Volume 156 — Pennsylvania State Reports

<p>Will — Construction—Power of sale.</p> <p>Testatrix gave her whole estate to three of her daughters, naming them, for life, and upon the death of each of them to the survivor or survivors. Upon the death of the last survivor, if any surplus was left it was to be divided equally among her other children. She further directed as follows : “ I also direct my executor by and with the advice, consent and approval of my said named daughters and legatees, if he shall see fit at any time after my decease, to sell, either by public or private sale, any and all the real estate I may die seized of, and to convey and make title by deed to the purchaser or purchasers of the same, and pay over the proceeds to my said daughters and legatees above named for their use.” Held, that a deed by the executor and the two surviving daughters named in the will would pass a good title to the real estate.</p>

<p>Appeal, No. 25, July T., 1898, by plaintiffs, George Smith, Jr., et al., from decree of C. P. Berks Co., Equity Docket, 1893, No. 571, refusing preliminary injunction.</p> <p>Bill to restrain leasing of street railway.</p> <p>The bill alleges that the Reading City Passenger Railway Co. is a corporation under act of Dec. 18, 1873, P. L. 1874, 463, entitled “ An act to incorporate the Reading City Passenger Railway Company,” with the exclusive power to construct a street passenger railway on certain streets in the city of Reading; and that under the powers granted to it, have constructed and maintained, own and operate certain lines of railway in said city. That the Reading Traction Co. was incorporated under the provisions of an act entitled, “ An act to provide for the incorporation and regulation of motor power companies for operating passenger railways by cables, electrical and other means,” approved March 22, 1887, P. L. 8, and that it does not maintain, own or operate any line of railway. That the plaintiffs are stockholders of the Reading City Passenger Railway Co., which is about to lease and transfer to the Reading Traction Co., its successors and assigns, all its railways, real and personal property, equipments, appurtenances, and all its rights, privileges and franchises necessary to operate the same, for the term of ninety-nine years from April 1, 1893, and at the end of said term to sell the said property and franchises to the said Reading Traction Co., for the price of f700,000.</p> <p>That the said corporators of the Reading Traction Co., and the other stockholders of the Reading City Passenger Railway Co. in collusion with them, for the purpose of obtaining the possession, control and ownership of said property and franchises are pretending that it is necessary to have the Reading Traction Co. assume control of said property and franchises under the proposed lease, for the purpose of introducing a motor power by electricity, when in truth and fact the Reading City Passenger Railway Co. has full power and authority to introduce such power by electricity by virtue of “ An act to provide for the incorporation and government of street railway companies in this commonwealth,” approved May 14, 1889, P. L. 211, which the Reading City Passenger Railway Co. duly accepted. That the price proposed to be paid by said Reading Traction Co. to the Reading City Passenger Railway Co. for the lease and purchase of said property and franchises, is not a full and adequate price or value for said property and franchises, and that the proposed lease and sale will depreciate the stock of the Reading City Passenger Railway Co.</p> <p>That the said the Reading City Passenger Railway Co. and its officers, have no authority or power in law to make such transfer, lease and sale, and by attempting so to do, will furnish reasons for a forfeiture and annulment of the charter and privileges of said company at the instance of the commonwealth.</p> <p>The bill prayed that an injunction, preliminary until final hearing, and perpetual thereafter, be granted, restraining the Reading City Passenger Railway Co. and its officers from making and taking any further steps toward the making of any lease, transfer or sale whatever of said railways, real and personal property, to the said Reading Traction Co.; and also restraining the officers of the Reading City Passenger Railway Co., and the judges appointed for that purpose, from holding the election of the stockholders for or against the proposed lease and sale of the property and franchises to the Reading Traction Co.</p> <p>A preliminary injunction was granted but afterwards dissolved by the court below (in an opinion by McPherson, J., of the 12th judicial district, specially presiding) on the ground that the act of March 22, 1887, P. L. 8, authorized the lease. Reported in 2 Dist. R. 490.</p> <p>Error assigned was (3) dissolution of injunction.,</p>

<p>Appeal, No. 292, Jan. T., 1893, from decree of C. P. Chester Co., dismissing bill in equity against Francis C. ITooton, executor of James S. Neely, deceased, Francis C. Hooton, individually, and Peter Supplee, Jr.</p> <p>Bill in equity to enforce resulting trust.</p> <p>The master, Titos. S. Butler, Esq., reported the facts as follows :</p> <p>“ Peter Supplee, Jr., acquired title to a farm in Honeybrook township, Chester county, Pa., of about one hundred and eighty-three acres, on the ninth day of March, 1880. Horatio J. Supplee, the former owner of the farm, died intestate, and left to survive him a widow and seven children, one of whom was Peter Supplee, Jr. The death of Horatio J. Supplee occurred in November, 1876, and it seems his widow and children disposed of his real estate without the intervention of law or lawyers, by selling it to Peter for the sum of §14,983.59, and fixing the widow’s interest therein at §4,994.53, which was secured by a mortgage upon the land conveyed to him, conditioned for the payment of the interest thereon to her during her life, and at her death the principal sum to the heirs and legal representatives of Horatio J. Supplee, deceased. Above his own interest, to the extent of one seventh, the balance of the consideration, with a small exception, for this land, Peter had none. One sister was willing to give him trust, and took his obligation for §1,400, and §27.00 in cash, which made her share. Peter still has the trust, and the sister the obligation. Peter paid the shares of five of his brothers and sisters, about the time of the conveyance, out of the money which he received as a trustee from the estate of Nareissa L. Way, and it is this part of Peter's performance which brings about the present lawsuit.</p> <p>“Nareissa L. Way died in West Chester, January 21, 1875. She left her last will and testament, wherein and whereby she bequeathed the residue of her estate to her executor in trust for her brother, Joseph B. Way, during his life, and upon his death over to Ms children. William Darlington, Esq., was named as the executor. Letters testamentary were granted to William Darlington, Feb. 4, 1875. The fund herein bequeathed, remained in his hands to the time of Ms decease, which occurred in thé fall of 1879. After this event, Joseph B. Way came to Peter Suppleé’s house in Honeybrook, and requested him to accept the trust in the place of Mr. Darlington.</p> <p>“ Peter appears to have been willing, as his petition for the appointment was presented on the 20th of February, 1880, and his bond in the sum of $15,000 approved the same day. Jos. B. Way and Peter Supplee, Jr., were brothers-in-law, having married sisters. Mr. Darlington had the trust funds invested in municipal bonds, which were transferred to the new trustee. Soon after, the two brothers-in-law set about to get some advantage from the principal of the fund. The bonds were sold and the sum realized amounted to $8,500. Of this he loaned Joseph B. Way $1,800, and took an obligation from him. Jos. B. Way was at the time very sick, and apprehending his early death, he desired to leave Ms affairs in a condition most advantageous to his family. The money loaned him from the trust was used in paying his debts, and the understanding was had that Joseph’s son, Bernard Way, should take the obligation when he arrived at age in satisfaction of Ms share of the fund. This arrangement was carried out. Joseph B. Way died in May, 1880.</p> <p>“ This statement of the facts traces the trust fund into the hands of Peter Supplee, Jr. He received $8,500, and paid $1,800 to Joseph B. Way ;• the balance, or the sum of $6,700, he used to acquire the title to the farm over which this dispute arises. Peter Supplee, Jr., testifies: ‘ I received $8,500, for all the bonds. I loaned about $1,800 to Joseph B. Way, and took an obligation from him. After I made the loan to Joseph B. Way, the entire balance of the trust fund was used in the acquisition of this real estate. This trust fund was used in the payment of the farm and distributed to my brothers and sisters who owned the farm. These payments occurred about the time I got the title.’</p> <p>“ Do these facts create a trust in favor of the owners of the fund? The plaintiff in her bill contends that they do, and asks the court amongst other things to direct the defendant to make her a deed for the interest of her minors in the premises. The defendant makes no denial of these facts in his answer, but calls upon the plaintiff to produce her proof of them. This she has done and no contradiction of them has been offered by the defendant. It seems plain to the master that a resulting or presumptive trust arose from the relation of these parties. Indeed, it was not seriously denied by defendant’s counsel in his argument, and his brief contains no defence to the plaintiff’s position in this respect. Peter Supplee, Jr., was the trustee, and had possession of this trust fund as found above. He used it in the purchase of the property and took the title in his own name. ‘ In such a case a trust will result by operation of law for the benefit of the trust estate as the trustee will be presumed to have intended that the purchase should enure to the benefit of the estate.’ Bispham’s Equity, § 86.</p> <p>“ While the defendant may concede that a trust resulted here in favor of the cestuis que trust, he contends that the funds cannot be followed into this property for two reasons : (1) That he had no notice of the claim at the time he purchased the property. (2) That the 6th section of the act of April 22, 1856, P. L. 532, is a complete bar to the plaintiff’s recovery.</p> <p>“ On April 3,1890, Peter Supplee, Jr., made an assignment of all his real and personal property for the benefit of his creditors to Davis K. Loomis. Prior to this time he had settled with two of the children of Joseph B. Way, and there remained but trvo others, Joseph W. Way and Earnest Way, unprovided for, and who have for their guardian their mother, Mary C. Way, the plaintiff in the bill. She is a testamentary guardian named in the will of her husband.</p> <p>“ On Oct. 2,1890, upon the petition of Davis K. Loomis, the assignee, the court made an order authorizing him to make public sale of the real estate of Peter Supplee, Jr., for the payment of his debts. On March 9, 1891, the assignee made a return to the order of sale, in which he stated that he had sold on Oct. 25, 1890, the land, over which this dispute now is, to Francis C. Hooton, Esq., executor of James S. Neeley and trustee ; which sale was on the same day confirmed nisi. On April 7, 1891, the assignee made a deed for all the right, title and interest of Peter Supplee, Jr., in said property to Francis C. Hooton, Esq., executor of James S. Neeley, deceased, the defendant in this suit.</p> <p>“ The first information which Col. Hooton appears to have had concerning a resulting trust in this land, came from Mr. Hayes, of counsel for the plaintiff in the bill, two days before the sale, at which he (Col. Hooton) became the purchaser. Col. Hooton testified on this point as follows: ‘ I remember Mr. Hayes calling on me two days before the sale of the Supplee real estate. Mr. Hayes said that he thought he ought to say to me, that it was claimed on the part of the Way heirs, that the Supplee real estate had been paid for with the money of the Way heirs, who were minors, and that a resulting trust thereby arose iir their favor, and, as a consequence, the lien of the Neely estate, they would claim, could not be paid until after the money due by this resulting trust was paid. He said that he thought there was no doubt about this, that he could give me some authorities to examine if I would come down to his office. I went to his office and got the authorities from him, wrote them down on a piece of paper. I went to his office the same day, an hour after the conversation ended at my office. He said that Peter Supplee had been appointed a trustee in the place of William Darlington. I said that I was under the impression all along (never having examined it), that Peter was a guardian and not a trustee. He said that they were preparing a paper 'for me to sign, and that one of them would bring it to me. A paper similar to this paper (a copy of which will follow), was brought to me the day after Mr. Hayes called upon me (it being the day before the sale of the real estate), by Mr. Hause, who desired me to sign it. We had some discussion. I declined to sign the paper. I said, Frank, can you tell me when the trust in favor of these heirs occurred ? I said, that is what I want to know. He said he could not.’ The paper was offered in evidence by the counsel for the plaintiff; it is as follows:</p> <p>“ ‘ Whereas, it is claimed by Joseph W. Way and Earnest Way, that they are the owners, in whole or in part, of the title which appears of record in Peter Supplee, Jr., to one hundred and eighty-three acres of land in Honeybrook township, for which deed was made to him by the heirs of Horatio J. Supplee, deceased, and that said title is a resulting trust in their favor.</p> <p>“ ‘ And, whereas, the said Peter Supplee, Jr., has made an assignment for the benefit of creditors, to Davis K. Loomis, and said assignee has advertised said real estate for public sale.</p> <p>“ ‘ It is therefore agreed that the said assignee shall proceed to sell the said real estate, when in his judgment, it is proper so to do, and that he will hold the proceeds of said sale subject to the right of the said Joseph W. Way and Earnest Way, to establish their claim by a resulting trust to the said title or any part thereof, and that said question shall be determined on a distribution of said estate by the auditor or the court, without regard to said trust being asserted adversely before said sale, and that the claim, if any, of the said Joseph W. Way and Earnest Way, may be heard and disposed of by said court in the distribution of said estate.</p> <p>(Signed) “ ‘ C. W. Talbot, Lien Creditor.’</p> <p>“ ‘ October 24, 1890.’</p> <p>“ At the time this paper was presented to Col. Hooton, there was no signature attached to it. It had not yet been presented to Mr. Talbot. It also had another clause in it, as follows: ‘ But a conflict about the title before said sale would be likely to injure the sale and make the property produce less than its fair price, if any doubts were suggested.’</p> <p>“ This clause is now scratched over and not intended to be used as a part of the agreement. The testimony shows that the scratching was done by Mr. Talbot before he signed the paper. As has already been said, Col. Hooton declined to sign this paper when it was presented to him, but after some hesitation, wrote and signed the following: ‘ I decline signing the above paper, but I admit that I yesterday received notice from Wm. M. Hayes, Esq., of the claim of the Ways to a certain resulting trust, and I am willing to dispense with public notice of such claim at the sale.</p> <p>“ ‘ Witness my band this 24th day of October, A. d. 1890.</p> <p>(Signed) ‘Francis C. Hooton, ‘Executor estate of James S. Neely, dec’d.’</p> <p>“ Col. Hooton further testified that he said to Mr. Hause, that if anybody gave notice at this sale of the alleged resulting trust, the farm would not bring five cents. A conversation was had the day of the sale between Col. Hooton and Peter Supplee, Jr., before the sale commenced, about this alleged resulting trust.</p> <p>“In this conversation, Peter testified that he told Col. Hooton all about his purchase of the farm, how he had been appointed a trustee in the place of William Darlington, and that after making Joseph B. Way a loan of $1700 or $1800, he had used the balance of the trust funds in paying for the place.”</p> <p>The master further reported that it was the duty of the guardian to investigate the loan when she became guardian, and that if she had she would have known that the trust funds had been used in payment for the farm.</p> <p>The master recommended that the bill should be dismissed, with costs on plaintiff.</p> <p>The following exceptions were filed by plaintiff to the master’s report: “ The master and examiner erred in his conclusions of law as follows : (1) In determining that the trust arose on March 9, 1880, and that the limitation prescribed by § 6 of the pet of 1856, began to run at that time; (2) that § 6 of the act of 1856, was applicable and barred the minors whose interests are here involved; (3) that § 6 of the act of 1856 was a bar to the relief prayed for in the bill; (4) in determining that the trustee, Supplee, and the purchaser with notice could avail themselves of the bar prescribed by § 6 of of the act of 1856; (5) in determining that Maiy C. Way, the guardian, was bound to make an investigation when she became guardian, in order to ascertain the condition of the trust fund; (6) in determining that the act of 1856 is a statute of repose simply; (7) in determining that the resulting trust was not valid and was not in existence at the time of the purchase of the title by Francis C. Hooton, executor, etc; (8) in recommending the dismissal of the plaintiff’s bill; (9) in imposing the costs of the proceedings upon plaintiff.”</p> <p>The court, Waddell, P. J., overruled the exceptions and dismissed the bill.</p> <p>Errors assigned were (1 — 9) dismissal of exceptions, quoting them.</p>

