, Jany. 22,1884.</p> <p>“ A. H. Patterson, Esq.</p> <p>“ Dear Sir : The Diamond Coal Company ask that you extend for them all paper now held by you of theirs endorsed by Tomer & McKinley for three renewals of 4 mo. each as that paper matures without reduction and at 6 per cent.</p> <p>“ That the balance of the paper held by you be renewed once for four months at 6 per cent without any reduction and that all such paper be paid at the rate of 25 per cent on each renewal thereafter until paid in full with interest.</p> <p>“ The Diamond Coal Co. to deposit with you $10,000 stock of the East End Elevator Co. as collateral.</p> <p>“Very Respectfully,</p> <p>“ L. H. Williams, Treas.</p> <p>“ Should the Diamond Coal Co. fail to pay in full as provided above or arrange the same to your satisfaction I will become personally responsible for any shortage.</p> <p>“L. H. Williams.”</p> <p>“ Pittsburgh, Dee. 11th, 1885.</p> <p>“ Duquesne National Bank.</p> <p>“ Please renew notes of the Diamond Coal Co. from time to time as you may be able to accommodate them and I will hold myself liable for such notes as heretofore.</p> <p>“Yours &c.,</p> <p>“ L. Halsey Williams.”</p> <p>Defendant also proved that the judgments were based upon renewals of notes held by plaintiff bank at the date of the original letter of guaranty. The only testimony on part of defendant was proof by plaintiff’s witness, Patterson, the cashier of the bank, of the letter of June 3,1886, and his reply thereto. The letter and reply are as follows:</p> <p>“ Pittsburgh, 6-3-86.</p> <p>“ Alex. Patterson, Esq.</p> <p>“ Dear Sir: As I am going out of town for some days, please let me know if the Diamond Coal Co. have satisfactorily arranged their paper. “ Yours,</p> <p>“ L. H. Williams.”</p> <p>“ Yes.—A. H. P.”</p> <p>Plaintiff offered evidence tending to show that the question asked in the letter of June 3 referred to a renewal of the notes which decedent had agreed to, and not to a payment of them by the Coal Company.</p> <p>The court charged in part as follows:</p> <p>“We instruct you that if there was a negotiation with Mr. Williams, who was also treasurer of the Diamond Coal Company, in which it was understood and agreed that there should be a part paid and a renewal of the balance, and that if he after-wards knew what had been done, namely, that there had 'been no security released and nothing done but a part payment made and the renewal of the notes with the same indorsers for another four months, and knew the fact that there had been no arrangement outside of the previous arrangement to renew the notes, then that [the letter and reply of June 3d] does not release him. It does not operate as a release of his guaranty, and your verdict should be for plaintiff for the amount of these notes. That is a question of fact, though, for the jury. The face of the paper throws the burden on the plaintiff of explaining it and showing what the actual situation is. It depends, then, on whether you believe the testimony of Mr. Patterson against the apparent face of this paper.” [2]</p> <p>Defendant’s point appears by opinion of Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) instructions, quoting them.</p>

<p> Principal and agent—Construction of written contract. </p> <p>An owner of certain patents granted to defendant by an agreement in writing an option to purchase the patents within sixty days. The owner of the patents further agreed to give his services to defendant in the way of developing the motor covered by the patents for a period of five years, binding himself to give to defendant the benefit of all discoveries and inventions relating to electric railway equipment during said employment. Subsequently by another agreement in writing the option was extended for thirty days, and defendant agreed to furnish the necessary funds to construct four sample motors, and one dynamo. The original time at which payment was to be made for the patents was not extended. The owner of the patents gave an order to plaintiff for the construction of the four motors, and plaintiff charged them to his account. Subsequently plaintiff brought suit against defendant for the price of the motor. Held, that the agreements created no relation of principal- and agent between defendant and the owner of the patents, and that plaintiff was not entitled to recover.</p>

<p> Opening judgment—Discretion of court. </p> <p>In an application to open a judgment entered upon a warrant of attorney, a wide discretion must necessarily be exercised by the court below, and on appeal the Supreme Court will only reverse where this discretion has been abused.</p> <p>Where, on such application, defendant testifies that the judgment was paid under an agreement by which he gave up his grocery business and went to plaintiff’s saloon to act as a bartender, and the plaintiff denies the payment under the agreement, the Supreme Court will not reverse the decision of the lower court refusing to open the judgment.</p>

Appeal, No. 359, Jan. T., 1892, by defendant, William J. Davis, from judgment of C. P. No. 2, Phila. Co., Dee. T., 1888, No. 544, on verdict for plaintiff, Elwood Horn, Trustee of tlie Albrecht Piano Club. Trespass for conversion of piano. At the trial, before Fell, J., it appeared that defendant on April 25, 1884, joined a piano club organized by Albrecht & Co., and executed a lease of a piano by which he agreed to pay $1.50 per week for two hundred weeks.

<p> Discontinuance—Withdrawal from suit—Payment of costs—Appeal. </p> <p>Where contestants of a will upon their own application are granted leave to withdraw from the contest, and are ordered to pay all costs that have accrued to the date of their withdrawal, their connection with the case is at an end, and they cannot afterwards take an appeal to the Supreme Court, on the ground that they are still in the case because they had not paid the costs.</p>

<p> Liability of collector for negligence of attorney. </p> <p>A collector who undertakes the collection of a claim is responsible for the negligence of the attorney employed by him, by which the claim is lost. JBradstreet v. Everson, 72 Pa. 124, and Morgan v. Tener, 83 Pa. 305, followed.</p> <p>Defendants, carrying on business as “conveyancers and collectors,” filed, on behalf of plaintiff, mechanics’ lien claims, placing the name of an attorney upon the same. Subsequently an order was made upon plaintiffs to issue writs of scire facias. The attorney neglected to issue the writs, and the liens were lost. The question whether defendants were employed merely to file the claims or to collect them was disputed, and it was also disputed whether the attorney was employed by plaintiffs or by defendants. The whole case was submitted to the jury, with instructions that, if defendants were employed to collect the claim and if they employed the attorney to act under their instructions, they were liable. Held, not to be error.</p>

<p>Appeal, No. 64, July T., 1892, by Louise Wernle Wright, from decree of O. 0. Phila. Co., Oct. T., 1890, No. 182, dismissing exceptions to adjudication of executor’s account in estate of Robert J. Wright, deceased.</p> <p>Adjudication of executor’s account.</p> <p>At the audit Louise Wemle Wright claimed one fourth of testator’s estate under an alleged contract of the testator to give her this share, if she would consent to become adopted as Ms child under the provisions of the act of May 9,1889, which act authorized the adoption of adults, as children and heirs, with the consent and approval of the persons so adopted and of the proper court. The letter upon which the claim was based was addressed to appellant by defendant, and was as follows:</p> <p>“ I want to adopt you and the Koons, Josie, Mamie, and Bobby, and then destroy all the old will and codicils and make new ones, for even if the new ones should be broken (my estate would then all go to you four.) So then the institutions, of course, would not want to break anything.</p> <p>“ Now, in case will and codicils were broken, Mrs. Koons gets all. But she lias promised to give you your share. But perhaps the other influences might make difficulties, besides her life is not certain. If she dies all would go to her heirs. Hence the adoption of all four becomes desirable to secure these portions even with a broken will or none at all. But to adopt you without adopting them endangers and risks all their prospects, and that is the reason I did not adopt you long ago. For then they were not willing; but they are now, being adults.</p> <p>“ Adopting adults does not give the adoptor any control over them. So in your caso my simple object is to benefit you aud make your portion certain; but I must also adopt them at the same time, else they might lose all. After the adoption was accomplished I could destroy all old wills and codicils and make a new one safely, because then neither you nor they would have very much different under the new will from what you and they would get under the law alone if will were broken. Hence the temptation to break will would not be very great for you four (or five) (or, including Mrs. Koons, six,)* and nobody else would have any temptation at all to break will; and the charities’ interest would then be to sustain the new will and codicils, and none of them would get any if will were ■broken.</p> <p>“ '* It is true this plan leaves Mrs. Koons out in case of a broken will; but she can and will fix that with her own children and their families, they being her only heirs. She has her own money to live upon, and even to cut them out of if they disobey in such a matter. And she is willing for the proposed plan. And with a new will she would be the only person who has any legal right to dispute it, if she was living and in business health: and the others would not have interest and profit enough by upsetting it to try to do it, so we think.</p> <p>“ The rest is not definite. It takes much red tape and time to get an act of the legislature passed. So the sooner we get at it the more probable we are to get it; and they don’t meet again for two years.</p> <p>“We think each one can say whether he or she would desire to change their name to Wright, and such as do have their name changed I think can sign needed papers without the new, simply their old names.</p> <p>“ If you approve of the adoption, please write soon and say if you will have your name changed; and if so, how ? Then it had better be changed to Louise Wernle Wright. Better every way. Or telegraph yes, and write the rest soon.”</p> <p>Testator adopted the four persons mentioned in the letter, but did not make any change in the will, and the codicils thereto, already made.</p> <p>The auditing judge disallowed the claim. Exceptions to the adjudication were dismissed in an opinion by Penrose, J., 1 Dist. JR. 325.</p> <p>Errors assigned we re (1-3), dismissal of exceptions, without quoting exceptions; and (4) in not awarding to appellant one fourth of the estate of decedent.</p>

<p> Construction of oral contract—Province of court and jury. </p> <p>The construction of an oral contract is for the jury where thei'e is any doubt about its terms; and where terms are not used in their ordinary sense, and it is shown that by custom or usage they are to be understood in a different sense, it is for the jury to determine what the contract is; but where there is no dispute as to its terms, and no ambiguity which needs explanation, it is for the court to determine the meaning of the contract.</p> <p> Master and servant—Discharge of servant. </p> <p>So long as an employer is willing to pay an employee Ms wages, and furnish him the character of work l'or which he was employed, it makes no difference whether it is all of the employee’s work as “ assistant buyer ” that he is asked to do, or only a part.</p> <p>Plaintiff was employed by an oral contract as an assistant buyer to the buyer of dress goods for the wholesale department of defendant’s business at a salary specified for three years. The year following plaintiff’s em ployment, defendant bought out another wholesale business, and the consolidated wholesale business was conducted in the new establishment. The wholesale dress-goods department was divided into three sections under the general management of a person other than the buyer in defendant’s old establishment. Plaintiff was directed to take charge of one of these sections, in which the goods were of the same general character as plaintiff had previously handled. Plaintiff refused to take charge of the section of the dress-goods department to which he was assigned, or to perform any duties in relation thereto, and, without authority from anyone, left the dress-goods department and went to another department, where an entirely distinct class of goods were kept, and performed the duties of an ordinary salesman. He persisted in this course of action for some time, when he was discharged. Held, that defendant had a right to discharge plaintiff.</p> <p>Note.—A suit on this contract, brought in C. P. No. 2, Phila. Co., was nonsuited, aud a motion to take off that nonsuit was refused in an opinion by Fell, J., 48 Leg. Int. 66 ; s. c. 9 Pa. C. C. R. 497.</p>

<p>Appeal, No. 87, July T., 1892, by plaintiff, Amanda G. Harris, from judgment of C. P. No. 3, Phila. Co., March T., 1889, No. 624, on verdict for plaintiff for less than she claimed.</p> <p>Trespass to recover damages for injuries to lot caused by maintenance of sewer mouth.</p> <p>Plaintiff’s witness was asked: “ Q. What was a fair rental value from 1885 to 1887, considering it as a wharf, and if the sewer was not there ? ” Objected to. Objection sustained. Exception. [1]</p> <p>Another of plaintiff’s witnesses was asked: “ Q. From what you know, what would be a fair rental for a river bank lot having say 130 feet on the Port Warden’s line and running say 300 feet in depth ? What rental would you in 1885 have been willing to give for this river bank lot 130 feet in front, running back 300 feet in depth, as it stood without a sewer upon it?” Objected to. Objection sustained. Exception. [2]</p> <p>. Also the following: “ Q. What would be a fair rental for this lot in its natural state without the sewer upon it, if it were offered in an improvement lease ? ” Objected to. Objection sustained. Exception. [3]</p> <p>The court charged in part as follows:</p> <p>“ [That in my opinion is the maximum amount which he can recover in this case, that is one hundred dollars which he lost of the first year’s rent, and the forty or sixty dollars which were expended in filling up this hole.] [4] .... [I instruct you as matter of law that they are not entitled to any more than that, and that you cannot find a verdict for a greater sum, and although I do not instruct you to find a verdict for the $140 or $160, yet I recommend that you act on my suggestion. I say again that you cannot find a verdict in excess of that amount.] ” [5]</p> <p>Plaintiff’s points were among others as follows:</p> <p>“ 2. The fair annual value is the sum which it would produce, if used for its most available and advantageous use.” Refused. [6]</p> <p>“ 3. If the jury find that the plaintiff was prevented from using this property as a wharf, without unnecessary difficulty and expenditure by reason of defendant allowing its sewer head to remain upon it, and its sewer to flow upon it, the plaintiff is entitled to recover the fair annual value of the property as if devoted to its most advantageous natural use.” Refused. [7]</p> <p>“ 4. The rental value of a vacant property upon an improvement lease may be considered in arriving at the fair rental value of such a property.” Refused. [8]</p> <p>“ 5. A lot which by the erection of a bulk-head may be made and produce a rental, has a rental value, and if occupied by a trespasser, the plaintiff in an action against him can recover that rental value, the amount of which is for the jury to determine.” Refused. [9]</p> <p>Verdict and judgment for plaintiff for ©160. Plaintiff appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting bills of exception; (4-9) instructions, quoting them.</p>

<p>Appeal, No. 256, Oct. T., 1892, by plaintiff, John Wallace, from decree of C. P. No. 1, Allegheny Co., dismissing plaintiff’s bill against Robert Smith and John Rynd.</p> <p>Bill to have deed declared a mortgage.</p> <p>The facts are found as follows by the report of tbe master:</p> <p>“ The bill sets forth in substance: (1) That on the 5th day of April, 1880, the complainant was the owner of a tract of land in McCandless township, containing fifty-nine acres and one hundred and fifty-four and one fourth perches, strict measure. (2) That complainant, on the 5th day of April, 1880, conveyed the said tract of land to John Rynd, as security to said Rynd for the payment by him of about four thousand dollars, said real estate being worth at the time seven thousand dollars ; but that said complainant has kept and retained possession of the said farm until the present time. (3) That the arrangements made between the complainant and the said Rynd were that, whenever the complainant should pay said indebtedness assumed by the said John Rynd for the said complainant, the said Rynd should reconvey said property by deed to complainant. (4) That the said John Rynd, on the 19th day of May, 1885, by deed recorded in Deed Book, vol. 511, page 476, conveyed said realty to R. S. Smith, one of the respondents, in trust for said Rynd, he (said Smith) to manage, care for, and to take charge of the same, and that the said R. S. Smith has no interest whatsoever in said property except as trustee for said Rynd. (5) That about May 2, 1890, complainant tendered a sum of about seven thousand dollars to said Rynd, and requested a reconveyance, under the agreement, and that said Rynd approved of amount tendered, as appears by letter marked ‘ Exhibit A’ of the bill. (6) That said R. S. Smith is attempting to prevent a reconveyance to complainant. (7) That complainant is willing, and has been since May 2, 1890, to pay all that is due to said Rynd, and to have a reconveyance of said property. That it is the old homestead. The relief prayed for is ‘ that the said respondents, upon the payment by your orator of the sum of $7,000, with interest from May 2, 1890, be ordered to execute aud deliver good and sufficient deed for the property described in bill.’</p> <p>“ To these complaints John Rynd files no answer. R. S. Smith, the trustee of Rynd, and co-respondent, answering, says the first paragraph of bill is true. The second and third are not true, for, although plaintiff did convey by deed to Rynd the land described, he did so for a consideration up to the full value of the land, upon an absolute sale,'and without any agreement for redemption or reconveyance. The fourth paragraph is not true as stated, although a deed of trust was made (as hereinafter set forth). Admits the allegations of tender and request by complainant for reconveyance in fifth paragraph, but otherwise says it is untrue. As to the seventh paragraph, says he is ignorant of complainant’s willingness to pay; admits that plaintiff feels an interest in the old homestead, but believes it is due to oil developments in the vicinity.</p> <p>“The sixth paragraph of answer sets out at length the deed from John Rynd to respondent, and says that the said Rynd then had a wife, Margaret Rynd, and six children, viz.: Cyrus Rynd, James Rynd, George B. Rynd, May Lindley, Amelia Wilson, and Alice Wortman, all of whom are living except the said Amelia Wilson, who has died intestate, leaving to survive her her husband, Alexander Wilson, and her three children, to wit, Mary, John, and Alexander Wilson, who are' all minors ; and says that he is advised and believes that the said wife and grandchildren of the defendant Rynd are necessary parties to this suit, and claims and insists that no decree be made, or further proceedings be had therein, until they have been brought in as parties hereto ; and further says that the said Sarah Wallace, who was the plaintiff’s mother, held the said land by plaintiff’s full knowledge, and by virtue of the trust for her in the said deed expressed, until her death, in or about 1888, after which the trustee under said deed let and demised the same to plaintiff at a certain rent for the term of one year from April 1, 1889, and that the plaintiff took and held possession thereof, and is yet in possession thereof, as tenant from year to year, under me as trustee, and that plaintiff never, until shortly before the commencement of this suit, made any pretence or claim of title to or interest in said land, but, on the contrary, in the lifetime of his mother, was active in inducing and did induce respondent to spend moneys of the trust to the extent of $700 in the erection of a barn thereon; and says that he is advised and believes that by reason óf his silence and acts aforesaid he is estopped from asserting any right of redemption of said land, and prays that the bill be dismissed at plaintiff’s costs.</p> <p>“ From these allegations of facts in the bill, which are admitted to be true, or are not specifically denied in the answer, and from the testimony taken, letters, papers, and records put in evidence, the master finds the following facts: The first paragraph of complainant’s bill is admitted by the answer, to wit, that the complainant, on the 5th day of April, 1880, was seised in his demesne as of fee of all that certain tract of land situate in McOandless township, Allegheny county, Pennsylvania, containing 59 acres and 154^ perches (and fully described in the said bill), and the master finds the same as facts.</p> <p>“ The answer admits a portion of the second paragraph in bill, to wit, that the orator on the 5th day of April, 1880, conveyed the real estate, described in paragraph No. 1, to John Rynd, and the master finds the same as a fact. The balance of said paragraph is denied by the answer, but the master finds the same as facts, to wit, [that the real estate described in paragraph No. 1 of this bill was conveyed to John Rynd as security for the payment by him of the indebtedness of said Wallace of about $4,000,] and that plaintiff has kept and retained possession of said farm until the present time, and that said real estate at that time, to wit, April 5,1880, was worth $7,000 at least. . . .</p> <p>“ The master finds as facts the allegations in the third paragraph of bill, to wit, ‘ that the arrangement made between the complainant and the said Rynd was that, whenever the complainant should pay^ said indebtedness assumed by the said John Rynd for the said complainant, the said Rynd should reconvey' said property' by deed to complainant.’ The master is forced to this finding, as well as to the former finding, viz., ‘ that the real estate described in paragraph No. 1 of this bill was conveyed to John Rynd as security for the payment by him of about $4,000,’ by the testimony.</p> <p>Robert Guyton, a neighbor of Mr. Rymd, says: ‘ I met John. Rynd and John Wallace together, at Mr. Rynd’s house, somewhere about April 1, 1890, and I heard a conversation there about a farm in MeCandless township. Mr. Wallace brought up the conversation by saying to Mr. Rynd “ he would like to have the matter settled; that he was tired moving,” or something to that effect. Mr. Rynd said “ he did not want the land at the time he took it.” Mr. Wallace then asked him “ if they' had not made an agreement at the time he (Rynd) got the land that, if Wallace was able to pay for it, he would give it up to him.” Mr. Rynd said “ they had such an agreement, and he was willing to fulfill his part of it, but he wouldn’t do anything until he saw Mr. Smith.” ’</p> <p>“ John Rynd, one of the respondents to the bill, being called for cross-examination, says, in answer to the question: ‘ Did you not say to Mr. Wallace, “ that any time he repaid you your money with interest, you would reconvey it to him?” Answer : I wouldn’t say positively, but such a conversation may have taken place.’ He also says, in answer to the question: ‘ And do you remember saying to R. S. Smith, in a letter or note, that you had promised to retransfer the said farm, provided John Wallace paid said principal debt and interest? Answer: I think it was my wife wrote that letter and with my consent. Question: And are you still agreed to do that? A. Yes; yes.’ The words, ‘Yes; yes,’were animated, and indicated to the mind of the master that although age, as stated by himself, had affected his memory, it had not blurred his conception of duty. The present was clear to Mr. Rynd, the past was a little obscure; but it was obviously manifest to the master that John Rynd was satisfied that such an agreement had been made, and he saw but one course in honor towards Wallace to pursue.</p> <p>“J. M. Brown says: ‘I have known John Wallace all my lifetime. I have known Rynd for 35 or 40 years. I had a conversation with Rynd at different times. The biggest conversation was early last spring. He said to me at that time “he didn’t want the property at all; that all he wanted was his money, and what it cost him.” I heard him say at one time, “ That was the agreement when I took it,”—it was the agreement at the time he took the property.’</p> <p>“ Louisa Wallace, wife of John Wallace, says : ‘ I overheard a conversation between John Rynd and John Wallace. It was in the year 1880: in Febril ary; I don’t remember the date. This conversation was in the house we live in now. There was present Mr. John Rynd and Mrs. Rynd, Mr. John Wallace, father and mother. We asked Mr. John Rynd to lift the mortgage. He (Rynd) said he had too much land, but was willing to do it if we would try to redeem the place. This we consented to do. No time was set, but when we would be ready to redeem he would be ready to give us our deed back. There was then a mortgage on the place of $4,000. He was to lift it, and we were to secure him by giving him a deed of our place. It was decided to do that. Mr. Rynd said that if we would make him out a deed he would lift the mortgage.’ Witness says that about four weeks ago Mr. Rynd said ‘ his money was all he wanted.’</p> <p>“ John Wallace says: ‘ John Rynd is my brother-in-law. He is married to my sister. It was about January 1, 1880, that I first spoke to Mr. Rynd. There was some interest due on the Dollar Savings Bank mortgage on January 1st. I hadn’t the money to pay it. It was the old homestead. I was bom there3 and had always lived there, only the three years I was in the army; so I went to Rynd some time along in January, and told him my situation. He (Rynd) hesitated. He said he had so much land. He (Rynd) came out with his wife to where father and mother were living at that time, and he told me there that day that he would take the farm, and he would give me a chance to redeem it at any time that I could see my way clear to do so, and all he wanted was the principal that he put into it. He said he wanted no interest on the money.’ Witness says: ‘ There were present at that interview my father and mother, Mr. Rynd and wife, me and my wife. My father and mother are both dead. I paid on account of this debt one hundred dollars, and then 1 let him have a couple of cows. 1 think the money was paid in 1881. That was the agreement,—that at any time that 1 could see my way clear to give him back his money that he would transfer my farm.’</p> <p>“Robert Wallace testifies: ‘The conversation was in July, 1884. It was out in the grove on his (Rynd’s) farm. I remarked to him that I was sorry that the old homestead had passed out of the name. He (Rynd) said: “ John has the privilege of redeeming that farm at any time that he can do so. I don’t want the farm; all I want is the money that I have invested.” ’</p> <p>“ James J. McAfee says : ‘ He (Rynd) acknowledged that he had agreed at the time the transfer from Wallace to him was made to reconvey the old homestead to Mr. Wallace. Mr. Rynd was very anxious to do it.’</p> <p>“ Thus we have the testimony of some seven witnesses of unexceptional character, besides Rynd’s own admissions, and the fact that he files no answer. His letter to his trustee, requesting him to carry out his agreement, as well as the attendant corroborating facts and circumstances, such as his relationship to Wallace, his ability financially, together with the inadequacy of price, all lead to the inevitable conclusion that such an agreement was made, especially as it is uncontradicted except by the answer of R. S. Smith, which is made on inf or mation and belief, and inferentially by the testimony of W. A. Lewis, Esq., as a slight review will establish. The respondent Smith admits that he never received any information from John Rynd as to whether or not (Rynd) held the title to this property subject to a right of John Wallace to redeem and claim as a reconveyance of the same. He says: ‘I learned something from Mrs. Rynd and from John Wallace; also from Dr. Lindley ; and possibly something from Cyrus Rynd.’ He don’t say of what he was informed, except as to Wallace and Mrs. Rynd. Nor does Dr. Lindley or Cyrus Rynd appear. As to Mrs. Rynd, he says : ‘ She (Mrs. Rynd) said Mr. Rynd had agreed to transfer the property. That the first intimation that I received of the claim of Wallace was about six months ago.’</p> <p>“ W. A. Lewis, Esq., called by respondents, details a series of conversation he had with Rynd prior to the transfer, none of which were in the presence of Wallace, which testimony was taken under objection; and the master is of the opinion now, as then, that any declaration made by Rynd, not in the presence of Wallace, is incompetent. Witness further says: ‘ Mr. Rynd then leased the property to John Wallace.’ In answer to question, ‘ Do you remember if it was drawn at the time the parties were at your office ? Answer: No, sir; it was drawn later. I don’t mean to say I saw the lease executed. I think Mr. Rynd took the lease from my office to have it executed, or I mailed it to him. I remember this : It was agreed among the parties that they couldn’t afford to pay it; ’ and finally says that Wallace did not tell him that he couldn’t afford to pay it, nor did anyone else except Rynd. And again, in answer to question, ‘ Are you satisfied now that Mr. Wallace did not execute the lease of these premises at any time to John Rynd, in your presence ? Answer: No; but I do not think he did.’ Witness further says: ‘I think that the only time that Wallace was at my office was the time the deed was executed.’ ‘ No, I don’t think that John Wallace and I ever had any conversation about this matter. ... I did not have much conversation with Mrs. Wallace, if any.’ The whole of Mr. Lewis’s testimony establishes what John Rynd said in answer to Mr. Bryant’s question, ‘ Did he (Lewis) know the whole arrangement? Answer: No, I don’t think he did. He didn’t know anything about buying it back from me. He may have. I don’t recollect now.’ Lewis again says that John Wallace didn’t tell him that he was selling, or had sold, that property- ‘ Question: But John Wallace did not tell you it was a sale?’ ‘ No; he said nothing to me about it.’ The entire testimony of Mr. Lewis coincides with the testimony of Rynd and Wallace and wife, that nothing was said in his (Lewis’s) presence of any right to redeem on the part of John Wallace. Even if the conversations Lewis had with Rynd were competent, there was ample time between the time they took place and the time the deed was executed to have made the arrangement. Witness says: ‘ Question: How long before the meeting by Wallace and Rynd at your office was it that Rynd spoke of purchasing the property ? Answer: I couldn’t say. Q. Was it as much as two or three weeks? A. I couldn’t say. Q. Could you say whether it was as much as six weeks before ? A. I couldn’t say.’ Moreover, the master finds as a fact that the lease, if drawn, was never executed. Nor was any rent ever paid by Wallace, or demanded by Rynd. Mr. Wallace continued to occupy the premises, paid taxes, exercising all the acts of ownership that he did previous to the transfer.</p> <p>“ The master finds as facts the allegations in the fourth paragraph of bill, to wit: That the said John Rynd made and executed a conveyance dated May 19, 1885, recorded in Deed Book, vol. 511, page 476, of all said realty to R. S. Smith, subject to the following trust, to wit: ‘ Know all men by these presents that I, John Rynd, of the township of MeCandless, county of Allegheny, and state of Pennsylvania, in anticipation of the weakness, infirmities, and mistakes of age, and to secure a judicious and safe management of my estate during my life, notwithstanding and in consideration as well of the trusts hereafter expressed as of the sum of one dollar, to me paid by Robert S. Smith and W. C. Burchard, of the city of Allegheny, Pennsylvania, have bargained and sold, and do hereby grant, bargain, sell, convey, assign, and set over, unto the said R. S. Smith and W. C. Burchard, and their heirs and assigns, all my estate and property, real and personal, of whatsoever kind, and wheresoever situate, excepting my goods and chattels kept or used in or upon my house or farm, in and on which I now reside ; to have and to hold the same unto and for the use of the said R. S. Smith and W. C. Burchard, and their heirs and as signs, upon the trusts following, however, to wit: To not interfere with my free use, occupation, and enjoyment of my farm on which I now reside, so long as I shall desire to keep it as my home, or whenever I shall again desire to make it my home; to permit Sarah Wallace to have and enjoy during her life, free of rent, the farm bought of John Wallace, (she paying the taxes thereon, and keeping the same in repair,) subject to the foregoing trusts; to take charge of all my real estate, let the same, and collect the rents thereof, paying the taxes thereon, and keeping the same in repair; to take possession of and collect and receive all my personal estate hereby conveyed, and manage and safely invest the same ; out of the net income of all my estate which shall not be subject to my control or engagements, to pay from time to time such sums as shall be proper for the liberal and comfortable support and maintenance of myself, family, and establishment, in view of my estate and condition in life, for which sums my receipt shall be sufficient voucher; to reinvest and accumulate the residue, if any, of the net income during my life, and upon my death to convey and assign the whole estate, with all accumulations, as I have by my will, heretofore made, willed regarding my estate, or, if it be revoked by me, as I shall by any will or writing in the nature thereof, hereafter to be made, direct and appoint, and, in default of such appointment, to my wife and children, now living, in such shares, and for such estate, as they would respectively have of my estate under the intestate laws of Pennsylvania in case of mjr death intestate, leaving all of them surviving, but my wife to receive only in case she survives me and relinquish her dower,’—the effect of which, and its bearing on the case, may more properly be considered hereafter.</p> <p>“ The master finds as facts the allegation in the fifth paragraph of the bill, to wit: That about May 2, 1890, the said complainant tendered to the said John Rynd the sum of seven thousand dollars, and requested a reconveyance of said property to him (said Wallace) under their original agreement; that said John Rynd approved of the amount tendered. This finding is based upon the testimony of James McAfee, John Rynd, and John Wallace. The finding as to approval is sustained by the following letter, marked ‘ Exhibit A,’ and attached to the bill: ‘ Mr. R. S. Smith—Dear Sir: Mr. Wallace has called on me with reference to the transfer and purchase of the farm formerly owned by him. In accordance with an agreement made with him at the time of my taking and assuming his indebtedness in consideration of said transfer to me, 1 promised to retransfer the said farm, provided that John Wallace paid said principal debt and interest. He has now tendered me the sum of seven thousand dollars, which is the amount due. I am satisfied to make a deed to him for the said farm. John Rynd. By Margaret Rynd.’ The above letter was written by Burt Wallace, and dictated by James McAfee, Esq., at Mr. Rynd’s request. In dictating the letter each sentence was first approved by Mr. Rynd before it was written, and then it was read to him. Mr. Rynd then requested his wife to sign it, and also requested Mr. Wallace to deliver it to Mr. Smith.</p> <p>“ The master finds as a fact that prior to the filing of this bill John Wallace tendered to R. S. Smith the sum of $7,000, together with a deed, and requested a conveyance, and that R. S. Smith refused.</p> <p>“ The master finds as facts that in the latter part of 1887 R. S. Smith and W. C. Burchard expended the sum of $765 in the erection of a barn on the farm in dispute, Mr. Wallace furnishing the stone and doing the hauling, and that on the 1st day of April, 1889, John Wallace took a lease of the property; and further finds that Rynd had a wife and six children at the date of the execution of the trust deed to R. S. Smith, to wit, May 19, 1885.”</p> <p>The master recommended a decree as prayed for.</p> <p>Exceptions by appellant allege that the master erred, (3) in not finding the deed an absolute conveyance ; (4) in not finding the agreement at most an agreement for a future reconveyance ; (5) in not dismissing the bill because no such relation as that of debtor and creditor existed; (6) in finding as in brackets above ; (10) in treating the deed as a mortgage.</p> <p>The court sustained above exceptions and dismissed the bill.</p> <p>Errors assigned were (1-6) decree and dismissal of above exceptions, quoting them.</p>