<p>Electric railways — Consent of borough — Preliminary injunction.</p> <p>A preliminary injunction restraining a borough from interfering with the construction of a street railway will not be continued, where the resolutions and ordinances of the borough council granting the consent of the borough to the construction of the railway are conditional in character, and it is doubtful whether the plaintiff company has accepted them, and it is also alleged by defendant that the resolutions and ordinances were never signed by the burgess or advertised or posted as required by law.</p>

Appeal, No. 223, Jan. T., 1883, by plaintiffs, Dewitt C. Bidwell et al., from judgment of C. P. Fayette Co., Sept. T., 1878, No. 99, on verdictfor… Held: and they failing to do so he and his heirs can set up against them any title he might have asserted against Stewart.” Affirmed. [10] Verdict and judgment for defendants. Plaintiffs appealed. Errors assigned were (1, 2) rulings on evidence; (3-10) instructions ; quoting instructions and bills of exceptions but not evidence.

Appeal, No. 44, July T., 1892, by plaintiffs, James H. Sternbergh et al., from judgment of C. P. Lancaster Co., April T., 1888, No. 14, on verdict for defendant. Assumpsit to recover purchase price paid for iron of alleged inferior quality sold by defendant to plaintiff.

Appeal, No. 356, Jan. T., 1893, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1891, No. 127, on verdict for plaintiff, Henry Carpenter, assignee of Joseph Bradel, to use. Assumpsit on policy of fire insurance.

Appeal, No. 29, July T., 1893, by Blanche Smeltzer et ah, heirs, from decree of O. C. York Co., dismissing exceptions to auditor’s report in estate of Henry W. Cremer, deceased. Exceptions to report of auditor distributing decedent’s estate.

<p>Municipalities — Ordinance—Peddlers’ license — Trade regulation.</p> <p>A municipal ordinance prohibiting peddling without a license is a proper police regulation, but it must be directed against the business, and not against a class of persons engaged in the business, otherwise it is a trade regulation and invalid: Sayre Borough v. Phillips, 148 Pa. 482, followed.</p> <p>A borough ordinance provided: “ That from and after the passage of this ordinance it shall be unlawful for any person or persons, to sell or offer for sale within said borough as a hawker, peddler, toweling merchant, or agent, either by sample or otherwise, any garden, farm, or dairy products, or any other foreign or domestic goods, wares or merchandise, without first obtaining from the chief burgess a license so to do. Provided, however, that this ordinance shall not apply to those persons holding mercantile license within the borough, who comply with the market ordinance, nor to persons selling, or offering for sale, the products of their own farm or garden, and hucksters who first attend the borough market, and comply with the provisions of the market ordinance.” Held, that the ordinance was invalid.</p>

<p>Equity jurisdiction — Accounts—Breach of contract — Assumpsit.</p> <p>Equity will not assume jurisdiction over a claim which in effect is merely for damages for breach of contract, nor over a cause in which the accounts are all on one side, and no discovery is sought.</p> <p>Defendants were agents of a syndicate, which loaned to a railroad company a large sum of money. Plaintiff contributed one eighteenth thereof. The securities for the loan were deposited with defendants, and consisted of a note of the president of the company, and certain bonds of the railroad company as collateral to it. Shortly after the loan had matured, all the members of the syndicate except the plaintiff, at a meeting of which plaintiff had notice, agreed to extend the time for payment of the loan. Defendants accordingly did not proceed to collect the notes, and the fund was finally lost. Held, (1) that a bill in equity would not lie to compel defendants to pay to plaintiff his share of the loan, or damages for its loss; and (2) that assumpsit was the proper remedy</p>

<p>Practice, S. G. — Assignment of error — Evidence.</p> <p>An assignment of error to the admission of evidence which fails to set forth the evidence admitted under the exception is defective.</p> <p>Wharves — Sewers—Damages—Evidence.</p> <p>In an action against a municipality to recover damages for an injury to a wharf caused by deposits from a sewer, it is competent for the plaintiff to show that the injury could have been avoided by an extension of the sewer to the end of the adjoining wharf which was the property of the city.</p> <p>Plaintiffs owned a wharf extending into the river one hundred and sixty-two feet. The adjoining wharf owned by defendant, a city, extended into the. river two hundred and seventy-five feet. Between these wharves was a dock sixty feet wide into which the city opened a sewer at a point on the inner side of the dock forty-seven feet from plaintiff’s wharf. Deposits from the sewer obstructed the dock. It was not denied that the injury could have been avoided by the extension of the sewer to the end of the city’s wharf. The ordinance authorizing the sewer was passed after the adoption of the constitution of 1874. Held, that plaintiff could recover.</p> <p>Malone v. City, 2 Penny. 370; Carr v. Northern Liberties, 35 Pa. 324; Fair v. City, 88 Pa. 309 ; and Collins v. City, 93 Pa. 272, distinguished.</p> <p>Consequential damages — -Constitution of 1874, art. 16, § 8.</p> <p>In the above case the liability of the city was for consequential damages under art. 16, § 8, of the constitution of 1874, and was not affected by the fact that the sewer was on the city’s land, and opened into a dock adjoining the city’s wharf; nor was it necessary to the existence of the liability that the land on which the sewer was constructed should have been taken by the city in the exercise of the right of eminent domain.</p>

<p>Rescission of contract — Return of consideration.</p> <p>A person seeking rescission of a contract must return or offer to return what lie has received under it, and thus put the other party as nearly as possible in the same situation in which he was before the contract. This rule, however, is wholly an equitable one, and impossible or unreasonable things, which do not tend to accomplish equity in the particular transaction, are not required.</p> <p> Rescission of contract on ground of fraud. </p> <p>A firm of retail dealers by fraudulent representations induced plaintiffs, wholesale dealers, to sell them goods. Goods were sold at various dates during the succeeding six months. For about two thirds of the goods notes were given. Some of the earlier notes were paid, but the remaining notes and the book account were not paid. The purchasers of the goods confessed judgments to other creditors, and plaintiffs having identified certain of the goods levied upon, notified the sheriff that they had rescinded the contract of sale, and claimed the goods. On an interpleader, the evidence tended to show that the purchasers had received from customers who had purchased some of the goods more than the amount of the notes paid to plaintiffs. Held, that plaintiffs were not bound to refund the amounts of the notes paid to them, and that a verdict and judgment in their favor should be sustained.</p> <p>Rescission of contract — Tender of unpaid notes.</p> <p>In the above case it was held that the tender of the unpaid notes, made on the day of the trial, was not too late.</p> <p>Where the rights and liabilities of the parties have in no way been changed by the delay, the tender will be treated as if made at the date of rescission.</p>

<p>Sale — Rescission—Tender of money received.</p> <p>In order that a vendor may rescind a contract of sale of chattels, he must return to the purchaser any money paid, and must relinquish any ;«?• vantage gained by the contract.</p> <p>Sale — Rescission—Fraud—Reclamation of part of goods. ,</p> <p>Where goods are sold under fraudulent representation, and are all delivered under one contract of sale, the vendors may rescind the contract without tendering to the vendees the portion of the purchase money paid, if it appears that the value of the goods reclaimed does not exceed the balance due the vendors.</p> <p>Rescission — Standing of execution creditors of vendee.</p> <p>The execution creditors of the vendee of goods have a standing to contest the right of the vendors of the goods to rescind the sale on the ground of alleged fraudulent representations.</p> <p> Tender of unpaid notes. </p> <p>The rights of vendors of chattels to rescind the sale on the ground of fraudulent representations, is not- defeated by a failure to tender back notes given for 'the purchase money, if in interpleader proceedings between the vendors and the vendee’s execution creditors, the vendors file the notes in court before the verdict is rendered.</p> <p>Evidence — Scheme to defraud — Statements to other dealers.</p> <p>In interpleader proceedings between vendors of goods claiming to rescind a sale and the vendee’s execution creditors, it is proper to admit in evidence false written statements of the vendee’s business standing submitted to other dealers beside the vendors, in order to show a general fraudulent scheme to obtain a large amount of goods from various dealers, and that the<purchase from the vendors was only a small part of the larger scheme..</p>

<p>[Marked to be reported.]</p> <p>Dower — Judicial sale — Fraud—Husband and wife — Equity.</p> <p>An agreement between a mortgagor and a mortgagee to effect a transfer of title in the mortgaged premises to a third party by foreclosure proceedings, in order to revest a greater portion of the land in the mortgagor free from an easement affecting the whole tract, is not invalid as an attempt to defeat the rights of the mortgagor’s wife who had refused to join in a direct conveyance, if it appears that the value of the dower interest in the portion of the tract revested in her husband will be many times more than the value of her interest in the whole tract subject to the easement.</p> <p>A tract of land covered by a mortgage was subject to an easement in favor of a railroad company which gave the company the right to deposit culm upon the whole tract. An arrangement was made between the owner and the company for a division of the tract, and a conveyance of about one third of it to the company in fee simple in consideration of the release of the remainder from the easement. The portion of the land thus released from the easement was to be divided into city lots, and would be many times more valuable than the whole tract subject to the easement. Notwithstanding these circumstances the owner’s wife refused to join in the conveyance. An arrangement was then made between the mortgagor and the mortgagee by which the mortgage was to be used to bring about a judicial sale of the land either to the mortgagee or to some person agreed upon, who would convey to the railroad company the portion of the land which it was to have, and reconvey the remainder of the land to the mortgagor subject to the mortgage. The sale was effected, and title was taken in the name of the defendant who made the conveyance to the railroad company, and secured the release of the remainder of the tract from the easement, but refused to make conveyance to the mortgagor. In an action of ejectment by the mortgagor the court below held that the agreement between the mortgagor and the mortgagee was invalid as a fraud upon the mortgagor’s wife, and that the action could not be sustained. Held, to be error; the case should have been submitted to the jury on the credibility of the evidence whether the vendee was an innocent purchaser without notice of the trust.</p>

Appeal, No. 117, July T., 1892, by defendant, A. D. Spencer, from order of C. P. Lackawanna Co., Sept. T., 1891, No. 22, making absolute rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence in assumpsit for insurance money in dispute.

<p>[Marked to be reported.]</p> <p>Seed — Infant—Affirmance—Waiver—Estoppel.</p> <p>An infant who executes a deed during his minority, may upon coming of age disaffirm it, but he must exercise this right within a reasonable time, and if, with full knowledge of his privilege, he omits or neglects to assert it, his omission may be regarded as equivalent to an act of affirmance, and as amounting in fact and in law to ratification.</p> <p>A boy executed a deed when he was about seventeen years of age. In the acknowledgment clause it was stated that he agreed “to ratify the same when he shall become of full age.” He did not ratify the deed when he became of age, but fifteen years after his majority brought ejectment for the land It appeared that during this period he retained the purchase money with the fullest knowledge of the voidable character of the deed, of his own right to disaffirm, of the occupation of the land by lessees, of the erection of improvements thereon, and of the steady enhancement in value of the land by reason of the development of the region in which it was situated. It also appeared that during the whole period the laud was in full view from his house, or was passed by him in going to and returning from his work. Held, that he was not entitled to disaffirm his deed, or recover the land, after such a lapse of time and under such circumstances.</p>

<p>Appeal, No. 299, Jan. T., 1893, by defendants, J. B. Shiffer, administrator, et al., from judgment of C. P. Lackawanna Co., Nov. T., 1891, No. 157, on judgment for plaintiffs, Boyd, White & Co.</p> <p>Sheriff’s interpleader to determine ownership of goods.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ points were among others as follows:</p> <p>“ 4. If the jury believe that the plaintiffs took steps of their own to verify the statement of H. D. Judd & Co. the verdict must be for the defendants. Answer: I affirm that point. But if the plaintiffs shipped the goods entirely upon the confidence induced by this statement, notwithstanding the fact that they may have made other inquiries, if they shipped the goods upon the strength of this statement, and upon the confidence which was induced by it, then they may still recover, if you find the other facts in their favor.” [1]</p> <p>“ 5. If the jury believe that the plaintiffs commudicated with W. & J. Sloane, or others, regarding the financial standing of H. D. Judd & Co. and acted upon the judgment thus formed by themselves, the verdict must be for the defendant: Answer : I affirm that proposition. Of course, if they acted upon the judgment which they formed for themselves, from the statements or representations that were given to them by Sloane, why, they have no right to rely upon this statement. At the same time I say to you, as I said before, if they relied upon this statement, and the statement was false, they had the right to rescind the contract.” [2]</p> <p>“ 8. Under all the evidence the verdict must be for the defendant.” Refused. [3]</p> <p>“ 9. If the jury believe that the plaintiffs asked for payment and an assignment of the book accounts after they were aware of the alleged fraud, the verdict must be for the defendants. Answer: I affirm that proposition, but you must find that they were aware of the fraud that was perpetrated upon them, before I can affirm the point.” [4]</p> <p>“ 10. If the jury believe that the plaintiffs’ representative was instructed to employ an attorney, and the attorney was present at the time of demanding payment and asking for an assignment of the book accounts, the plaintiffs are bound by their acts. Answer: I affirm that proposition, provided you find that they knew, or had reasonable ground to believe that the fraud had actually been perpetrated upon them.” [5]</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p>Municipalities — Paving—Act of May 23, 1889.</p> <p>Under the act of May 23,1889, art. 5, § 3, clause 10, and art. 15, § 26, relating to the paving of streets upon a petition of a majority of owners, if the record oí a suit on a claim for paving shows that a petition was presented and an ordinance passed, the ordinance is conclusive of the fact that a majority of owners had joined in the petition. In such case an affidavit of defence, averring that the petition was not signed by a majority of owners, is insufficient.</p> <p>Notice of ordinance by advertising — Paving—Evidence.</p> <p>The provision of arc. 15, § 22, of the act of May 23,1889, which provides that paving claims “ shall be prima facie evidence of the amount thereof, and of the same being due and owing, and of all matters therein set forth,” extends to the provision of the act requiring that no ordinance for paving shall be passed until five days notice shall be given by advertisement. Where a claim for paving recites the fact that the ordinance was passed as required by law, an affidavit of defence, which does not aver that no five days notice by advertisement was given, is insufficient.</p> <p>Municipal claims — Taxation—Defences.</p> <p>Municipal claims for paving and other public improvements are a species of taxation, and the property owner has only such rights of contest and defence as the legislature chooses to allow him.</p> <p>Municipal contract for paving — Affidavit of defence.</p> <p>Where a municipality enters into a contract for paving, but limits its liability to the contractor to the amount of the claim recovered against the property owners, averments in an affidavit of defence, in a suit by the city for paving, that no provision had been made by councils for the indebtedness, and that the contract had been awarded by resolution and not by ordinance, are irrelevant and immaterial.</p>

<p>Negligence — Master and servant — Evidence—Case for jury.</p> <p>In an action by an employee’s widow against her husband’s employer for the death of her husband, caused by the explosion of a boiler, the case should be submitted to the jury, where at least two witnesses testify that the boiler, whose explosion caused the accident, wás in a leaky condition, and that its continuous use in this condition was a source of danger, and should not have been permitted by a prudent man.</p> <p>In such a ease the questions whether the witnesses were really scientific experts to be relied on, whether their reason for considering the use of the boiler imprudent were consistent with each other, and whether either really showed that the explosion was in fair probability caused by the leak, were questions of fact for the determination of the jury.</p> <p>Employment — Line of duty — Time and place.</p> <p>The explosion was stated by various witnesses to have occurred at some time between six o’clock in the morning .and twenty minutes after six. The hours of work began at 6 : 30 a m. The deceased lived about a mile away from the works. There was testimony that he was in the habit of using his time, between his arrival and the starting of the work, iu oiling and getting ready the machine on which he worked. Held, that it was for the jury to say whether the deceased had arrived at the works within a reasonable time, and whether under the circumstances he was under the protection of his employer.</p> <p>It further appeared that the deceased’s post was in a shed, not part of the boiler house where the explosion took place, and that he liad just entered the door of the house when he was injured. There was evidence that he was in the habit of sharpening the knife with which ho worked as a preliminary to the occupation of the day, and that the oil and whetstone, used for this purpose, were kept in the engine house, the usual entrance to which, before the opening of the works in the morning, was through the doorway in which he was injured. Held, that there was evidence from which the jury might infer that ho was at that place at that time to get tile oil and whetstone, and if so that he was reasonably within the scope of his employment.</p> <p>Charge of court — Points.</p> <p>It is not error for the trial judge, after correctly stating the law in his general charge, to negative points without reading them to the jury, if the points while correct in law are so expressed that the jury might be misled in their application to the case, unless they were amplified and explained.</p>

<p>[Marked to be reported.]</p> <p>Church law — Constitution—Confession of faith — Alteration.</p> <p>Under the constitution of the “ Church of the United Brethren in Christ,” adopted in 1841, providing that “no rule or ordinance shall at any time be passed to change or do away with the confession of faith as it now stands, nor to destroy the itinerant plan,” the confession of faith is not absolutely unchangeable in its manner of expressing the doctrines of the church, but it can be changed in the interest of clearness of expression or fulness of statement of the accepted doctrines of the church.</p> <p>Alteration of constitution — Election—Title to property.</p> <p>The constitution of the United Brethren in Christ provided that: “ There shall be no alteration of the foregoing constitution unless by the request of two thirds of the whole society.” The general conference of the church formulated certain changes in the constitution, and submitted them to the members of the church generally, who numbered about 200,000 persons. Of this number 51,070 signified their desire for the proposed changes by an affirmative vole. Those voting against the changes were 8310. Those who preferred another mode of proceeding than that which had been taken, and petitioned a general conference accordingly, were 16,187. The total number of those who expressed themselves upon the subject was 70,567. The general conference, assuming that the consent of the church had been obtained, adopted the new constitution by a large majority, and promulgated it as the law of the church. A small minority withdrew and organized another conference. Defendants, who were adherents of the minority, took possession oí a certain church and refused to surrender it to the majority of the congregation who adhered to the general conference which had adopted the new constitution. Held, (1) that a majority of the whole number of persons voting was sufficient to adopt the new constitution, and that it must be assumed that those who did not vote were either favorable or indifferent to the proposed changes; (2) that the “request” of two thirds of the whole society had been sufficiently manifested in favor of the proposed change; (3) that the persons who withdrew from the conference were an ecclesiastically distinct body, and had no title to the prop-' erty owned by the church prior to their withdrawal from it.</p>

Appeal, No. 317, Jan. T., 1893, by defendant, Wallie Connors, from judgment of O. and T. Northampton Co., June T., 1892, No. 35, on verdict for Commonwealth. Indictment for larceny of notes from bank. At the trial, before Reeder, J., there was evidence that defendant went into the Easton National Bank on July 21, 1892, and, while two of his confederates engaged the attention of the bank officer, slipped into the vault and stole a package of notes amounting to $4,000.

<p>Appeal, No. 37, Jan. T., 1893, by plaintiffs, Eunice Hall and Warren Hall, from judgment of C. P. Bradford Co., May T., 1891, No. 44£ on verdict for defendant, Martin Vanderpool.</p> <p>Sheriff’s interpleader.</p> <p>Prom the record it appeared that, on Dec. 1, 1890, D. H. Crimmins issued a fifth pluries writ of fi. fa. against Nelson Vanderpool and Warren Hall. Every preceding execution on the judgment had been returned by the sheriff, not executed, and without levy. On Dec. 6,1890,'Martin Vanderpool issued ail execution against Nelson Vanderpool and placed the writ in the sheriff’s hands on the same day. The sheriff levied on personal property found in possession of Nelson Vanderpool on both writs at the same time. Warren Hall, Eunice Hall, his wife, and John Holmes claimed all the property. The sheriff sold the property on the Orimmins writ as the property of Warren Hall, defendant and claimant, to John Crimmins for $274.48, and delivered the same to the purchase]1. He adjourned the sale as to Nelson Vanderpool. The court ordered a feigned issue; that Warren and Eunice Hall be plaintiffs and Martin Vanderpool defendant; that plaintiffs file a bond in the sum of $1,000 and a declaration ; and that defendant plead, etc. Plaintiffs filed no bond. The court then ordered the sheriff to proceed and sell the property and bring the money into court, and that plaintiffs be barred from any action against him. On tlie same day plaintiffs filed a declaration. Tlie sheriff sold Nelson Vanderpool’s interest in the property to Martin Vanderpool for $2.30, and applied the money on costs. A plea was filed and tlie case put on the trial list. Plaintiffs then asked and procured a rule to show cause why they should not be allowed to discontinue the case, because (1) they claimed no interest in the fund, (2) they claimed no title to the property when tlie sheriff sold it to raise the fund. The court discharged this rule. [1]</p> <p>Mrs. Hall claimed title by deed from Nelson Vanderpool.</p> <p>Tlie court charged in part as follows, by Peck, P. J.:</p> <p>“ There are no witnesses to this transaction as to the transfer of this property, as I recollect, except Warren Hall and his wife, Eunice Hall. Nor do I know that any person was present except Nelson Vanderpool. Nelson Vanderpool must have known about it, because he signed the papers, he executed the deed. For some reason Nelson Vanderpool lias not been called, and we tbink it our duty to state to you that when a party to a transaction has not been called, who lias knowledge of the transaction, and be is not called by the party interested to prove jnst what the transaction was, the presumption is that he would not have supported the evidence of the transaction as claimed by the party claiming it; or in other words, that Nelson Vanderpool would not have supported the evidence as claimed by Eunice Hall and Warren Hall.” [4]</p> <p>Defendant’s points were among others as follows :</p> <p>“ 2. D. H. Crimmins having issued his writ against Nelson Vanderpool and Warren Hall, and Martin Vanderpool having issued his writ against Nelson Vanderpool, which makes different plaintiffs and different defendants, and the fact that the same property was levied upon by the sheriff in both writs, and that Warren Hall claimed the property as his, and that Martin Vanderpool claimed it was Nelson Vanderpool’s, was not sufficient to warrant the sheriff in asking for an interpleader or the court to grant it, and these proceedings must be quashed and dismissed.” Refused. [2].</p> <p>“ 3. That the writ of D. H. Crimmins was first in the sheriff’s hands, was the first lien and would take the money until satisfied, whether the property was Vanderpool’s or Hall’s, and hence the sheriff had no ground for asking for an interpleader, and these proceedings must be dismissed.” Refused. [3]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were, (1) order discharging rule for discontinuance ; (2-4) instructions, quoting them.</p>

<p>[Marked to be reported.]’</p> <p>Sale of timber land — Warranty—Misrepresentations.</p> <p>Where a purchaser of standing timber goes upon the land and has an opportunity to sec the timber, he will not be permitted to defend an action for the purchase money on the ground that he was deceived by the vendor’s misrepresentations of the quality and quantity of the timber; nor, where it appears that he dealt with the vendor at arms length, will he be permitted to claim that such misrepresentations amounted to a warranty.</p> <p>Fraud — Rescission of contract.</p> <p>Where a sale is consummated by means of fraud, the vendee, upon the discovery of the fraud, has a right either to affirm or disaffirm the purchase. If the latter, it is his duty to do so promptly, when the parties can be restored to their original position. And whether they can be so restored is ordinarily a question for the jury.</p>

Appeal, No. 187, Jan. T., 1893, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1890, No. 746, in favor of defendants, Francis A. O’Brien, owner, and Thomas A. Ash, contractor, notwithstanding verdict for plaintiff. Mechanic’s lien for ironwork.

Appeal, No. 226, Jan. T., 1893, by plaintiff, Hiram Whitman, from judgment of C. P. No. 2, Phila. Co., March T., 1891, No. 705, entering nonsuit in favor of defendant. Trespass for personal injuries received at a public grade crossing of a railroad.

<p>Appeal, No. 250, Jan. T., 1893, by plaintiff, Dwight F. Walker, from judgment of C. P. No. 3, Phila. Co., June T., 1890, No. 649, on verdict for defendants, E. S. G-ithens et al.</p> <p>Replevin for goods distrained for rent.</p> <p>At the trial, before Finletteb, P. J., it appeared that defendant leased to plaintiff and Edward A. Walker certain premises for the term of five years from August 1,1876. Defendant claimed that after the expiration of the lease the term of the tenancy had been changed. He offered to prove that in 1876 the parties went into possession of the premises in question, under the lease; that they remained in possession under the lease until sometime about the first of October, 1885, when, with the consent of Mrs. Githens, there was a division of the property, and a division of the rent, by which each took one half of the property — $25.00 per month each — and that that continued up until September, 1890, and Edward Walker having moved out this lady refused to take the share due by this plaintiff, and asked for the whole.</p> <p>The Court: Do you contend that she agreed to take one half of the rent from each in lieu of the other arrangements ? Mr. West: Yes, sir ; we do contend that. The Court: I will overrule the offer. Exception. [1]</p> <p>Mr. West: I offer to prove that about October 1, 1885, by these receipts, the rent was reduced to $25.00 per month. The receipt dated October 28th states that $100 was received as payment of four months’ rent. Objected to. Offer overruled and exception. [2]</p> <p>Mr. W est: I offer to prove that the original lease came to an end, by its own terms, on the 10th of June, 1886, and that the plaintiff was at that time in possession of the premises under a new agreement; that he should have one half of the premises and pay for it $25.00 a month. Objected to. Offer overruled and exception. [3]</p> <p>Plaintiff tendered the amount admitted to be due, which was refused by defendant and plaintiff’s property distrained.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Mrrors assigned were (1-3) rulings on evidence, quoting the offers but not the bills of exceptions.</p>

<p>Agency — Fraud of agent — Satisfaction of mortgage — Equity.</p> <p>A real estate title company is liable for the loss of a fund received by the solicitor of the company while acting within the apparent scope of his duties, and embezzled by him.</p> <p>A client of a real estate title company made to the company two applications for loans, one to be used in paying off the mortgage of a building and loan association on her Thompson street house, aud the other to be secured by a mortgage on a house on Morris street which she proposed to purchase. The company was to do the conveyancing. To secure possession of the Moms street house, she paid to the solicitor of the company the portion of the purchase money which she was to pay in cash. The company, in settling with the vendor, did not apply the cash thus received by the solicitor, but used the money applied for on the Thompson street application. Subsequently the solicitor notified the treasurer of the building and loan association to come for settlement, and, when he did so, gave him fifty cents and requested him to go to the recorder’s office and satisfy the mortgage of the association. When this was done, the solicitor gave the treasurer his personal check, aud requested him to hold it for three days before presenting it, which was done. When the cheek was presented, there were no funds to meet it. On a hill in equity for the cancellation of the entry of satisfaction: Held, (1) that a court of equity had jurisdiction, notwithstanding the additional remedy at law by assumpsit; (2) that the action of plaintiff’s treasurer in accepting the solicitor’s personal check and holding it for three days did not, under the circumstances, discharge the title company from liability; (3) that the solicitor was acting within the apparent scope of his duties in the transaction, and (f) that plaintiff was entitled to the relief sought.</p>