<p>Appeal No. 65, July T., 1893, by terre tenant, Horatio N. Fitzgerald, from judgment of C. P. No. 3, Phila. Co., March T., 1885, No. 258, on verdict for plaintiffs, John S. Carrow et al.</p> <p>Scire facias sur mortgage.</p> <p>At the trial, before Finletter, P. J., it appeared that on March 6, 1886, Charles B. Headley, being the owner of land, made a mortgage thereon for $2,000, the interest payable to Rosa M. Headley during her life, and the principal payable after her decease to Charles B. Headley, Rachel Headley, and Anna S. Stackhouse. During Rosa M. Headley’s lifetime Charles B. Headley conveyed the premises under and subject to the mortgage, describing it as a mortgage for $2,000. By a series of conveyances, all expressly subject to this mortgage for the full amount, the title devolved on the present terre tenant, who claimed that there was a merger of the mortgage.</p> <p>Binding instruction was given for plaintiffs.</p> <p>Verdict and judgment for plaintiffs for the full amount of the claim, including the attorney fee. The terre tenant appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

<p> Contract—Award to lowest bidder—Custom—Evidence. </p> <p>In letting out a contract to erect a building, the owner is not obliged to award the contract to the lowest bidder, although such bidder was invited ■ to make proposals. Proof of a custom that the lowest bidder is entitled to the contract is inadmissible.</p> <p>The fact that upon the opening of the bids the owner said to the lowest bidder, “ You are the lucky man,” amounted to nothing more than a recognition of the fact that he was the lowest bidder, and was not an award of the contract.</p>

Appeal, No. 181, July T., 1892, by Alfred Kimball et al., from order of O. P. No. 2, Phila. Co., Sept. T., 1890, No. 266, distributing fund raised by sheriff’s sale of personal property. Exceptions to report of auditor distributing fund raised by sheriff’s sale. The ease was referred to Edward W. Magill, Esq., as auditor, who reported in part as follows: “ On June 4, 1888, the firm of Austin Fields & Co., then engaged in the shoe-jobbing business in Philadelphia, failed.

<p>Appeal, No. 77, July T., 1892, by defendant, Daniel S. Jones, from judgment of C. P. No. 1, Pbila. Co., June T., 1888, No. 872, on verdict for plaintiff.</p> <p>Assumpsit for moneys and securities in the hands of defendant belonging to the Third Reformed Dutch Church of Philadelphia.</p> <p>At the trial, defendant did not deny that he held moneys and securities belonging to the Third Reformed Dutch Church, but claimed that plaintiff was not the Third Reformed Dutch Church which owned the moneys and securities. Defendant offered to prove that Robert B. Davidson was the president of the board of trustees of the Third Reformed Church at the time this suit was brought, and that the men bringing this suit had no authority from the church to bring this suit, and that the seal attached to the statement filed in the case is not the seal of the Third Reformed Church of Philadelphia.</p> <p>Objected to. Objection sustained and exception. [5]</p> <p>Binding instructions were given for plaintiff. [7]</p> <p>Verdict and judgment for plaintiff for 10,000 United States four per cent bonds, value $11,882.27, 8,000 Newland mortgage, $8,000; two trustees’ minute books and account books of Third Church. Defendant appealed.</p> <p>¡Errors assigned were inter alia, (5) ruling on evidence, quoting the offer but not the bill of exception; (7) instruction as above, quoting it; (11) in entering judgment on verdict.</p>

Appeal, No. 3, Jan. T., 1893, by defendants, Andrew N. Paul et al., owners, and the Schuylkill IBver East Side R. R., contractor, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1886, No. 97, M. L. D., on verdict for plaintiff, Andrew M. Green. Scire facias sur mechanic’s lien. At the trial, before Brbgy, J., it appeared that plaintiff made a contract in writing to build a stable for defendants for the sum of $5,670.

<p> Equity—Costs—Discretion of chancellor. </p> <p>Costs in equity are always within the discretion of the chancellor, and it is only where there is a clear abuse of this discretion that the Supreme Court will interfere.</p> <p>On a bill in equity to correct a mistake in a deed where it appears that plaintiff was a party to the deed which was executed when defendant was an infant, and it does not appear that plaintiff before the bill was filed offered to explain to defendant the fact of the mistake, or the grounds upon which he based his allegation of mistake, costs will be imposed upon plaintiff although the decree is in his favor.</p>

<p>Appeal, No. 105, July. T., 1892, by defendant, Andrew Camp, from judgment of C. P. Lehigb Co., April T., 1892, No. 68, on verdict for plaintiff, William Zimmerman.</p> <p>Trespass for cutting trees.</p> <p>At the trial, before Albright, P. J., plaintiff claimed that he was the owner of the land on which the trees stood, and offered in evidence deed from Samuel Opp and wife to William Zimmerman, dated April 1, 1860, for a messuage and tract of land situate in Lynn township, Lehigh county, deed duly acknowledged, but not recorded, and alleged to include the premises in controversy in this case. Objected to for the reason that there are interlineations and alterations in the description of the premises conveyed. Counsel for the plaintiff states that the interlineations and alterations do not refer to or concern the disputed line.</p> <p>By the Court: It appearing to the court by an inspection of the deed that the interlineation of “ and one ” affecting a certain short line would change the survey against the plaintiff who now offers the deed in evidence and seemingly would make the disputed line more favorable to the defendant than if the interlineation were rejected—in other words, that the interlineation does not unfavorably affect the defendant—therefore the objection is overruled. Exception. [1]</p> <p>The court also admitted under objection and exception a patent from the commonwealth to the plaintiff [2] ; the notes of testimony of a witness, now deceased, at a former trial [3] ; and the record of the former trial between the same parties. [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4), rulings on evidence as above, but not quoting in the specification the bills of exception or evidence—corrected by amended specifications filed at bar.</p>

<p>Appeal, No. 131, July T., 1892, by • plaintiff, Ephraim B. Heany, administrator of John K. Heany, deceased, from judgment of C. P. Montgomery Co., June T., 1890, No. 75, for defendants, John H. Schwartz and Simeon W. Moyer, non obstante veredicto.</p> <p>Assumpsit on promissory note.</p> <p>On the trial, before Weand, J., it appeared that the note was given on July 23,1881, and signed by Abraham D. Delph, John M. Moyer, Isaac K. Kreibel, John H. Schwartz and Simeon W. Moyer. The evidence to take the case out of the statute was as follows:</p> <p>Schwartz said he was willing to pay his share and it should be paid. It all hung on Kreibel. He said he wouldn’t pay unless he was compelled by law to do so. He didn’t say how much he would pay.</p> <p>Moyer said it should have been paid long ago and he was willing to pay his share, but he said it was hard to pay lost money. He said he would have settled up this long ago, but it hung on others. He said he had been long willing to pay this money and it ought to have been paid long ago. He was willing to pay his share. He said he would like to have it fixed up, he was tired of it, but it depended on the rest, Delp and others he mentioned, and he mentioned Kreibel too.</p> <p>Delp, Kreibel and the others, except these two defendants, paid their proportion, and the suit was discontinued as to them.</p> <p>The court directed the jury to render a verdict for plaintiff reserving the question of law “ whether there is any evidence to be submitted to the jury to warrant recovery against the defendants.” The court subsequently entered judgment for defendants non obstante veredicto.</p> <p>Errors assigned wore (1) in reserving the question of law, quoting it as above; (2) in entering judgment for defendants.</p>

<p>Appeal, No. 207, Jan T., 1893, by plaintiff, Thomas Holland, from judgment of C. P. Montgomery Co., Oct. T., 1891, No. 26, for defendants, Joseph Kindregan et al., non obstante veredicto.</p> <p>Ejectment for strip of land, formerly part of public road.</p> <p>At the trial, before Weand, J., it appeared that in 1846 certain land was conveyed to James Holland, described in one of its courses as running along “ the southwest side of Mill road.” In 1852, a report of commissioners was filed vacating Mill road. In October, 1853, James Holland conveyed a piece of ground to defendants’ predecessor in title, describing it “ as beginning at a stake on the southwest side of Mill road, a corner, etc., and thence along the southwest side of said Mill road,” etc. In 1883, James Holland conveyed a piece of ground to plaintiff, describing one of the courses as beginning on a corner “ formerly the middle of the Mill road, which was vacated by order of court about 1852, thence along the same,” etc. In 1891, James Holland conveyed to plaintiff the land in controversy which is the southern half of the bed of the old Mill road. Plaintiff claimed that before the deed of October, 1853, the Mill road had been actually closed, and in support of this claim James Holland testified that in that year he put a fence in the middle of the road to mark the line of his property.</p> <p>The court directed a verdict for plaintiff, reserving the question of law as to whether there was any evidence to be submitted to the jury upon which the plaintiff could recover. The court subsequently entered judgment for defendants non obstante veredicto, in the following opinion, by Weanx», J.:</p> <p>“ Both parties claim title through James Holland. At the time he became seized the land was traversed by a public road known as the Mill road, which was vacated by the report of a commission filed and confirmed nisi, August 21, 1852, and no exceptions filed thereto.</p> <p>“ Part of the contention on part of defendants was that, notwithstanding the report of the commission, the road still remained open as a public road for several years after their predecessor had obtained title. If this fact was important to their defence it should have been submitted to the jury, for if found for defendants it might have been decisive of the ease. To exclude it was error, and unless we can enter judgment for defendants on other grounds a new trial should be granted.</p> <p>“ Plaintiff claims title by virtue of a deed from James Holland et ux. dated May 14, 1891. The land in dispute is part of the bed of the old Mill road.</p> <p>“ Defendants’ title commences with a deed from the same grantor, James Holland et ux., to David Irving, dated Oct. 2, 1853, recorded Sept. 4,1854, in which the property is described as ‘ beginning at a stake on the southwest side of Mill road, a corner, etc., and thence along the southwest side of said Mill road,’ etc. As this was a conveyance to the side of the Mill road the grantees were entitled to hold to the middle thereof, under Paul v. Carver, 26 Pa. 223: Cox v. Freedley, 33 Pa. 124; Hamilton Street, 24 Atl. R. 122; [148 Pa. 640.]</p> <p>“ It is contended, however, that as the Mill road was vacated at the date of this conveyance this doctrine does not apply, and that the fee of the land covered by the road still remained in Jas. Holland.</p> <p>“ The case of Ott v. Kreiter, 110 Pa. 370, is a parallel case, and it was there held that the fact of prior vacation ‘ might have some force if this road had, at that time, not only been vacated but closed up. The evidence in the case at bar was overwhelming that it had not been closed up for several years afterwards, and a finding against this fact could not have been sustained. The only witness to show that it had been closed up was Jas. Holland, and the most that his evidence establishes, if true, is that he put a fence in the middle of the road to mark the line of his property in dispute here, and this he says he did before conveying to Irving, defendant’s predecessor in the title, and yet the conveyances from this witness to both Irving and plaintiff refer to the Mill road as a boundary. The deed to Irving distinctly.recognizes the Mill road, viz.: ‘ Beginning at a stake on southwest side of Mill road, a corner of Cedar alley,’ etc., and this is the same description as contained in the deed of the premises from Benj. McLearn to Jas. Holland, so that he only obtained title himself to this tract by reason of the doctrine of Paul v. Carver and kindred cases, and when in his deed to Irving he described the land as being the same conveyed to him by McLearn and again refers to the Mill road as an existing road, he parted with all his interest therein and hence had nothing to convey to plaintiff in 1883 or 1891. That the intent to convey the whole tract to Irving was in the mind of both parties is shown not only by the conveyance already referred to, but also by plaintiff’s chain of title. Under date of Oct. 1, 1883, thirty years after the conveyance to Irving, Jas. Holland et ux. convey to plaintiff a lot of land described as running ‘ to a corner of Morris’ (now plaintiff’s) land formerly the middle of the Mill road which was vacated by order of the court about 1852,’ thus distinctly recognizing the Irving title to extend to the middle of the road and giving plaintiff notice of the fact. It was not until 1891, or thirty-eight years after the deed to Irving, that Jas. Holland undertook to convey the small strip in dispute to plaintiff. Can it be conceived that during all this time he intended to retain in himself this narrow strip and sell off the land on both sides ? As was said, by Lewis, C. J., in Paul v. Carver, supra, when speaking of the right of grantees in the adjacent ways and streets, that the intent of the parties as disclosed by the whole scope of the conveyance and the nature of the property granted must be the controlling rule. We think therefore that not only by the terms of the deed to defendant’s predecessor, but from the intent of the parties as gathered from all the deeds on record, the plaintiff’s grantor had divested himself of all interest or title to this land before he conveyed to plaintiff, according to the rule laid down in Ott v. Kreiter, supra. And now, June 6, 1892, the motion for a new trial is overruled and judgment is now entered for defendants, non obstante veredicto, on the reserved point.”</p> <p>Jñrrors assigned, among others, were (3) in reserving the question of law; (4) in withdrawing the facts from the jury ; and (5) in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 66, July T., 1892, by defendant, Robert L. Hayes, from judgment of C. P. Chester Co., Jan. T., 1891, No. 13, on verdict for plaintiff. Assumpsit for goods sold and delivered. Plaintiffs claim on the trial, before Hembhill, J., was for the price of sixty-four refrigerators. Defendant claimed that he had never given the order for the refrigerators, and that it had been wrongfully sent in his name by a salesman of plaintiff.

<p> Evidence—Deeds—Curtesy—Charge on land. </p> <p>In 1845 the orphans’ court appointed a trustee to invest in real estate the share of Mary Ann Snyder, a married woman, in her father’s estate, under the act of March 29, 1832. The trustee invested the fund in land. In 1853, the husband of the cestui que trust died, and the widow married Weil. In 1853 under an order of court the trustee conveyed the premises to Weil, who gave a mortgage for $1,000 to secure the share of his wife to her separate use. This mortgage was subsequently satisfied. On May 14,1864, Weil and wife conveyed to Maurer, the trustee, the land in question, for the purpose of divesting Weil of his eurtesy. On the same day Maurer conveyed the land to Mrs. Weil, the deed containing this clause: “It is hereby understood that this estate shall not be liable to the curtesy of the husband.” The deed also provided that after the death of the wife, the land should vest in her two sons subject to the payment by them of $800 to the mother’s representative in proportions to be designated by their mother. In 1866 Mrs. Weil divided the land between her two sons, putting them in possession and designating their shares in writing as prescribed by the deed. The writing was in form of a conveyance, subject to the charges aforesaid, but was not signed by Weil or properly acknowledged by his wife. Meld, in an action of assumpsit to enforce the charge on the land, that the deed creating the charge, and the writing designating the proportions to be paid by the sons, were properly admitted in evidence, and that plaintiff was entitled to recover.</p>

<p> Negligence—Evidence—Trespasser—Infant. </p> <p>In an action for personal injuries, plaintiff, a girl eleven years old, and two companions about the same age, testified that as they were coming from school plaintiff got upon the front platform of a street car while it was in motion and held on by the hand-rails, that the driver saw her, whipped up his horses, and then putting down his whip beat plaintiff upon the hands and finally pushed her off the car, so that she fell under it and was run over. One of plaintiff’s companions testified that she ran along even with the car, looking at the driver all the time to see what he was going to do, and that they expected that plaintiff having jumped on, he, the driver, would do something. Defendant proposed to ask her on cross-examination what she had thought the driver would do. The question was objected to, on the ground that a child of plaintiff’s tender years could not be a trespasser. The court disallowed the question. Held, not to be error.</p> <p>In the above case defendants asked the driver whether the car was going at a slower or faster rate of speed than usual, to which he answered: “About half as fast as some places. I toll you how it is, where it is nice and level”—At this point plaintiff's counsel interrupted the witness, while defendants’ counsel asked that the witness be permitted to go on with his explanation. The court refused to permit the witness to proceed, as the witness had answered that the rate of speed was not in excess of the usual rate. Held, not to be error.</p>

<p> Contract—Suretyship—Consideration—Abandonment—Evidence. </p> <p>Defendant agreed in writing, not under seal, to pay to plaintiff five dollars per month for five years if plaintiff’s son failed to make such payment. Plaintiff testified that the consideration of the contract was the settlement of a business transaction. On the same day plaintiff agreed in writing, in consideration of her son promising to pay defendant a balance of liquor bill, owing by plaintiff, to relinquish all claims which she had against defendant. The first contract remained in plaintiff’s possession and there was evidence that payments were made upon it. Held, that it was proper to leave it to the jury to determine whether it was the intention of the parties to abandon the first agreement.</p>

<p>Appeal, No. 100, July T., 1892, by defendants, from judgment of C. P. Berks Co., Aug. T., 1887, No. 90, on verdict for plaintiff, John H. Daubert.</p> <p>Ejectment.</p> <p>At the trial, before Ermentrout, P. J., it appeared that, on Jan. 13, 1885, plaintiff entered into an agreement under seal with defendant, which was as follows :</p> <p>“I, John H. Daubert, of Weatherly, Carbon county, and state of Pennsylvania, for and in consideration of the advantages to be derived from the location and construction of the railroad hereinafter mentioned, and of the sum of one dollar to me in hand paid by The Reading & Pottsville Railroad Company at or before the execution hereof, the receipt whereof is hereby acknowledged, and of the further sum of one hundred and seventy-four dollars lawful money to be paid to me by the said company upon the execution and delivery of the deed of conveyance hereinafter mentioned, do hereby, for myself, my heirs, executors, administrators and assigns, grant to the said company, their successors and assigns, the privilege of surveying, locating, constructing, and using, by themselves, their engineers, contractors, agents, and employees, a railroad upon such line or route and with as many tracks as they may deem proper, through, over, and upon a certain tract or parcel of land belonging to me, situate in Upper Bern township, Berks county, and state of Pennsylvania, bounded southerly by Hossler & Meek; easterly by Benjamin Fink, etc.; westerly by John Jacoby, and northerly by the P. & R. Railroad.</p> <p>“ And I do also, for myself, my heirs, executors, administrators and assigns, hereby covenant and agree to execute and deliver to the said The Reading & Pottsville Railroad Company, their successors and assigns, whenever requested, a proper deed of conveyance in fee-simple, clear of all incumbrances and by good and satisfactory recorded title for the strip or piece of ground upon which said railroad shall be located and constructed, said strip of ground to extend the whole length or breadth of the above mentioned tract of land, if required, and to be not over 75 feet wide at the east end and 97 feet wide at the west end, with such additional widths for slopes at deep cuttings, embankments, retaining walls, bridges, and drains as may be required for properly constructing, maintaining, and operating said railroad, said strip of ground to be fully described in the said deed of conveyance ; and further, to release the said company, their successors and assigns, from all claims and demands for damages which may accrue to myself, my heirs, executors, administrators, or assigns, by reason of the taking and using of the said land for said railroad, or by reason of the construction, maintenance, and operation of the said railroad on and over said tract or parcel of land. Reserving the fence and stable on said strip of land and agree to remove the same upon thirty days’ notice from the said railroad company, and the said company also agrees to protect the spring of water on said strip of land that it may be used by the said Daubert as fully and convenient as it now is, also the usual crossing required by law.”</p> <p>Evidence for the plaintiff showed that the company was let into possession of the land, but had performed none of the covenants of the agreement.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 3. The plaintiff’s land, according to his own testimony, lying altogether on one side of the railroad company’s appropriation, he is not entitled to any crossing.” [7]</p> <p>“ 4. The clause in the agreement providing for the usual crossing required by law had reference to a possible location of the railroad which would leave a part of the plaintiff's land on the other side of the appropriation. It appearing, however, from the plaintiff’s testimony that the appropriation made by the railroad company was along the limits of his land, leaving no portion thereof on the opposite side from the plaintiff’s buildings, the said clause does not entitle him to a crossing.” [8]</p> <p>“ 5. The clause in the agreement, under which the railroad company were to ‘ protect the spring of water on said strip of land that it may be used by the said Daubert as fully and convenient as it now is,’ did not have reference to the possible muddying of the water from the embankment of the company, but refers entirely to the possible extension of the company’s embankment or structure to the limit of their right of way, in which event the water of the spring is under the said agreement to be led to a point beyond such extended embankment, so that the same may be used by Daubert; and as the embankment has not been extended, and the plaintiff admits that he is still able to use the spring fully and conveniently, the verdict must on this point be for the defendants.” [9]</p> <p>.“6. The $174 mentioned in the said agreement does not become due to the plaintiff until the railroad company shall have requested him to convey, and he shall have conveyed, the said land by a proper deed of conveyance in fee simple, clear of all incumbrances, and by a good and satisfactory recorded title.” [10]</p> <p>“ 7. Under the agreement there was a present grant to the railroad company, their successors and assigns, of the privilege of surveying, locating, constructing, and using their railroad on the plaintiff’s land. The agreement for the protection of the spring of water, and for the usual crossing required by law, are part of the consideration for the said grant. They are not a condition to be performed by the railroad company to entitle them to the use of the land, but they are part of the consideration to be paid for such use; and the plaintiff cannot recover in ejectment for nonperformance on the part of the railroad company.” [11]</p> <p>“ 9. Under all the testimony in this case, the verdict must be for the defendants.” [12]</p> <p>“ Answer: These points we negative.”</p> <p>“ 8. An action of ejectment will not lie for the violation of any of the covenants made and to be performed by the railroad company under the agreement of January 30, 1885. Answer : This point is reserved.” [13]</p> <p>Under instruction of the court, the jury rendered a verdict in the following form:</p> <p>“For the plaintiff for the land described in the writ: conditioned, that if the defendant shall, within sixty days, pay to the plaintiff the sum of 1174, with interest from January 30, 1885, and all the costs of this suit, the plaintiff thereupon delivering to the defendant a proper deed of conveyance in fee-simple, clear of all incumbrances, and a good and satisfactory recorded title for the strip of land or piece of ground described in the writ; and further, if within said time the defendant shall protect the spring of water on said strip of land, that it may be used by the plaintiff as fully and conveniently as at and before the time of the execution of the agreement under which the defendant entered; and further, that if the defendant shall within said time erect and construct over or under the railroad at the point where the same crosses the road leading to the premises of the plaintiff the usual crossing required by law, without doing further injury or damage to the property of the plaintiff, then judgment to be entered for the defendant.”</p> <p>The court discharged a rule for a new trial and entered judgment on the verdict in favor of plaintiff, in the following opinion by EítMENTKOTTT, P. J.:</p> <p>“ The plaintiff brought this action of ejectment upon his legal title. It became an equitable ejectment, because the defendant set up in answer thereto an agreement or contract for the purchase of the land. This agreement is correctly described in the indorsement upon the back as a ‘Preliminary Agreement for fee-simple deed of land.’</p> <p>“ An inspection and consideration of its contents show an entire indivisible contract, not two contracts, one for easement and one for purchase; there is no inconsistency between its clauses. As was said of a somewhat similar agreement in Wheeling It. R. Co. v. Gourley, 99 Pa. 171, the company desired the right of way through Daubert’s property, and in order to secure that right of way beyond all question, it bargained with him for the fee of the land over which it passed; Daubert agreed to convey, and the uses to which the company intended to put the land were set out in the agreement. Unable to specify the exact boundaries of the land wanted, this was left to be ascertained in the construction of the road. The consideration was for the entire grant, not, as set forth in point 7 of defendant, simply for the easement.</p> <p>“ It is clear that the legal title did not pass by the agreement, and therefore the action of ejectment was the proper remedy: Cook v. Trimble, 9 Watts, 15; Krebs v. Straub, 20 W. N. 25.</p> <p>“ There is no conveyance of the title therein; a further assurance is contemplated. Having retained the legal title, plaintiff may enforce the payment of the purchase money. He stands in need of nothing more to enable him to recover the purchase money at law, as the land is pledged for the payment by the retention of the title: Bear v. Whisler, 7 Watts, 144-148; Cadwalader v. Berkeiser, 82 Pa. 43. It is clear that the consideration has not been paid in any way, and it would be wrong for defendant to hold both land and money. The money, the protection of the water, the crossings, are all parts of the consideration to be recovered, to be paid for the entire grant, not, as in defendant’s seventh point, merely for the use of the land.</p> <p>“ The fact that the entry upon the land was under the agreement does not affect the right of action of ejectment. Where the entry is in pursuance of a bargain with, or leave given by the owner, their rights and title rest on the bargain or contract, and not on the statute. But the right of action of ejectment still remains, and the action is treated as equitable in its character : Oliver v. Railway Co., 131 Pa. 408.</p> <p>“ Nor is the tender of a deed a necessary preliminary to his right of action. As was said in Smith v. Webster, 2 Watts, 478, ‘ the plaintiffs having the legal title, this was clearly sufficient to enable them to maintain the action of ejectment, and it was only on principles of equity that the defendant there could claim to defend against the plaintiff’s recovery of the possession of the land. Then what did equity require the defendant below to do in order that he might be protected in the possession of it? Certainly to pay the money (the consideration). By the terms of the contract he had no right to demand a deed of conveyance until he paid the purchase money, and not having offered to pay it, he was neither in law, nor yet in equity, entitled to demand a deed of conveyance. And not being entitled to demand it, equity would not interpose to keep him in possession of the laud. A vendee, under an executory contract for the purchase of the land, who has obtained the possession of it under his agreement, can only defend himself in that possession in Pennsylvania, where we have no court of chancery, upon such ground as would entitle him to a decree of injunction by a court of equity against his vendor, who was proceeding by action of ejectment at law to turn him out of possession.’</p> <p>“Nor is there any question of no title raised. The plaintiff has shown his title clear of liens and mortgages.</p> <p>“ It is urged that Cadwalader v. Berkheiser, 32 Pa. 43, shows that the ‘ time for the payment of the purchase money by the original articles had transpired before suit brought. That there was therefore no contract relation existing to prevent proceedings in the legal title.’ That in the present agreement no time is fixed, that payment of the $ 174 is to be made ‘ upon the execution and delivery of the deed,’ and that the deed is to be delivered ‘ whenever requested.’ It is boldly contended that, as defendant has never requested, and need never request, time for payment was not yet arrived and need never arrive, and ‘ this contract relation existing,’ no right of action exists. If this were a just contention, the plaintiff is right in designating it, ‘ a clumsy fraud unworthy of a great corporation, devising a cunning trap to acquire the land of ignorant farmers for building a railroad' without compensation.’ But it seems to us an equitable ruling to say that, taking the whole agreement in view, the delivery of deed and time of payment was when the construction of the railroad was completed. Then the protection of the spring, the completion of the road, parts of the consideration, were obviously to be furnished, and the exact boundaries of the land to be ascertained so that the necessary deed might be written, tendered, and the delivery of the entire consideration be made.</p> <p>“ This would be that ‘ reasonable time,’ which the law would hold as proper, where no time is definitely fixed for the performance or nonperformance of the conditions of a contract. And this seems to us to be the evident intention of the agreement. It would seem to us iniquitous to retain land and money, and bring ruin upon the plaintiff’s property upon a plea of this character.</p> <p>“ This being an equitable ejectment, does the verdict preserve the equities of the defendant who entered into possession of the land ? The conditions attached to the verdict are for his protection and the preservation of his rights, if he choose to avail himself of the conditions.</p> <p>“ An inspection of the verdict shows that nothing is required save literal compliance with the contract. One thing seems to have been omitted: when the deed is delivered, it must be accompanied with the release from all claims and damages as per agreement. This condition is within the power of the court to annex in molding the verdict. And we require the plaintiff to offer this release.</p> <p>“ It is urged that the verdict is specific as to place of crossing, whereas the agreement specifies ‘ the usual crossing required by law.’ That as the balance of plaintiff’s land lies altogether upon the side of the railroad, ‘ no crossing is required by law.’ In the case of Dubbs v. Phila. & Reading R. R. Co., Adv. R. 518, [148 Pa. 66] the Supreme Court say, ‘the facts of the case do not require us to consider whether a road skirting a man’s land or passing along the edge of it, is a road running through a man’s land within the meaning of the act.’ This interpretation would require the clause of the agreement to be eliminated. In view of the clause in the agreement, the first section of the twelfth section of act of February 19, 1849, P. L. 84, Purdon, 1425, pi. 51, requiring the company where there is an established road or way existing, to construct the road across such way so as not to impede the passage or transportation of persons along the same, and the fact that there was such an established way there, the verdict designating the road would seem proper. This established way they have buried. The plaintiff was not to be deprived of access to the outer world. The act surely never contemplated this, the shutting in of the owner ‘ from crossing or passing over the land with wagons, carts, and implements of husbandry as occasion may require,’ either in leaving his farm or bringing to it such wagons, carts, and implements of husbandry as he might choose to bring there. It must be remembered the plaintiff’s rights are under the agreement and not under the railroad law, which is referred to by way of analogy.</p> <p>“ It is unnecessary to say that binding instructions were not given, but the credibility of the testimony was left to the jury.</p> <p>To make the record complete, the rule for a new trial is discharged. To avoid any misunderstanding, the 60 days mentioned in the conditional portion of the verdict will date from the filing of this opinion.</p> <p>“ The rule for judgment non obstante veredicto in favor of defendant upon the reserved point is also discharged.”</p> <p>Errors assigned among others were, (7-13) answers to points, quoting points and answers; (15) in directing the jury to find the conditional verdict, quoting it; (17) in not entering judgment for defendants non obstante veredicto.</p>

Appeal, No. 7, Jan. T., 1893, by defendant, from judgment of C. P. Berks Co., June T., 1890, No. 9, on verdict for plaintiffs, W. Wase Feather and wife, in right of wife. Trespass for personal injuries. At the trial, before Ermbntrout, P. J., it appeared that plaintiff, a married woman, was visiting friends in Reading in August, 1889, and that it was the first time she had been in that city.