<p>Appeal, No. 282, Jan. T., 1898, by Mary W. Vaux, late Wain, et al., from decree of O. C. Phila. Co., April T., 1892, No. 379, distributing estate of Henry Lisle Wain, deceased.</p> <p>Adjudication of executor’s account.</p> <p>From the adjudication of Hanna, P. J., it appeared that Henry Lisle Wain died April 8, 1891, having made his will dated April 7, 1882, which, after certain legacies, provided: “ The rest, residue and remainder of my estate, real and personal, I devise and bequeath to my sisters Mary, Sallie, Ellen and Annie, and my brother Edward, in equal shares.” He had then no other brothers or sisters living. Ellen died May 26, 1887, unmarried and without issue. Edward died in October, 1887, leaving several children surviving him. Testator on January, 1890, made a codicil as follows: “ I revoke my bequest to my brother Edward, as he is not living.” The fund in question is that part of testator’s residuary estate which would have passed under the residuary clause to Edward had lie lived. The auditing judge awarded it to his surviving sisters. Edward’s children claimed that one fourth of it should have been awarded to them. The3r oxceptod to the adjudication, and thereupon the orphans’ court sustained their exceptions and decreed one fourth to them, in an opinion by Hanna, P. J., 2 Dist. R. 102.</p> <p>Edward’s surviving sisters thereupon took this appeal.</p> <p>Errors assigned were (1-6) in sustaining exception to adjudication, quoting them.</p>

<p>Appeal, No. 312, Jan. T., 1893, by defendant, Louis H. Ayres, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1892, No. 657, in favor of plaintiffs, Edward Coles et al., on cases stated.</p> <p>Assumpsit. Case stated to determine title under will.</p> <p>From the case stated it appeared: That Edward Coles, the father of plaintiffs, died in 1868, having first made his will dated July 26, 1865, and a codicil thereto dated May 17, 1866, duly proved July 14, 1868, at Philadelphia, in and by which will and codicil he devised and bequeathed inter alia as follows: (Item 10 of will.) “ All the rest, residue and remainder of my property, real and personal and mixed, either now owned or hereafter to be acquired by me, I give, devise and bequeath to my children, to be held in common by them or to be equally divided between them.”</p> <p>Item 11. “ If both of my children should die intestate and without lawful heirs I direct that all my estate given by this will to my children and intended for them if they should live shall at the death of the last child be divided into equal parts, one part or moiety of which I give, devise and bequeath in fee simple to .my nephews and nieces, etc., and to their heirs forever, and the other part or moiety, I give, devise and bequeath to John H. B. Latrobe, president of the before described colonization society and to his successor and successors in office in trust to be applied by the direction of the said society for the. exclusive purpose of aiding in removing to Africa the colored population of the United States.”</p> <p>That plaintiffs were, at the date of the making of the will and at the time of testator’s death, the only children of testator.</p> <p>That on Dec. 7, 1892, plaintiffs entered into a contract in writing under seal by which they agreed to sell to defendant the property in question, which formed part of the residuary estate by Edward Coles, deceased.</p> <p>Judgment for plaintiffs on case stated for full amount of purchase money.' Defendant appealed.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeal, No. 308, Jan. T., 1893, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1891, No. 665, in favor of defendant George Schollenberger, on case stated.</p> <p>Case stated to determine validity of sale of oleomargarine.</p> <p>The case stated was as follows:</p> <p>“ That the defendant is a resident and citizen of the state of Pennsylvania.</p> <p>“ That defendant is engaged in business at 219 Callowhill street, in the city of Philadelphia, Pa., as the agent of the Oak-dale Manufacturing Company, whose principal office and place of business is in the city of Providence and state of Rhode Island ; and was acting as such agent from the 1st day of June, 1891, and on the 80th day of November, 1891.</p> <p>“That the said defendant, on the 21st day of July, 1891, paid to the collector of internal revenue of the first district of Pennsylvania the sum of four hundred and eighty dollars, as and for a special tax upon the business as agent for the Oak-dale Manufacturing Company in oleomargarine, and obtained from said collector a writing in the words following: [Here follows internal revenue store license to defendant as agent.]</p> <p>“ That on Nov. 30, 1891, in the city of Philadelphia, at his said place of business as aforesaid, said defendant, acting as agent for the said Oakdale Manufacturing Company, sold and delivered to one John H. Berry, carrying on the business of a coffee house, at 606 Lombard street, in the city of Philadelphia, Pa., a package containing eighty pounds of oleomargarine for the sum of $12.40, which said sum of $12.40 was paid to the defendant as agent of the Oakdale Manufacturing Company on the said 30th day of November, 1891; which said package of oleomargarine was manufactured in the state of Rhode Island and shipped to their agent, the defendant, the said George Schollenberger, who sold and delivered the said package, unbroken, to the said John H. Berry, and which package was marked, branded and stamped in the manner prescribed by the commissioner of internal revenue with the approval of the secretary of the treasury.</p> <p>“ If, upon this statement of facts, the court is of the opinion that the defendant is liable for the penalty imposed by the act of assembly, entitled, ‘ An act for the protection of the public health and to prevent the adulteration of dairy products and fraud in the sale thereof,’ approved May 21, 1886, then judgment to be entered in favor of the commonwealth-and against the defendant in the sum of $100 and costs of this suit; but if the court be of tbe opinion that for any reason the defendant is not so liable, then judgment be entered for the defendant.</p> <p>“ It is hereby agreed by counsel for plaintiff and defendant in the above case, that for the purposes of this case, the word ‘ oleomargarine,’ when used in the case stated, is intended to mean ‘ an article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same ; ’ and manufactured ‘ out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or cream from the same.’</p> <p>“ It is further agreed that the said package was sold as an article of food within the words of the act of May 21, 1885.”</p> <p>The court entered judgment for defendant on the case stated, in an opinion by Reed, J., 2 Dist. R. 244. Plaintiff appealed.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Statute of frauds — Guaranty—Collateral undertaking.</p> <p>Plaintiff was employed by a contractor to cut timber. He was to receive a certain amount per day, and his board. After he had been working for some time, he said to an agent of defendants, who were owners of the land, that he was afraid he would not be paid for his work. The agent then said to him: “Keep on to work just as you have been; we will see you paid.” He kept on at w ork, and settled with the contractor, who gave him an order on defendants for his wages, and was paid upon it the balance in defendants’ hands due to the contractor. Plaintiff then sued defendants for the balance due. Held, that the agreement of defendant’s agent was a collateral undertaking, within the statute of frauds, upon which there could be no recovery.</p>

<p>Appeal, No. 143, July T., 1893, by defendants, from judgment of C. P. Huntingdon Co., Feb. T., 1892, No. 17, on verdict for plaintiffs, A. M. Hoover et al.</p> <p>Trespass for damages for alleged unlawful discrimination.</p> <p>At the trial, before Fijrst, P. J., it appeared that, in 1881, the defendant agreed to transport coal from the Snow Shoe District to the works of the Bellefonte Iron & Nail Company for the sum of thirty cents per ton, provided the nail company consumed at least twenty tons per day. It appeared that the coal was to be tariffed at the usual public rate of fifty cents per ton, and that a rebate of twenty cents per ton net would be repaid by the railroad company to the nail company. In 1889, plaintiffs became retail coal dealers in Bellefonte, and were charged by the railroad company the usual public rate for the transportation of their coal.</p> <p>Defendants presented the following points :</p> <p>“ 1. Tbe agreement to charge a uniform rate to the Bellefonte nail works, made in 1881, was binding on the defendant; and its performance was not an undue and unjust discrimination against the plaintiffs. Answer: So far as the contract being binding on the defendant in 1889 and up to 1891, we are not prepared to affirm the point. This action is not brought to enforce that contract. The question of the contract is, therefore, immaterial and irrelevant. We cannot say. as matter of law, that the contract was binding upon the company. Its terms seem to be indefinite, and whether they could or could not have retreated from it' is a question that is not important here; and, if it be, we cannot say it was binding upon them. But whether or not the performance of that contract resulted in undue and unjust discrimination against these plaintiffs is a question we submit to you in our general charge. If it operated in a certain manner it would be undue and unjust, and if it did not operate in that manner it would not be undue and unjust. For further answer we refer to our general charge as to the fact of discrimination.” [1]</p> <p>“ 2. The defendant has made no undue charge or unjust discrimination against the plaintiffs, if they were charged the same as other buyers and sellers of coal. Answer: This point we cannot affirm. The fact involved in the point will be for the determination of the jury.” [2]</p> <p>“ 3. A lower charge to a manufacturer of nails is not an unjust discrimination to a buyer and seller of coal only. Answer: We cannot affirm that as a principle of law. It may be or may not be, according to the circumstances of the case; but whether, in this case, it resulted in an undue and unjust discrimination must be determined by you under the evidence.” [3]</p> <p>“4.. As there was no undue discrimination in furnishing facilities for transportation, treble damages cannot be recovered in this case; and the verdict must be for the defendant.” Refused. [4]</p> <p>“ 5. Under all the evidence in the case the verdict must be for the defendant. Answer: We refuse this point because, as the case is presented by the plaintiffs, we submit the question of undue and unjust discrimination to jrou.” [5]</p> <p>Verdict and judgment for plaintiffs for $6,364.20. Defendants appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them as above ; (6) that the judgment of the court below is unlawful. It imposes special damages and is in conflict with § 7 of article 3 of the constitution of this state, which forbids any special law regulating labor, trade, mining, or manufacturing.</p>

Appeal, No. 147, Jan. T., 1893, by defendant, from judgment of C. P. Centre Co., August T., 1890, ]STo. 182, on verdict for plaintiff, Isabella Lohr. 5 it 7 Trespass for injuries caused by defective sidewalk. At the trial, before Furst, P. J., it appeared that, on April 29, 1890, plaintiff slipped on a defective sidewalk in the borough of Philipsburg, and injured herself. The sidewalk was made of hemlock boards, and had been down for about seven years.

<p>Negligence — Injury—Charge of court — Review.</p> <p>In an action by a passenger against a railroad company to recover damages for injuries resulting from the alleged negligent manner of coupling cars, the court charged : “ It is necessaj^y that cars be coupled together by the backing of the engine, but in doing that the employees of the company must'do it in such a manner as not to strike the car with such force as to injure passengers sitting therein. If they did, it would be such an act of negligence as would entitle the plaintiff, or any person, to recover who suffered injury therefrom.” In other parts of the charge the court repeatedly stated that plaintiff could not recover unless the injury was the result of the negligent conduct of defendant. Held, that the jury could not have understood that the fact of injury was the test of plaintiff’s right to recover.</p> <p> Instructions as to damages. </p> <p>An instruction that the question of damages “ is wholly and entirely in the province of the jury,” is not ground for reversal, if the trial judge follows the general phrase complained of immediately and in the same sentence by a specific enumeration of the items of damages, and concludes with the direction that “ all these taken together would be the amount that the plaintiff is entitled to recover.”</p> <p>Remarles of counsel to jury — Review.</p> <p>Remarks of counsel to the jury are not reviewable by the Supreme Court.</p>

<p>Appeal, No. 321, Jan. T., 1893, by plaintiffs, Charles W. Schwartz and Albert Groff trading as Schwartz & Groff, from judgment of C. P. Clearfield Co., Dec. T., 1891, No. 135, on verdict for defendant, Edgar L. Mc-Closkey, sheriff.</p> <p>Trespass against sheriff for unlawful sale.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Krebs, P. J., entered a compulsory nonsuit, and subsequently refused to take it off.</p> <p>Brror assigned was (2) refusal to take off nonsuit.</p>

<p>Appeal, No. 373, Jan. T., 1893, by plaintiff, Frederick Jaekel, from judgment of C. P. Blair Co., Oct. T., 1888, No. 14, on verdict for defendant, Israel C. Caldwell.</p> <p>Assumpsit by agent against principal to recover for labor, time and expenditures in trying to sell land.</p> <p>The facts as they appeared at the trial, March 23, 1892, before Wickham, P. J., of the 36th judicial district, specially, presiding, are stated in the opinion of the Supreme Court.</p> <p>The agreement between plaintiff and defendant was as follows :</p> <p>“We agree that F. Jaekel shall sell our coal lands in White and Clearfield townships, Cambria county, containing 3168 acres. He is to pay to us the sum of two hundred thousand dollars without regard to the price he sells for, on payment of which sum we are to execute to purchaser a good and sufficient deed. We reserve all the timber specified in agreement with A. J. Reynolds as well as hemlock saw-timber, surface and all other timber to pass by deed.”</p> <p>A supplemental contract simply referred to the timber.</p> <p>The last amended statement, referred to in the opinion of the Supreme Court, was as follows:</p> <p>“Now, March 23,1892, plaintiff moves to amend statement filed in this case by averring that defendant received from the sale of the land in question an amount exceeding $333,333.10 for his share. Plaintiff further avers that he had, prior to the revocation of this authority to sell, procured a purchaser to take this land at $350,000. He therefore avers that his damages sustained is the one half of the difference between $350,000 and $215,000, amount which he was to pay Dean and Caldwell, or if the court should be of the opinion that the amount at which said purchaser offered to take said land is not the criterion to determine the damages, this plaintiff avers that the measure of his damages is the compensation for his time, trouble and expenses, in, at the'instance of defendant and John Dean, endeavoring to sell the land in question, and plaintiff avers that the amounts so expended by him exceeded $50,000, and that his time and labor amounted to, or was worth an additional $20,000,. and that defendants should pay one half of said amounts.”</p> <p>The court charged in part as follows :</p> <p>“ [The construction placed by the court on these contracts prevents the plaintiff from recovering in this action, unless he has established the fact, that he found a purchaser for the land, willing and able to pay Dean and Caldwell more than the sum of $215,000, in cash. The burden of proving this fact rests on the plaintiff. It is his duty to make it clear to you by the weight or preponderance of the evidence. If he has failed to do this, he can recover nothing. If he has shown that he obtained a bona fide customer, that is, one able and willing to pay more than $215,000, and informed Judge Dean of that fact before his authority to sell was revoked, he would be entitled to recover from the defendant one half of the excess over $215,000, together with interest from time of demand, provided — I was going to say — that the defendant authorized or ratified the written agreements on which the suit is based; but his counsel have conceded that he did authorize Judge Dean to make these agreements, or at least ratified them after they were made, and it is not necessary to discuss that question farther.] [1]</p> <p>“ [Now, gentlemen, I instruct you, that there can be no compensation whatever allowed the plaintiff for time, services or money expended in mere efforts to develop and sell the land. Neither the defendant nor Judge Dean agreed, in the writings declared upon, to pajr the plaintiff anything unless he actually made a sale at a price exceeding $215,000. He undertook to sell the land on a contingent commission; he took his chances and, without some other contract than that set forth in these agreements — and there is none other before you — all the risks would be his. If, on the principle of ‘ Nothing risked, nothing won,’ he spent his time and money on a mere speculation, he, of course, could not make the defendant repay his losses. Every day men make such contracts; some of them gain and some of them lose. Doing business in this way, while legitimate enough, is still somewhat of a lottery; and the man who goes into it must take his chances.] [2] [In the present case the landowners were incurring no liability whatever, as they could revoke the plaintiff’s authority at any time before he had found a pur-, chaser. If the plaintiff desired to protect himself more fully, he could have provided in the contract that the property should not be withdrawn from his hands before a certain period had expired; then, if his authority, before the time given had run out, was taken from him, he might recover for time, labor and money expended. That is, he would be entitled to a reasonable compensation. Since he did not provide for this, since he chose to take the chances of getting nothing or making a big profit, as he seems, according to his testimony, to have expected, he cannot hold these men, or either of them, responsible for money expended in developing that land, for time spent in trying to find a purchaser, or for the money spent in New York or elsewhere or otherwise. That was his own affair, and neither of them would be bound to compensate him. The evidence bearing on the plaintiff’s expenditures and efforts in faying to sell the- land is, under the pleadings in this case, only admissible and to be considered as bearing upon the question whether or not he found a purchaser.] [3] ....</p> <p>“Now, gentlemen, to briefly recapitulate, first, if the plaintiff, at the time he alleges he sold the land, was a real estate broker, that is, was engaged in the buying or selling real estate for others in the manner already described, he cannot recover, as he admits that he had no license. [Second. If the plaintiff rvas not a real estate broker at the time mentioned and made the sale in good faith to Fulton, and Fulton had the ability and was willing to pay, and the plaintiff, before his authority was revoked, notified Judge Dean of this sale, and the latter, for himself and the defendant, positively refused to make a deed or deeds and this prevented the sale from being consummated, then the plaintiff is entitled to recover the sum of $67,500, with interest from the time of demand. If you find in favor of the plaintiff, you can give no less sum than this I have just mentioned.] [6] If no sale was made, or if the purchaser was irresponsible, or did not intend to pay, that is, if the whole thing' was a farce, a sham or an experiment of Sipes’s, although the plaintiff may have been entirely honest in the matter himself, then no recovery can be had.”</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-8, 6) instructions, quoting them; (8) answer to point recited in opinion of Supreme Court, quoting point, answer and subsequent agreement of Feb. 9, 1898, recited in opinion of Supreme Court; and (9) ruling on evidence, quoting bill of exception recited in opinion of Supreme Court.</p>

<p>Appeal, No. 299, Jan. T., 1893, by-defendants, Hoover, Hughes & Co., from judgment of C. P. Clearfield Co., Sept. T.,-.1892, No. 341, on verdict for plaintiff, Jacob Scott Flegal.</p> <p>Assumpsit for price of logs and bark.</p> <p>At the trial, before Krebs, P. J., it appeared that, on May 8, 1891, George Arick, P. IV. and A. M. Draucker and John Hays, of the one part, entered into a contract in writing with Hoover, Hughes & Co., for cutting, peeling and stocking all the timber on certain lands owned by the latter. The contractors went into possession of the land, and operated under the contract. Subsequently they assigned all their interest in the contract to plaintiff, who proceeded with the work. Defendants claimed that plaintiff did not comply with the conditions of the contract. They claimed therefore to rescind it and took possession of the land by force. Plaintiff on the other hand claimed that he was properly carying out the contract, and in turn ousted defendants by force from the land. The parties then came together and entered into the following contract in writing:</p> <p>“ Now, May 5,1892, it is agreed by and between J. S. Flegal, and Hoover, Hughes & Co., that the contract dated 8th May, 1891, between George Arick, P. W. Draucker, A. M. Draucker and John Hayes, of the first part, and Hoover, Hughes & Co., of the second part, shall be and is hereby delivered up and canceled.</p> <p>“ The bond held by Hoover, Hughes & Co., signed by J. S. Flegal, F. M. Cardón, and Robert Flegal in the sum of $5,000 shall be delivered up to said J. S. Flegal.</p> <p>“ Hoover, Hughes & Co. shall pay to said Flegal the sum of three hundred and fifty dollars ($350) in full consideration of, and for all improvements made by him under said contract when possession is delivered on May 16,1892, and also pay said Flegal for all logs which have been delivered at the date of this agreement and bark delivered and to be delivered by him, which is now peeled and on the Penfield road, according to the terms of said contract on a settlement, said contract dated 8th May, 1891.</p> <p>“ Said Flegal shall have the right to remove all personal property such as tools, horses, camp fixtures and blacksmith tools from said premises within ten days, and deliver possession of the camp and buildings on May 16, 1892.</p> <p>“ Up until May 16,1892, said Flegal shall board all of Hoover, Hughes, & Co.’s men at the rate of (17c) seventeen cents per meal, unless possession of said camp is sooner delivered by said Flegal.”</p> <p>Defendants’ points were, among others, as follows:</p> <p>“ 1. That under the pleadings and evidence in this case there can be no recovery, and the verdict must be for the defendant. Answer: In other words we are to take the case absolutely away from you, and determine it ourselves as a matter of law that the plaintiff is not entitled to recover. We decline so to do.” [1] “ 2. By the written agreement dated May 5, 1892, the contract dated May 8, 1891, was surrendered up and canceled, and therefore there can be no recovery in damages for breach of it in this suit. Answer: We decline so to instruct you. That depends upon the question that we have submitted to you as to Mr. Flegal’s acceptance of the terms contained in that contract as satisfaction of his claim under the previous arrangement, and looking to the terms alone and not to a promise. If it rested only and alone upon the terms in that contract, and it was not performed, then the contract dated May 8,1891, and made June 20,1891, would not be set aside, and he would have a right to recover under the original contract.” [2]</p> <p>“ 3. The agreement dated May 5, 1892, was and is a valid, binding agreement between the parties, J. S. Flegal, of the one part, and Hoover, Hughes & Co., of the other part, and, as by its terms all improvements under the original contract were transferred to the defendant, there can be no recovery in this suit for the value of said improvements. Answer: That contract is some evidence as to the value placed upon these improvements. If you believe the testimony of the defendants that it covered everything they agreed upon at that time, it is some evidence to be considered as bearing upon the value of the improvements, but, under our previous instructions and in answer to the previous point in that case, we cannot say to you as a matter of law that there can be no recovery for improvements in this action.” [3]</p> <p>During the trial of the cause the defendants asked leave to file a supplemental affidavit of defence. Refused, and exception. [11]</p> <p>Verdict and judgment for plaintiff for $1,160.12. Defendants appealed.</p> <p>Errors assigned were, among others, (1-3) instructions, quoting them; (11) refusal of leave to file supplemental affidavit of defence.</p>

<p>Equitable assignment — Set-off-Decedents' estates.</p> <p>Decedent had an open account with a firm of which claimant wns a member. She was a creditor ou this account for $661.50, and a debtor for $173.61. Claimant was at the timo an indorser on her note for $450, and she desired him to assume the further liability of indorsing another note for $2,000. This he agreed to do in consideration of her agreeing that $450 of her credit should he offset by the note for that amount, which, he undertook that the firm should pay. This arrangement was carried out. Claimant indorsed the second note, and the firm paid the first note. Held, that this was an equitable assignment of $450 of her claim on the firm to claimant, and that it made no difference that the first note was paid after her death.</p> <p>Married women — Loan—Application of funds.</p> <p>A person who lends money to a married woman is not bound to see that she actually applies the money to use in business.</p> <p>Evidence — Witness—Decedents' estates.</p> <p>Where a husband has borrowed money on a bond with a surety, and has loaned the money thus borrowed to his wife, the surety is a competent witness against the wife’s estate, after her death, to establish the husband’s right to the fund.</p>

<p>Appeal, No. 134, Jan. T., 1893, by defendant, James M. Sherwiu, from order of C. P. Erie Co., Sept. T., 1892, No. 140, making absolute rule for judgment in favor of plaintiff, John A. O’Rourke.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit for purchase money of land.</p> <p>Defendant filed an affidavit of defence averring that plaintiff had not tendered a good and sufficient deed for the land. From the record, it appeared that plaintiff claimed title from his father, Patrick O’Rourke. The material portions of the will of Patrick O’Rourke are as follows:</p> <p>“ Item Sixth. I give, devise and bequeath to my daughter Kate O’Rourke and my sons John A. O’Rourke and Wm. G. O’Rourke, all the real estate which I own, wheresoever situated, the same being the farm on which I reside in Millcreek township, Erie Co., state of Pennsylvania, being the same land conveyed to me by deed from Thomas H. Sill and wife, they, said Kate, John and William, to hold the same as tenants in common for and during their natural lives, and the life of the survivor of them, with remainder in fee to the issue of them, said Kate, John and William, said issue to take per stirpes and not per capita, so that in case of the death of either of said three leaving issue, the said issue would and shall take what their parent would have been entitled to, subject to the life estate of the survivor or suvivors of said original their devisees, Kate, John A. or William G.</p> <p>“ Item Seventh. In case of the marriage of any said three, Kate, John or William, they may have a proportionate part of said land set off to them for separate occupancy, this not to affect the title to the land, but my daughter Kate is not to be disturbed in the occupancy of the house in which I now reside and the proportionate part of the land immediately adjacent thereto.</p> <p>“If she shall need more than the use of the land hereinbefore devised her, my executors shall make her a reasonable periodical allowance, to be raised from the use of the farm, or from the sale of so much as may be necessary of said land, for such purpose ; and if said executors refuse or neglect to make her a proper allowance if she needs or demands the same, I empower the orphans’ court of Erie county to make and fix a proper amount and define its time of payment, and 1 hereby empower and authorize my executors to sell at public sale such part of my land, not exceeding one acre in any one year for this purpose and make deeds therefor, such sale to be approved by the orphans’ court of Erie county.</p> <p>“Item Eighth. I authorize my said children, Kate, John A. and William Gf., in case they all so desire, to sell and convey and give sufficient deeds for the whole or a part of said real estate above described, from time to time.</p> <p>“Item Ninth. I appoint Kate O’Rourke, John A. O’Rourke and William G. O’Rourke to be executors of this my last will and testament.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence.</p> <p>Error assigned was order for judgment as above.</p>

<p>Appeal, No. 448, Jan. T., 1893, by J. W. Sproul, receiver of the Corry National Bank, from oz-der of C. P. Erie Co., Eeb. T., 1892, No. 427, confirming auditor’s report distributizzg fund realized by sheriff’s sale in Sproul v. Murray.</p> <p>Distribution of fund raised by sheriff’s sale.</p> <p>From the report of the auditor, F. M. McClintock, Esq., it appeared that James Carney and other wages claimants were employed by defendant as . tailors in a tailor shop connected with his merchant tailoring store. The fund for distribution was realized almost entirely by the sale of the goods in the stoz-e. Ozie claimazzt testified that they worked on custom made clothing, and also in dull seasons worked up cloth which went into the ready-made stock. They also altered ready-made clothing when necessary. Azzother witness testified that “ lots of the stock on hand at time of sheriff’s sale, which was made up from remnants, etc., were znade up by claimants during the dull season.” The auditor found the tailor shop and the store were carried on as one business.and accordingly awarded a preference to the wage claims. Exceptions to the auditor’s report were dismissed by the court in an opinion by Gunnison, P. J.</p> <p>JSrrors assigned were that the court erred (1) in finding that while the act of 1872 would not embrace and give to these laborers a preference, yet that while the act of 1883 does not enlarge the class of' employers izi terms, it did in fact, for the reason that the class of employees were enlarged; (2) in finding, or ruling, that the goods of the defendant, sold by the sheriff, were used in and about and connected with the carz-ying on of the business in which said laborers were employed and worked for defendant; (3) in finding that the business of defendant was such a business as is contemplated by the said acts of 1872 and 1883, in giving a prior lien to an execution creditor, in favor of workmen employed in and about and connected with the carrying on of the same; (4) in finding that the said laborers were engaged in labor for defendant, which was necessary to carry on the business of defendant, in that department, that the goods sold by the sheriff were connected with; (5) in finding that the report and distribution as made by the auditor were correct and according to law, and in dismissing the exceptions of plaintiff and allowing the said labor claims ; (6) ip not reversing the report and distribution of the auditor, and in not awarding the fund to plaintiff.</p>