Appeal, No. 103, Jan. T., 1893, by defendants, Seitz Bros., from judgment of C. P. Northampton Co., Oct. T., 1890, No. 41, on verdict for plaintiff. Assumpsit on promissory note. At the trial, before Schuyler, P. J., it appeared that the note was given for an ice machine.

Appeal, No. 64, Jan. T., 1893, by plaintiff, John M. Wilkinson, from judgment, of C. P. No. 1, Phila Co., on verdict for defendant, Henry Becker. Assumpsit on contract for plumbing work. At the trial, before Bkbgv, J., it appeared that the contract upon which suit was brought specified item for item the work to be done, and that the total amount which the plaintiff was to receive was $425.

Appeal, No. 253, Jan. T., 1893, by Jacob Breustle, trustee of Anna G. Meng, from order of C. P. No. 1, Phila. Co., June T., 1884, No. 470, distributing fund raised by a sheriff’s sale of real estate in John M. Hummel v. Theo. A. Hummel and Andrew Meng. Exceptions to report of auditor distributing proceeds of sheriff’s sale of real estate. The distribution of the fund was referred to John Sparhawk, Jr., Esq., as auditor.

<p>Appeal, No. 199, Jan. T., 1893, by plaintiff, Louis Nachtman, from judgment of C. P. No. 4, Phila. Co., Jan. T., 1887, No. 582, on verdict for defendant, John G. Hammer.</p> <p>Trespass for malicious prosecution for arson.</p> <p>At the trial, before Arnold, J., it appeared that plaintiff and one Miller were journeymen bakers employed by defendant in 1886, and occupied a fourth story room in defendant’s house; that on Jan. 15, 1886, a fire occurred in this room, for the setting of which both plaintiff and Miller were subsequently arrested on the affidavit of defendant. The evidence tended to show that theatre bills were torn from the walls of the room which plaintiff had occupied, and were burnt; that piles of smouldering ashes and unconsumed scraps of paper were upon the floor, that matches were scattered about the room, and that plaintiff and Miller had removed their effects at the time.</p> <p>When Kate Rodgers was on the stand, defendant was allowed to prove, under objection and exception, that Nachtman and Miller were in Mr. Frappel’s drinking that afternoon, and that they complained of Mr. Hammer, and said they were going to bum the Dutch son of a bitch out, and that they went over to his house, said they were going to leave him, and when they came back they said to Mrs. Rogers’s husband they had done it. He asked what they had done, and they said, “ You will see in a short time.” That both she and her husband thought this was the drunken talk of these men, for they were pretty drunk, and they did not say anything to Mr. Hammer about it until when they found that these men had brought suit for damages three years afterwards. They then told Mr. Hammer. £2]</p> <p>The court charged in part as follows :</p> <p>“ Let us look at the evidence of the plaintiff to determine whether there was probable cause for the prosecution, and whether facts existed which in law constitute probable cause and which make it my duty to say so. If the facts were in doubt the case would go to you to find what the facts were, and then upon those facts the law would have to be applied by you. But where the facts are undisputed, according to the .law of the state and all other states, the question whether those facts constitute probable cause is to be settled by the judge.</p> <p>“What is the proof? Mr. Nachtman, the plaintiff, has been examined and cross-examined. He was asked the following questions and gave the following replies: ‘ Q. You did not scatter matches all around a heap of bills that you thus tore down? A. No. He (meaning Miller) took them off the wall and he wanted a match and the match box fell down. Q. And it scattered matches all around, did it? A. Yes, sir. Q. The whole box? A. Yes, sir. Q. How long were you in that room? A. About fifteen or twenty minutes. Q. The only light you had in that room was the burning of these theatre bills ? A. Not the whole time. I don’t know how long they burned. About ten minutes we burned a light, or twelve minutes. I don’t know the minutes. I had no clock. . . . Q. Did you swear on a former occasion that you were present in that room about twenty minutes and all that time you were burning theatre bills? A. Yes, sir. Not one the whole time. Q. Did you not say then that you were burning the theatre bills all that time ? A. I say about fifteen minutes—fifteen minutes or twenty minutes.’</p> <p>“ This is an admission [that the theatre bills were torn off of the wall and burned, and that matches were scattered all over the floor. That constituted probable cause which would induce any reasonable man to suspect that an attempt had been made to set fire to his building. It makes no difference whether the matches fell to the floor accidentally or otherwise. We have the fact that the theatre bills which had been placed upon the wall were torn down, burned and thrown upon the floor, and that by some means the floor was strewn with matches. That constituted probable cause which justified Mr. Hammer in causing the arrest of the plaintiff, and under these circumstances he is not responsible in this action for damages for malicious prosecution.] [4]</p> <p>“You will, therefore, find a verdict for the defendant.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>^Errors assigned were (2) ruling on evidence; and (4) instructions ; quoting instructions, and offer of evidence, but not bill of exceptions or evidence.</p>

Appeal, No. 205, Jan. T., 1893, by plaintiff, Simmons H. Barrett, trustee, to use of Charles Bennett, and Rebecca S. Bennett, his wife, in right of said wife, from order of C. P. No. 1, Phila. Co., March T., 1892, No. 412, in favor of defendant, E. 0. Bemelmans, discharging rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence in assumpsit for rent.

Appeal, No. 228, Jan. T., 1893, by defendant, Gilbert F. Parker, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1891, No. 845, on verdict for plaintiffs, the Henry F. Miller & Sons Piano Co. Trespass for conversion of piano. At the trial, before Bp,bgv, J., it appeared that plaintiff leased a piano to Mary A. Davis for the term of three months at a rental of $20,00. Subsequently Mrs. Davis sold the piano to defendant. Defendant’s points were as follows : “ 1.

<p>Appeal, No. 155, Jan. T., 1893, by defendant, C. II. Fitler, from order of C. P. No. 1, Phila. Co., Jan. T., 1891, No. 519, making absolute rule for judgment for want of sufficient affidavit of defence.</p> <p>Rule for judgment for want of sufficient affidavit of defence, in assumpsit against drawee of bill of exchange.</p> <p>Plaintiff’s amended statement was as follows:</p> <p>“ The plaintiff claims to recover from the defendant the sum of twelve hundred and fifty dollars with interest thereon from the ninth day of July, A. J). 1890. The said claim is due, and is founded upon a draft for said amount, of which the following is a copy:</p> <p>“ $1,250. Philadelphia, March 6, 1890.</p> <p>“ Four months after date pay to the order of Daniel H. Bacon twelve hundred and fifty dollars, value received, and charge the same to the account of C. H. Fitler.</p> <p>“ To C. H. Fitler, 909 Walnut St., Phila.</p> <p>“ Accepted: C. H. Fitler.</p> <p>“ Indorsed:</p> <p>“ Pay to the order of Thos. F. Morrison, Cashier.</p> <p>“ Daniel H. Bacon.</p> <p>“Pay Keystone National Bank or order for collection account of The Garden City Bank, San Jose, Cal.</p> <p>“ Thos. F. Morrison, Cashier.</p> <p>“ The plaintiff also claims to recover from defendant the sum of $2.05 paid for protest of said draft.</p> <p>“ The said draft was made and drawn by defendant, C. II. Fitler, upon said C. H. Fitler to the order of Daniel H. Bacon ; was accepted by C. II. Fitler and indorsed by said Daniel H. Bacon to the order of Thomas F. Morrison, Cashier. The said Thomas F. Morrison, being cashier of the plaintiff bank, indorsed said draft to the Keystone National Bank or order for collection for account of The Garden City National‘Bank, the plaintiff. Said plaintiff, being the holder of said draft so indorsed before maturity for value given, delivered the same so indorsed to said Keystone National Bank for collection for plaintiff’s account. Said draft was duly protested at maturity thereof for nonpayment, and returned by said Keystone National Bank to plaintiffs, who are the holders and owners thereof. And said plaintiff avers that the said sum of twelve hundred and fifty dollars, with interest as aforesaid, and said sum of 12.05 paid for protest of said draft, are wholly due and unpaid and are justly payable from defendant to plaintiff.”</p> <p>To this statement is added the affidavit of Morrison, Oct. 25, 1892, that he is cashier of plaintiff bank and “ that the facts set forth in the above statement are true,” with a certificate by the clerk of courts as to the signature, etc., of the notary.</p> <p>“ Defendant is advised that the statement filed is insufficient in law: Because: (1) The affidavit of claim is dated January 81, 1891, many months before the date of the above suit (which is June 24, 1891), and when there was no plaintiff. (2) It is not sufficient under the act of congress as to the supposed official certifying to the same. (3) There is no indorsement of the Keystone National Bank of the draft in suit, one of the indorsees. (4) There is no demand of payment shown nor any averment of protest of the bill which deponent says if made was not received by him.</p> <p>“ Further: On the merits he says there was no consideration given for the draft nor is he indebted to any one therefor, either plaintiff, drawer or indorsers. Originally deponent gave his draft as accommodation without consideration received, in favor of one Nathan L. Leahan and George Leahan, who were indebted to plaintiffs, upon their representation that the plaintiffs would advance them moneys for the express purpose of taking up certain notes of several thousand dollars, owing by them to one Baumgarten in a transaction of purchase of one half interest of land in San Miguel, Lower California, on their joint account, which when done was to be transferred to deponent in consideration of other moneys deponent had advanced to them as well. Deponent paid on account thereof in 1889 and 1890 to the plaintiffs two thousand dollars and gave the draft in suit. Deponent did not know then but only afterwards discovered the falsity' of the statements and representations made to him, and found out that the whole scheme was a fraud on him. The plaintiffs knew of the said arrangement and transaction when they received the draft. The money was not used for the purposes aforesaid but was deceitfully appropriated otherwise, and deponent discovered that their alleged title and claim to the said land was fraudulent, and that the draft was used in bad faith towards deponent. He would not have given the same had he known at the time the wrongful use that was made of it, or so intended. Neither were the notes of the said parties taken up as agreed upon. The name of Daniel H. Bacon was only used by the parties formally and for their convenience, as deponent was not indebted to him. He claims that the $2,000 paid should be returned to him by the said plaintiff, as no consideration was received therefor.”</p> <p>Rule for judgment for want of sufficient affidavit of defence was made absolute. Defendant appealed.</p> <p>Error assigned was entry of judgment.</p>

Appeal, No. 264, Jan. T., 1893, by William Simon, executor and trustee of the estate of John Simon, deceased, from decree of O. C. Phila. Co., Jan. T., 1890, No. 346, dismissing William Simon and Sarah Simon from the office of executors and trustees of the estate of said John Simon, deceased. Petition for dismissal of executors and trustees. „ The petition was presented by Sarah Simon, one of the executors and trustees.

Appeal, No. 177, Jan T., 1893, by plaintiff, George E. Hoffman, from judgment of G. P. No. 2, Phila. Co., March T., 1891, No. 1089, on verdict for defendants, Burr Bros. Assumpsit for goods sold and delivered. The facts appear by the charge of the court, by Hare, P. J.: “ According to the statement of the defendant, Mr. Burr, who seems to be one of the persons quite largely engaged in dealing in cotton in this city, he received a sample of what is termed pickings.

<p> Negligence—Ferocious dogs—Contributory negligence. </p> <p>In an action for personal injuries from the bite of a dog, where there is evidence that plaintiff was actually bitten by the dog while lawfully on defendant’s premises, and that the dog was a ferocious and dangerous animal, whose nature and character wore known to defendant, it is proper to submit the ease to the jury. It is not necessarily contributory negligence to go on premises where a sign of warning is displayed.</p> <p>Those who indulge in the luxury, or enjoy the convenience, of keeping, within the city limits, dogs which they know are ferocious and dangerous, must see that they are so secured that persons lawfully going upon their premises or along the highways may not be bitten, or they must expect to suffer the consequences of their neglect: Pee Curiam.</p>

<p> Promissory notes—Notice of protest. </p> <p>A promissory note, due Dee. 11, 1891, was sent by the holder, who lived in Media, to a notary in Philadelphia on Deo. 10, 1891, by registered letter, to present it for payment. The notary was ill at home on the day the letter arrived, which was Dee. 11, and the letter carrier took the letter back to the post office. On the following day, Deo. 12th, the holder sent his son to Philadelphia, who procured the letter from the post office, and returned it to his father. The holder then took the note to another notary, who demanded payment and protested the note the same day, Deo. 12th, which was Saturday. Notice was delivered to the indorsee by the notary on the following Monday morning, Dec. 14th. Held, that the holder had used due diligence as to protest and notice.</p> <p> Accommodation notes—Indorsement—Defences. </p> <p>A promissory note indorsed by an accommodation indorser is valid in the hands of a person who discounts it before maturity, although no consideration has passed from the maker to the accommodation indorser.</p> <p>Where a promissory note is not indorsed in the ordinary course of business, nor for value, but at the request of the maker, and for his benefit, the indorsement is an accommodation indorsement for the: maker.</p>

Appeal, No. 251, Jan T., 1893, by defendants, James A. Mundy & Co., from judgment of C. P. No. 1, Phila. Co., March T., 1892, No. 494, on verdict for plaintiff. Assumpsit on contract for dredging.

Appeal, No. 9, July T., 1892, by plaintiff, John Y. Gorman et al., from decree of C. P. No. 3, Phila. Co., Dee. Held: whereat a new set of national officers was selected and the ‘ goods ’ withheld from the national delegate duly elected at the regular convention held at Cleveland on May 16, 1884.

Appeal, No. 188, Oct. T., 1892, by defendant, T. D. Casey, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1891, No. 490, on verdict for plaintiff, J. M. Shields et al., trustees, now to use of W. S. Pier, receiver of the Wm.

<p>Appeal, No. 235, Oct. T., 1892, by plaintiffs, James McGowan et al., from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1888, No. 66, on verdict for defendant, A. L. Bailey et al.</p> <p>Trespass to recover damages for injuries to surface land by improper mining of coal, and for mining of coal belonging to plaintiffs.</p> <p>At the trial, before White, J., it appeared that on May 7, 1866, James McGowan and others by articles of agreement contracted to convey to John O’Neil “all the merchantable or stone coal which is contained in or may be dug from under all that certain tract or piece of land, situated in Mifflin township, county of Allegheny, state of Pennsylvania, bounded by lands of Henry Large, Joseph Ralston, Joseph and John Livingston,, Forsyth’s heirs, and others, [with rights of way for any railroads, entries, etc., which the said John O’Neil, his heirs and assigns, may see proper to make at any time for the purpose of working his pits, together with all suitable air-drifts, pitmouths, water courses, places for depositing slate and slack, and all other things necessary and proper for the suitable running of said coal or any other coal that said O’Neil may want to run.] ”</p> <p>The portion of the above agreement in brackets was given in evidence.</p> <p>The deed afterwards made for the coal described it as follows :</p> <p>“ All thó bituminous or stone coal which is in and under the farm of said first parties in Mifflin township, Allegheny county, Pa., bounded by lands of Joseph and John Livingston, B. Forsythe’s heirs, A. Large, H. Large and Joseph Ralston, and the coal hereby granted being bounded and described as follows, viz.: [By courses and distances.] Containing 35 acres 115 perches, being the stone coal in and under the farm owned by John McGowan, deceased, now owned and in possession of the parties of the first part.</p> <p>“ Together with all and singular the buildings, improvements, ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever of the said parties of the first part in law, equity or otherwise howsoever of, in, and to the same and every part thereof.”</p> <p>The notes of testimony, including the charge of the court, were lost, but the parties agreed that the following testimony was given and was uncontradictéd:</p> <p>“ (1} That the McGowan farm contained 61 or 62 acres, as described by adjoiners. [6]</p> <p>“ (2) ThatL. B. Patterson, a surveyor chosen by both parties to the deed, accompanied by a representative of each, wen t upon the ground and made a survey of the coal sold, to ascertain the acreage to be conveyed, and the gross price to be paid, and made the survey as returned in the deed by courses, distances and contents as 35 acres and 115 perches,—being the same delineated on the plats of the farm in evidence by red lines and adjoiners or boundaries, that of plaintiffs being marked ‘ Exhibit No. 1, June 14, 1892,’ that of defendants marked ‘ Exhibit B, June 15, 1892.’ [7]</p> <p>“ (8) That there was evidenoe offered and admitted without objection that the defendants had mined and removed 140 perches of coal outside of the grant, as described by the Patterson survey, while on the part of the defendants evidence was offered and admitted, without objection, that all the mining was done within said grant.” [8]</p> <p>“ (4) That there was evidence offered by plaintiffs, and admitted under objection, that coal averages 100,000 bushels of lump and 45,000 bushels of nut and slack to the acre—that the cost of digging averaged 3| cents per bushel for lump coal; that the lump coal was worth at the tipple from § to 1|- cents above the cost of digging, and nut and slack from 1^- to 2 cents per bushel.” [9]</p> <p>Defendants’ points were among others as follows:</p> <p>“ 2. If damages are allowed by the jury, they must not include any claim or allowance for the opening of pit, air shaft or any other opening necessary to the proper operating of said mine; nor for the erection and maintenance of the trestle. But only for the breaking and injury to the surface of the farm resulting from removal of coal.” Affirmed. [1]</p> <p>“ 4. Under the deed from plaintiffs to John O’Neil, under whom defendants claim, they (defendants) have the right to mine and remove all the coal under plaintiffs’ farm.” Affirmed. [2]</p> <p>“ 6. If the coal under the McGowan farm was mined and removed in the usual and ordinary way by defendants, and they were not guilty of any negligence, or want of reasonable care in so doing, plaintiffs cannot recover in this action. Answer : Affirmed, except as to the duty of supporting the surface, as explained in the charge.” [3]</p> <p>Verdict for plaintiff for $650.</p> <p>The court entered judgment on the verdict, in the following opinion by White, J.:</p> <p>“ [The deed was in the ordinary form of a fee simple conveyance, without stating or mentioning any mining or surface rights. The portion of the article of agreement quoted in the Supreme Court was put in evidence, which this court decided was competent evidence. That explained what mining and surface rights were included in the purchase of O’Neil and passed to defendants.] [4]</p> <p>“ [The article of agreement, or that part of it which spoke of the ‘ merchantable’ coal was not in evidence, and no question was raised on that point at the trial. In the charge it was referred to, and the court held, I think properly, that the deed being for ‘ all the stone coal,’ it carried all. That part of the agreement was clearly merged in the deed.</p> <p>“ I think there is no uncertainty or repugnancy in the descriptive part of the deed. It expressly conveys all the coal in and under the farm, describing it by adjoining farms—then describes by courses and distances the boundaries of the coal, and then repeats the expression, ‘ being all the coal in and under ’ the whole farm—evidently the parties thought they had included all the coal in the specific boundaries. But as the clearly manifest intention was to convey all the coal in. and under the entire farm, the courses and distances will yield, to cover the fraction of an acre lying outside these lines, to conform to the general description and evident intention of the parties. There is nothing in the habendum inconsistent with this view.]” [5]</p> <p>Frrors assigned were (1-3) above instructions, quoting them; (4, 5) in charging in substance as indicated in the portions of the opinion as above, quoting them; (6-9) in withdrawing from the jury the above evidence, quoting it as above.</p>

<p> Justice of the peace—Jurisdiction. </p> <p>A justice of the peace has jurisdiction where the claim, however large, is reduced to, or below, the statutory limit by direct payment, or by dealings amounting to and admitted as payments.</p> <p>The plaintiff may bring the amount claimed within the jurisdiction of the justice by allowing credits for matters for which the defendant had rendered bills to the plaintiff and demanded payment.</p> <p> Statute of limitations—Sunning accounts. </p> <p>The statute of limitations does not apply where there is amutual running account between the parties, and the last item is within six years of the suit.</p>

Appeal, No. 40, July T., 1892, by defendant, Patrick Battle, from order of C. P. Luzerne Co., Oct. T., 1887, No. 557, discharging rule to open judgment in favor of Mary A. Reap et al., executors of M. Reap. Rule to open judgment on sci. fa. sur mortgage.

Appeal, No. 319, Jan. T., 1893, by defendant, Lewis Emery, trading as the Lewis Emery Oil Co., from decree of C. P. No. 4, Phila. Co. Dee. T., 1892, No. 587, granting preliminary injunction. Bill to restrain use of oil inspector’s marks.

<p>Appeal, No. 72, Jan. T., 1893, by defendant, Jemima S. Poust, from judgment of C. P. Columbia Co., Sept T., 1891, No. 158, on verdict for plaintiff, J. D. Fullmer.</p> <p>Scire facias sur mechanic’s lien.</p> <p>At the trial, before Ikeleb, P. J., plaintiff offered in evidence an agreement in writing which was as follows:</p> <p>“ This agreement made the 13th day of August, A. d. 1890, between J. D. Fullmer, of Benton, Columbia Co., Pa., of the first part and Jemima S. Poust, of Hughesville, Lycoming Co., Pa., of the second part:</p> <p>“ Witnesseth, that the said party of the first part for the consideration hereinafter mentioned, do hereby for his heirs, executors and administrators, covenant, promise and agree with the said party of the second part, their heirs and assigns, that the said party of the first part shall and will, on or before fifteenth of November, 1890, at the proper costs and charges of the said party of the first part, their heirs and assigns, by a good and sufficient deed of conveyance, grant, convey and assure unto the said party of the second part, her heirs and assigns, the said party of the first part doth agree to sell unto the party of the second part a certain piece of land or lot situate in the town of Benton, county of Columbia, Pa., known as lot No. 13 on new street near R. R., for the consideration of two hundred and fifty dollars to be paid at time and date above mentioned, and party of the first part doth agree to erect a building or house on said lot 18 X 28, two stories high, with four rooms up stairs, two down stairs, with pantry and bedroom if thought proper by party of second part, together with all and singular the buildings and other improvements and appurtenances thereto belonging. And the said party of the second part for her heirs, executors and administrators, do hereby covenant, promise and agree with the said party of the first part, his heirs and assigns, that the said party of the second part shall and will well and truly pay unto the said party of the first part, his heirs and assigns, the sum of two hundred and fifty dollars to be paid on said date above mentioned. And the party of the second part doth agree to pay to the party of the first part fifty dollars within thirty days from the date of this article on said house, the balance to be paid on the fifteenth day of May, 1891, and also the fifteen dollars for the well at the date above mentioned on house.”</p> <p>On Feb. 3, 1891, plaintiff executed and delivered a deed for the lot with all the tenements, hereditaments and appurtenances. On May 8, 1891, plaintiff filed a mechanic’s claim against the house, which was finished Dec. 27, 1890. On July 3, 1891, plaintiff issued a scire facias.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 1. That inasmuch as the article of agreement between the said parties dated August 13, 1890, provides that the plaintiff should erect the building or house mentioned in the mechanic’s claim in this case on the said lot described in said agreement, which said lot was then and there owned by the said plaintiff; and inasmuch as the said article of agreement provides that the said plaintiff should, on or before Nov. 15, 1890, convey the said lot with the said building or house finished and complete thereon, to the said defendant, by a good and sufficient deed of conveyance, the acts of assembly giving liens to mechanics for work and materials furnished in and about the erection of buildings, has no application and the plaintiff cannot recover.” Refused. [2]</p> <p>“ 2. The defendant not being bound to take said house off the hands of the plaintiff, or accept of the deed of conveyance, until the plaintiff had performed his part of the contract by finishing the said building according to the specifications contained in said agreement, the said plaintiff was, at the time of the date of the said agreement, and was to be, the owner, architect and builder, in the erection of the said building; and the acts of assembly giving liens to mechanics, etc., could have no application, and the plaintiff cannot recover.” Refused. [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were, (2, 3) instructions, quoting them.</p>

Appeal, No. 440, Jan. T., 1892, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1889, No. 93, on verdict for plaintiff, Robert Gibbons. Trespass for injuries to horse. At the trial, before Rice, P. J., it appeared that in August, 1889, plaintiff, the owner of the team of horses, was engaged in hauling in the city of Wilkes-Barre, and that his team was in charge of his driver, John Michael.

<p> Decedent's estate—Family agreement—Distribution. </p> <p>Testator gave all of his estate to certain of his children by his first wife. The other children by his first wife instituted proceedings to contest the will, the children by the second wife not joining therein. Subsequently a written agreement was entered into by all of the children by the first wife, under which the proceedings to contest the will were to bo discontinued, and the whole estate divided amongst the children by the first wife. Held, that testator’s children by his second wife could not, either under the agreement or under the intestate laws, participate in the distribution of the estate.</p>

Appeal, No. 73, July T., 1892, by defendant, Jeremiah O. Doty, from order of C. P. Columbia Co., Sept. T., 1888, Nos. 223 and 224, refusing to open judgments, Israel and Martha Doty to use of J. O. Doty et al., administrators of Jonas Doty, deceased, v. Jeremiah O. Doty. Rules to open judgments entered on warrants of attorney.

Appeal, No. 69, July T., 1892, by E. Oscar Myers and Margaret Yeager, from, decree of O. C. Luzerne Co., dismissing exceptions to adjudication in estate of Mary Ann Sharps, deceased. Audit of trust estate. The adjudication was as follows, by Rhone, P. J.: “ The decedent, Mary Ann Sharps, died on April 1, 1889, leaving a will.

Appeal, No. 303, Jan. T., 1893, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1891, No. 250, on verdict for plaintiff, Bridget Burke, Administratrix of Mary Burke, deceased. .Assumpsit on policy of life insurance. At the trial, before Rice, P. J., it appeared that on May 6, 1889, Mary Burke took out a policy of life insurance in defendant company, payable to her executors and administrators.

<p> Landlord and tenant—Bent—Distress—Trespass. </p> <p>If a landlord permits a tenant to sublet the demised premises, and agrees that the tenant’s personal property shall not be distrained for rent, he will bo a trespasser if he afterwards distrains.</p> <p>In such a ease if there is a conflict of testimony as to whether the landlord made such an agreement, it is proper to submit the question to the jury-</p> <p> Evidence—Testimony taken at former trial—Witness. </p> <p>Where a husband testifies that his wife is too ill to attend court, her testimony taken at a former trial of the case may be admitted.</p>

Appeal, No. 355, Jan. T., 1893, by plaintiff, Elias Lowenstein, from order of C. P. Luzerne Co., Oct. T., 1889, No. 95, sustaining exceptions of Herman Ecker to report of referee. Ejectment. The facts appear by the following opinion of the court below by Rice, P. J.: “ Ejectment is a possessory action, and, in order to recover, the plaintiff must allege and prove that the defendant was in actual possession of the land at the time of the service of the writ.