<p>Appeal, No. 83, July T., 1892, by defendant, Jennie E. Thompson, from order of C. P. Cumberland Co., Feb. T., 1889, No. 38, making absolute rule to strike off release of lien by plaintiff, J. B. Brown, administrator of Thomas Sharp, guardian.</p> <p>Rule to strike off release of lien.</p> <p>From the record and proofs it appeared that Matthew Thompson, by his will, appointed Thomas Sharp guardian of his grandchildren Blanche and Joseph Kelso. To secure payment of the legacies to the minor children, the guardian took a judgment bond in his own name as guardian from Thomas J. Gill and Jennie E. Thompson. The bond was not entered up during the guardian’s lifetime. Upon his death, J. B. Brown was appointed his administrator. Brown then entered up the bond in his own name as administrator of Thomas Sharp. On’ Dec. 1, 1888, a paper purporting to be a release of the lien of the judgment from the land of Jennie E. Thompson was filed of record, signed by “ J. B. Brown administrator of Thomas Sharp, deceased.” On June 1, 1891, D. D. G. Duncan was appointed trustee of the minors’ interests.</p> <p>Defendant’s answer was as follows:</p> <p>■ “ That she and Thomas J. Gill were the owners in common of a farm in Mifflin township containing 278 acres and 140 perches, which farm was purchased from, and conveyed to them in fee simple by Wm. M. Scouller, executor of Matthew Thompson, dec’d, by deed dated Nov. 25, 1882, for the consideration of $14,152. That on the 2d day of April, 1883, she and the said Gill gave their judgment bond to Thomas Sharp, guardian of the minor children of Wm. Kelso, viz., Blanche Kélso and Joseph Kelso. That judgment was not entered upon the said bond until Nov. 23, 1888. That long before said judgment was entered, and shortly after the said bond became due, the obligors in said bond offered to pay the full amount due thereon to the said Sharp, guardian, but he refused to take the same, and it was not until after his death that judgment was entered, and then it was caused to be done by his administrator. That on December 1,1888, she and Gill made partition between themselves of the said farm, she taking 143 acres and 90 perches and he 135 acres and 50 perches, each in severalty. That the price at which she took her portion was $5,576, and that at which Gill took his was $8,576. That previous to that date there had been several liens against the said farm held by them in common, but at the time of the partition and in an adjustment of the said liens, the said J. B. Brown, administrator of Sharp, the plaintiff in the judgment in question, and the same person, and in the same capacity in which he had caused the judgment to be entered, voluntarily, by writing filed (which is made a part of this answer) released the lien of the judgment from the said tract of 143 acres and 90 perches owned by her.</p> <p>“ Further, that the debt represented by the said judgment is the debt of Thomas J. Gill and not of your respondent. That if due vigilance had been exercised by the said Sharp during his lifetime or' by the said Brown, his administrator after his death, the money due upon said bond could have been realized from the said Gill.</p> <p>“ That there is nothing contained in the will of the said Matthew Thompson making the legacy to Blanche and Joseph T. Kelso a charge upon the real estate owned by your respondent.</p> <p>“ Representing, therefore, as above, your respondent begs that the rule in this case may be discharged.”</p> <p>The court made the rule absolute in the following opinion, by Sadleb, P. J.:</p> <p>“ It is unnecessary to enter into any discussion for the purpose of showing that Mr. Brown had no authority to release the land of Jennie E. Thompson from the lien of the judgment. It was proper for him to have it entered but he had no power over it. He was not the successor of Thomas Sharp as guardian or trustee of Blanche and Joseph Kelso. The fact that his attorney directed the prothonotary to substitute him in place of Thomas Sharp or that the prothonotary made such an entry is not material. And now, Dec. 9, 1891, rule granted in this case is made absolute.”</p> <p>Error assigned was above order, quoting opinion.</p>

<p>Guardian and ward — Suretyship—Illegal appointment of guardian — Act of March 29, 1832.</p> <p>The surety on the bond oí a guardian is not relieved from liability by the fact that the guardian at the time of his appointment was one of the administrators of the estate of his ward’s father, and that the appointment was thus illegal under the act of March 29, 1832, P. L. 190.</p>

<p>Criminal law — Murder—Challange for cause.</p> <p>If from the examination of a juror on his voir dire it appears that he has the ability and disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding the fact that he states that it would require evidence to change the impr'ession or opinion formed from what he had heard or read about the affair under investigation.</p> <p>Challenge for cause — Review.</p> <p>In reviewing the ddfeision of the lower court upon a challenge of a juror, on the ground that he had formed an opinion as to the case, nothing short of palpable error in the decision will justify the Supreme Court in reversing it.</p> <p>Evidence — Opinion of expert.</p> <p>On the trial of an indictment for murder, after a physician has described the injuries found on the body of the deceased, it is not improper to permit him to state what in his opinion caused the death, and how the injuries upon the person were inflicted.</p> <p>Evidence as to manner of hilling — Prior declarations.</p> <p>Evidence that the prisoner showed certain witnesses a peculiar grip by which he claimed he could easily “ shut anybody’s wind off” is admissible, where it appears that the grip thus shown was the same as the grip described by the physician in explaining how the deceased was strangled.</p> <p>Evidence — Threats—Attempt to procure insurance on life of deceased.</p> <p>Upon a trial of indictment for murder it is competent for the commonwealth to show that the prisoner had made threats against the deceased, who was his mother; that he had frequently quarreled with her; that on one occasion he had made an assault upon her which left its marks upon her person; and that a short time before her death he had sought but failed to obtain an insurance on her life without her knowledge.</p> <p>Withdrawal of evidence — Discretion of court.</p> <p>The offer of evidence before a jury, which the evidence fails to sustain, and its subsequent withdrawal, are matters which rest largely in the discretion of the trial court, and the exercise of this discretion will not be reviewed by the Supreme Court except in a case of abuse.</p> <p>Charge of the court — Degree of murder.</p> <p>On the trial of an indictment for murder where there is no evidence to reduce the homicide to manslaughter, it is not improper for the court to omit instructions defining manslaughter.</p>

<p>[Marked to be reported.]</p> <p>Hoad law — Boad masters in Warren county — Bonds—Acts April 15,1834, ■and April 12, 1869.</p> <p>Under the act of April 12, 1869, P. L. 879, relating to Warren county, and providing that road masters of a township shall collect the road tax and “ shall have all the power and authority which is vested in collectors of county and state taxes by existing laws,” road masters are tax collect-ors, and must file the bond required of tax collectors by § 32 of the act of April 15, 1834, P. L. 509.</p> <p>Collector of taxes defacto — Defence.</p> <p>A de facto collector of taxes cannot be beard to deny the validity of his appointment: Ridgway Twp. v. Wheeler, 90Pa. 450.</p>

<p>Appeal, No. 398, Jan. T., 1893, by plaintiffs, B. F. Keiser et al., from order of C. P. Union Co., March T., 1892, No. 14, refusing writ of mandamus.</p> <p>Petition for mandamus to compel reconstruction of bridg’e.</p> <p>From the record the facts appeared substantially as follows: The Milton Bridge Co. was incorporated by act of April 6, 1830, P. L. 281. The corporation was authorized to erect a bridge across the West Branch of the Susquehanna river opposite the borough of Milton. The bridge was constructed in three parts. It commenced opposite Mahoning street, in the borough of Milton, in the county of Northumberland, and the first part was built to an island. The second part was built from the first to a second island, and the third part from the second island to Kelly township, Union county.</p> <p>On June 2, 1889, the bridge was completely destroyed by an unprecedented flood in the river Susquehanna. The ruins of the bridge were abandoned by the corporation, and all of the company’s right and title to the piers, abutments, etc., have been released by the Milton Bridge Company to the counties of Union and Northumberland.</p> <p>The act of June 16, 1891, P. L. 305, amending the act of June 8, 1881, P. L. 67, is as follows:</p> <p>“ Section 1. That the county commissioners of the several counties of this commonwealth are hereby authorized to take charge of, rebuild and reconstruct any bridge over any stream or river running into or through any county owned and maintained bjr corporations, when the same was destroyed by ice or otherwise, or abandoned by the owners of said bridge, or where such bridge crosses a stream forming the boundary line between two counties, then the commissioners of the county in which said bridge is located, or has been located, or the commissioners of the respective counties where the stream or river runs between counties, are hereby authorized to jointly reconstruct and maintain such bridge as a county bridge. If the said commissioners shall neglect or refuse to act as herein provided, upon the petition of ten citizens and taxpayers residing in the city, borough or township in which the bridge is to be located, which petition shall set forth fully all the facts supported by the affidavits of two of said citizens to the court of common pleas of the county, and said court, upon hearing, may issue a mandamus compelling said commissioners to proceed as provided by this act.”</p> <p>Following the directions of the act, a demand was made upon the commissioners of Union county to take charge of and rebuild the Milton bridge, jointly with the commissioners of Northumberland county. This the Union county commissioners refused to do, and a petition, signed by the taxpayers of Kelly township, Union county, in which the approach and one abutment of the bridge was located, was presented to the court of common pleas of Union county, praying for a mandamus to compel the commissioners to proceed as provided by the act. The court granted a rule to show cause why the mandamus should not be issued. An answer was filed by the commissioners, a large amount of testimony was taken upon both sides, and, after argument, the court discharged the rule and refused to issue tlie mandamus. »</p> <p>The act of 1813, P. L. 150, organizing the county of Union, provides as follows : “ All that part of Northumberland county lying on the west side of the river Susquehanna and the West Branch of the same, be and the same is hereby erected into a separate county, henceforth to be known by the name of Union.”</p> <p>The court, in an opinion by McC-LURE, P. J., lield that the bridge as originally constructed was wholly within Northumberland county, and that therefore that county alone was bound to reconstruct it.</p> <p>Error assigned was refusal of mandamus.</p>

Appeal, No. 8, July T., 1893, by Samuel Thompson and Luther C. Richie, from order of C. P. Fayette Co., June T., 1883, No. 101, refusing writ of restitution. Ejectment. Rule for writ of restitution. The facts appear by the opinion of the Supreme Court. The court, Ewing, J., discharged the rule. Error assigned was order as above.

<p>Appeal, No. 16, July T., 1893, by David D. Johnson, from order of Q. S. Fayette Co., March T., 1898, No. 121, refusing distiller’s license.</p> <p>Application for distiller’s license.</p> <p>The petitioner averred:</p> <p>“ That your petitioner is a citizen of the United States, of temperate habits, and good moral character; that he is desirous of obtaining a distiller’s license, authorizing him to manufacture, distill and sell spirituous liquors and admixtures thereof in quantities not less than one gallon, and in such manner as is provided by the laws of this commonwealth, and humbly prays your honorable court to grant him the said license. And your petitioner further makes the following statements as required by act of assembly approved the 9th day of June, 1891.</p> <p>“ 1. That the name of the applicant is David D. Johnson and his present address is Fayette Springs (in Wharton township), Fayette county, Pa., and he has resided there for forty-eight years.</p> <p>“ 2. That the particular place for vvhich a license is desired is a two story frame dwelling, situate on the south side of Penn street in first ward of the borough of Uniontown, Pa., owned by Joseph O. Miller and occupied by him, at present, as a store room. The distillery where said spirituous liquors are to be manufactured is situate in Wharton township, Fayette county, Pa., on a tract of land adjoining Philip Dennis and containing four acres; and is known in the internal revenue regulations of the United States as distillery No. 19.</p> <p>“3. That the applicant was born in Wharton township, Fayette county, Pennsylvania, on the 15th day of April, A. D. 1844.</p> <p>“ 4. The name of the owner of the premises where liquor is to be sold is Joseph O. Miller, and the owner of said distillery is the said David D. Johnson.</p> <p>“ 5. That the said applicant is not in any manner pecuniarily interested in the profits of the business conducted at any other place in said county where any of said liquors are sold or kept for sale.</p> <p>“ 6. That the said applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed, and that no person shall be in any manner pecuniarily interested therein during the continuance of the license.</p> <p>“ 7. That the applicant has not had a license for the sale of liquors in this commonwealth, during any portion of the year preceding this application, revoked.</p> <p>“ 8. The names of the persons who will be his sureties on the bond required by law are ” etc.</p> <p>The appellant further filed his bond with justification of sureties and an additional petition. No remonstrance was filed.</p> <p>License refused by the court, Ewing, J., without opinion filed.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 427, Jan. T., 1892, by defendant, John T. Hogg, from judgment of C. P. Fayette Co., March T., 1890, No. 21, on verdict for plaintiff.</p> <p>Scire facias sur municipal lien.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Inghram, P. J., gave binding instruction for plaintiff.</p> <p>Error assigned was (3) above instruction, quoting it.</p>

<p>Seal — Adoption of scroll or mark — Intention.</p> <p>Any flourish, or mark, however irregular or inconsiderable, is a good seal, provided the parties intend it to be a seal. The word “ seal” or the letters “ L. S.” written in an instrument constitute a seal, if so intended.</p> <p> ¡Ratification of printed word or mark. </p> <p>Where a person writes his name in a printed form of note, to the left of the printed word “ seal,” so as to bring the latter into the usual and proper place for a seal, he adopts the act of the printer in putting the word there for a seal.</p>

<p>Fire insurance — Invalidation of policy — Nonpayment of assessments— Application and by-laws — Evidence—Act of May 11, 1881.</p> <p>In an action on a policy of fire insurance where the application and bylaws are not attached to the policy as required by the act of May 11. 1881, P. L. 20, the insurance company cannot claim that the policy is invalidated because the insured did not comply with the terms and conditions set forth in the constitution and by-laws, or pay the legal assessments. In such ease there is no evidence before the court of the conditions of the policy as to what constituted a legal assessment or as to the effect of nonpayment.</p>

Appeal, No. 310, Jan. T., 1893, by Sarah Rhodes, claimant, from decree of O. C. Lancaster Co., dismissing exceptions to report of auditor, distributing estate of John C. Lewis, deceased. Exceptions to auditor’s report distributing decedent’s estate. Before the auditor, Wm. N. Apple, Esq., appellant claimed for twenty-five weeks nursing of decedent at $10 per week, $250; for three years washing, $156, and five weeks nursing in last illness, $50.