<p>Railroads—Dwelling house—Injunction—Act of Feb. 19, 1849.</p> <p>A preliminary injunction to restrain a railroad company from taking a portion of a lot in a borough will not be awarded where it appears that the proposed appropriation will not pass through a dwelling house on the lot or destroy or interfere with its use, or the use of any outbuilding or outbuildings, or interfere with access to the house or outbuildings, and that the strip proposed to be taken will be cut entirely off one side of the lot, leaving no waste strip between it and the railroad.</p>

<p> Will—Vested and contingent interest. </p> <p>Testator disposed of the residue of his personal property as follows: “ My will is that all the residue of my goods, chattels, stocks, merchandises, etc., shall be sold by my executor by making vendue in this faul and the money to be put out on interest and my wife Eliza is to have the interest of said money during her natural life and after my wife’s death it is my will that the money be equally devided between my four children namely Franklin, Mary, Caroline and Margaret Rebecca share and share alike, and my will and meaning is that in case any of my said children shall depart this life before such time as the part or portion of him her or them so dying shall become payable, then and such case the part or portion of him, her or them so dying shall go and be equally divided among the survivors or survivor of them share and share alike if more than one, and to be paid to such survivors or survivor at the time appointed.” Held, that the estate was to be kept intact until the death of the widow, and that no interest vested in either of his four children, prior to that time.</p>

<p>Appeal, No. 119, Jan. T., 1893, by defendant, Edgar L. McCloskey, sheriff, from judgment of C. P. Clearfield Co., Dec. T., 1891, No. 119, on verdict for plaintiff, S. H. W. Bell.</p> <p>Trespass for wrongful levy and sale by sheriff.</p> <p>At the trial, before Krebs,- P. J., it appeared that the plaintiff sold to John Price a leasehold interest in a dairy farm and also a herd of twenty-four cows, one bull, two horses and various farm implements. Price gave his notes in payment, but it was subsequently found that he could not pay the notes, and he accordingly surrendered them to plaintiff, and a bill of sale was executed. Plaintiff then executed a lease of the farm, cattle, etc., to Price. Price was a practical dairyman, and plaintiff bad originally employed Mm to manage the farm. After the lease was executed be remained on the farm in possession of the cattle and dairy implements. Subsequently executions were issued on judgments against Price and twenty cows were sold by the sheriff as property of Price.</p> <p>The court submitted the question of the bona fides of the sale to the jury, reserving the question whether there had been a sufficient change of possession of the property under the circumstances. Verdict for plaintiff.</p> <p>Judgment was subsequently entered on the verdict in the following opinion by Krebs, P. J.:</p> <p>“ The motion in this case should more properly have come from defendant’s counsel in the form of a motion for judgment non obstante veredicto, but as that motion has not been made and it is important that the case should be disposed of, we will consider it upon the motion filed by plaintiff’s counsel.</p> <p>“ The jury have found as a fact that the transaction was bona fide. With this we are entirely satisfied, and indeed it was not alleged, at any time, that there was fraud in fact attempted. The whole contention arises over the question whether or not there was such taking possession of the property as saved it from being a fraud in law as to the other creditors of the vendor and defendant in the execution.</p> <p>“ It is quite true that a more formal delivery might have been made. The vendor might have been dismissed and a new man hired to drive the milk wagon and run the dairy. The cows might have been driven to another farm. But was this necessary ? A new man would not know the patrons or the route. The farm on which the cows were kept was leased for that very purpose for a fixed term. We do not think under the facts in this case the court could declaro the possession taken as insufficient as a matter of law. It seems to us to be a mixed question of law and fact, and that if the jury were satisfied that the transaction was honest and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and that the vendee assumed such control of the property as reasonably indicated a change of ownership, the transaction must stand.</p> <p>“ It is well settled now that the law does hot require such change of possession as will defeat the fair and honest purpose of the parties. For a declaration of the law in a case much like the one under consideration we refer to Garretson v. Hackenberg, 144 Pa. 107.”</p> <p>Error assigned, inter alia, was entry of judgment on the verdict.</p>

<p> Partnership—Evidence—Profit sharing. </p> <p>In an action against two persons as partners to recover a balance due on an overdrawn bank account, one of the defendants testified that a partnership existed between himself and his co-defendant, and that he, the witness, was the managing partner and “was to receive’half the profits and five dollars a week.” There was also evidence that the business was carried on under the name of the “ Tyrone Meat Company,” and that the company paid to the co-defendant, who was the owner of the real estate in which the business of the company was conducted, a certain sum per month as rent. It also appeared that for certain goods which the co-defendant furnished he received the cheeks of the Tyrone Meat Company. The co-defendant denied that there was a partnership, and claimed that the other defendant had no authority to overdraw the account. The case was submitted to the jury who returned a verdict for plaintiff. Meld, that the judgment entered upon the verdict should be affirmed.</p>

<p> Officers—County Treasurer•—Commissions. </p> <p>A county treasurer is entitled to commissions on such road, school and poor taxes only as he both collects and distributes. He is not entitled to compensation for distributing the moneys collected by his predecessors and left in the treasury.</p> <p>In a county where the treasurer is paid an annual salary, he is not entitled to commissions lor paying over to the commonwealth the state tax on personal property collected by his predecessor.</p>

Appeals, Nos. 379 and 380, by defendants, Lydia Bottorf and J. G. Bottorf, her husband, from order oí C. P. Centre Co., Jan. T., 1891, Nos. 156 and 157, discharging rules to open and strike off judgments in favor of Charles B. McCormick and John T. McCormick to use of J. N. Krumrine. Rules to open and strike off confessed judgments. The facts were found as follows by Furst, P. J: “ 1. J. G. Bottorf, the husband of Lydia Bottorf, is without property or credit. “ 2.

Appeal, No. 443, Jan. T., 1892, by defendant, from C. P. No. 1, Phila. Co., Sept. T., 1890, No. 126, on verdict for plaintiff, William H. Owens. Trespass for personal injuries. At the trial, before Bregy, J., it appeared that plaintiff, an employee of the city of Philadelphia, was injured by a car of defendant company running into him while he was engaged in laying a water pipe under defendant’s tracks.

Appeal, No. 132, July T., 1892, by defendant, Andrew C. Craig, from judgment of C. P. No. 4, Phila. Co., June T., 1889, No. 82, on verdict for plaintiff. Assumpsit by holder against indorser of promissory notes. At the trial, before Thayer, P. J., plaintiff gave in evidence note dated Oct. 28, 1885, for $2,500, payable in four months, signed bv Andrew C. Craig as maker, to order of Henry M. Stone.

<p>Appeal, No. 176, July T., 1892, by plaintiff, J. E. Howard, receiver of the Newton National Bank, from judgment of C. P. Chester Co., Aug. T., 1891, No. 51, on verdict for defendant, John H. Turner.</p> <p>Assumpsit on promissory note given for subscription to stock of bank.</p> <p>The facts as they appeared before Waddell, P. J., are stated in the opinion of the Supreme Court.</p> <p>Plaintiff’s points were among others as follows:</p> <p>“2. The defendant cannot allege by way of defence to this suit that the subscription for stock in the bank, for which his note was given, was induced by fraudulent representations, even if such fraudulent representations were made and had induced the subscription, for the reason that since the said subscription was made, and before this suit was commenced, the bank has failed, and the rights of creditors and other innocent third parties have intervened. Answer: I cannot affirm that point in the language in which it is put. I would say to you that if the rights of creditors and innocent third parties have intervened since the note in suit was given and before the defondant gave notice of his intention to rescind his contract, then he cannot resist the payment of the note on account of the alleged false representations.” [3]</p> <p>“ 3. The defendant was bound immediately, upon learning of the alleged fraud, to elect whether he would rescind the contract or waive the fraud, and his delay until after the commencement of this suit to make such election is fatal to his defence, by reason of laches. Answer: I must qualify that point also, gentlemen, and my answer would be as follows : ‘ The defendant was bound to elect, within a reasonable time after learning of the alleged fraud, to elect whether he would rescind the contract, or waive the fraud,’ provided third party’s interests had in the meantime intervened, but we cannot say ‘ his delay until after the commencement of this suit to make such election is fatal to his defence by reason of laches.’ We do say, ‘ if he delayed electing until other rights intervened, such delay would prove fatal to his rescission.’ ” [4]</p> <p>“ 4. The defendant having taken no steps to repudiate his contract of subscription, nor denied his liability until after suit was brought, but having expressed his willingness to join with his fellow shareholders in their efforts to reorganize the bank, and having thus induced them to take upon themselves the burden of such reorganization and the assumption of the old indebtedness, and new subscribers to the stock in the reorganized bank having come in, relying upon this note as an asset towards payment of such indebtedness, and the creditors having, in view of such reorganization, abated their claims, and contracted to accept the balance thereof by installments, the defendant is.estopped from denying his liability on this note. Answer: We cannot affirm this .point as drawn. We say to you, if the defendant took no steps to repudiate his contract, nor deny his liability, but, on the other hand, by his conduct or declarations, induced the stockholders of the bank to assume liabilities, or induced strangers to become stockholders in the bank, then he is estopped from denying bis liability on the note.” [5]</p> <p>“ 6. Upon all the evidence in the cause the verdict should be for the plaintiff. Answer: We cannot say that to you, gentlemen. We must leave that as a fact for your determination. That would require us to say that the plaintiff, under all the circumstances of the case, is entitled to recover. We have felt that we were called upon to leave certain questions in the case for you to determine, and as you will determine them you will determine whether the plaintiff or defendant is entitled to the verdict. I must, therefore, refuse this point.” [6]</p> <p>Defendant’s points were, among others, as follows:</p> <p>“ 7. If the jury find that Charles R. McLain was in fact the agent of the Newton National Bank, and by false and fraudulent statements induced the defendant to sign the note in suit, or the note of which the note in suit was a renewal, the plaintiff cannot recover in this action. Answer: As you will see, this is a statement of the principles of law as I have already given them to you in my charge in chief, and I therefore affirm that point.” [7]</p> <p>“ 8. If the jury find that C. R. McLain was the agent of said Newton National Bank to sell its increase of capital stock, and shall find further that he represented to the defendant that said bank was in a sound and solvent condition, and that all its loans and discounts were good and the paper it held was first-class commercial paper, and shall find further that the defendant relied upon said representations when he agreed to take the stock of said bank for his wife, and shall find further that the said bank was at the time said representations were made not sound and solvent, and that all its loans and discounts were not good or on first class commercial paper, and said C. R. McLain knew that the said statements were false when he made them, the bank cannot recover in this suit. Answer: I affirm that point, with the addition of what I have already said in my general charge, unless the defendant has waived that right by what may have transpired since he discovered the falsity of these representations.” [8]</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (8-8) instructions, quoting them.</p>

<p> Equity—Preliminary injunction—Contract—Natural gas. </p> <p>A natural gas company entered into a contract to supply gas to plaintiffs, a firm, of which one of the directors of the company was senior partner. In consideration of plaintiffs guaranteeing the debts of the company they were charged a lower rate than was charged to the public. The contract contained the following clause: “ The Equitable Gas Company agrees to furnish the gas to the said consumers so long as with ordinary diligence and outlay it can procure gas, and under the contracts now ordb narily in use by gas companies.” Some time after the date of the contract the supply of gas began to fail, and the evidence showed that it could only be obtained at a greatly increased cost to the company. The rates were accordingly raised. Other consumers who were also guarantors of the company’s debts paid the increased rates, but the plaintiffs refused to pay them, and filed a bill in equity to restrain the company from cutting off their supply of gas. Held, that the refusal of the court to grant a preliminary injunction would not be reversed on appeal.</p>

<p>Nonsuit—Evidence. In testing the correctness of a refusal to take off a judgment of nonsuit, the plaintiff is entitled to the benefit of every fact and inference of fact which might have been found by the -jury or drawn by them from the testimony before them; and it is immaterial that the evidence tending to sustain plaintiff’s claim may be very slight, provided that it amounts to m0i-e than a mere scintilla. If there is any evidence which alone would just{fy an inference of the disputed facts on which his right to recover depends, it must be submitted to the jury.</p> <p> Contract—Breach of contract—Evidence. </p> <p>In an action to recover damages for a breach of contract, there was evidence that the contract, which was in parol, was for the sale of timber to plaintiff, including the use of defendant’s sawmill with which to manufacture the timber into lumber. The consideration to be paid for the timber was a certain sum per thousand feet for each kind of wood, and fifty cents per thousand feet of lumber manufactured from the timber for the use of the mill. Plaintiff was given possession as far as practicable of the mill and timber. Subsequently, however, through the agency of his brother and by artifice or trick, defendant obtained possession of the mill and refused to surrender it to plaintiff, and otherwise interfered with plaintiff’s prosecution of the work under the contract. Plaintiff exercised forbearance for a time, and continued to stock the mill and receive lumber from it while it was being operated by defendant’s brother. There was some evidence that plaintiff, relying on his control of the mill, had undertaken to fill orders for lumber. There was also evidence of a considerable advance in the price of timber very soon after the contract was made. Hold, that the evidence was sufficient to carry the case to the jury, not only on the question of contract, but also as to breach thereof, and consequent damages.</p>

<p>Appeal, No. 121, July T., 1891, by defendants, William McGeorge, Jr., et al., executors of Robert Kent, deceased, from judgment of C. R. Delaware Co., March T., 1889, No. 36, on verdict for plaintiff, William F. Tagg, by his next friend.</p> <p>Trespass for personal injuries caused by defendants’ negligence.</p> <p>At the trial, before Clayton, P. J:, the facts appeared as stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ [It is only necessary for the employer to give instructions as to the dangerous nature of the machine when the employee is a child of tender years and is inexperienced and has no knowledge of the danger of the employment into which he is entering. When such circumstances arise, then, and not until then, the law makes it the duty of the employer to instruct the minor, and teach him that the work in which he wishes to employ him is dangerous, and that the machine must not be cleaned when running (if you apply it to this case). That it is a dangerous machine when running there is no doubt. Common sense ought to tell anyone of us it is dangerous to clean a machine of that kind while it is running. . . .</p> <p>“We will take up the father’s case first. You will remember that it was the father, an adult man, who put his children at this dangerous employment. The father brought the two boys there and made arrangements with one of the defendants for the employment of his two sons. . . .</p> <p>“ 1 therefore instruct you, gentlemen, that, so far as the father is concerned, he cannot recover. He took the risk of injury to his sons when he put them in that dangerous employment, for, if he didn’t know, the law presumes that he ought to have known, that it was dangerous employment for a child of thirteen. If, however, the father supposed his son was sufficiently instructed to put him to work, still he cannot recover, for the fact that the boy was sufficiently instructed would answer the allegation of negligence on the part of the defendants not instructing him. So, if you find that this boy was instructed in the dangerous nature of this machine, he cannot recover. Unless perhaps his will was subdued or his discretion subjected to the will and command of his boss, and that question I will come ’ to presently. They will be the only two questions in the case. . . .</p> <p>“ The rule of law between adults applies to him, ‘ that where one undertakes a' dangerous employment, he takes all the risk of accident from the machine he undertakes to operate,’ and the father of the child having entered into an agreement with the defendants for the employment of his son in the working of the machinery, which he knew, or ought to have known was dangerous, bars him from recovery. . . .</p> <p>“ Now, if he knew it was dangerous to attempt to clean that machine while it was in motion, then he cannot recover; if he did not know it, then the defendant had been negligent by employing a boy without experience, and without giving him full instructions, before putting him to that dangerous work, of the dangerous nature of the employment.”] [1]</p> <p>Plaintiff’s points were among others as follows:</p> <p>“ 2. When a mill owner undertakes to employ young children to work about dangerous machinery and to do work that without care and caution is likely to result in injury to them, it is his duty not only to warn them of the danger but also to fully explain or cause to be explained to them the hazard and dangers connected with the business, and of- instructing them how to avoid such danger. If therefore the jury find that William Tagg was young and inexperienced in working about this machinery in question, it was the duty of the defendants to see that the danger of cleaning the machine while running was fully explained to him, and, if they find that the injury was due to the failure to make him fully aware of the danger of attempting to clean the machine whilst in motion, the verdict should be for the plaintiff. Answer: I affirm that point, gentlemen, also with the qualification perhaps that, if he had that experience from any other source, then it would not be necessary.” [2]</p> <p>“ 4. If the jury find that Chas. Chadwick, the foreman, told the plaintiff, William Tagg, that he had only throe quarters of an hour to clean after the mill was stopped and that he would have to do what he could while the mill was running, and failed to fully inform him as to the danger of attempting to clean while the mill was running, and the injury happened to him by an attempt to carry out the order of the foreman, the verdict should be for the plaintiff. Answer: I affirm this, gentlemen, providing you find the plaintiff was not aware of the danger, or, if unaware, his will was subjected to that of the foreman, and that he obeyed him, either because he thought the foreman knew better than he, or he was afraid to disobey. Now I have said to you all I wish to say about the conflicting testimony between them on that subject.” [3]</p> <p>“ 5. If the jury find that on the day of the injury the foreman of the room took from the plaintiff his assistant Towers and told the plaintiff he would have to hurry up and get his cleaning done as he would have to do his and Towers’ also, and that the injury resulted in attempting to carry out the order by the foreman, the verdict should be for the plaintiff. Answer: Now, gentlemen, I give you virtually the same answer that I gave to the previous point. Unless you find the plaintiff was ignorant of the danger or his will was subjected to the will of the foreman, I would negative this point, but if you find he was ignorant, or had not been instructed either by experience or otherwise, or that he was afraid to disobey the foreman’s orders, or the will of the foreman was such as to subject the will of the plaintiff to the will of the foreman, I would say that this point ought to be negatived, but if it had not such an effect, it ought to be affirmed.” [4]</p> <p>“6. If the jury find that Wm. Tagg was under fourteen years of age and inexperienced in the work he was put to do, and that the defendants by themselves or their foreman failed to give him information and explanation of the dangers of attempting to clean the machinery whilst in motion, and that the injury happened whilst he was engaged either under the direction expressed or implied of the foreman, the verdict should be for the plaintiff. Answer: Gentlemen, I cannot affirm any implied orders of the foreman, you must find in order to relieve the plaintiff from the effect of his own negligence that he was inexperienced or uninstructed, and that he acted under the direction of the foreman, and that his own will or his own judgment was subjected to the will of the foreman, either from fear of disobeying him or trusting to his greater knowledge and experience. Now, I have repeated that so often, that it will not ■ be necessary to repeat it again.” [5]</p> <p>Defendant’s points were among others as follows:</p> <p>5. Request for binding instruction. Refused. [6]</p> <p>“ 7. If this injury was caused by the negligence of Charles Chadwick, the plaintiffs are not entitled to recover, they being fellow workmen. Answer: That is also a general rule of law, that where several persons are engaged to work under the same master and in the same employment, and one of them is negligent and thereby causes injury to another, the master is not responsible, but I hold under all the circumstances of this case that if you find that Mr. Chadwick did give that order to the boy, or did tell him to clean that machine while it was running and that the boy obeyed him, either from fear of the consequence of disobeying, or because he thought the boss knew more than he did, or his discretion was in any way interfered with by that order, then I hold that the boy may recover. It is the law and the Messrs. Kent will have to answer for it.</p> <p>“ It seems to me that the jury may harmonize all that Mr. Chadwick says consistently with what the plaintiff says, but if he did say it (and that is for the jury) I charge you that the plaintiff is entitled to recover.” [7]</p> <p>Verdict and judgment for plaintiff for $1,200. Defendants appealed.</p> <p>Errors assigned were (1-7) instructions, quoting them.</p>

<p>Appeal, No. 279, Jan-. T., 1893, by-William E. Lines etal., from decree of O. C. Northampton Co., dismissing appeal from order of register of wills imposing collateral inheritance tax.</p> <p>Appeal from appraisement of collateral inheritance tax.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The opinion of the court below, after reciting the facts, was as follows, by Albright, P. J., of the 31st judicial district, specially presiding:</p> <p>“ On behalf of the appellants it is contended that no collateral inheritance tax can be imposed in this state for said bonds and shares of stock; that' said property in the lifetime of the decedent was held and was in New York, and in that state it was delivered to the appellants; that the decision of the case of Lines v. Lines, 142 Pa. 149, is an adjudication of this matter in appellants’ favor; that the collateral inheritance act of 1887, excepting the provisions relative to collecting, is unconstitutional, and therefore prior acts must be regarded in ascertaining what estates are subject to such tax, and that the estate now in question is not within said prior acts; and further that if the tax is imposed it ought to be on the value of the property at the time appellants received it, after deducting the sum expended by them for fees of counsel and the expenses of the trustee.</p> <p>“Said act of 1887, P. L. 79, is entitled ‘an act to provide for the better collection of collateral inheritance taxes.’ It provides not only for the collection of such taxes, but declares what estates shall be subject thereto. The purpose seems to have been to re-enact all laws on the subject of collateral inheritance taxes in force at the time of its passage. In Com’th’s Ap., (Cooper’s Est.,) 127 Pa. 485, and in Bittinger’s Est., 129 Pa. 338, the question of the constitutionality of said act was adverted to but not decided. A decision thereof was not necessary. In Del Busto’s Est., 23 W. N. Ill, the learned judge, delivering the opinion, compared the provisions, relative to the estates taxed, of the new act with the prior ones. He demonstrates that the only new feature as to subjects of taxation in the act of 1887 is the provision that there shall be taxable ‘ all estates .... situated within this state,’ while the act of 1826, 9 Sm. L. 146, declares that ‘ all estates .... passing from any person who may die seized or possessed of such estate, being within this commonwealth, shall be taxable.’ The 3d section of the act of 1850, P. L. 170, provided that the words ‘being within this commonwealth ’ shall be so construed as to relate to all persons who have been at the time of their decease or now may be domiciled within this commonwealth, as well as to estates. This act was passed in consequence of the decision in Com. v. Smith, 5 Pa. 143, and was construed in Short’s Ap., 16 Pa. 63.</p> <p>“ The new act purports to provide what estates shall be subject to the inheritance tax.</p> <p>“Inasmuch as Jesse Lines was domiciled in this state, both where he made the deed and where he died, and inasmuch as, owing to the peculiar kind of property here in question, the effect is the same, whether the first section of the act of 1826 or the first section of the act of 1887 is applied—whether it be considered whether said stocks and bonds were or were situated in this state, there is no occasion to consider the validity of the questioned parts of the act of 1887.</p> <p>“ At this point notice ought to be taken of the argument of appellants’ counsel that the provisions of said act of 1850, making the act of 1826 apply to all persons now (then) domiciled within the state, does not embrace the case of this decedent, the fact agreed to being that he was a resident of Easton only since 1860. That is not quite the way it is stated in the agreement; it is that he resided at Easton for upwards of 30 years preceding his death. But even if it be taken that he was not a resident of this state in 1850, this argument must fail. In Short’s Ap., supra, it was held that it was not unconstitutional to give said act of 1850 a retrospective effect, Chief Justice Gibson remarking : ‘ More pointed words to make the act retrospective as well as prospective could not have been chosen.’ While what was said as to prospectiveness was not required by the ease, yet there is good reason to believe that the whole expression quoted was the statement of a well considered opinion, and as such it is entitled to great weight. Besides, the view that the act is prospective has been entertained by the legal profession and all interested for many years. I conclude without hesitation that the acts of 1826 and 1850 apply to this decedent so far as his domicile is concerned.</p> <p>“As to the property in question and its situs, the material part of the act of 1826 is ‘ All estates, real, personal and mixed of every kind whatsoever passing from any person, who may die seized or possessed of such estate being within this commonwealth either by will or under the intestate laws thereof, or any part of such estates or interest therein transferred by deed, grant, bargain or sale made or intended to take effect in possession or enyynient after the death of the grantor or bargainor to any persons or bodies politic or corporate in trust or otherwise other than to the use of father .... are hereby made subject to a tax.’ As already stated, the act of 1887, in substantially the same terms, subjects to tax all estates situated within this state.</p> <p>“ Jesse Lines by his deed transferred the bonds and stock to the trust company, but the title of the latter was merely nominal. He reserved the enjoyment thereof to himself during his lifetime. Subject to that use, he made them the property of William E. Lines and the nephews and nieces, subject also to his right thereafter to give them to some one else. In Du Bois’s Ap. 121 Pa. 368, the conveyance vested the grantee with a naked legal right, the enjoyment being postponed until after the grantor’s death—the latter reserving substantially the enjoyment of the estate during his lifetime; it was held that the property was subject to the collateral inheritance tax. Reish v. Com., 106 Pa. 521, decides that the commonwealth’s right to collateral inheritance tax is not defeated by a conveyance or transfer during the lifetime of the owner, nor by the possession taken under such conveyance, if the enjoyment of the property conveyed is not intended to take effect until the death of the grantor. It was said by Justice Clark that the law can only be defeated by such a conveyance as parts with the possession, the title and the enjoyment during the grantor’s lifetime.</p> <p>“ The effort here is to tax that which said beneficiaries came into the enjoyment of upon the death of Jesse Lines. That the property was in Pennsylvania not only in contemplation of law, but actually, before Jesse Lines carried it to New York to hand it to the custodian thereof is not disputed (the trust company was merely a custodian of it for compensation). It would seem that the right of the commonwealth to the tax demanded must be plain, without further demonstration.</p> <p>“ Is not he who has the sole right to enjoy personal property so long as he lives—to declare who shall possess it after death shall have deprived him of the power to enjoy it longer, changing such disposition as often as he chooses, whose disposable interest would bring as much as the property was worth—the owner thereof, rather than the one in whose name the naked title is, who takes care of it for a stipend, and whose interest would sell for nothing ? For so practical a purpose as taxation, [it must be regarded that Jesse Lines, not the trust company, owned the stocks and bonds. Beyond a doubt the situs of the property for purposes of taxation, including the imposition of collateral inheritance taxes, was in Pennsylvania.] [2] That this is so, and that the courts of this state recognize a distinction between tangible and intangible personal property, is shown by many cases. The following are a few of the authorities on this point referred to in the argument of counsel: Capital stock owned by a citizen of Pennsylvania in a corporation located in another state is taxable to him personally at the place of his residence for state and county purposes: McKeen v. Northampton Co., 49 Pa. 519. In Orcutt’s Ap., 97 Pa. 179, after stating the general rule to be that the situs of personal property follows the owner, but for particular purposes some species of personal property may have a situs distinct from the legal one, the court held that the said qualification of the rule did not apply to the property in question in that ease. It consisted of bonds of the United States held by a citizen of New Jersey, who died and whose estate was administered there, the bonds being temporarily in Pennsylvania for safe keeping, the court remarking, per Justice Sterrett, that there was no reason why such property should for any purpose have a situs different from the domicile of the owner. It was further said that the act of 1849 (P. L. 572, relative to collateral taxes), which provided that, if a nonresident of the state should die leaving real or personal estate within this state, the same should be subject to collateral inheritance tax, was intended to embrace only personal property of a tangible nature actually situated or used for business purposes within this state, not mere certificates of indebtedness such as government bonds, whose situs necessarily followed the owner’s domicile. To the same effect are Kintzing v. Hutchinson, U. S. C. C. (per Justice Strong), 7 W. N. 226, and Allen v. Savings Fund, in the same court (per Judge Butler), same book, 231. In Kintzing v. Hutchinson it is intimated that the act of 1849 is repealed by the 9th section of the act of 1858, P. L. 470. It is still in force: Thayer v. Com., 12 W. N. 553. In Com’th’s Ap., (Harguindeguy’s Est.,) 11 W. N. 492, the testatrix was domiciled and died in Cuba, giving all her estate to collateral relatives also domiciled abroad. At the time of her death she owned United States loans registered in the name of her agents, who resided in this state, and also certain loans of municipal and private corporations within this state, the certificates of which were in the hands of said agents; ancillary letters c. t. a. were taken out in this state. It was held that the executor was not liable to this state for collateral inheritance tax. The Supreme Court disposed of the appeal by referring to the decision of Orcutt’s Appeal. In Thayer v. Com., supra, the decedent died domiciled in New York; at the time of his death ho was the ‘ owner of a hotel property and certain personal estate ’ in Pennsylvania, which passed to collateral relatives; the whole was declared to be liable to the collateral inheritance tax under said act of 1849. Evidently the personalty consisted of tangible property. In Small’s Estate, 151 Pa. 1, the controversy was whether the interest of a nonresident decedent in a partnership, the property of which consisted principally of lands, merchandise, flour, grain and the like, in this state, was subject to collateral inheritance tax. It was held that it was because it was tangible property.</p> <p>“ What of the contention of appellants’ counsel that the decision of Lines v. Lines is an adjudication of this matter adverse to the commonwealth ? They insist that the statement in the opinion that the trust deed was a New York contract, the trustee a New York corporation, and that the court of common pleas of this county had not jurisdiction, was a decision that the property was owned and situated in New York. The reply is that said decision was a ruling of the questions presented by that case and nothing more. Concerning the property now in question, it was adjudged that the deed to the trust company was not in fraud of the rights of the plaintiff as widow, and that the objection that the instrument was testamentary could not be sustained because it was a New York contract and the court of common pleas had not jurisdiction.</p> <p>“ It is not a question now whether said writing is testamentary. The effort of the commonwealth is not to have this court adjudge that said stocks and bonds or their proceeds are a part of the estate of the decedent; on the contrary, it is to have it declared that the decedent in his lifetime was possessed of said property and disposed of it by his deed, so that these appellants at his death came into the possession or the enjoyment thereof. Therefore the decision of Lines v. Lines does not affect this case. The commonwealth’s contention as to the facts is established—these appellants upon the death of decedent came into the possession and enjo)'ment of the stocks and bonds (in his lifetime they had neither possession nor enjoyment) and the same are subject to the inheritance tax.</p> <p>“ As to the amount of tax to be exacted. On behalf of the appellants it is contended that if the tax is imposed it ought to be upon the value of the stocks and bonds at the time the law permitted the beneficiaries to receive them, not what they were worth when the donor died. An injunction of a court in the city of New York made at the instance of the widow prohibited the delivery of the property before the time of its actual transfer to the appellants ; it was modified so as to release one half on or about Sept. 30, 1890, and dissolved on or about May 14,1891. The whole was of the value—on July 22,1890, of $134,460—on Sept. 30,1890, of $133,277.50, and on May 14, 1891, of $122,545.</p> <p>“ The statute imposes five per centum on the estate passing to the party who takes under a will or the intestate laws, and upon the estate which comes into possession or enjoyment by ‘ virtue of a deed or grant upon the decease of the grantor; then it provides that where there is a life estate as to the remainder the tax shall not be payable nor interest begin to run until the person liable shall come into actual possession by the termination of the life estate, and the tax shall be assessed on the value at the time the possession accrues; further, that if the collateral tax is paid within three months after decedent’s death, a discount of three per centum shall be allowed, and if not paid at the end of one year from decedent’s death interest shall be charged at the rate of twelve per centum per annum on said tax, but where, owing to claims, litigation or other unavoidable cause of delay the estate or a part thereof cannot be settled at the end of the year, six per centum per annum shall be charged on the tax arising from the end of such year until there be default, provided that, where the estate withheld by litigation or other cause of delay has not been or is not producing six per centum per annum, the parties entitled shall not be compelled to pay a greater amount as interest than they may have realized or shall realize during the time of such delay: Act of 1887, secs. 1, 3 and 4.</p> <p>“ It will be observed that the appellants actually received half the property within three months and the other half within one year after the death of Jesse Lines.</p> <p>“ Plainly the intent of the statute is that the tax accrues at decedent’s death, unless enjoyment is postponed by a life estate in another, and, except in the case of such postponed enjoyment, the value at the time of the death of the testator, intestate or grantor is the basis for calculating the amount of the tax. The estates passing from the decedent and those coming into possession and enjoyment are taxed, and their value when they pass or come into possession or enjoyment is to govern. That is the time of decedent’s death. For estates in remainder the statute makes an exception.</p> <p>“ The act of 1887, sec. 12, provides that the register shall appoint an appraiser as often as occasion may require. There may be an appraisement sooner or later after the decease. The act contemplates that the appraiser shall value what vested by the death—that is, what the estate was worth when it vested.</p> <p>“ In this case the appointment and appraisement were made on July 8, 1891; the appraiser certifies to the value of the estate at the time of decedent’s death ; the items here in question were valued at $138,490; the facts in this proceeding indicate that $134,460 was the true value at that time.</p> <p>“ The $3,262.80 deducted by the trust company however must be taken from the $134,460; the deed provides for that. But there is no warrant to make allowance for expenditures in procuring the aid of counsel by parties taking estates. The $12,159 cannot be deducted. Tax is owing upon $131,197.20. Interest on the amount of the tax at the rate of twelve per centum per annum from July 22,1891, is to be added to the tax.-</p> <p>“ As to the parties who shall be adjudged to pay : The property in question never came into the hands of the executors nor was there any duty or authority on their part to receive it; it was not disposed of by the will. The trustee was to deliver it to the beneficiaries upon the death of Jesse Lines. It does not appear here, as it did in Wright’s Ap., 38 Pa. 507, that the executors have in hand a fund belonging to the beneficiaries wherewith to pay the tax. None of the parties owing the tax ever paid it or any part thereof to the executors, neither did the latter retain anything for collateral tax on this property. Only where there has been such payment or retention or where the money or article is receivable at the hands of the executor or administrator is the latter responsible for the tax: Secs. 5 and 7 of act of 1887.</p> <p>“ Among the reasons advanced for a decree against the executors—William E. Lines and H. J. Meyers—is the fact that they are the obligees of the bond given upon tins appeal. They are bound to ‘ pay all costs together with whatever tax may be fixed by said court upon said appeal.’ The effect of that obligation is that if the decision is against the appellants and they fail to perform what the decree imposes, then the obligors may be resorted to. The duty of the court now is to determine the question of liability as to the tax—to declare that the appeal is not sustained, and to fix the amount owing by each of the parties whose rights came into question in this proceeding: Sec. 12, a.ct of 1887.</p> <p>“ [January 9, 1893, it is adjudged and decreed that the appeal from the appraisement caused to be made by the register be dismissed; that there be paid to the register of wills, etc., of Northampton county by the following named parties the following named sums, that is to say, by William E. Lines three thousand two hundred and seventy-nine dollars, and by Rosanna Morris, Ziba Fairchild, Mary Jane Adams, Elizabeth Meyers, William H. Fairchild, Margaret Miller, Jesse L. Fair-child, Enos Fairchild, Edward P. Fairchild, Louis D. Fair-child, Mary E. Perkins, Eva L. Lines, Jesse T. Lines and the executor or administrator of Harriet Hill, deceased, each two hundred and thirty-four dollars, and that each pay interest upon the sum as aforesaid ordered to be paid by him or her from July 22, 1891, at the rate of twelve per cent per annum, said sums being the collateral inheritance tax owing to the commonwealth of Pennsylvania by said parties, respectively, upon the estates which they respectively took by virtue of a deed made between Jesse Lines, now deceased, and the Union Trust Company, of New York, dated May 6, 1887,—the value of the aggregate of said estates having been determined by the court to have been $181,197.29,—and further that the appellants pay the costs of this appeal and such fees as are legally taxable therein.]” [1]</p> <p>Errors assigned were (1, 2) decree and portion of opinion as above, quoting them; (8) in deciding that the property was subject to collateral tax ; (4) in not deciding that the value of the property when actually received by the remaindermen fixed its value for purposes of taxation; (5) in imposing a penalty of twelve per cent; (6) in not deducting from the value of the estate the sum of $12,159 paid for counsel fees in litigation involving the title to the property in question.</p>

<p> Contract—Heater—Warranty—Personal satisfaction—Survival. </p> <p>Plaintiff sold to defendant’s testator a household heater under an agreement in writing which contained the following clause: “We guarantee this apparatus to give entire satisfaction in its operation, and should it prove unsatisfactory after a thorough and reasonable trial we will remove it at our expense.” The purchaser died four days after the heater was placed in his house. His executor and sole devisee lived in the house, and to him the heater was wholly unsatisfactory from the day that it was first started, which was in the month of March. With the executor’s consent a test was made by an expert plumber in the month of June. The executor was still dissatisfied, and requested the removal of the heater, and refused to pay the balance due upon it. HeM :</p> <p>(1) That the “thorough and reasonable trial” contemplated by the parties was the use of the heater by the householder under the supervision and attendance of the ordinary household servants.</p> <p>(2) That in the absence of all evidence of want'of good faith on the part of defendant, if he was dissatisfied with the heater after a thorough and reasonable trial of it by ordinary daily use, plaintiffs could not recover.</p> <p>(3) That defendant, as executor and devisee of the original purchaser, had a right to set up the same defence as the purchaser might have done had he lived and defended in the action.</p>

Appeal, No. 239, Jan. T., 1893, by plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 122, in favor of defendant, Richard B. Williams, discharging rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence in assumpsit on a promissory note by payee against maker.

Appeal, No. 183, Jan. T., 1893, by defendants, Leo Giles, Max Giles and Simon Dessau, judgment creditors of Isaac Giles, from order of C. P. No. 3, Phila. Co., Sept. T., 1892, Nos. 677, 678 and 679, continuing preliminary injunction in favor of E. II. Artman-Treichler Co. et al., against Isaac Giles, the appellants, the sheriff and the assignee for creditors of Isaac Giles.

<p>Appeal, No. 295, Jan. T., 1893, by-plaintiff, William Bradly, to use of Joseph Costello, from order of C. P. No. 1, Phila. Co., March T., 1892, No. 385, making absolute rule for more specific statement in favor of defendant, Hiram Potts.</p> <p>Assumpsit for breach of contract to sell laud.</p> <p>Plaintiff’s statement was as follows:</p> <p>“ 1. The plaintiff avers that the defendant, Hiram Potts, on the twenty-fourth day of July, A. D. 1891, entered into a certain written agreement with the plaintiff, of which a full and correct copy is as follows :</p> <p>“ ‘ Tliis agreement, made the 25th day of July a. d. one thousand eight hundred and ninety-one between Hiram Potts, merchant, of the city of Philadelphia, of the first part, and William Bradly, attorney, of the said city, of the second part: Witnessed, that the said party of the first part, for the consideration hereinafter mentioned, doth hereby for himself, his heirs, executors and administrators, covenant, promise and agree with the said party of the second part, his heirs and assigns, that he the said party of the first part, shall and will, on or before the 25tb day of October, 1891, at the proper cost and charges of the said William Bradly Atty his heirs and assigns, by a good and sufficient deed of conveyance, doth grant, convey and assure, unto the said party of the second part, his heirs and assigns, all that certain farm of land situate -in Springfield and Cheltenham township, Montgomery county, Pennsylvania, known as the Hiram Potts farm and fronting on Willow Grove avenue containing about sixty-two acres, together with all and singular the buildings and other improvements, and appurtenances thereunto belonging. And the said party of the second part, for himself his heirs, executors and administrators, doth hereby covenant promise and agree with the said party of the first part, his heirs and assigns, that he the said party of the second part, shall and will well and truly pay unto the said party of the first part, his heirs and assigns, the sum of five thousand dollars within three months from date and the further sum of five thousand dollars upon the delivery of deed and a bond and mortgage for the balance of tlie consideration secured upon tbe property. Full price to be one thousand dollars per acre. Time of mortgage to be within three years at five per cent interest. Property to be clear of incumbrance except above purchase-money mortgage. The party of the first part to release any portion of the property from the lien of mortgage upon payment of two thousand dollars per acre by the party of the second part. Any crops in the ground to be paid for by party of second part by appraisement.</p> <p>“ ‘ In witness whereof, the said parties to these presents have hereunto set their hands and seals this twenty-fifth day of July, one thousand eight hundred and ninety-one.’</p> <p>With signature and seals of the parties and signatures of witnesses; also receipt for first payment, acknowledgment and certificate of record.</p> <p>“ 2. In and by the said contract the defendant represented himself to be the owner of a certain farm therein described, and in and by the said contract he contracted to convey the whole of the said farm to the plaintiff upon the plaintiff’s payment of the purchase money at the rate of $1,000 per acre, on the terms therein set forth.</p> <p>“ The plaintiffs have lately had a survey and plan of the said farm made, a copy of which is annexed hereto in blue print. The said the Potts farm as described in the said contract is the whole of the space included within the lines B C, C E, E F, F G H, H I J, and J A B, as shown on the plan.' The line J A B is the front of the said farm on Willow Grove avenue, otherwise known as the Mermaid road. The said farm is bounded on its north side, B O, C E, and E F, by properties formerly of James Brooks and George Schriver and now owned by Grace L. Sims, and it is bounded on the side F G H, and on the side H I J, by the properties of other individuals, to wit, Megargee, Bisbing, and Fenton. The only roads upon the farm communicating with the public highways are, first, the road shown by the dotted lines immediately next to the northern boundary of the farm B C, and also a road next to the boundary between O and E, connecting with a private road crossing the Brooks or Sims land, and thereby communicating with the highway known as the Church road, which highway is the northern boundary of the Sims tract. Access to the last-mentioned private road is of great value, for it is the only means of carrying drainage from the Potts farm to the said Church road.</p> <p>“ 3. After the said contract had been made, and on or about October 2, 1891, the plaintiffs discovered, from a statement to that effect made by the defendants to the plaintiff, that the defendant was not the owner of said farm, but that the defendant’s wife, Hannah K. Potts, was the owner of the said farm, and that the defendant had made the contract as her agent and without disclosing the name of his principal; and the plaintiff, William Bradly, then requested the defendant to cause the said certain farm of land situate in Springfield and Cheltenham townships, Montgomery county, Pennsylvania, known as the Hiram Potts farm, and fronting on Willow Grove avenue, containing about sixty-two acres, together with all and singular the buildings and other improvements and appurtenances thereunto belonging, to be conveyed to Joseph Costello in performance and satisfaction of the contract made by the defendant and hereinbefore set out.</p> <p>“ 4. On or about the second day of October, 1891, the plaintiff demanded from the defendant his title deeds of the said the Hiram Potts farm, in order that the deed of conveyance to the plaintiff might be drawn, and the defendant then handed to the plaintiff a certain deed dated the first day of April, 1871, and recorded in the office for recording of deeds, etc., in and for Montgomery county, at Norristown, Pa., in Deed-book No. 191, page 287, etc., wherein Joseph Yeakel and others were the grantors, and Hannah K. Potts, the wife of the defendant, was the grantee, and whereby there was conveyed to the said Plannah K. Potts in fee ‘ all that messuage and farm or tract of land situate in the townships of Cheltenham and Springfield, in the county of Montgomery and state of Pennsylvania, bounded and described as follows: Beginning at a point in the Mermaid road in Cheltenham township one perch and forty-eight hundredths of a perch from a poplar tree in a corner of Sophia Fen-ton’s and other lands of Huston’s estate; thence on and along the said Mermaid road north nineteen degrees and ten minutes east sixty-four and seventy-six hundredths perches to another point in said road a corner of this and other lands now or late of Hustons and lands of John Funk; thence north forty-eight degrees and five minutes west across the township line into Springfield township west sixty and sixteen hundredths perches to a stone at another corner; thence north thirty degrees and ten minutes east seven and fifty-six hundredths perches to another stone set for a corner in George Shriver’s land ; thence north forty-seven degrees and forty-five minutes west fifty-five and sixteen hundredths perches to a stake a corner of Shrive’s and Sylvester Megargee’s land; thence south forty-three degrees west seventy-eight and ninety-four hundredths perches to a stone set for a corner in Robert Bisbing’s and said Megargee’s land; thence south forty-eight degrees and three minutes east ninety and ninety-two hundredths perches by land of Robert Bisbing to a corner of Bisbing’s and Fenton’s land on the township line of Cheltenham and Springfield townships; thence along Sophia Fenton’s land south sixty-one degrees and ten minutes east fifty-four and three hundredths perches to the place of beginning. Containing fifty-nine acres and one hundred and twenty-six perches of land, more or less.</p> <p>“ 5. The plaintiff, believing that the said deed from Joseph Yeakel and others contained the full description of the whole of the said the Hiram Potts farm, had the description in the deed to be executed by the defendant and his wife in fulfillment of the defendant’s said contract drawn from the said Yeakel deed, and on or about the twenty-eighth day of October, 1891, the defendant and his said wife executed and delivered to the equitable plaintiff, Joseph Costello, a deed dated the seventeenth day of October, 1891, and recorded in the office for the recording of deeds in and for Montgomery county, in Deed-book No. 368, page 111, conveying to the plaintiff the therein described land, which was the same tract of laud described in the Yeakel deed, so as aforesaid designated by the defendant as the title deed of the said the Hiram Potts farm.</p> <p>“ 6. The plaintiffs, believing that the said deed conveyed to Joseph Costello in fee all of the said the Hiram Potts farm, accepted the said deed when delivered, and the plaintiff, Joseph Costello, then executed and delivered to the defendant Hiram Potts and Hannah K. Potts, his wife, a certain purchase-money mortgage for $50,000, which mortgage is recorded in the offices for the recording of deeds in and for Montgomery county, in Deed-book No. 234, page 186, etc., and the plaintiff, Joseph Costello, also paid to the defendant for himself and his wife the sum of $9,787.50, in cash, and on the twenty-eighth day of October, 1891, the defendant and his wife joined in an assignment of the said mortgage to John Rodgers in trust to reassign the same to Hannah K. Potts to secure to her as and for her own property $15,000, being part of the $50,000, and the residue thereof to Hiram Potts, which assignment of mortgage is recorded in the office aforesaid in Mortgage-book No. 234, page 188; and on the twenty-ninth day of October, 1891, the said John Rodgers reassigned the said mortgage as to $15,000 thereof to Hannah K. Potts as and for her own property, and as to the residue thereof to the defendant, Hiram Potts, which reassignment is recorded in the office aforesaid in Mortgage-book No. 234, page 190.</p> <p>“ 7. The tract of ground conveyed by Hannah K. Potts, the wife of the defendant, to the plaintiffs, in and by the said deed, is shown on the annexed blue-print plan and is included within the lines A D, D C, C E, E F, F G H, PI 1 J, and J A, thus not including an integral part of the Potts farm, which integral part is assessed for taxation as a part of the said the Hiram Potts farm, and is not separated from the remaining portion of the said the Hiram Potts farm by any fence or dividing line, and also not including the two farm roads hereinbefore referred to, and thus shutting off the present means of communication from the said farm with the Willow Grove avenue or Mermaid road, and with the Church road.</p> <p>“ After the execution and delivery of the said deed, and on or about the thirty-first day of October, 1891, the plaintiff, Bradly, met the defendant upon the said farm for the purpose of obtaining possession thereof from the defendant, and the plaintiff then and there, and for the first time, learned that the deed to the plaintiff, Costello, had not conveyed the whole of the said farm, but that the defendant’s wife still held a part of the said farm, being about two acres, adjoining the Brooks or Sims tract, title to which had been vested in her by a deed or deeds, which the defendant when asked aforesaid for his title deeds had failed to deliver to the plaintiffs.</p> <p>“ 8. The plaintiff then and there demanded a conveyance to Joseph Costello of the portion of the Hiram Potts farm so unconveyed, to wit, ‘ all that certain lot or piece of ground situate in Cheltenham and Springfield townships, in the county of Montgomery, beginning at a point in the middle of Mermaid road, it being a corner of ground now of Joseph Costello; thence along the ground of said Joseph Costello across the township line into Springfield township north forty-seven degrees twenty, minutes west nine hundred and ninety-two and sixty-four hundredths feet to a corner of this and other ground now of Joseph Costello; thence along the same north thirty degrees forty-three minutes east eighty-three and sixteen hundredths feet to a corner of the ground late of James Brooke and now of Grace L. Sims ; thence along the same south forty-seven degrees twenty minutes east across township line into Cheltenham township nine hundred and ninety-seven and forty-six hundredths feet to the middle of said Mermaid road; thence along the same south nineteen degrees forty-three minutes west thirty-eight and eighty-six hundredths feet to the place of beginning ; containing about one and five-sixth acres, more or less.’ The land thus described unconveyed as aforesaid is shown on the annexed blue-print plan as included within the lines A B, B C, C D, and D A, and is, as hereinbefore stated, an integral part of the Hiram Potts farm, not separated from the rest of the said the Hiram Potts farm by any fence or other line of division, and assessed for taxation as a part of the said the Hiram Potts farm, and comprising all the roads and means of access from the said the Hiram Potts farm to the public highways.</p> <p>“ 9. The plaintiffs have demanded from the defendant a conveyance of the last herein described land and have offered to pay the defendant therefor in cash at the rate of $1,000 per acre, in accordance with the said contract, but the defendant has refused, and still does refuse, to make a conveyance of the said land, or to procure a conveyance of the said land to the plaintiffs.</p> <p>“ 10. Before the plaintiffs had discovered that the defendant had not conveyed to them the whole of the said the Hiram Potts farm, the plaintiffs contracted to sell to John C. Sims, for the price of $2,000 per acre, seven and one half acres of ground adjoining the northern boundary of the said the Hiram Potts farm, and including the very ground which the defendant has failed and refused to convey as aforesaid, and by reason of such failure and refusal on the part of the defendant, the plaintiffs have been unable to fulfill their said contract with the said John C. Sims, and have thereby lost the advantage of that sale, and have thereby subjected themselves to a liability in damages to the said John C. Sims.</p> <p>“ 11. The said land which the defendant contracted as aforesaid to convey to the plaintiffs, and which the defendant has failed and refused to convey to the plaintiffs, was at the time this action was brought and is now worth, in fair market value, more than §2,000 per acre ; that is, more than double the contract price of the said land.</p> <p>“ 12. The plaintiffs have been damaged by the defendant’s breach of his said contract in the sum of §5,000 for the difference between the contract price and the market price at the date of action brought of the tract of land so as aforesaid contracted to be conveyed by the defendant to the plaintiff, but not conveyed, and in the further sum of §5,000 for expenditures incurred and to be incurred by the plaintiffs in making a road from the Willow Grove avenue or Mermaid road into the said the Potts farm, and in the further sum of §5,000 for the obstruction of the right of way over the Brooks or Sims farm, caused by the defendant’s failure to convey the said tract of land which he had, as aforesaid, contracted to convey, and in the further sum of §7,500 for the loss of the profit on the sale contracted to be made to the said John C. Sims, and in the further sum of §5,000 for the plaintiffs’ liability in damages to the said John C. Sims for the plaintiffs’ breach of their contract with him, and also in the further sum of §1,000 for the costs of this action, and for this the plaintiffs bring their suit.”</p> <p>The court made absolute a rule for a more specific statement.</p> <p>Errors assigned alleged that the court erred (1) in making the rule absolute; (2) in entering judgment; (3) in deciding that plaintiff, appellant, was not entitled to recover damages.</p>

Appeal, No. 306, Jan. T., 1893, by plaintiff, Abram Nesbitt, assignee for the benefit of creditors of the Plymouth Savings Bank, from judgment of C. P. Luzerne Co., Feb. T., 1889, No. 237, on verdict for defendant, Mrs. S. G. Turner. Assumpsit on bond of surety for bank cashier.

<p>Appeal, No. 148, Jan T., 1893, by defendants, Friend F. Merriman et al., from judgment of C. P. Luzerne Co., March T., 1886, No. 102, on verdict for plaintiff, William S. Tompkins.</p> <p>Ejectment for Scovill’s island in the Susquehanna river.</p> <p>The court charged in part as follows, by Rice, P. J.:</p> <p>“ Both parties claim under the same person, namely, James Harvey Tompkins ; be bad the undisputed title to the island on July, I860, when he obtained it by deed from A. J. Griffiths. This was in July, 1865; and while I shall endeavor not to embarrass you by referring to dates, yet it will he necessary to refer to some dates, and to ask you to try and keep them in mind. J. H. Tompkins, then, had the undisputed title to the island in July, 1865. On Jan. 22,1886, a judgment was entered against him on a note dated January 14, 1886, given by him t,o his brother, Alva Tompkins, which was assigned to W. S. Tompkins, this plaintiff. An execution issued upon that judgment, and in February, 1886, this land was sold at sheriff’s sale as the property of J. Harvey Tompkins. Notice was given at the sale that it was not owned by J. Harvey Tompkins, but was owned by certain parties named therein-—■ these defendants. Against this the defendants sbow that on Feb. 3, 1866, less than a year after Harvey Tompkins bought the island, he conveyed it by deed to bis father, William Tompkins, and this deed was recorded Feb. 5,1866. William Tompkins went into possession of the island and occupied it until the time of bis death, in August, 1876. He occupied it either by himself or by his tenants. He left a will, devising the residue of his real estate, in eluding this island, to his son Alva, and his daughter, Mrs. Messenger. He made a bequest to his son Harvey of sixty dollars a year, and forgave him all the debts that his son owed him. The devisees under the will of William Tompkins remained in possession after his death and are still in possession. The first claim that was set up by the plaintiff or by Harvey Tompkins by any legal proceeding was in December, 1885, when it is said that Harvey Tompkins brought an action of ejectment; but that came to nothing, because in the meantime his interest and title, whatever it was, was sold, and in February, 1886, William Tompkins brought this action of ejectment on his sheriff’s deed.</p> <p>“ On the face of the papers the legal title to the land is in the defendants. They hold it (1) as to one half, under the will of William Tompkins, and (2) as to the other half, under a deed from the First National Bank of Pittston, who had purchased it at sheriff’s sale as the property of Alva Tompkins. The plaintiff, so far as the record shows, took nothing by the'sheriff’s sale, because J. H. Tompkins had no title to the land in January, 1886.</p> <p>“ In order to overcome this evidence, the plaintiff has undertaken to convince you that the deed from Harvey Tompkins to William Tompkins was in fact intended as a mere security for a debt and not as an absolute conveyance of the land, and if they have established that fact, then, although it was in form a deed absolute, it was in fact and effect a mortgage.</p> <p>“ To go back a little to a recital of some of the facts which it will be important for you to remember, I call your attention to the testimony of Gen. Osborne to the effect that in the early part of 1866, William Tompkins, who had been his client, and Harvey Tompkins, appeared at his office. Some conversation took place there in his presence, according to his testimony, and he swears that at that time he drew a note for four thousand dollars, which is the note which has been offered in evidence here.</p> <p>“ On Feb. 8,1866, the deed was executed and acknowledged. On Feb. 5,1866, the deed and the judgment note were entered of record by Gen. Osborne.</p> <p>“ [So far as the testimony shows, there is none that any money passed from William Tompkins to Harvey Tompkins, nor is there any evidence that at any time Harvey Tompkins was indented to his father, William Tompkins.] [6]</p> <p>" There is evidence that Harvey Tompkins was indebted to creditors who were secured by judgment or mortgage liens, and that he was indebted to other creditors to some extent at least who were not so secured. It is in evidence that about this time also he conveyed certain other real estate to his brother Alva. It is also in evidence that some time during the same month— February—his personal property was sold at sheriff’s sale. . . .</p> <p>“ [Your attention has been called to the fact that although Harvey Tompkins was not indebted to his father, and although it does not appear that any money passed between them, yet he not only gave this deed, but a month before had given him a judgment note for four thousand dollars which was entered up at the same time as the deed, and which, so far as appears, is still unsatisfied. That is a circumstance of significance, not conclusive in itself, but tending to show, in connection with tire testimony of Mrs. Allan, if you believe it, that this was a mortgage, and not intended as an absolute conveyance.] [7]</p> <p>“ Do not misunderstand me—I say that is not conclusive, but it is a circumstance of significance to be considered by the jury in connection with her testimony, if you believe it. You will also remember the testimony of Gen. Osborne at the time of the execution of the note, and what he said with regard to that.</p> <p>“ We call your attention to the statement of Squire Bohan at the time the deed was acknowledged, and of Mr. Streng. These statements, if made, tend to show an admission on the part of William Tompkins of a trust of some nature, but do not show what its nature was. They would be insufficient of themselves to establish the allegation of the plaintiff; they are admitted simply as circumstances tending to corroborate the testimony of Mrs. Allan.</p> <p>“ On the other hand, it is argued with force that although the will of William Tompkins canceled Harvey Tompkins’ debt in 1876, yet he made no assertion of his right to the island until December, 1885, a considerable period of time. This is a circumstance worthy of careful consideration by the jury along with all of the other testimony and circumstances in the case. The fact that William Tompkins went into possession is a circumstance by no means conclusive, however, because, as jmu have heard me say at the outset, even if this were a written mortgage, the possession of the land by the mortgagor—the person to whom the mortgage was given—would not be inconsistent therewith; indeed under the law he would have a strict right to the possession, unless an agreement was made to the contrary.</p> <p>“ [From all of these facts and circumstances to which we have called your attention, as well as from others which have been called to your attention by the counsel in their arguments, and which we have not specifically alluded to, but which are to be considered by you, you are to determine whether or not this deed from Harvey Tompkins to William Tompkins, in February, 1866, was, as it purports on its face to be, an absolute conveyance of his title to the land, or whether it was intended by them at the time as a mere security for money to be advanced by William Tompkins, and unless you find the fact to be as last stated, then your verdict must be for the defendants; but if you find the fact to be that it was agreed and intended to be not an absolute conveyance, but a mere security for debts and for money to be advanced by William Tompkins, and that the land should be reconveyed to Harvey when William should have reimbursed himself out of the rents, then it was a mortgage, and the rights of Harvey Tompkins having passed to the plaintiff, he would be entitled to recover the one undivided half part.] ” [8]</p> <p>Plaintiff’s point was inter alia as follows :</p> <p>“ 5. If the jury find that the deed in question was. given to secure William Tompkins for moneys which he undertook to pay in dischai-ge of the mortgage of A. J. Griffiths, and other indebtedness of J. H. Tompkins, and that William Tompkins was to reimburse himself out of the rents and profits of the island, then no matter whether he had been fully reimbursed at the time of his death or otherwise, the bequest in his will wherein he gives to J. H. Tompkins all debts, etc., satisfied this mortgage. Answer: This point is affirmed. We understand that the correctness of that is conceded all around; that if this was a mere debt it was canceled by the will. It is therefore unnecessary to charge upon the sixth point, and the seventh point is withdrawn.” [4]</p> <p>Defendants’ points were among others as follows :</p> <p>“ 2. Where an attempt is made, as in this ease, to convert a deed absolute on its face into a mortgage, the judge sits as a chancellor and decides both law and facts ; the only province of the jury is to aid him by determining the credibility of the witnesses and the effect of conflicting testimony. There being here no conflict of testimony, and the evidence on behalf of the plaintiff, if fully believed, being insufficient to show the deed from Harvey Tompkins to his father to be a mortgage, and no other sufficient ground of recovery being shown, the verdict should be for the defendants.” Refused. [5]</p> <p>“ 5. Twenty years elapsed from the date of Harvey Tompkins’ deed to his father and the beginning of this suit, and ten years from the date of the father’s death ; this delay is unexplained, and constitutes laches of so gross a nature as to bar the right, if any existed. Answer: This point is answered in the negative, subject to the decision of the court upon the question of law reserved, namely, whether the plaintiff’s right of action is barred by the neglect to make demand until the bringing of this suit. As we have already said, the delay is a fact to be considered by the jury in weighing the testimony of the witnesses bearing upon their recollection and credibility and the probability of the facts asserted by them.” [2, 8]</p> <p>9. Request for binding instructions. Refused. [1]</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-8) instructions, quoting them.</p>