<p>[Marked to be reported.]</p> <p>Breach of parol contract for sale of land — Damages.</p> <p>Where there has been no fraud in the origin of a contract for the sale land, the measure of daniages for a breach of the contract is the money actually paid on account of the purchase, and the expenses incurred on the faith of the contract.</p> <p>In an action to recover damages for a breach of a contract for the sale of land, where it appears that there was no fraud or bad faith in the original contract, and that there was no possession taken, no purchase money paid, no improvements made, and nothing changing the position of the vendee, the plaintiff is only entitled to recover nominal damages.</p> <p>Statute of frauds — Memorandum—Parol evidence.</p> <p>Where an agreement in writing for the sale of land cannot be established without the help of parol testimony, the agreement must be regarded as a parol contract only.</p> <p>It seems that the following writing signed by the vendor, is within the statute of frauds: “ This is to certify that I have sold to W. II. Rineer all my right in the assigned estate of John Zahm, including the farm and ore, for the sum of $75, which I have his note lor 90 days on the above date.”</p>

<p>[Marked to be reported.]</p> <p>Bailment — Loeatio operis — Duty of bailee.</p> <p>The obligations imposed by a loeatio operis and capable of enforcement by an action on the contract are as follows: (a) To do the work which is the subject of the undertaking; (&) to do it within the time agreed on, or within what may be, in view of all the circumstances, a proper time; (c) to do it in a proper manner; (d) to surrender the property on which the labor has been expended on payment for the work done.</p> <p>The bailee in a loeatio operis also subjects himself to an undertaking, implied from the nature of the express contract for repairs, to do what in good faith and common fairness ought to be done for the protection of his customer’s goods.</p> <p>Demedies — ■Assumpsit—Trespass—Tort.</p> <p>If the goods in the hands of the bailee under a loeatio operis are lost by the fraud, or by the willful or wanton conduct of the bailee, the bailor has a right either to an action of assumpsit on the contract, or to an action ex delicto for the tort.</p> <p>Bailment — Measure of care to be observed by bailee.</p> <p>If a bailee under a loeatio operis stores and cares for his customer’s goods in the same manner that ho has stored and cared for his own, and a common disaster destroys both, the bailee will not be liable for the loss, in the absence of clear proof of the omission of precautions commonly taken by other persons in the same or similar trade.</p> <p>Defendant, who was engaged in the business of repairing boilers, received plaintiff’s boiler for repairs, and stored it in a building used for the storage of engines and boilers belonging to defendant, and cared for in the same manner that his own property of the same kind was cared for. No watchman was employed in the storage building, but there was no proof that it was customary to employ a watchman in such a building by other persons engaged in the same business. The storage building was burned down by an incendiary fire, and plaintiff’s boiler was injured. Held, that defendant was not liable for the loss.</p>

Appeal, No. 391, Jan. T., 1893, by defendant, from judgment of C. P. York Co., Aug. T., 1891, No. 56, on verdict for plaintiff, James Devers. Assumpsit to recover salary as city assessor. At the trial it appeared that plaintiff was elected to the office of city assessor of the city of York in February, 1890, and entered upon the performance of his duties on the first Monday of April, 1890.

Appeal, No. 42, July T., 1893, by plaintiff, Jacob C. Shaub, from order of C. P. Lancaster Co., Aug. T., 1891, No. 3, entering judgment of nonsuit. At the trial before Livingston, P. J., it appeared that on Feb. 4, 1874, the select and common councils of the city of Lancaster passed the following resolution: “ See. 2.

<p>[Marked to be reported.]</p> <p>Guardian and ward — Release—Judgment—Estoppel.</p> <p>Where a ward, after coming of age, makes a settlement with his guardian without the intervention of the court, receives the amount agreed to be coming to him, and gives a release or acquittance to the guardian, he cannot afterwards compel the guardian to account, without pointing out some mistake or other error in the settlement, or showing that fraud had been practiced on him by his guardian whereby he has been prejudiced.</p> <p>A guardian invested, in good faith and with proper care, the funds of his wards in a judgment. When the wards became of age they executed a release to the guardian, in proper form, and with full knowledge of all the facts relating to their estate. The debtor then paid to them the interest on their respective proportions of the judgment. No formal transfer was made on the docket to the wards of their respective portions of the judgment. Pour years after the settlement with the guardian, and after the guardian’s death, the wards cited his administrator to account. Held, that they were bound by the release and were not entitled to an account.</p>

Appeal, No. 75, July T., 1893, by plaintiff, Mary E. Souder, from decree of C. P. Lancaster Co., Equity Docket, No. 2, page 402, dismissing bill in equity. Bill for surrender of certificate of stock. The case was referred to George Nauman, Esq., who reported the facts to be as follows: “ William Danner, of the city of York, died some time prior to the year 1886. He bad made a will, of wbicb William H. Souder and James M. Danner were tlie executors.

<p>Appeal, No. 186, Jan. T., 1893, by plaintiff, Nicholas Timmes, from decree of C. P. Northumberland Co., May T., 1892, No. 16, dismissing exceptions to report of auditor distributing fund raised by sheriff’s sale of property of defendant, Jesse G. Metz.</p> <p>Exceptions to report of auditor distributing proceeds of sheriff’s sale.</p> <p>From the report of the auditor, George B. Reimensnyder, Esq., it appeared that plaintiff issued an execution against defendant, and sold his property at sheriff’s sale. Defendant was a hotel keeper in the borough of Shamokin. At the date of the sale he owed his landlord $1,195.83, under a lease providing for the payment of rent at the rate of $125 per month. After the levy, the landlord, W. M. Weaver, served upon the sheriff the following notice:</p> <p>“To Robert Montgomery, high sheriff of the county of Northumberland.</p> <p>“Sir: You are hereby notified and required to pay over to the undersigned the sum of twelve hundred and fifty dollars, out of the proceeds of the sale of the personal property of Jesse G. Metz, that being the amount of rent in arrears and due by him to me for the premises now in his occupancy, and upon which the said personal property was taken in execution. February 24, 1892. W. M. Wjsayer.”</p> <p>At the time the levy was made Alice Metz, wife of the defendant in the execution, owned personal property on the hotel premises, worth about $414; and Ellen B. Weaver, a sister of Mrs. Alice Metz, and a domestic in the family of Metz, who resided on the premises, owned personal property on the premises worth about $170.25 ; and Wm. M. Weaver, the landlord, owned a few articles which were on the premises ; these articles, except such of them as were in the private part of the hotel, were all levied upon by the sheriff under the first levy, but notices of ownership of the respective articles by the respective owners were given to the sheriff on Feb. 24,1892, the morning of the sale. The sheriff did not sell them. On Feb. 27, 1892, after the sale had been concluded, it having continued from the 24th to the 27th of February, 1892, a second levy was made by the sheriff upon the personal property of Mrs. Alice Metz and of Ellen B. Weaver, and this personal property remained upon the hotel premises until April 8, 1892, when they were removed by their respective owners.</p> <p>On Feb. 24th Ellen B. Weaver served the following notice upon the sheriff:</p> <p>“ To Robert Montgomery, high sheriff of the county of Northumberland.</p> <p>“ Sir: You will please take notice that, whereas all the goods, chattels, rights and credits which were of Jesse G. Metz, the above named defendant, are now under execution, by virtue of the above writ of fieri facias issued upon judgment obtained in the above court, in favor of the above named plaintiff and against the above defendant. And whereas there is now due and owing to me by the said Jesse Metz, the above named defendant, the sum of $121.29, that the said amount is due me for labor and services rendered as a domestic in the service of the above named defendant, while engaged in the business of keeping a hotel or tavern, in the borough of Shamokin, and county aforesaid, and in and about such business carried on by the said execution debtor.</p> <p>“ And whereas the time of rendering such services was within six months from the time fixed for the sale of said articles of personal property so under levy and execution, and the amount claimed by me for labor and services as aforesaid, being not exceeding the amount of $200. That the said amount of $121.29 is hereby claimed by me as a lien upon said property under execution, by virtue of an act of assembly commonly called the Wages Act, approved the 13 th day of June, A. D. 1883, it being a supplement to an act of assembly entitled, An act for the better protection of the wages of miners, mechanics, laborers and others, approved the 9th day of April, 1872, and the supplements and amendments to the forgoing act. You will therefore allow the said amount. Ellen B. Weaver.”</p> <p>David Griffith filed a similar notice for $18.00 for services as a clerk.</p> <p>The wages notices, as printed in the appellant’s paper book, contained no caption or reference to the writ, by number, etc., but from the reference to the notices in the opinion of the court below, lines 17 and 18, page 389 below, the caption may have been similar to that in the notice which follows.</p> <p>On March 10, 1892, the following notice was served upon the landlord:</p> <p>“ Nicholas Timmes v. Jesse G. Metz. In the court of common pleas cf Northumberland count}1-. No. 242, December term, 1889. Fi. fa. No. 16, May term, 1892.</p> <p>“To Wm. M. Weaver, Esq.</p> <p>“ Sir: Upon the levy and before the sale of said defendant’s goods, in and upon the premises of the National Hotel, in the borough of Shamokin, in said county, -upon above fi. fa. by Robert Montgomery, high sheriff of Northumberland county, you notified the said sheriff in writing, that the said defendant was indebted to you in the sum of $1,250, for rent accrued and unpaid by said defendant, for said premises as tenant under 'you, within one year immediately preceding said levy, and that the said sheriff should pay said amount of money over to you, in satisfaction of said claim for rent, out of the money made upon said fi. fa. You are hereby notified that there was at and before the time of said levy, and still is upon said premises of the defendant, the following goods and chattels liable to distress and sale, for nonpayment of rent for said premises, by the said defendant, to wit (here follows a list of the personal property on the premises). That said goods and chattels have been claimed by Alice M. Metz, and Miss Ellen Weaver, who are not parties defendant in said writ of fi. fa. No. 16. May term, 1892. You are hereby notified that unless you proceed and distrain said goods and chattels, and apply the proceeds thereof to the payment of your rent, now in and upon the said premises, the same being liable for the payment of the rent for said premises, by said defendant, I will hold you liable for the value of the same, and ask that the value thereof be deducted from the amount claimed by you for rent, from and out of the proceeds of the above fi. fa.</p> <p>“ Served this copy, Shamokin, March 10, 1892.</p> <p>“Nicholas Timmes, Plaintiff.”</p> <p>The auditor awarded to the landlard $1,195, the whole amount due, but refused to allow the claims to Ellen B. Weaver and David Griffiths on the ground that the notices were insufficient in law, in that they did not set out that the goods and chattels seized by virtue of the execution were “ property in and about or used in carrying on the business in which the defendant was engaged, or in connection therewith,” citing Allison v. Johnson, 92 Pa. 314; Pardee’s Ap., 100 Pa. 408; Adamson’s Ap., 100 Pa. 459; acts of April 9, 1872, P. L. 47, and June 13, 1883, P. L. 116.</p> <p>Exceptions to the auditor’s report were dismissed as to the landlord’s claim and sustained as to the wages claims, and a decree was entered allowing them to participate in the distribution, in an opinion in part as follows, by Ikeler, P. J.:</p> <p>“ The evidence in the case shows without a particle of doubt or a word of dispute that all of the goods, chattels and property sold and from which the entire fund for distribution arose, were all the property and estate that the defendant owned, and that they were all on the premises connected with and used and necessary in carrying on and conducting the business of keeping a hotel. Even had they not been shown to have been upon, used and necessary in the hotel premises and business of the defendant, as required in the first section of the act of 1872, and in amendments of 1883 and 1891, in a case of this kind where it .is shown and admitted that the defendant had no other estate and property and was insolvent, the third section of the act of 1872 extends the claims to every property of the defendant, and his personal estate generally would be liable for their claims.</p> <p>“ The execution issued in: this case is such as is named and intended in the 3d section of the act of 1872. It is against the employer for the collection of his own proper debt and must be regarded as denoting a condition of actual insolvency. Hart" man’s Ap., 107 Pa. 335. The amendments to the act of 1872 and the recent decisions of both our lower and higher courts go to show that too much strictness and detail have been exacted towards laborers in their endeavor to collect their claims for preferred wages, contrary to the intention and requirements of the statute and subversive of the rights of the classes named and intended to be protected. . . .</p> <p>“ Judge Handley, in Bennett’s Case, 7 Luz. Leg. Reg. 2, held that the only notice required to be given by the parties entitled to the benefit of the act of 1872 is a notice in the words of the act itself. It says simply that they shall before actual sale give notice of their claim and the amount thereof. The requirements of the notice in the case of Peiffer’s Estate, 6 Luz. Leg. Reg. 101, are altogether too specific. The Supreme Court has, in Allison v. Johnson, 92 Pa. 316, fixed and determined upon four requisites of a notice, which ruling liberally applied has been followed in subsequent cases decided by said court, viz.: (1) It must be in writing and delivered to the officer in charge of the writ before the day of sale or before the avails leave his hands. (2) It must state the sum due and that the labor was performed within the time limited, six months of the date of levy, and the kind of services. (3) It must name in and about a business defined in the statue. (4) It must set forth that the property levied upon is subject to lien for said services or claim.</p> <p>“ It is not material in what form these requisites appear. As we understand the decisions, and interpret the law, we hold the notices in this case to come within the rigors of the rule adopted by the Supreme Court of our state. (1) They are in writing and were delivered to the proper officer in the proper time. (2) They name the sum due and set forth that the labor was performed within six months immediately preceding the date of the levy. (3) They defined the kind, alleging that it was performed as a clerk and servant girl in and about the business of keeping a hotel in the place and on the premises where the goods and property were seized by the sheriff, and where it was being carried on by their employer, the defendant in the execution. (4) The amounts given are claimed as a lien upon all the goods and chattels taken in execution and from which the proceeds came. The judgment and writ of fieri facias are correctly and particularly referred to in the notices, and they contain all the information required. All the goods and chattels of the defendant and all that was seized by the sheriff in and upon the premises and about the hotel kept by him and which were used in conducting and carrying on the identical hotel named and described in the notices, were therein mentioned^ and the sheriff and other parties interested could not be mistaken or misled in any particular in regard to the matter. As stated by counsel for the labor claimants, the first four lines of the notices contain the statement that ‘ all the goods, chattels,’ etc., of the defendant are under levy by the writ referred to, and the fifth and sixth lines from the bottom of the first page aver that ‘ said property ’ is designated as being subject to the lien claimed, directly connecting the property levied on and the lien which is claimed together, not only by inference but by direct averment, for if the levy is a complete one and embraces all the property of the defendant it must plainly, by its comprehensiveness, embrace the property on which the lien is claimed, on the simple principle that the whole is equal to the sum of all its parts. In brief, we believe that every requisite of a notice, in such cases, is set forth therein, ‘ with certainty to a reasonable intent,’ and are forced to the conclusion that the learned audit- or erred in disallowing the labor claims of David Griffiths and Ellen B. Weaver. These should have been allowed and paid out of the fund, before the landlord’s claim of rent to William M. Weaver of $1,195.83.”</p> <p>Errors assigned were that the auditor and court erred (1) in distributing any part of the money in court to William M. Weaver for rent claimed to be due; (2) in not holding as a matter of law that Wm. M. Weaver, the landlord, was bound to proceed and distrain the personal property of Ellen B. Weaver, after notice by the plaintiff in the execution, which was on the premises and liable to distress, but could not be reached by the execution creditor; (3, 4) in awarding any part of the money in court to Ellen B. Weaver and David Griffiths; quoting the notice filed in each claim.</p>