<p> Municipalities—Officers—Street commissioner of Wilkes-Barre. </p> <p>The act of May 4, 1871, P. L. 589, incorporating the city of Wilkes-Barre, put an end to the official term of all borough officers, and extinguished or abolished their offices.</p> <p>Under said act, which authorizes the mayor and council “ to appoint and remove such officers as they may deem necessary to enforce the ordinances and regulations of the city,” the street commissioner must be appointed by both mayor and council.</p> <p>An ordinance signed by the mayor, giving to the councils alone authority to appoint the street commissioner, will not deprive a subsequent mayor of the power to participate in the appointment.</p>

<p> Evidence—Forgery—Handwriting—Experts. </p> <p>Evidence touching the genuineness of a paper may be corroborated by a comparison to be made by a jury or auditor between that paper and other well authenticated writings of the party, but mere experts will not be permitted to make the comparison, and then to testify to their conclusions from it.</p> <p> Evidence—Undue influence—Iteceipt—Finding of auditor. </p> <p>Decedent in her lifetime, in 1866, sold to Dunkle, her son-in-law, a farm for $1,800, receiving therefor six notes for $300 each without interest payable in from one to six years respectively after decedent’s death. In 1869, decedent gave to Dunkle a receipt and release for the last two notes, setting forth that she had received the value of $600 in full payment for the two notes. Dunkle took possession of the farm and paid to decedent one third of the grain crops until 1887, when he entered into an agreement with her to pay her $104 per year “ as rent or interest” instead of the grain. This he did until her death in 1889. The decedent lived with Dunkle on the farm and there was evidence that Dunkle and his wife had great influence with her. It also appeared that she was unable to read or write. The auditor and the court below held that there was not sufficient evidence of undue influence to avoid the receipt of 1869, and that the agreement of 1887 did not of itself establish that there was lue to decedent the sum of $1,800 from Dunkle. Held, that the evidence would not justify reversal of the finding in the court below.</p>

<p> Malicious prosecution—Malice—Probable cause—Presumption. </p> <p>In an action for malicious prosecution it is essential that want of probable cause and malice concur. Want of probable cause will raise the presumption of malice, but this may be rebutted by evidence negativing such malice.</p> <p>What facts and circumstances will amount to probable cause is a question of law; whether they exist in a particular case is a question of fact; where the facts are in controversy the subject must be submitted to the jury, in which event it is the duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts.</p> <p>■In an action for malicious prosecution, it appeared that plaintiff had been arrested at the instance of defendant for the larceny of four promissory notes. Plaintiff averred that he placed in defendant’s hands four notes as collateral security for a loan on them of fifty per cent of the amount of the notes. Defendant was to pay two hundred dollars in cash, and this was paid. Defendant, however, was not able to raise the rest of the money, and plaintiff, at defendant’s request, returned the two hundred dollars which he had received. Subsequently plaintiff went to defendant’s office, and, claiming that the notes were his, took them from defendant’s desk. Plaintiff claimed that no objection was made to his taking the notes. The court charged that, if the jury believed plaintiff’s account of the transaction, he was entitled to the possession of the notes, and his taking them off the desk was not a felonious taking; that defendant had no probable cause to suppose the taking of the notes was a theft of them, or that it was other than plaintiff had a right to do under the agreement. Held, not to be error.</p> <p> Advice of Counsel—Presumption. </p> <p>The defendant in a malicious prosecution who undertakes to overcome the presumption of malice by showing that before commencing the prosecution he consulted counsel, must also show that he fairly and honestly stated to his counsel his whole case.</p>

<p>Appeal, No. 96; July T., 1892, b}7 D. P. Ensign, administrator of George Ulrich, deceased, Methua Tonson et al., children and heirs, and Geo. Gray et al., creditors of George Ulrich, deceased, from order of C. P. Erie Co., May T., 1892, No. 63, Germer v. Ensign, refusing to set aside sheriff’s sale.</p> <p>Petition to set aside sheriff’s sale of real estate.</p> <p>The petitioner, Methua Tonson, represented in her petition as follows :</p> <p>“ That she is a daughter of the late George Ulrich, deceased, and'one of his legal heirs. That Ulysses Ulrich is her brother. That your petitioner and her brother are the lawful heirs of the said George Ulrich, deceased, and are interested in his estate and in the house and lot and property advertised for sale in this case. That your petitioner was aware that there was a mortgage in favor of Otto Germer of about $2,000, debt and interest. That she supposed that her brother had made arrangements to take care of his interest as well as hers in the said house and lot at the sheriff sale on the second Monday in May, 1892. That the said property was her father’s homestead in his lifetime, and is worth, as your deponent believes, from $4,500 to $5,000 at a cash sale. That your deponent is informed that on May 1892, the sheriff exposed to sale the property, consisting of a house and lot on Twelfth street, of the estate of George Ulrich, deceased, at the suit of Otto Germer, and that the property was sold at $2,500 or thereabouts. That the property at the time of sale and now is worth from $4,500 to $5,000. That your deponent had supposed that her brother had arranged to take care of the sale. That the property has been purchased and sold as deponent is informed and believes, in the interest of her step-mother, and against the interest of your deponent as one of the heirs, and has been sold by the said Otto Germer to the wife of George Ulrich, the stepmother of your deponent, who is interested in cheating your deponent and her brother out of their interest in the estate. That at the time of the sale your deponent was not present and could not bid upon the same ; that since she has learned of the sale she has endeavored to protect her interest in the property as well as that of the creditors, and is now prepared to increase the bid made for the property to the sum of $3,000, and would have bid that amount at the time it was struck off if she had known it was necessary to protect her interests and the creditors.</p> <p>“ Wherefore, your petitioner prays that the same may be opened and the property resold at her bid of $3,000, and that if the sale is not opened your deponent and the general creditors will he defrauded.”</p> <p>The court, Gunnison, P. J., refused the prayer of the petition, May 19, 1892. A motion to open the sale on behalf of creditors was refused May 21st, as of May 19th. The administrator, the heirs and the creditors appealed.</p> <p>Errors assigned were refusal of (1) petition of heirs, and (2) motion of creditors, quoting them.</p>

<p>Appeal, No. 36, July T., 1892, by defendant, from judgment of C. P. Crawford Co., Feb. T., 1888, No. 95, on verdict for plaintiff, Robert Curry.</p> <p>Assumpsit on policy of fire insurance.</p> <p>The policy contained a provision that it should become void in the event of any false representation by the insured of the condition, situation, or occupancy of the premises, or any omission to make known any fact material to the risk or of any overvaluation or misrepresentation whatsoever, either in a written instrument or otherwise.</p> <p>At the trial, it appeared that the company made no demand for a written application.when the insurance was applied for. The evidence as to what took place at that time and what representations were made as to value of liens was conflicting.</p> <p>The company claimed that the plaintiff had concealed the fact that an attempt had been made to burn his house, and his fear that the attempt might be repeated. [The court in rebuttal permitted plaintiff to testify, under objection, that he did not think there had been an attempt to burn the house.] [9]</p> <p>The court charged in part as follows:</p> <p>“ The first fact relied upon by the defendant is this, that a short time prior to the issuing of this policy there had been an attempt to set fire to the dwelling house covered by the policy, that that fact was known to the insured, that it was a fact material to the risk, and that the insured knowing such fact, and omitting to communicate it to the insuring company when he applied for the policy, was guilty of fraud, in effect. . . .</p> <p>[“ If it was not an attempt to burn his house, if from all you have heard stated by Mr. Curry, or heard from the defence as having been stated by him at former times, you reach the conclusion that it was not an attempt to burn his dwelling house, then there was nothing for him to communicate, and the person who was insured is not bound to communicate his fears, his apprehensions.] [8] He must communicate facts, and then the insurance company may determine from these facts whether they will undertake the risk or not; and, when the inquiry is brought before the court for determination, the question is not so much what Mr. Curry may have feared or apprehended, but whether there was reasonable grounds from which he might fear and apprehend. In other words, whether the facts were such as warrant now the conclusion that he was likely to be burned out.</p> <p>“ The plaintiff on the trial here does not deny the facts as he formerly stated them to Mr. Lundy, the agent, and as he stated them to the witnesses, as I understood his testimony on this trial. It is for you in examining his evidence, and considering it, to determine whether he has on this trial changed his statement as to the facts which occurred there as to the dog, the men, the pursuit of the men, the oil, the bottle, the shavings, and the-, other circumstances which at that time led him to believe that some person was trying to bum his dwelling. He does, however, state that in reflecting upon the matter, considering the whole case, he has made up his mind that it was not an attempt to burn his dwelling house, but was a trick or prank of some boys whom he had driven out of his peach orchard. . . .</p> <p>“ The third element of defence introduced by the defendant is that there was an omission on the part of the insured to give notice of certain judgments which were liens upon his property at the time the insurance was taken out. And this defence is introduced under that clause of the policy already read to you, which, provides that any omission on the part of the insured to state in the written application for his insurance the amount of incumbrances upon the property shall void and defeat the policy.</p> <p>“ It appears from the evidence in this case, gentlemen, that there was no written application for the insurance. [The insurance company might have required the insured to sign a written application for the insurance, and might have required him to make such statements and representations in writing about the condition and value of the property and its situation with reference to liens as it saw fit to exact. It did not, however, do so, and the defendant is not now in a condition to object that the plaintiff did not state in his application in writing to the company the amount and character of the liens and incumbrances upon his property.] [2] .... The agent testified in your hearing, yesterday, very emphatically, that when Mr. Robinson asked for the policy, in the conversation between him and Mr. Robinson on the subject Mr. Robinson said, when he asked him if there were liens, judgments, mortgages or otherwise on the property, that there were none. Notwithstanding the fact that the defendant did not ask for a written application and for a statement in writing of the liens upon the property, yet, if Mr. Robinson, in making a verbal application for a policy, stated to the representative of the company that there were no liens, judgments or mortgages on the property, when in point of fact there were liens and judgments on the property, that would be a misrepresentation of the condition of the property such as would void the policy. It was an untrue statement with reference to the existing state of facts, of which you may fairly presume that both Mr. Curry and Mr. Robinson had knowledge, for the defendant offers evidence to show that at that time there were two judgments recorded in Yenango county, in which county this property is situated, both in favor of Mr. Robinson, who was then acting as agent in this respect for Mr. Curry, and both of them against Mr. Curry. The plaintiff says, however, that no such statements were made to Mr. Strouse, the agent; Mr. Robinson very positively denies that there was any inquiry made as to whether there were liens on the property at the time, and says no such question was asked him by Mr. Strouse.”</p> <p>Plaintiff’s points were among others as follows:</p> <p>“ 8. If the jury find from the evidence that the statement made by the plaintiff in his proof of loss concerning the amount of liens against the property was erroneous, and they further find that said statement was made through inadvertence or mistake as to the amount due upon the judgments, and without fraudulent intent, such statements, so made, will not defeat the plaintiff’s right to recover in this suit.” Affirmed. [3]</p> <p>“ 7. If the jury find as a fact from all the evidence that the statements made by the plaintiff of or concerning an attempt to burn his house were made under a misapprehension of the facts, and that in fact no such attempt was made, the plaintiff is entitled to recover notwithstanding such apprehension and statements.” Affirmed. [4]</p> <p>“ 8. In discussing the question as to whether an attempt had in fact been made to burn the plaintiff’s house, there being no evidence of such an attempt except the plaintiff’s alleged declaration, the jury should take into consideration the plaintiff’s age and infirmities, if any, and if the jury find that such apprehensions were groundless, the plaintiff is entitled to recover notwithstanding fears in respect thereto. Answer: We have already instructed you, gentlemen, that the matter of the plaintiff’s apprehension is not material in the case. It is a question whether facts existed there from which it could be reasonably concluded that there was an attempt to burn the plaintiff’s house.” [5]</p> <p>Defendant’s points were among others as follows :</p> <p>“ 1. If there had been an attempt to set fire to the plaintiff’s house a short time before he obtained the policy of insurance sued upon, such attempt was material to the risk and increased it; and if the plaintiff omitted to communicate this fact to the defendant at the time he obtained the insurance, or before it, he cannot recover. The evidence of the fact that there was such an attempt, resting as it does upon statements of facts made by the plaintiff himself, is conclusive against him, unless those facts are explained. There is no evidence tending to explain away those facts. Answer: This point is affirmed as to the first period, and is affirmed as to the second period, if it be understood to mean that you are authorized and justified in taking the statement of the plaintiff himself as to the circumstances and facts concerning which he made statements. There has been no evidence offered to contradict or deny the statements made by the plaintiff as to the facts which he stated as having been correct when the alleged attempt was made to burn the house.” [6]</p> <p>6. Request for binding instructions. Refused. [7]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (2-8) instructions; (9) ruling on evidence ; quoting instructions, bill of exceptions and evidence.</p>

Appeal, No. 7, July T., 1892, by plaintiff, Jacob Fritz, from decree of C. P. Erie Co., Nov. T., 1891, No. 5, refusing preliminary injunction. Bill for injunction to restrain construction of electric railway.

<p>Appeal, No. 130, Jan. T., 1893, by plaintiff, John Hays, from judgment of C. P. Cumberland Co., Sept. T., 1889, No. 211, on verdict for defendants, E. B. Leonard et al.</p> <p>Ejectment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Furst, P. J., of the 49th judicial district, specially presiding, gave binding instruction for defendant. [2]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was (2) above instruction, quoting it.</p>

<p>Appeal, No. 153, July T., 1893, by defendant, Alfred Short, from judgment of C. P. Erie Co., Nov. T., 1889, No. 3, on verdict for plaintiff, John T. Williams, administrator of William McDougal, deceased.</p> <p>Assumpsit, Aug. 27,1889, to recover royalties on oil lease from June 25,1879, to Feb. 5,1881, date of McDougal’s death.</p> <p>At the trial, before Gunnison, P. J., it appeared that on Aug. 20,1877, Win. McDougal executed an oil lease to Charles A. Arndt and James W. Gray. By the terms of the lease the lessor was to receive “one fourth of the oil obtained on the lease, to be delivered in any good pipe-line that may be connected with this well or wells on this lease, and to be credited to first party on the books of said line at their office.” On Oct. 19, 1877, the lessees assigned the lease to defendant. The latter did not sign the lease nor the assignment of the same. On June 25,1879, defendant wrote to the pipe-line and directed them to run all of the oil to his credit. This was done and no oil was placed to MeDougal’s credit until over a year afterwards. Defendant claimed that the transfer of the oil to his account was made under an order from McDougal, but there was no direct evidence to establish this. A former employee of the pipe-line company testified that transfers of interests were made only upon orders in writing.</p> <p>Plaintiff offered depositions of E. R. Shepherd et al. Objected to because exhibits mentioned as attached do not appear. Objection overruled, evidence admitted and bill sealed. [1]</p> <p>Counsel for defendant object to the references to the books in the deposition of Mr. Shepherd, for the reason that the books themselves would not be proper evidence if produced in court, not being such books of original entry as would be competent to offer themselves.</p> <p>The Court: It is not alleged that it is a book of original entry, but there is this principle which may govern the competency of the evidence, and that is the rule which requires the best evidence that the nature of the case will admit of. When the best evidence is a written instrument of some kind, that is the best evidence and must be either furnished or its absence accounted for. Sometimes the best evidence that the nature of the case admits of is hearsay evidence, and in that case hearsay evidence is admissible. If the man who runs the oil and gauges it throughout the year does not keep a record of it, he could not testify as to it. He could not remember every day’s run. Unless he keeps a record of it that would be no evidence at all. I do not know how that is, it is not shown so far.</p> <p>Plaintiff’s counsel proposes to follow this with evidence to show that Mr. Short, the defendant, received the money from this oil and settled by the statement which is thus made upon the books of the pipe-line company, and that he is therefore bound by it, having assented to it and accepted it in making his settlement with the pipe-line.</p> <p>Objection overruled, evidence admitted and bill sealed. [2] Plaintiff’s point was as follows:</p> <p>“ Plaintiffs counsel ask the court to instruct the jury that under the uncontradicted evidence in the case the verdict should be for the plaintiff for one fourth of the value of the oil produced during the period in controversy, with interest. Answer : The answer of the court is that under the uncontradicted evidence in the case the plaintiff is entitled to recover, and that the measure of damages would be the value of one fourth of the oil produced during the period shown by the testimony, with interest to date.” [3]</p> <p>Defendant’s points were among others as follows:</p> <p>“ 1. The court is respectfully requested to charge the jury that, it appearing from the evidence that more than six years have elapsed since the alleged right of action accrued against the defendant, and prior to the bringing of this suit, the plaintiff cannot recover, and they must find for the defendant.” Refused. [4]</p> <p>“ 2. That if the jury find from the evidence that the defendant, Alfred Short, delivered the oil in question to the pipe-lines in accordance with the lease upon which this suit is brought, that such delivery was in law a delivery to the plaintiff, the said pipe-line being the agent of the plaintiff, and such delivery was a full performance of the covenant contained in said lease, and the plaintiff cannot recover in this action. Answer: That point is refused. The delivery to the pipe-line with instructions to credit it to the plaintiff would be delivery to the plaintiff, but that is not the way in which the evidence shows delivery was made, so that they would not receive it as the agent of the plaintiff.” [5]</p> <p>4. Request for binding instructions. Refused. [6]</p> <p>Binding instructions for plaintiff were given. [7]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, and (3-7) instructions; quoting instructions and bills of exception, but not evidence.</p>

Appeal, No. 92, Jan. T., 1893, by defendant, H. C. Yard, executor of Fannie Vance, deceased, from judgment of C. P. Erie Co., Nov. T., 1891, No. 12, on verdict for plaintiff, Ella J. Chidester, formerly Durban. Issue to determine ownership of proceeds of benefit certificate issued on life of Fannie Vance by the Equitable Aid Union, a beneficial association organized under the laws of Pennsylvania.

Appeal, No. 404, Jan. T., 1893, by defendants, John A. Benson et al., executors of Wm. Benson, deceased, from judgment of C. P. Erie Co., May T., 1889, No. 184, on verdict for plaintiff, James Janes, to use of D. N. Patterson and A. H. Austin. Assumpsit to charge surety on sealed note. The facts as they appeared at the trial before Gunnison, P. J., are stated in the opinion of the Supreme Court. Defendant’s point was among others as follows: “ 1.

<p> Decedents' estates—Claim for boarding—Belationship. </p> <p>The rule that as between parent and child there can be no recovery for services, boarding and the like, in the absence of an express contract to pay therefor, does not apply to a son-in-law who boards his fathor-in-law. Smith v. Milligan, 43 Pa. 109, applied.</p> <p> Contract to pay for board—Declarations—Quantum meruit. </p> <p>Declarations of a father-in-law that he had agreed to pay his board to his son-in-law, with whom he lived, are admissible in a suit by the son-in-law against his father-in-law’s administrator for boarding decedent.</p> <p>In such a suit a recovery may be had although no sum was mentioned between the parties. The gist is the actual agreement to pay, and if the sum be not expressed, it will be implied to be the value.</p> <p> Evidence—Offer to compromise. • </p> <p>Before suit was brought plaintiff presented a bill for $500 to the administrator for boarding the decedent for one hundred and ninety-seven weeks. Before the bill was presented he said to the administrator that if the claim was settled without trouble, he would make it light, that he would make it $500. After the refusal of the administrator to pay the bill, plaintiff presented a second bill for $984. Held, that plaintiff was not concluded by the first bill, and that it was proper to submit to the jury the first bill, with the conversations relating to it.</p>

<p> Ejectment—Collateral impeachment of sheriff’s sale—Evidence. </p> <p>In an action of ejectment against a sheriff's vendee of land, evidence is inadmissible to show that the description of the improvements on the property in the sheriff’s notices of the sale was inadequate.</p>

Appeal, No. 180, Jan. T., 1892, by defendant, James Calvin Baker, trustee under will of David Baker, deceased, from judgment of C. P. Cumberland Co., in favor of E. J. McCune, executor of Amanda Baker, deceased, on case stated. Case stated to determine ownership of legacy under will of David R. Baker, deceased.

<p>Appeal, No. 446, Jau. T., 1893, by plaintiffs, Mary Mulderick et al., heirs of John Mulderick, deceased, from order of C. P. Erie Co., Sept. T., 1888, No. 69, refusing to take off compulsory nonsuit.</p> <p>Assumpsit for death benefits. Before Gunnison, P. J.</p> <p>Plaintiffs in their statement averred that their father, in 1884, became a member of defendant association, whereby, under the constitution and by-laws, defendant was bound to pay benefits named to plaintiffs, notwithstanding one Fi'ank, a stranger, was named as beneficiary. On the trial, plaintiff gave in evidence the following extracts from defendant’s constitution and bylaws of 1882 : “ In case of death, to pay a stipulated sum to such person or persons as may be designated by each member, thus enabling him to guarantee his family against want.”</p> <p>It was also provided that the lodge “ guarantee to each member the payment at his death of $2,000 to such person or persons as he may while living direct; provided that said member shall fully comply with each and all requirements of the hereinafter specified conditions and with the general laws governing said corporation.” “ I further agree to accept said beneficiary certificates subject to such laws as now exist or may hereafter be adopted.” The form of certificate prescribed contained a blank for designation of “ relationship ” of beneficiary. There was also a provision authorizing change in beneficiaries.</p> <p>Plaintiffs also gave in evidence a constitution and by-laws, adopted March, 1888, containing same guarantee, with addition of words “ within the rules for that purpose ” between “ direct ” and “ provided.” Also, “ In filling up applications, or applications for change of beneficiary certificates .... a single man with children must select the children.”</p> <p>The evidence also showed that the first certificate designated the wife, and that the present one was made in 1884 after her death. Mulderick died April 28,1888. Defendant association was incorporated under act of Feb. 25, 1871, P. L. 197, but surrendered its charter under that act in 1887. In May, 1888, defendants were notified to pay plaintiffs. In October, 1888, they paid Frank.</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off, on the ground (1) that the constitution of 1882 authorized the naming of Frank as beneficiary; (2) the constitution of 1888 did not apply ; and (3) there was no contract between plaintiffs and defendants.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Judgments—Revival—Notice—Terre tenant—Married women—Act of April 16, 1849, P. L. 664.</p> <p>The intent of the act of April 16, 1849, relating to revival of judgments, was to continue the lien of an original judgment against the lands of the debtor by a revival against him alone, unless the purchaser or terre tenant put his deed upon record, or was in actual possession, in which cases the five years commenced to run in his favor from the date of recording the deed, or from the date he took possession of the land, personally or by his tenant. The only notices provided by the act are (1) by recording the deed, and (2) by taking possession of the land. Notice by actual knowledge on part of judgment creditors of an unrecorded conveyance, is not within the meaning of the act.</p> <p>Where land bound by a judgment is conveyed by the owner to his wife, with the knowledge of the judgment creditor, and the husband and wife continue to live upon the land, the transfer of the title to the wife carries with it the right to the possession, and the possession thus acquired by the wife is sufficient notice under the act of April 16, 1849, to require proceedings to revive the judgment to be commenced within five years from the date of the deed to the wife.</p>

<p> Public officers—Illegal acts—Public policy. </p> <p>Dealings between a public officer in his official capacity and himself as a private citizen, of such a nature as to bring'him in collision with other citizens equally interested with himself in the integrity and impartiality of the officer, are against public policy.</p> <p>Public policy means the public good. Anything that ten 'Is clearly to injure the public health, the public morals, the public confidence in the purity of the administration of the law, or to undermine that sense of security for individual rights whether of personal liberty or of private property which any citizen ought to feel, is against public policy. Per Me. Justice Williams.</p> <p> Land office—Secretary of internal affairs—Warrants—Surveys. </p> <p>Public policy forbids that the secretary of internal affairs should receive his own individual application for a land warrant, grant it, cause a survey to bo made and returned upon it, accept the return of survey, pass upon the validity of the survey as a member of the hoard of property, and finally cause a patent to be issued to himself, the individual, for the land included in the survey. The same rule applies to the deputy secretary.</p>

<p>Appeal, No. 246, Jan. T., 1893, by plaintiff, Catharine E. Bierer et al., from judgment of C. P. Fayette Co., Sept. T., 1889, No. 105, on verdict for defendant, Isaac Hurst et al.</p> <p>Trespass to recover damages for injuries caused by obstruction of natural water course.</p> <p>At the trial, before Ewing, J., it appeared that a stream of water running into Uniontown was carriéd across Mt. Vernon street by a culvert. In 1883 or 1884, Joseph Strickler, whose lands adjoined Mt. Vernon street, continued the culvert across his lot up to the line of defendant’s land. Defendants then continued the culvert across their property up to a point near plaintiff’s land. There was evidence that in 1887 a natural gas company laid its pipe along Mt. Vernon street and through the upper part of the culvert, diminishing its carrying capacity nearly one third. During the years 1887 and 1888, the injuries complained of were caused by the waters backing up on plaintiff’s land. Defendants’ evidence showed that during these years there were extraordinarily heavy freshets.</p> <p>When J. L. Malcolm was on the stand, he was asked:</p> <p>“ Q. If the Hurst culvert caused all the overflow that you saw there, what damage was it to the Bierer property ? ” Mr. Boyd: Defendant objects that the witness hasn’t said that the overflow was all caused by the Hurst culvert. Mr. Campbell: Well, I propose to ask the witness that question. Mr. Boyd: I object, because it has already appeared from the evidence and from the testimony of this witness, that all the overflow was not on the Hurst land, but was partly on Bierer’s own land above. Objection sustained and exceptions. [8]</p> <p>“ Q. Mr. Malcolm, what damage to the Bierer land was the overflow that you saw there?” Mr. Boyd: Well, I object, unless it was from the overflow caused by the Hurst culvert, it already appearing from the testimony of the witness that he saw the land overflowed from other causes there. The Court: The witness having stated that the overflow that he saw was not all caused and couldn’t saj*- what part of it was caused by the culvert in question, the objection is sustained and bill sealed. [9]</p> <p>“ Q. Mr. Malcolm, was the overflow of the water which you saw there on to the Bierer land any damage to the Bierer land? ” Mr. Boyd: I object. If the question is confined to the ■ overflow caused by the construction of the Hurst culvert, there is no objection, but if it refers to the damage of another overflow there, why there we object that it is not competent. Mr. Campbell: Well, I don’t know now what position the counsel takes: The Court: Well, he takes the position that you can’t show damage that was not caused by the Hurst culvert. Mr. Campbell : Well, does he object to that question ? Mr. Boyd: Certainly. Mr. Campbell: Very well. Objection sustained, unless the witness can state that the damage was caused by this sewer. Exception. [10]</p> <p>The court charged in part as follows :</p> <p>“ In this case the plaintiffs say that prior to 1885 they had no trouble with the water coming from their land as they have had since, although they admit that prior to that time as well as subsequently, perhaps, their land has been at times subject to overflow by reason of unusual rainfalls and consequent extraordinary volume of water coming down that stream and breaking over the banks of the stream on their own property, as well as above, sometimes breaking over above at the MeClellandtown road and running down over their land. But they say that since that time, 1885, prior to which time, a few years, the defendants obtained a lot of land adjoining the plaintiffs’ property, that they have been troubled by the water running on to their land from the defendants.</p> <p>“ You will remember that the defendants’ land is lower on the stream than that of the plaintiffs, and they say that, since the period that I have mentioned, the water has run along the land of the defendants in the neighborhood of the line between the plaintiffs and defendants for some distance, and then across from the defendants’ land on to that of the plaintiffs, traversed their land for some little distance, covering, as Mr. Bierer testifies, a spot of from a quarter to half an acre, and then passing off of their land on to the laud of Mr. Thompson and then others, perhaps, until it gets to Mt. Yerno u avenue and finds its way into the creek: and they say that this has been caused by obstructions placed by the defendants in that stream, and they have spoken particularly about two kinds of obstructions. They say, in the first place, that the defendants placed boards there in the line fence, or in the opening of the sewer that he had constructed there, in such a way as to dam up the water and throw it off of their premises on to the premises of the plaintiffs, and that they had constructed a sewer over the defendants’ lot which was insufficient to carry off the volume of water in that stream in the ordinary and usual stages. And when I speak of ordinary and usual stages, you will remember that I mean, not only in dry seasons, hut the ordinary and usual freshets to which that stream is subject. They say that by reason of this they have been damaged ; that their sod has been washed and that they have been unable to have the use of the pasture that they would otherwise have, because of its being covered with this water; and further that at one time their fence was washed away, and for that, also, they ask jmu to give them damages.</p> <p>“ [You will have to go over the testimony, gentlemen of the jury, and ascertain whether or not these obstructions or either of them were or was placed in that stream by the defendants, and whether by reason of that obstruction the water from this stream was thrown upon the land of the plaintiffs, and, if so, what damage it did.] [1]</p> <p>“ If the water was thrown upon their land by reason of the obstructions placed there by the defendants, the plaintiffs would be entitled to recover at least nominal damages ; and if they have proven any actual damages done to their land by reason of the overflow, they would be entitled to compensation for that damage, whatever it would be, and Mr. Bierer says the fence cost ten dollars once when it was washed away, and that at another time it required two hands half a day to repair it; that they lost the use of the pasture on that land which occasioned them loss in addition to the fence matter. Now he places an estimate on that of from three to five hundred dollars, I believe. Another witness, Mr. Duer, although not seeing the water, perhaps, at the time it was flowing over the land, says that he visited the place and saw where the water had been, and that it came from Hurst on to the plaintiffs’ land, and then off on to Thompson’s and away; and he says, if that had occurred frequently, he would think the damage would be from two to three hundred dollars, I believe, but he didn’t know how often it had occurred or what the damage was.</p> <p>“ [Now, on the part of the defendants, they contend in the first place that they placed no obstructions in this stream. Mr. Hurst testifies that as far as the boards placed at the end of the sewer are concerned, he never placed any boards there but once, but did once after the plaintiffs had built up the banks of the stream on their land in such a way as to cause it to contain such an unusual amount of water and discharge it on his land in times of extensive rains, that he did put boards up there to keep that water off of his land; that he did build this sewer, but that he built it large enough to carry off all the water from that stream in the stages that I have spoken of— usual stages—and that any loss that has been occasioned by damage done to the plaintiffs, by reason of water flowing from his land on to their property, has been occasioned by no obstructions placed there by him, but by obstructions placed below him by some lower riparian owner and for which he would not be responsible ;] [2] and he has called your attention, not only to the dimensions of the sewer on his own property, but on that of Mr. Strickier, and also of the one that crosses Mt. Vernon avenue. He has also called your attention to a barrel which has been placed along his sewer somewhere about the middle of it as I recall it—perhaps not so far down as the middle of his lot—right on top of the sewer, and in which he and other witnesses have testified that they have seen the water rise to within six or eight inches of the top of the barrel, fully as high as the water was at the point where it entered the sewer at the Bierer line; and from the testimony in regard to the size of the sewer on his property and others below him, and the height of the water in this barrel, [they ask you to find that the obstruction isn’t upon his property, but below, and that the damage if any is not occasioned by any obstruction placed by him in that stream, but by somebody below him obstructing the stream to such an extent that it backed the water up, not only upon him, but upon Mr. Bierer as well.] [3]</p> <p>“ [Now those are the main questions, and it will be for you to determine whether or not, either by the obstruction of boards or the construction of this sewer, the water of this stream has been backed up and thrown upon the land of the plaintiff by the defendant; and, if so, then the plaintiffs are entitled to recover such an amount of damages as they have shown by the testimony they have sustained.] [4]</p> <p>“ [If, on the other hand, this water has been backed up and thrown upon the plaintiffs’ land, but not by any obstruction placed in the stream, or by any failure in the construction of the sewer to provide a proper method of carrying off the water by the defendants, but by somebody below them, the defendants would not be responsible for that, and your verdict would be for the defendants. If they have done their duty and the injuries result from a failure of somebody below to perform their duty, the plaintiffs must look to such persons for any damage such failure to perform their duty majr have caused them and not to the defendants.] [5] [But, if it is occasioned by the defendants, the plaintiffs would have a right to recover; and they have called your attention to the measurements of this sewer and say that it follows, as they contend, that the sewer being smaller than the stream above the damages result from the action of the defendants in constructing the sewer, and they are responsible. Mr. Bierer says that these floods have occurred frequently since 1885, and a number of times he speaks of.] [6]</p> <p>“Now in passing upon this case, if you should find from the testimony, after going over it all carefully, that the defendants have obstructed the flow of the water in that stream to such an extent as to make them liable to the plaintiffs—that is, that they have obstructed the stream or constructed their sewer in such a way that it will not carry off the usual stages of water and the ordinary freshets to which that stream is subject, then they are liable and your verdict must be for the plaintiffs. [You will bear in mind, however, that it is only the usual stages of water and the ordinary freshets that they are responsible for; unusual stages or extraordinary floods the defendants would not be responsible for.] [7]</p> <p>“Now the plaintiffs have requested us to instruct you:</p> <p>“ ‘ 3. If the jury believe all the testimony in the case, the verdict should be for the plaintiffs for substantial damages, the uncontradicted evidence being that the natural course of the stream of water in question has been turned by the obstructions placed therein by the defendants so that it now flows on plaintiffs’ land.’ Answer: In reply to that point, we say to you, that the plaintiffs are entitled to recover any such amount of damages as they may have shown you they have suffered, if you believe from the evidence that this flow of water has been occasioned by any acts of the defendants in obstructing the flow of the water of that stream and changing its course. [11]</p> <p>“ The defendants requested us to instruct you:</p> <p>“ ‘ 1. If the defendants kept and maintained the channel of the stream and culvert on their land in a condition to carry off the water at ordinary stages and freshets, they would not be liable for the increased flow of the water upon plaintiffs’ land, caused by extraordinary floods and the acts of plaintiffs in enlarging the capacity of the channel on their land by raising the banks of the stream beyond their ordinary and usual height.’ Affirmed. [12]</p> <p>“ ‘ 2. The defendants would have a right to protect their land from an extraordinary flow of water caused by plaintiffs increasing the capacity of the channel on their land beyond its original construction and its ordinary condition.’ Answer: In answer to that, we say to you that what the defendants were obliged to provide for was the usual and ordinary stages of water, including usual and ordinary freshets in and carried by the channel of that stream as it came from their land in its usual and ordinary condition. They wouldn’t be obliged to provide for an extraordinary flow of water in that channel, caused by the defendants throwing up the banks of the stream, making it to carry more water than usually flows in that course. [13]</p> <p>“ ‘ 3. If the defendants kept and maintained the channel of the stream and culvert on their land in a condition to safely carry off the ordinary flow of water and ordinary freshets, they would not be responsible for any increased flow of water on plaintiffs’ land, caused by the act of any lower riparian owner in obstructing the channel.’ Affirmed.” [14]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1-7,11-14) instructions; (8-10) rulings on evidence; quoting instructions and the bills of exceptions ; (15) that the charge was misleading and diverted the attention of the jury from the only proper point in the case, viz.: The ascertainment of damage sustained by plaintiffs.</p>

Appeal, No. 17, July T., 1893, by defendant, George J. Schoch, from judgment of C. P. Snyder Co., Feb. T., 1891, No. 54, on verdict for plaintiff. Assumpsit for loss for nondelivery of wheat. At the trial, before McClure, P. J., it appeared that, in 1890, George W. Eckert, residing and doing business in Allentown, Pa., and George J. Schoch, defendant below, residing and doing business at Selin’s Grove, Pa., were each engaged in the business of buying and selling grain.

<p>Appeal, No. 209, Jan. T., 1893, by defendant, H. C. Yocum, from judgment of C. P. Lehigh Co., Sept. T., 1892, No 65, on verdict for plaintiff, Oscar Rice.</p> <p>Appeal from justice of the peace in action for conversion of sewing machine.</p> <p>At the trial before Albkig-ht, P. J., it appeared that defendant was agent for the Singer Sewing Machine. He called on plaintiff’s wife who agreed to give him in part payment for a new machine, an old machine and five dollars in money. Both the old machine and the money were the property of plaintiff. Defendant took away the old machine and the money, and turned both over to the general agent of his company. Some days afterwards defendant received a letter from Mrs. Rice for her husband in which he was requested to bring back the old machine and the money and take away the new machine, as it was too expensive for them. The request was refused.</p> <p>The court charged in part as follows :</p> <p>“ The allegation of the plaintiff is that he owned a sewing machine, and that he had some money in his house where he lived near Coopersburg, in this county, with his wife, and that, in his absence, the defendant, H. C. Yocum, who was acting, as he says, for the Singer Sewing Machine Company, came to plaintiff’s house, and that the wife then made an exchange of sewing machines with Yocum, or that she parted with the machine that her husband owned, and took in exchange a machine which Yocum then delivered, the wife signing a contract for the payment of the new machine ; that she then gave away the machine the husband owned and five dollars of money that belonged to him, and the plaintiff further alleges that the wife did not at the time state to Yocum that the property was hers, and that Yocum made no inquiry whether it belonged to the husband or the wife. If all this is proved, I am of the opinion that the plaintiff can recover the value of the machine taken belonging to the husband together with the money of the husband that was received by Mr. Yocum.” [5]</p> <p>Defendant’s points were as follows ;</p> <p>1. Request for binding instructions. Refused. [1]</p> <p>“ 2. A demand without a refusal will not sustain trover and conversion. There is no proof of a personal demand on the defendant or a refusal on his part to deliver the machine. Answer : This is negatived. This has no application to the question submitted as stated in the charge.” [2]</p> <p>“ 3. A demand by both is not sufficient to establish a conversion. Answer: In this point I give the same answer as to the last preceding point.” [8]</p> <p>“ 4. According to the uncontradicted proof, the machine in controversy was delivered to Yocum, the defendant, in part payment on a contract between the wife of the' plaintiff and the Singer Manufacturing Company, and was received by him as the agent for said company, and by him turned over to the said company at Allentown, on the day of the date of the lease, and was not converted by him, and was not in his possession or under his control at the time of the writing of the letter, or at the time of the bringing of this suit; as a matter of law on these admitted facts there can be no recovery against the defendant. Answer: This is negatived. The court is of the opinion that the fact that the defendant" acted for the manufacturing company is no protection to him if the facts which I have stated to be necessary to a recovery on the part of the plaintiff are proved. He would then be in the position of having received from one person the property of another, and under circumstances where he could not say that he had been misled, and if he so received the property, he received it wrongfully, and the party who was deprived of it has a cause of action. In brief, the court is of the opinion that if a party goes to the dwelling house of a man where he and his wife and family resides, and in the absence of the husband obtains from the wife property which belongs to the husband, and the party receiving it has not been misled, has made no inquiry, and the wife and nobody else has misled him as to the ownership, in such a case I am of the opinion that the husband can recover, and that the taking of his property in that way is wrongful, because if a man may thus obtain one article in a man’s house he might obtain all that was there, and surely it cannot be the law that that can be done, and that the party thus deprived of his property would have no redress.” [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p>Appeal, No. 332, Jan. T., 1893, by plaintiff, from decree of C. P. Carbon Co., April T., 1892, No. 2, dissolving preliminary injunction against Henry Miller et al., commissioners of Carbon county, and Taliesin H. Evans, tax collector of Mauch Chunk twp.</p> <p>Bill to restrain collection of tax on coal-pockets.</p> <p>The bill averred that plaintiff was empowered by act of Feb. 13, 1822, to construct and maintain a canal along the Lehigh River.</p> <p>That the prime motive for the authority to construct said canal and said railroad, and the chief business carried on by means of the same, is the transportation and distribution of anthracite fuel. That in order to carry on this business it is absolutely indispensable to erect and maintain at points where the coal is delivered to the canal for transportation, some practical and adequate means of transferring the coal from the land to the canal boats, and this complainant and all other persons or corporations engaged in transporting anthracite coal by canal, have always had and maintained as an essential part of the works of the canal such means for transferring coal from the land to the boats for transportation by canal. That this complainant has erected and maintained at the head of its canal navigation at Coalport, in said Mauch Chunk township, a plant for that purpose, commonly called the Coalport coal-pockets, by means of which all the coal shipped on its canal is transferred from the land to the boats and without which, or some similar contrivance, it would not be practicable for this complainant to carry its own coal, or that of the other producers, on its canal, and so accomplish the main object of the existence of said canal, or perform its duty as a common carrier by canal, of anthracite coal.</p> <p>That Taliesin H. Evans, tax collector of Mauch Chunk township, has in his hands warrants for the collection of $547.50 for various taxes of 1892, assessed against these coal-pockets, and may and threatens to levy on and sell property of the complainant to enforce the payment thereof.</p> <p>The complainant alleged that said coal-pockets were an indispensable part of the line of transportation it is authorized to construct and maintain, and therefore not taxable for county, school, and township purposes; that a levy and sale of its personal property to enforce the payment of the alleged illegal tax would work irreparable injury.</p> <p>The bill prayed: (1) That the assessment of said pockets may be stricken from the assessment list. (2) For an injunction, preliminary, until hearing, perpetually thereafter, to restrain the collection of the tax for 1892 assessed on said coal-pockets. (3, 4) Further relief.</p> <p>The material averments of the injunction affidavits are stated in the opinion of the Supreme Court. The court granted a preliminary injunction, which it subsequently dissolved.</p> <p>The following opinion was filed by Dkeher, P. J.</p> <p>“ When the question of the taxation of the coal-pockets, mentioned in the plaintiff’s bill, was before us in the appeal of the plaintiff from the action of the county commissioners, sitting as a board of revision, in the opinion then filed, we said, in No. 12 Oct. term 1892:</p> <p>“ ‘ The evidence shows that the structure called the “ pockets ” is for the purpose of trans-shipping coal from the cars of the company’s railroad to the boats in the canal. As we understand the evidence, these pockets are something similar to, and serve the same purpose as, the shutes and slides in the case of Wayne Co. v. Delaware & Hudson Canal Co., 15 Pa. 351. Indeed, the circumstances of the two companies in this regard are almost the same. As it was held in that case that the shutes were taxable, so we must hold here that the pockets are taxable.’</p> <p>“ The facts as now presented by the present bill and affidavits are not changed, and we are still of opinion that the case of Wayne Co. v. Delaware & Hudson Canal Co., rules the case.</p> <p>“And now, Jan. 28, 1898, the preliminary injunction granted on the 17th day of January last, is dissolved.”</p> <p>Errors assigned were, (1) in holding the Coalport coal-pockets real estate taxable for county purposes; and (2) in dissolving preliminary injunction.</p>

<p> Negligence—Railroads—Ejection of passenger—Evidence. </p> <p>It is the duty of a passenger who is wrongfully ejected from a train and placed upon the track, to leave the track at the earliest practicable opportunity that a reasonably prudent man would discover and seize upon, and the burden of proof that he did so is upon him.</p> <p>A passenger Was wrongfully ejected from a train at a point in an apparent wilderness, and where the only possible way out seemed to be along the railroad tracks. The passenger was ignorant of the surrounding country, and knowing of no opening by which he could get off the track, and upon a traveled road, he took the track upon which he would face approaching trains, and followed it until he came to a bridge, and in crossing the bridge was struck by a locomotive and killed. The evidence as to the distance the passenger walked varied, but the lowest estimate placed it at about half a mile. There was evidence on behalf of defendant that there was a traveled road which could easily be seen from the point where the deceased was put off the track. It was held that the case was for the jury. Mr. Justice Green dissented on the ground that the presence of the passenger at so remote a point could not be justified except upon a clear proof of a most imperious necessity.</p> <p> Evidence—View of ground by jury. </p> <p>Where a jury has viewed the scene of an accident, it is not improper for the court to say in the charge that the jury have the aid of their own observations “ to supplement the testimony of the witnesses.”</p>

Appeal, No. 288, Jan. T., 1893, by defendant, Walter G. Evans, from judgment of C. P. Lancaster Co., May T., 1890, No. 15, on verdict for plaintiffs, Emma C. Evans, and James Evans, guardian ad litem of Gertrude Evans et al. Sheriff’s interpleader to determine ownership of personal property.

<p>Appeal, No. 9, July T., 1893, by defendant, Ewing B. Porter, from judgment of C. P. Fayette Co., Dec. T., 1891, No. 216, on verdict for plaintiff, John K. Beeson.</p> <p>Ejectment to enforce specific performance.</p> <p>At the trial before Inghram, P. J., plaintiff offered in evidence the following agreement:</p> <p>“ This article of agreement, made the 27th day of January, A. i>. 1891, by and between J. K. Beeson, of Uniontown, Pa., and E. B. Porter of the same place ; Witnesseth, That the said Beeson does hereby sell and agree to convey to the said Porter, clear of all incumbrances, all his undivided interest in the Mount Braddock land, lying east of the land bought by T. R. Wake-field at assignee’s sale, the eastern boundary of the same being located parallel with and thirty feet west of the B. & O. R. R., and situated in Dunbar township, Fayette county, Pennsylvania, the consideration to be ten thousand four hundred dollars, payable to the said Beeson when he shall make and deliver to the said Porter a good and sufficient deed for the same.”</p> <p>Subsequently a deed was tendered to defendant, who claimed that it did not contain all the land specified in the agreement. The deed called for “ all that tract of land known as Mount Braddock which lies on the east side and adjoining the land conveyed by said John K. Beeson and Ellen T., his wife, to Samuel E. Ewing, excepting and reserving all rights in and to the same of the Fayette County Railroad Company.”</p> <p>The court charged in part as follows:</p> <p>“ It will be, gentlemen of the jury, our duty to instruct you as to the construction of the agreement, and we do instruct you, that by said agreement the plaintiff sold and agreed to convey to the defendant, Porter, clear of all incumbrances, all his, the plaintiff’s, undivided interest in the Mt. Braddock farm, tying east of the land bought by T. R. Wakefield at the assignee’s sale, and the eastern boundary of the same located parallel with and thirty feet west of the B. & O. railroad, in Dunbar township, in this county; that the consideration was to be $10,400, and that that was payable to Beeson when he should make and deliver to said Porter a good and sufficient deed. It being admitted by the plaintiff that he has already received $400, it would leave still $10,000 coming to him.</p> <p>“ The plaintiff has testified that the deed which he tendered to the plaintiff is in accordance with the terms of the agreement, and covers all the land which he agreed to convey to the defendant. The counsel for the plaintiff claims that he has filed that deed in the office of the prothonotary, there to be held until such time as the defendant shall comply with his part of the agreement.</p> <p>“As we have, now, gentlemen of the jury, tried to construe this agreement to you so that you may property understand it, [we leave it to you to determine from an inspection of the deed and the agreement, as we have interpreted it, whether or not the plaintiff has complied with the terms of the agreement by tendering to the defendant such deed as he is required to deliver under this agreement.] ” [3]</p> <p>Defendant’s points were, among others, as follows:</p> <p>2. The description in the plaintiff’s deed does not correspond with the description in the article of agreement. Refused. [1]</p> <p>3. Request for binding instructions. Refused. [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) answers to points; (3d and additional assignment) portion of charge in brackets; quoting portion of charge, points and answers.</p>

Appeal, No. 38, Jan. T., 1893, by defendants, D. P. Stackhouse and Christian S. Kline, from judgment of C. P. Lancaster Co., Jan. T., 1889, No. 80, on verdict for plaintiffs, Theodore P. Brown et al., trading as the Worcester Organ Co. Trespass for wrongful distress.

Appeal, No. 51, July T., 1893, by defendants, George W. Conrad et al., from order of Q. S. Phila. Co., March T., 1893, No. 1, discharging rule to show cause why an election petition should not be quashed. Rule to quash election petition. The facts appear by the opinion of the Supreme Court. The petition in places does not distinguish between petitioners who are contestants and those who are not, calling them all contestants.

<p>Appeal, No. 170, July T., 1892, by plaintiff, Francis McKenna, from decree of C. P. No. 4, Phila. Co., Dec. T., 1889, No. 627, dismissing bill in equity against James Lyle.</p> <p>Bill and cross-bill for account between partners.</p> <p>It appeared from the record that after the bill and cross-bill had been filed the parties entered into an agreement of arbitration which was as follows :</p> <p>“ It is hereby agreed between the undersigned co-partners of ■the firm or Lyle & McKenna, wholesale liquor dealers, as follows, viz.:</p> <p>“ Whereas a difficulty exists between the said parties in reference to their partnership matters, and a bill and cross-bill in equity, has been filed by them in C. P. No. 4, Dec. T., 1889, No. 627, and to avoid the expenses and delay incident thereto, these presents are executed. The agreement being as follows, viz.:</p> <p>“ Each partner hereby names a party as arbitrator or referee to examine the books of account of the firm, to hear both parties as to their claims against each other and the partnership matter, (under oath, if desired,) with their counsel present, if desired, and to ascertain and find a final award between the said parties; which award or finding shall be, as to the said parties, a finality. Neither party filing exceptions, nor appealing therefrom. The amount or amounts, thus ascertained, to be paid by the party to the other forthwith, and in default thereof suit may be immediately brought therefor. Mr. Lyle names Charles Castle and Mr. McKenna names Nicholas J. Griffin as the arbitrators.</p> <p>“ In case they cannot agree between themselves they shall call in a third party as umpire, whose decision shall be then final. That is, the two forming a majority, with the like effect as if the arbitrators themselves had so agreed.</p> <p>“ All the accounts and books to be freely open to the partners and to the arbitrators, and full aid and service to be rendered by the parties to the arbitrators and to each other. Each partner is fully empowered hereby to collect all the unpaid debts, and to be paid 4 per ct. on the amount so collected from the moneys when received without any interference by the other. The moneys collected to be deposited within twenty-four hours thereafter in the Philadelphia Trust and Safe Deposit Company in the names of Henry B. Freeman and Aaron Thompson, attorneys for the firm. From the moneys so collected the rents and merchandise debts to be first paid by them, the said attorneys, on the joint orders of the firm, to them, or, in case of a refusal, upon the orders of the arbitrators; after-wards the amount found due the partners by the arbitrators. Then the balance one third to McKenna, and two thirds to Lyle. All suits brought against or by the firm to be conducted by the said attorneys, as well as all other matters in connection therewith, whose fees for advice and service, as well as costs and expenses to be paid out of the firm’s moneys equally. The expenses of the reference to be paid equally by the firm. Each partner to sign a paper to debtors of the firm to pay either one the indebtedness. Notice to the contrary, heretofore given, to be withdrawn.</p> <p>“ The bills already filed to be withdrawn upon payment of costs. The arbitrators to meet forthwith and proceed without delay until final settlement.</p> <p>“ The above fees, costs and expenses referred to are first to be divided equally and paid out of the moneys collected. Then to be apportioned, viz.: One third to McKenna and two thirds to Lyle by the arbitrators after the payments as above, upon their final finding, and upon this principle are thus to be deducted on ascertaining the amounts due either partner.</p> <p>“ The partnership is hereby agreed to be dissolved on the first day of May, A. D. 1890, and in case all the moneys should not be collected and the matters closed before this dissolution, then either of the partners shall have the same right to collect and deposit as hereinafter set forth under above terms.”</p> <p>Other facts appear by the opinion of the Supreme Court. The court dismissed exceptions to report of master, John M. Campbell, Esq., and confirmed the report, recommending dismissal of bill.</p> <p>Errors assigned were (1) confirmance of master’s report; (2) dismissal of exceptions, quoting them.</p>

<p>Argued May 4,1893.</p> <p>Appeal, No. 438, Jan. T., 1893, by defendant, from decree of C. P. No. 3, Phila. Co., March T., 1893, No. 385, awarding injunction in favor of plaintiff, Calhoun M. Deringer et ux.</p> <p>Bill to restrain erection of party-wall.</p> <p>The bill averred that plaintiff was owner of premises 1530 Spruce street in Phila., and that between her house and the adjoining one, 1532 Spruce street, was a wall nine inches in width, which was erected in 1853; that defendant had recently torn down the building known as 1532 Spruce street, and was about to erect, on the lot where it stood, a nine story brick and stone apartment house or hotel; that defendant was also about to tear down the old party-wall and erect a new one to support the said hotel.</p> <p>The bill prayed: “That an injunction be granted by your honorable court, special until hearing, and perpetual thereafter, to enjoin and restrain the said defendants, and each of them, their agents, servants and employees, from entering upon, building, injuring, removing, damaging, tearing down or in anywise whatsoever from destroying the said party-wall, and from erecting any new party-wall as herein mentioned on said premises and changing said front wall and extending the location of the same beyond the present and old established line of said Spruce street, and from entering in, upon or in any manner damaging the premises of your oratrix or hindering or interfering with the free use and enjoyment of the same, without first giving her a sufficient bond of indemnity or other adequate compensation for any and all injury or damages she may or might suffer thereby. And perpetually from erecting and building any wall whatsoever that may enter, extend into and beyond the present and established line of said Spruce street and otherwise defacing the present party-wall or property and dwelling of your oratrix situate No. 1580 Spruce street, in the city of Philadelphia.”</p> <p>The case was heard on bill, answer and affidavits. After argument, the court entered the following decree:</p> <p>“ And now, March 27,1893, it is ordered and decreed that if the said Martha E. Deringer enter security in the sum of $500 in two days from the date hereof, that a preliminary injunction issue enjoining and restraining defendants from erecting the proposed party-wall between the property of plaintiffs and defendants in such a way as to encroach upon plaintiff’s property, a greater distance than said wall now encroaches thereon, viz., four inches from the line dividing said properties. In all other respects the motion for an injunction is refused.” '</p> <p>Error assigned was above decree, quoting it.</p>

<p> Seed—Charge on land—Sheriff’s sale—Sivoree—Lien. </p> <p>A husband and wife conveyed land by deed subject to and charged with the payment of the legal interest of a certain sum of money to the grantor and his wife, annually, during their joint lives, and to the wife during her life if she survived the husband; and also subject to and charged with the payment of the said principal sum to the husband at the decease of his wife, if he survived her, and if the wife survived her husband then at her death said sum was to be paid to the child or children of the said wife by her said husband, then living, and to the lawful issue of any of them then dead per stirpes, in equal shares and parts; and if the wife survived her husband, and died without leaving a child or children by her said husband, or the issue of any deceased child by him, then said principal sum was to go to and be paid to the lawful heirs of the said husband. On the same day the grantee .reconveyed the same premises to the husband, subject to the same charge. Subsequently the land was sold by the sheriff, and some years after the sheriff's sale the husband and wife were divorced. Held:</p> <p>(1) That tie charge or lien created by the deed was not divested by the sheriff’s sale.</p> <p>(2) That the Interest of the wife in the charge thus created was not divested by her subsequent divorce from her husband.</p> <p>(3) That the lien of the charge, to the' full amount thereof, extended to every part of the land conveyed, and, upon a division of the land, the lien could not be apportioned without the consent of the parties for whose benefit it was created; and hence the wife was entitled to collect the whole of the interest due her from the present owner of the land.</p>

Appeal, No. 390, Jan. T., 1893, by John Grove, creditor, from decree of O. C. York Co., dismissing exceptions to auditor’s report, in estate of David Brose. Exceptions to report of auditor. At the audit John Grove presented a claim for $541.30, for boarding and washing and for nursing decedent, and also for funeral expenses. The auditor, N. M. Wanner, Esq., allowed the claim.

Appeal, No. 458, Jan. T., 1893, by Lizzie F. Young, a property owner, from order of C. P. York Co., dismissing exceptions to report of viewers to assess dam- ages for opening Frederick street in Hanover borough. Exceptions to report of viewers to assess damages for opening street.

<p>Appeal, No. 28, July T., 1893, by plaintiff, Eliza Nes, from judgment of C. P. York Co., April T., 1893, No. 33, on case stated in favor of defendant, William F. Ramsey.</p> <p>Case stated to determine title to real estate;</p> <p>The facts appear by the following opinion of the court below by Bittenger, J.:</p> <p>“ Eliza Nes, the plaintiff in this case, claims to recover the purchase money for real estate, described in the case stated, sold by her to the defendant. A deed for the said real estate purporting to convey a title fee simple to said lands, was duly tendered to the defendant, and payment of the purchase money, according to the terms of the sale, was demanded.</p> <p>“ The defendant refused to accept the deed and pay the contract price, for the reason that the estate of the plaintiff in said real estate is not held by a title in fee simple. The case stated is agreed upon and submitted for the determination of the question of whether or not a fee is vested in the plaintiff for the lands therein described.</p> <p>“ The title of Eliza Nes, the plaintiff, is derived from her son, William J. Nes, he having by two deeds, dated respectively September 27, 1881, and March 20, 1883, duly delivered to her, copies of which are attached to the case stated, granted and conveyed to said Eliza Nes all his estate, right, title and interest in said premises.</p> <p>“ William J. Nes claimed a fee in said lands so conveyed by him to his mother, Eliza Nes, by virtue of the devises contained in the wills of his father, A. Hamilton Nes, deceased, and his grandmother, Catharine Nes, deceased. Copies of said last wills and testaments are attached to the case stated, and the material portion of the same are recited therein.</p> <p>“ The will of A. Hamilton Nes, probated in the office of the register of wills of York county, Pennsylvania, on the 18th day of June, A. x>. 1879, so far as the same relates to this devise, is as follows:</p> <p>“ ‘ Item Second: When my said daughter shall attain the age of her majority, I give and devise to my son, William J. Nes, my tract of land, situate on the York and Gettysburg turnpike road, near York borough, adjoining lands of Henry Ebert and others, for and during the term of his natural life in such manner that he shall not dispose of the same in his lifetime, nor be in any manner liable for his debts, and, after his decease, I give and devise said tract of land to such person or persons, as he by his last will and testament, shall direct, and in the event of his dying intestate, leaving issue him surviving, then to his issue in fee. In the event of his dying intestate, leaving no issue surviving him, then to my said daughter, L. Kate, for life, and after her decease, to the person or persons she by her last will and testament shall direct, and in the event of her dying intestate, then to the persons who would take her real estate under the intestate laws of this commonwealth.’</p> <p>“ The will of Catharine Nes was probated in the office of the register of wills of York county, on the 14th day of December, A. d. 1880. The material portion thereof is as follows :</p> <p>“ ‘ Item First: I give and devise to my grandson, William J. Nes, my share and interest in the land situate in West Manchester township, York county, Pennsylvania, adjoining lands of Henry Ebert and others, for his life, and after his decease, to his issue, should he die leaving issue to survive him. In the case he should die leaving no issue to survive him, I direct that my share and interest in said land be sold by my executor, hereinafter named, and the proceeds arising from the sale thereof to be divided into two equal shares, and the one thereof I give and bequeath to my nephew, Frederick A. Eichelberger, and one share thereof, I give and bequeath to the children of my deceased nephew, Edward C. Eichelberger.’</p> <p>“ A. Hamilton Nes and Catharine Nes died previous to the execution and delivery of said deeds of William J. Nes to his mother, hereinbefore mentioned.</p> <p>“ Said A. Hamilton Nes left to survive him his widow, the plaintiff, and two children, to wit: William J. Nes, who was of age at the time of the decease of his said father, and L. Kate Nes, then a minor, who attained her majority on the 16th day of October, A. D. 1881. Said William J. Nes is still living, unmarried and without issue; said L. Kate Nes being now intermarried with William C. Warner, and having issue living.</p> <p>“ The determination of this case involves the construction of the wills of A. Hamilton Nes and Catharine Nes, in part hereinbefore recited. They must be construed in the light, and upon the authority of the decisions of the Supreme Court in cases bearing upon the questions in issue. This necessitates a review of, and reference to said cases here, which will be done ■ as briefly as' possible.</p> <p>“ Cases cited by plaintiff: Eichelberger v. Barnitz, 9 W. 447: Title to real estate to be vested in testator’s two sons, their heirs and assigns. If they should die without leaving lawful issue, then over. Decided to be a fee tail. Price v. Taylor, 28 Pa. 95: To granddaughter for life, provided she shall not leave issue at her death, and if she shall leave issue at her death, then in fee simple to her heirs forever; if she should not leave issue at her death then over. Held to be a fee tail in the first taker. Ogden’s Appeal, 70 Pa. 501: To daughter for life with power to direct by will, and in default of a will to her lawful issue ; and in default of such issue, then to her brothers and sisters. A fee tail. Haldeman v. Haldeman, 40 Pa. 29: Profit to be paid over to daughter for life; and at her death to descend and go to her child; if daughter dies leaving no issue; then to fall back to testator’s estate. Estate tail. Hackney v. Tracy, 137 Pa. 53: To Elizabeth on her making payments; if Elizabeth should die without issue then to descend to daughter Mary. Fee tail. Ray v. Alexander, 146 Pa. 242: To daughter in fee simple, provided howver should she die without leaving lawful issue then to nephews and nieces. Estate tail. Cochran v. Cochran, 127 Pa. 487: To my son my farm; and if he should die leaving no lawful issue the whole to descend to his brothers and sisters. An estate tail. George v. Morgan, 16 Pa. 95: To son for his natural life; and after his death to the heirs of his body lawfully begotten ; and in default of such issue to the heirs of testator’s son Samuel. An estate tail. Morrison v. Truby, 145 Pa. 540: Real and personal property to son for life and after the death of either devisees should die without issue living at the time of his death to the other child; meant death in the lifetime of testator. Kay v. Scates, 37 Pa. 31: A limitation to one for life, with power of appointment in favor of the issue of his body; and in default of such appointment to such issue; and if he should die leaving no issue of his body, then over. A fee tail in the first taker. Kleppner v. Laverty, 70 Pa. 70: To daughter Mary Ann for life, at death to lawful issue should she leave any, in default of such lawful issue to testator’s brothers. A fee tail. Paxson v. Lefferts, 3 Rawle 59. To a son for life, at his death to his issue in fee; and if no issue to another son. A fee in tail. Carroll v. Burns, 108 Pa. 386: To daughters during term of their natural lives and after their death to their lawful issue and their heirs and assigns. A fee tail.</p> <p>“Cases cited by defendant: Taylor v. Taylor, 63 Pa. 481: To wife and daughter during life, if daughter depart this life with issue, then to descend to such lawful issue; in case daughter depart this life not leaving lawful issue, as aforesaid, then executors to sell and divide proceeds among nephews and nieces. A life estate. Nicholson v. Bettle, 57 Pa. 384: To R. L. &</p> <p>C. L. Nicholson in joint tenure during the residue of their natural lives; at their decease to pass to their heirs respectively ; should either of them die without leaving lawful issue or heirs, said estate shall pass to the survivor and his heirs; and should both decease without leaving lawful surviving issue or heirs said estate may be sold and the proceeds divided among testator s surviving lawful heirs. An executory devise, and the first taker unable to make a conveyance in fee. Middles warth’s Administrators v. Blaokmore, 74 Pa. 414: To son Jonathan upon payments; and if he should die without leaving legitimate issue then real estate to be sold and the proceeds after payments provided for, distributed. A defeasable estate which terminated at his death. Robins v. Quinliven, 79 Pa. 333: To daughter for her natural life, after her death to her issue and their heirs for ever, in the proportions to which they would be entitled under the intestate laws of Pennsylvania. A life estate. Parkhurst v. Harrower, 142 Pa. 432: To Benjamine, during life, remainder to his issue if there be any at the time of his decease; but in default of issue of said Benjamine or of deceased child or children at the time of his decease, to vest in the heirs-at-law of the testator. A life estate. Smith v. Coyle, 83 Pa. 242: To B. for life and after his death to the lawful issue of his body begotten; who should, be living at the time of his death, as tenants in common; and if B. should die without issue, then to J., his heirs and assigns. The fee was vested in the issue of B. who were living at the time of his death. Hill v. Hill, 74 Pa. 173: Limitation using the words issue or child; intention of the testator governs.</p> <p>“ The result of these decisions is, that where real estate is devised to one in fee, and afterwards devised over ‘ on default of issue ’ of the first taker or equivalent words, or for life and upon the death of the life tenant ‘ without issue ’ or ‘ in default of issue ’ or ‘ without leaving issue ’ an indefinite failure of issue is declared by the law to be intended. A fee tail is in such cases vested in the first taker, which, by virtue of the act of April 27, 1855, is converted into an estate fee.</p> <p>“ The word ‘ issue ’ in a will means prima facie the same thing as ‘ heirs of the body ’ and in general is to be construed as a word of limitation ; but this construction will give way, if there be on the face of the instrument, sufficient to show that the words had a less extended meaning, and to be applied only to children or descendants of a particular class, or at a particular time. There is less reluctance indeed to narrow the prima facie meaning of the word ‘ issue ’ than the words ‘ heirs of the body ’ because these latter words are proper technical words of limitation, while ‘ issue ’ is not when used in a deed ; and accordingly in a will it is to be construed as a word of purchase or limitation as will best effectuate the intention of the testator, gathered from the entire instrument. It is a position not to be disputed that if it appears either by expression or by clear implication that by the word ‘ issue ’ the testator meant children or issue living at a particular period, as at the death of the first taker, and not the whole line of succession, which would be included under the term ‘ heirs of the body,’ it must necessarily be construed as a word of purchase, and the rule in Shelley’s Case can have no application. We quote from the opinion of the court in Taylor v. Taylor, 63 Pa. 481, the opinion being on pages 483, 484, and delivered by Sharswood, J.</p> <p>“ The law is stated substantially in the same terms in the per curiam opinion in Parkhurst v. Harrower, 142 Pa. 432, on page 435.</p> <p>“ The will of A. Hamilton Nes, in words, devises the real estate therein described after the arrival of his daughter at her majority:</p> <p>“ 1. To his son William J. Nes for life, without power of disposition during his life, and not to be liable for his debts, and after his decease to such persons as he by his last will and testament shall direct.</p> <p>“ 2. Upon William J. Nes dying intestate, leaving issue him surviving, then to his issue in fee.</p> <p>“ 3. In the event of William J. Nes dying intestate leaving, no issue surviving him, then over to his sister, L. Kate Nes, for life, with power of appointment by will, and upon her death intestate, then to the persons who would take her real estate under the intestate laws of this commonwealth.</p> <p>“ It is apparent that the testator means, by the clear expressions used in his will, issue surviving William J. Nes, that is, (issue or children living at the time of his death) a definite and not indefinite failure of issue.</p> <p>“ The following are accepted definitions of the word survive :</p> <p>‘ Survive: To live beyond; particularly to live beyond another person.’ Abbott’s Law Dictionary, page 531. ‘ To live beyond another related person. To remain in life after the death of another.’ Anderson’s Dictionary of Law, page 999.</p> <p>“ There is a marked difference between a gift over on the first taker dying ‘ without leaving issue ’ and a gift over on his dying ‘ without leaving lawful issue surviving.’ The latter if it means anything must mean lawful issue living beyond the death of the first taker. It is much more expressive than the phrase ‘ leaving no issue behind him ’ which in Porter v. Bradley, 3 Term II. was held to denotea definite failure of issue. Porter v. Bradley has always been recognized as authority. It was by Mr. Fearne, and has been to this day. Nicholson v. Bettle, 57 Pa. 384. See opinion on pages 386, 387.</p> <p>“ The restriction against alienation by the first taker, William J. Nes, and the provision against the estate being liable for his debts ; and the gift over, in the event of William J. Nes leaving no issue surviving him, to his sister, she being in life at the time of the making of the will, are indicative of the intention of the testator to refer to issue living at the death of William J. Nes, and notissue indefinitely, and these circumstances, with other matters apparent on the face of :the will, show the intention of the testator to devise the property over upon a definite and not an indefinite failure of issue of William J. Nes. This position is sustained in the language of Green, J., in delivering the opinion of the court in Hackney v. Tracy, 137 Pa. 53, on page 59, as follows: ‘It was contended for the appellant, that such reasons ’ (that the testator intended a definite failure of issue) ‘ exists in the present case, in the fact that the limitation is over to his sister Mary, by name; and that she being a living person, at the death of the testator, a definite failure of issue must have been intended; and that such limitation was not too remote to sustain an executory devise. There are cases in which such facts are held important, in connection with other considerations, but standing alone it is clearly not sufficient as has been held in many cases.’ Besides, the case of Porter v. Bradley, 3 Term R.' 143, is stated to be authority in this commonwealth as we have seen. The will in that case is as follows: ‘ I give and devise unto my son Philip Dobin, his heirs and assigns for ever, all that messuage and tenement wherein I now live ; and my will is that in case my said son Philip Dobin shall happen to die leaving no issue behind him then the land so devised to Philip, as aforesaid I give and devise the same for want of issue as aforesaid, unto my son James Doman, his heirs and assigns for ever.’</p> <p>“ Lord Kenyon in delivering the opinion says, inter alia : ‘ If the subsequent of this devise had been “ and in case he shall die without heirs then over ” it would have given to Philip Do bin an estate tail, which he might have barred by the recovery. But here the words are “ but in case he shall happen to die leaving no issue behind him,” which make a very material difference and brings it within the case of Pells v. Brown, which is the foundation, and as it were, the magna charla of this branch of the law. . . . And there are even additional words in the case “ leaving no issue behind him ” which necessarily import that the testator meant at the time of his son’s death. The subsequent parts of the will also, convey the same idea; for that the devisor mentions this event as likely to happen in the lifetime of his widow, or of his younger son or daughters.’</p> <p>Held to be a fee simple in Philip Dobin, and he having died without issue at the time of his death the further disposition was a good executory devise.</p> <p>“This case is not only recognized as authority in Nicholson v. Bettle, 57 Pa. 384; but in Kleppner v. Laverty, 70 Pa. 70, on page 74, Shabswood, J., uses this language:</p> <p>“ ‘After directing the interest of his personal estate to be paid over to his daughter, Mary Ann, for her own use he provides that upon her death the principal to be paid to any lawful issues she may leave surviving her, and, in default of such issue, and upon the happening of her death and not before, said principal money to be divided equally between my aforesaid brothers and sisters and their heirs. Had the words “ surviving her ” been found in the disposition of his real estate it would have been some indication of an intention that he meant “ children ” or “ issue then living.” ’</p> <p>“ In this last case it was decided that the real estate devised was an estate in fee, because no contrary intention could be gathered from the whole will. The inference is strong that, if the words ‘ surviving her ’ had been used in the clause devising the real estate, a different conclusion would have been reached by the court.</p> <p>“ The will of Catharine Nes uses the same words as that of A. Hamilton Nes, in substance, the language being ‘for his life and after his decease to his issue should he die leaving issue to survive him. • In ease he should die leaving no issue to survive him then I direct my share and interest to be sold by my executor,’ ordering a distribution of the proceeds to other persons living at the date of the making of said will. This will differs from the will of A. Hamilton Nes in that it has no limitations against sale, liability for debts of the devisee, or power of appointment ; and also in the direction of sale of the land by the testatrix’s executor.</p> <p>“ For the reasons stated in our consideration of the will of A. Hamilton Nes, we find that she meant by ‘ issue surviving him ’ issue or children living’ at the death of William J. Nes, and a devise over at his death, in default of a definite, and not indefinite failure of issue. We think that the "devise over to persons living at the time of the making the devise and a direction to the executor to sell, in the event of no issue surviving William J. Nes, evidently refers to a period in the lifetime of the executor—to a definite and not indefinite time. These are mentioned as being evidence of the intent of the testator in Taylor v. Taylor, supra, and the other earlier cases. In the later cases they are not regarded, by themselves, as important factors in the construction of wills of the character of this, for some reason we do not understand, but they may, as we have seen, be properly considered with other circumstances, in ascertaining the intent of the testator.</p> <p>Eichelberger v. Barnitz, 9 W. 447, the leading case cited for the plaintiff, has saving exceptions. Price v. Taylor, 28 Pa. 95, largely relied upon to sustain his construction, has been shown to be too sweeping and erroneous. While not directly overruled, it has been qualified and questioned, and is not sustained by subsequent decisions upon the questions at issue. See Dodson v. Ball, 60 Pa. 492-500; Guthrie’s Appeal, 37 Pa. 9; Yarnall’s Appeal, 70 Pa. 335.</p> <p>In Kay v. Scates, 37 Pa. 31; Carroll v. Burns, 108 Pa. 386; Kay v. Alexander, 146 Pa. 242 ; and other kindred cases where wills were under examination, they were construed as creating estates tail, because nothing could be discovered in the respective wills to show that the intention of the testator was different from the legal meaning attached to the words of limitation ‘ die without issue,’ or equivalent expressions—nothing to show a definite, instead of indefinite failure of issue intended.</p> <p>“ Carroll v. Burns was decided twice by the Supreme Court, first, that the estate of the first taker was a life estate, and within a year after, on reargument, a fee tail, converted into a fee simple by the act of 1855, Mercur, C. J., and Gordon and Stereett, JJ., dissenting, because they thought ‘the language of the testatrix so clearly shows she meant children, and not heirs generally, that the rule in Shelley’s case does not apply.’</p> <p>“ The case at bar is ruled by Porter v. Bradley; Nicholson v. Bettle; Smith v. Coyle; Taylor v. Taylor; Middleswarth v. Blaekmore, supra; Lightner y. Lightner, 87 Pa. 147; Robins v. Quinliven, 79 Pa. 885; Hill y. Hill, 74 Pa. 173; Ingersoll’s Appeal, 86 Pa. 240, 246 ; and Parkhurst v. Harrower, 142 Pa. 432.</p> <p>“ For the reasons stated, we think the estate devised to William J. Nes was a life estate, only, and not a fee tail, converted into an estate in fee by the act of 1855 ; and that having conveyed his estate and interest to his mother, she has only his title under the said devises, stripped of the power of appointment by will, namely a life estate, and not in fee. Judgment must therefore be given for the defendant.</p> <p>“And now, March 27th, 1893, judgment on the case stated for the defendant, with costs of suit.”</p> <p>Error assigned, was in entering judgment for defendant.</p>

<p>Appeal, No. 362, Jan. T., 1893, by defendant, D. W. Bertolet, from judgment of C. P. Lancaster Co., Aug. T., 1891, No. 139, on verdict for plaintiffs, Alfred Schrimpton & Sons.</p> <p>Assumpsit for goods sold and delivered. Appeal from aider-man.</p> <p>From the record it appeared that the case was set down for trial for the week beginning Jan. 30,1893. The case was called for tri'al on Feb. 3, 1893, and counsel for both parties agreed to continue the case by consent under the following rule of court: “ Section 2. No cause after being placed on the trial list shall be continued more than once by consent of counsel or parties.”</p> <p>The court refused to grant a continuance, and ordered the trial to proceed. [1]</p> <p>From the statement it appeared that the action was brought to recover the price of two great-gross of pins, and two great-gross of needles. D. G. Eshleman, one of plaintiff’s counsel, testified as follows:</p> <p>“ Some time about the day of the hearing before the aider-man, the defendant, Mr. Bertolet, was in Lancaster at the aider-man’s office, and we retired to the alderman’s back room, Mr. Kennedy, Mr. Bertolet and I. Mr. Kennedy and Mr. Bertolet desired to know what this claim was for; I told them it was for two great-gross of pins and two great-gross of needles. Mr. Bertolet said he never ordered two great-gross of either, but he ordered two gross of each, and the plaintiff had sent him two great-gross of each, and he didn’t propose to take them, because he had not ordered them. I then showed him these orders, marked, ‘ J. B. L. 1 ’ and ‘ J. B. L. 2.’ He looked at them carefully, and Mr. Kennedy looked at them carefully also. He said those were his orders, and on looking at them found he had ordered two great-gross of each. He admitted they were his orders. He said he had ordered two gross of each and was willing to pay for two gross of each at those prices.”</p> <p>No other witness was called either by plaintiff or defendant.</p> <p>Binding instructions for plaintiff were given. [2]</p> <p>Errors assigned were, (1) refusal to grant continuance; and (2) above instruction, quoting it.</p>

Appeal, No. 27, July. T., 1893, by plaintiffs, Clayton E. Emig & Co., from order of C. P.York Co., Jan. T., 1893, No. 39, discharging rule for judgment against defendants, Jacob F. Spatz et al. Rule for judgment for want of a sufficient affidavit of defence, in assumpsit on contract.

<p>Appeal, No. 152, Jan. T., 1893, by Walter G. Evans, from decree of O. G. Lancaster Go., dismissing exceptions to auditor’s report, in estate of James Evans, deceased.</p> <p>Exceptions to auditor’s report distributing trustee’s account.</p> <p>The auditor, H. C. Brubaker, Esq., reported as follows:</p> <p>“William W. Evans,, deceased, was a nephew and legatee of the will of James Evans, deceased. The legacy, of which the fund for distribution is a part, was given to him under clause 9 of will, dated December 30, 1861, and proved October 17, 1864, by the register of wills of Lancaster county, which reads as follows:</p> <p>“ ‘ I give and bequeath to my nephew Robert A. Evans, the sum of five thousand dollars in trust, for the use and benefit of my nephew William W. Evans, for whom I hereby appoint the said Robert A. trustee, as follows: That is to say, the saicl Robert A. Evans shall invest the said sum of money at interest on mortgage or good security, and shall pay out from time to time the interest as it shall be got in and received, and also such part of the principal to the said William W. Evans, during his natural life, as the said Robert shall deem necessary for the comfortable support and maintenance of the said William W= Evans, whose receipts alone shall be good and valid discharges to the said trustee.</p> <p>‘ And after the decease of the said William W. Evans, the said trustee shall pay over the balance remaining [if any] to the heirs-at-law of the said William. The said legacy is not to be subject to the debts or contracts of the said William W. Evans.’</p> <p>“William W. Evans died in September, 1891, a widower, leaving surviving him the following children: James Evans, Annie M. Hess, Gertrude K. Cox, Walter G. Evans, Robert A. Evans, Augusta J. Evans, and William W. Evans, all of whom are of age.</p> <p>“ On November 21, 1891, Charles H. Locher, trustee, filed his account in the register’s office of said county, exhibiting a balance in favor of the estate of $4,151.29, which was presented to the court for confirmation on December 21, 1891. On January 5, 1892, exceptions were filed to this account by counsel for Gertrude K. Cox, an heir of decedent, which on January 18 were withdrawn by leave of court, and the account was confirmed absolutely. On January 25, 1892, the undersigned was appointed auditor to distribute the fund.</p> <p>“ A large number of suits by attachments were brought against several of the heirs of William W. Evans, deceased. Before proceeding, however, to pass upon the merits of these proceedings, it will be necessary to construe the clause of the will from which the fund for distribution arises.</p> <p>“ The counsel for Milton Eby, an attachment execution creditor of James Evans, a son of William W. Evans, deceased, the cestui que trust, contends that William W. Evans had under clause nine of the will of his uncle James Evans, deceased, a life estate with a vested remainder in his-children as a class, and therefore, James Evans, the grand nephew of the testator, and who was living at the death of the testator, took a vested interest at testator’s death.</p> <p>The principal words of the clause of the will under consideration are: ‘ And after the decease of the said William W. Evans, the said trustee shall pay over the balance remaining [if any] to the heirs at law of the said William.’</p> <p>“ The fund to be distributed is personal estate. The rules and expressions relative to the vesting of personal estate have been derived, in great measure from the civil law. In that system legacies not immediately payable are divided into two classes: (1) Legacies payable at a future time certain to arrive [as to which, dies legati was said cessisse, though not venisse]: and (2) conditional legacies, or legacies payable on an event which might never happen. The former class were transmissible to the representatives of the legatee, if he died before the time of payment; the latter were not. Hawkins on Wills, *222.</p> <p>“ This division, however, is inapplicable to the English law of legacies, which allows future conditional interests to be transmitted to the representatives of the legatee, and which considers some kinds of conditional gifts as vested ‘ subject to be divested,’ i. e. subject to a condition subsequent and not precedent. Ibid.</p> <p>“ The only definition that can be given of the word ‘ vested’ in English law, as applied to future interests, other than remainders, is, that it means ‘not subject to a condition precedent; ’ what amounts to a condition precedent, the cases only can determine. Ibid.</p> <p>“In New Jersey it is held that whether a legacy is contingent or vested, depends not upon the time, but upon the event upon which it is to take effect. If the event is uncertain the legacy is contingent, though the time is fixed; and if certain it is vested, although the time is uncertain. A gift at the death of A. is vested, not it would seem for the reason given by the English authorities, but because the event is certain to happen. Thomas v. Anderson, 6 C. E. Green, 22; Beatty v. Montgomery, Id., 324.</p> <p>“ The inclination is to confine the uncertain events which will make a legacy contingent to those which are personal to the legatee. Van Dyke v. Vanderpool, 1 McCart., 206.</p> <p>“ A similar doctrine is laid down in Taylor v. Mosher, 29 Md. 443. In this latter case the court say: ‘ To make an estate contingent it must appear from the language used and the nature and circumstances of the case, that the time of payment was made the substance of the gift, and that the testator meant that time as the period of vesting.’</p> <p>“ The general doctrine in this country is that a postponement will not of itself create a contingency, unless it be opon an event of such nature that it is to be presumed the testator intended to make no gift unless the event happened, or, as it is sometimes put, unless the time be annexed to the substance of the gift. Yan Wyck v. Bloodgood, 1 Bradf. 154. In Pennsylvania the same doctrine prevails: Chew’s Ap., 37 Pa. 29; Muhlenberg’s Ap., 103 Pa. 591.</p> <p>“ The rule of interpretation is: A bequest in the form of a direction to pay and divide, at a future period, vests immediately, if the payment be postponed for the convenience of the estate, or to let in some other interest. Hawkins on Wills, *232; McGill’s Ap., 61 Pa. 49, and authorities therein considered and approved.</p> <p>“ Thus, under a bequest to trustees in trust for A. during his life, and after his death to pay and divide among his children, the shares of children living in the lifetime of A. are vested, and pass to their representatives : Hawkins on Wills, supra.</p> <p>“ In doubtful cases, the law requires the construction to be made in favor of vested remainders, in preference to contingent, and indefeasible estates in preference to defeasible: Womrath v. McCormick, 51 Pa. 504.</p> <p>“ Assuming then, that if, under the will as it was in fact drawn, William W. Evans took an estate for life, the question is, whether the estate Over was vested in his children at testator’s death, or was contingent during his lifetime, and at his death vested in those who were then his ‘ heirs at law’ or legal heirs. The counsel, contra, contends that the latter construction is the correct one. This leads us to the question of the intent of the testator as to the form of the concluding part of the bequest, that is, the words ‘heirs at law ’ of the said William.</p> <p>“In this country the meaning of the term ‘heirs’ depends upon the nature of the property, and whether the gift be substitutional or original; a bequest of personalty to the heirs of A. is a gift to those who would be entitled to the personal estate of A. under the statutes of distributions: Hawkins on Wills, *91, note 1; Eby’s Ap., 84 Pa. 241; Ap. of Comly, 136 Pa., 159; Beck’s Ap. 78 Pa. 435; Ashton’s Estate, 134 Id. 390.</p> <p>“In the latter case cited, the words of the will were: ‘ Then in trust to and for the use of the right heirs of him, the said Charles T. Ashton, in equal shares; ’ and the Supreme Court, in construing this clause to mean those entitled under the statute of distributions, says: ‘ The two nephews of "Charles T. Ashton take, not by. representation, but directly under their grandfather’s will, as next of kin of their deceased uncle.’ See also Eldridge v. Eldridge, 3 Aid. R. 61.</p> <p>“ In the case of Reek’s Appeal, supra, the testator in the will before the court said that his widow should receive during her life the interest of one thousand dollars, to be put at interest by his executors, ‘ and should the interest of the same be insufficient to provide for her, then as much of the principal as may be required.’</p> <p>“ The counsel, in opposition to the view taken by counsel for Milton Eby, attachment execution creditor of James Evans, contends that the interest of the children of William W. Evans is but a contingent legacy, and relies on the case of Pleasonton’s Appeal, 99 Pa. 369; but a glance at the case shows clearly the intention of the testator there was to take the case out of the general rule.'</p> <p>“ In bequests of personalty no legal significance attaches to the word ‘ heirs.’ Ashton’s Estate, supra.</p> <p>“ There is nothing in the context of the will before us to indicate a contrary intention to take the 'present case out of the rule that when the word ‘ heirs ’ is used in a gift of personalty, it is employed to denote those who are entitled to take under the statute of distributions. The heirs here, under the rule, are evidently the children of William W. Evans, deceased, the cestui que trust; and, as such, these children take not by representation, but directly under their granduncle’s will.</p> <p>“ Most of these children were in esse at the time of the testator’s death. Robert A., William G., and William W., were born since.</p> <p>“ ‘ But it is now settled that, where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or of any other person, the limitation will embrace not only the objects living at the death of the testator, but all who shall subsequently come into existence before the period of distribution. Such a remainder vests in the objects to whom the description applies at the death of the testator, subject to open and let in others answering the description as they are born successively. As to the latter, the remainder is contingent until they are in esse, but then it immediately vests, and from thenceforth is attended by all the properties incidental to vested estates: Minnig v. Batdorff, 5 Pa. 505; Bower’s Estate, 11 Phila. 620.</p> <p>“ The intent of the testator was, without doubt, to give all the children of William W. Evans a vested legacy. The life estate or legacy to the father was evidently a spendthrift trust, and purposely made an active trust to save as much of the principal of the fund set apart as possible for these children, as well as to provide for a liberal maintenance and support of the cestui que trust. Indeed, the clause of the will under consideration says that ‘ The said legacy is not to be subject to the debts or contracts of the said William W. Evans.’</p> <p>“ It follows that the whole estate is in the children of the cestui que trust in equal shares.</p> <p>“ Suits of foreign attachments have been issued in the court of common pleas of Lancaster county, and the respective shares of James and Robert A. Evans have been attached in the hands of the accountant. Some of these suits are founded upon judgments, and others upon claims adjudicated before your auditor. There are also assignments of several shares. It remains to select the assignments and attachments which are entitled to priority of transfer and lien on the several shares in contention</p> <p>for the purposes of this distribution.....</p> <p>“ The following assignments and transfers of the interests of the several legatees, and also the following claims by attachments, are selected and awarded to the respective parties: “Walter G. Evans’s interest in the fund for distribution to John Conrad, assignee, for the benefit of the creditors, less one fourth of the costs of audit.</p> <p>“ William W. Evans’s interest to Charles H. Locher, transferee, less one fourth of the costs of audit.</p> <p>“ James Evans’s interest to Milton Eby, plaintiff in the attachment execution against said James Evans, in the court of common pleas of Lancaster county, of September Term, 1891, No. 13. Debt -$650 less one fourth of the costs of audit. The amount of this claim, it will be seen, far exceeds the amount of the legacy to the defendant, and being the prior lien is entitled to the full amount of the legacy to satisfy it.</p> <p>“ Robert A. Evans’s interest to the following creditors for their respective amounts: Augusta J. Evans, B. F. Davis, Esq., Edward Edgerly, Bradley and Brother, A. B. Conrad, Ferguson & Pusey, less one fourth of the costs of audit.</p> <p>“ The shares of Annie M. Hess, Gertrude K. Cox and Augusta J. Evans are awarded in full to them.</p> <p>“ One question more has been referred to your auditor, and yet remains to be considered. The counsel for Gertrude K. Cox, legatee, asks that the costs of this audit be imposed upon those distributive shares the assignments or attachments of which has rendered an audit necessary.</p> <p>“ The auditor’s first impression was to tax the whole fund for distribution with the costs of audit, in accordance with our practice. It seems to him that a departure from this feature of our practice might establish a precedent which our courts would be loath to adopt. The case before us, however, is an unusual one, and a careful consideration of the matter has induced the auditor to change his view by granting the request. The transferees and attachees of tjm several interests can file exception thereto, and thus appeal to the court from the judgment of your auditor, should they deem it just and proper.</p> <p>“ It is true that the counsel for Mrs. Cox objected to the appointment of an auditor so far as her share was concerned, as appears by a minute of the same on the back of the account, at the time the court made the appointment to distribute the balance in the hands of the accountant, but your auditor does not understand that the appointing judge intended, in so doing, to pass upon the question now before us, or to even affect the same. • Indeed, it was proper for counsel to take this preliminary step in behalf of his client, for a neglect to do so would undoubtedly have been taken as a consent to the appointment to her prejudice.</p> <p>“ It is not so much the amount of money involved as the apparent unfairness of the proceedings, should a part of the costs of audit be imposed upon the distributive shares not in dispute. Had not the other shares have been in dispute an audit would have been unnecessary. Under the circumstances, to impose a tax upon the former would certainly not be equitable. On the other hand, ‘ the dancer should pay for the fiddler.’ It will not be much, if any, burden upon the scrambling creditors whose vigilance has been rewarded by payment of their respective claims in full. The costs of audit are deducted from the shares in dispute.”</p> <p>The court, Livingston, P. J., dismissed exceptions to the auditor’s report, relating to the distribution and costs.</p> <p>Hrrors assigned were (1-6) dismissal of exceptions, quoting them.</p>