<p>Appeal, No. 318, Jan. T., 1893, by defendant, Lottie D. Rodgers, from judgment of C. P. Northumberland Co., Sept. T., 1891, No. 251, on verdict for plaintiff, Edwin T. Wallace.</p> <p>Trespass for slander.</p> <p>The facts as they appeared before Albright, P. J., of the 31st judicial district, specially presiding, are stated in the opinion of the Supreme Court.</p> <p>Defendant’s point was, among others, as follows:</p> <p>“ 2. The plaintiff himself having proven that the discharge or suspension from work of the plaintiff was not on account of the words laid in the plaintiff’s statement, but for other causes, there can be no recovery by the plaintiff of special damages, by reason of his having been discharged. Answer: Negatived. The point assumes a fact; whether or not the fact as is here stated is for the jury to decide.” [5]</p> <p>Verdict and judgment for plaintiff for $250. Defendant appealed.</p> <p>Error assigned was (5) instructions, quoting them.</p>

<p>[Marked, to bo reported.]</p> <p>Criminal law — Acquittal of felony — Review—New trial — Twice in jeopardy.</p> <p>The Supreme Court will not reverse a judgment on a verdict of acquittal in a trial for felony, although the acquittal was the result of error committed by the judge in stating the law to the jury, where the commonwealth does not ask for a new trial.</p> <p>Not decided whether a new trial can be ordered where a defendant has been acquitted upon an indictment charging a felony.</p> <p>Larceny — Trespass—Coal.</p> <p>Thing’s pertaining to realty can only be the subject of larceny, when the act by which they are severed does not constitute “ one and the same continuous act,” as the act of asportation.</p> <p>Larceny of coal — Animus furandi.</p> <p>On an indictment for larceny it appeared that the prosecutor was the owner of a farm which was crossed by a creek. Along the shores and in the bed of the creek, particles of coal and culm had been deposited, being carried down by the current and floods from mines further up the stream. Defendant, descending the stream in a flat boat, entered upon the lands of the prosecutor, and began to gather coal from the surface. He was provided with a scoop or shovel made of strong wire or iron rods with which he gathered up the coal. The sand and gravel passed through the meshes of the scoop, leaving the pieces of coal within it. When the gravel was all sifted out, the clean coal was emptied upon the flat boat. This process was continued until a boat load was obtained. The boat was then towed or pushed to some bins belonging to defendant, and afterwards delivered to purchasers, or taken for consumption from the bins. Held, that defendant was not merely a trespasser, but was guilty of a carrying away and an actual conversion, and that the question of the existence of an animus furandi was for the jury.</p>

<p>Malicious prosecution — Probable cause — Larceny.</p> <p>On an indictment for malicious prosecution, it appeared that defendant was the owner of a farm which was crossed by a creek. Along the shores, and in the bed of the creek, particles of coal and culm had been deposited, being carried down by the current and the flood, from mines further up the stream. Plaintiff, descending the stream in a flat boat, entered upon the lands of the defendant, and began to gather coal from the surface. He was provided with a scoop or shovel made of strong wire or iron, with which he gathered up the coal. The sand and gravel passed through the meshes of the scoop, leaving the pieces of eoal within it. When the gravel was all sifted out, the clean coal was emptied upon the flat boat. This process was continued until a boat load was obtained. The boat was then towed or pushed to some bins belonging to plaintiff, and afterwards delivered to purchasers, or taken for consumption from the bins. Defendant prosecuted plaintiff for larceny, but at the trial the jury rendered a verdict of not guilty under binding instructions from the court. Held, that defendant had shown probable cause, and that plaintiff was not entitled to recover in an action for malicious prosecution.</p>

<p>Appeal, No. 381, Jan. T., 1893, by plaintiff, A. D. Hower, from judgment of C. P. Northumberland Co., Deo. T., 1891, No. 7, on verdict for defendant, David Ulrich.</p> <p>Appeal from justice of peace. Plea, not guilty.</p> <p>At the trial, before Savidgke, P. J., it appeared that plaintiff employed defendant to cultivate his farm. Plaintiff claimed that defendant had no interest in the grain, but was to place it in plaintiff’s granary and cribs. There was evidence that during the fall of 1890 defendant and his wife and children husked the corn, and that some of the family hauled a portion of it to the crib of defendant or his wife.</p> <p>The court charged in part as follows:</p> <p>“ If you find that the defendant did haul this corn from the Hower farm to the Ulrich crib, as contended for by the plaintiff, then your verdict ought to be for the plaintiff. If, on the other hand, you find the contention of the defendant correct and he did not carry away the corn of Mr. Hower, then your verdict ought to be for the defendant. It is contended that tiffs Ulrich property and crib belonged not to David Ulrich but to Margaret. Now if the defendant carried away the corn to the crib, or assisted, aided or abetted in carrying it away, or directed it to be carried away, it makes no difference whether it was carried to Margaret Ulrich’s crib or not, the plaintiff would be entitled to recover. • [But if somebody else carried it away, if the children, or family, or any of the children or family of the defendant, and he was not present and did not aid, abet or counsel, then of course he would not be guilty. This is an action of trespass, and the defendant must be guilty of the wrongful or tortious act himself or have advised or assisted in some way before he can be found guilty.] [3] ....</p> <p>“ If these children were in his employ and he knew of it and he countenanced it and directed it, he would be responsible, even though he was not on the ground himself.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>After judgment was entered against plaintiff for costs, the amount of the judgment was attached in his hands by a creditor of defendant. After the date of the attachment, defendant issued a fi. fa. Subsequently the attachment was discontinued. Prior to the discontinuance of the attachment a rule was taken to show cause why the fi. fa. should not be set aside. The court discharged the rule. [4]</p> <p>Errors assigned were (3) instructions, in brackets, quoting them ; (4) discharge of above rule.</p>

Appeal, No. 382, Jan. T., 1893, by defendant, A. D. Hower, from judgment of C. P. Northumberland Co., Dee. T., 1891, No. 9, on verdict for plaintiff, Bruce Ulrich. Appeal from justice of peace. Pleas, non assumpsit, payment and set-off. At the trial, before Savid&e, P. J., it appeared that plaintiff was employed by defendant to drive a team.

<p>Appeal, No. 405, Jan. T., 1893, by defendant, from judgment of C. P. Northumberland Co., May T., 1892, No. 100, on verdict for plaintiff, David C. Meyers.</p> <p>Assumpsit on policy of fire insurance.</p> <p>At the trial before Savidge, P. J., it appeared that, on Sept. 5, 1891, plaintiff signed an application for fire insurance in defendant company. The application contained the following warranty: “ The said applicant makes the following statement and gives the following answers to interrogatories here put relative to the risk as a warranty on the part of the assured for which a policy numbered the same as the application is issued; ” and also “ but if any untrue answers be given to the foregoing interrogatories whereby the said company has been deceived as to the character of the risk, then said policy of insurance to be void and of no effect. And the insured hereby covenants and engages that the representations given in this application for this insurance are a warranty on the part of the assured and contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation and value of the property insured.”</p> <p>Question 13 in the application was: “ What proportion of the value of this property will remain uninsured after this policy is issued ? ” The answer written into the application by the agent of the company was: “ The building alone cost $13,000.”</p> <p>Plaintiff’s counsel proposed to show “ that the answer made to question 13 was not the full answer given by plaintiff at the time of the taking of the application, and that he had no knowledge of any objection on that account until the affidavit of defence in this case was read to him: This for the purpose of showing that the answer to question 13 was not taken down as given by him of which he had no knowledge, not even seen the application, or read it, as his attention was not called to it until the affidavit of defence filed in this case was read to him in my office.”</p> <p>Objected to by Mr. Hackenberg. The assured in the application, and in the policy as well, having warranted that no statement, representation, description, survey or plan contained in the application or connected with for procuring the insurance was true and should be considered as part of the policy, and he had made known all the facts in this application, having stated that he had made known all the facts in that application, material to the risk, it is objected to as incompetent for the purposes offered and immaterial: That there is no purpose or proposition on the part of the plaintiff to show any fraud on the part of the agent. It is not an attempt to show that what is contained in this application was not written down by the agent upon information received from the assured.</p> <p>By the Court : Under the authority of Kister v. Insurance Co., 128 Pa. 553, objections overruled, evidence admitted and exceptions.</p> <p>“ Q. When Mr. Follmer asked you the question as to the value, state what answer you made to him ? A. I told Mr. Follmer in the first place that the house had cost in the neighborhood of about $13,000; that I had been informed by different parties, and he said, what do you think it is worth now, and I said I thought it was worth $7,000.”</p> <p>The court charged in part as follows :</p> <p>. “ [As appears by the written application for the insurance, the plaintiff, in answer to question 13, ‘ what proportion of the value of this property will remain uninsured after this policy is issued? ’ responded thus : ‘ The building alone cost $13,000.’ The defendant contends that this answer is evasive, untrue, not responsive and not such an answer as the question called for. The plaintiff contends, and so swears, that the answer written down by the agent soliciting insurance was not the whole answer, that his answer was that the building alone cost $13,000, as he had been informed, and that he believes it to be worth, or that it was worth, $7,000. You will recollect just how that testimony was.</p> <p>“ Now, gentlemen, it has been held that the agent of the company taking application, propounding and writing down the answers, is acting'for the company, and not for the person insured, and that this kind of evidence in contradiction of the application or explanation may be introduced by the plaintiff. The defendant contends, and has introduced evidence to show that this answer is the full and correct response .as given by the plaintiff when questioned on the subject of the value of the building by the soliciting agent. How that is I will leave for your determination. Should you find that the written answer contains the whole of the response, and that the intention of the plaintiff was to value that building at $13,000 for the purpose of deceiving and defrauding this company, then of course your verdict ought to be for the defendant. Should you find, however, that the additional answer was given by the plaintiff as he claims, and not written down, and that his representation then was that the value of the building was $7,000, then you will proceed to determine whether or not that was the value of the building.] ” [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting bill of exception and evidence; (2) instruction, quoting it.</p>

<p>Poor law — Appeals—Act of June 13, 1836.</p> <p>Under the act of June 13, 1836, P. L. 646, an appeal from an order of removal of a pauper must be made to the next court of quarter sessions after the order of removal is made, although the reinoval is not actual but constructive only.</p> <p>Where an order of removal is served on or prior to January 29 th, the appeal must be taken to the court of quarter sessions which commences on the 1st and ends on the 4th of February, An appeal to the April sessions is too late.</p>

Appeal, No. 6, May T., 1893, by defendant, from judgment of G. P. Dauphin Co., Sept. T., 1891, No. 531, on verdict for plaintiff, Agnes Kemp. Trespass for obstructing private way. Before Simonton, P. J. The facts appear by tbe opinion of the Supreme Court. Plaintiff’s points were as follows: “ 1.

<p>Husband and xoife — Trustees— Payment.</p> <p>A trustee appointed by the orphans’ court to soil land, an interest which was devised to the trustee’s wife, is bound to pay over to his wife the share of the proceeds, and a mere delay by the wife in enforcing her legal demand, will not release from liability either the trustee or his sureties.</p> <p>In such a case a promise by the husband to convey to his wife some of his own real estate in payment of her legacy, does not discharge his sureties, if the promise is not kept, although the wife was willing to accept the conveyance as payment.</p> <p> Interest on legacy in husband’s hands. </p> <p>In equity a wife may not charge her husband as a debtor for arrears of income of her separate estate, in the absence of an agreement, express or implied, on his part to pay interest. The presumption in such a case is that interest ofi the wife’s separate estate, which has been received by the husband, has been expended by him, with her consent, for the support of herself and family.</p>

<p>Appeal, No. 1, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., Jan T., 1892, No. 551, for plaintiff, on appeal from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>The ease was tried by agreement by tbe court without a jury. The court found tbe facts to be as follows, in an opinion by Simonton, P. J.:</p> <p>“ 1. Defendant was incorporated in October, 1887, under the general laws of this state for the purpose of purchasing, bolding, leasing, improving, selling and otherwise dealing in real estate, with a paid up capital of one hundred thousand dollars, divided into shares of the par value of fifty dollars each, and it has been from that date and still is engaged in business in the county of Westmoreland, where it has purchased real estate, built houses, laid out and opened streets and roads, and sold lands and lots, reinvesting the proceeds so that during the tax year 1889 and 1890 it made or declared no dividends. And its capital stock was during said years appraised at one hundred and fifty dollars per share, and taxed at the rate of three mills on its appraised value.</p> <p>“2. During the tax year 1891, defendant received from rents, and the sale of real estate, and distributed among its stockholders in proportion to the shares' held and owned by them respectively, eighty-five thousand dollars, being eighty-five per cent on the par value of its capital stock paid in; and as required by law, its treasurer reported this distribution to the auditor general, and stated in his report that owing to the nature of the business in which defendant was engaged he could not estimate the amount of the gross or net earnings of defendant, which accrued during said year, and we find this statement to be true. He also reported that the average market value of the shares during said year was ninety-five dollars each. This report was made under oath.</p> <p>“ 3. In an affidavit subsequently made, defendant’s treasurer undertakes to state what were its net earnings, during the tax years 1889, 1890 and 1891, but, as had been previously stated by him in his sworn report, and as we have found above, the nature of the business in which the defendant was engaged precluded the possibility of this being done with any reasonable degree of accuracy.</p> <p>“ 4. On the basis of this report, made as above stated, the auditor general and state treasurer made a settlement for tax on capital stock against defendant for said year as follows:</p> <p>“ ‘ Western Land and Improvement Company</p> <p>“ ‘ In account with the Commonwealth of Pennsylvania, Dr. “ ‘ To tax on capital stock per acts of June 7,1879, and June 1, 1889, for the year ending the first Monday of November, 1891, as per report herewith filed.</p> <p>“ ‘ Dividend, 85 per cent on capital stock, . . $100,000</p> <p>Tax, 42^ mills, (one-half mill for each one per cent of dividend,) ....... 4,250</p> <p>“ ‘ Due Commonwealth, . ... $4,250</p> <p>“ 5. From this settlement defendant appealed to this court, and, as required by the act of 1811, giving the right to appeal, filed its specification of objections to the settlement, three in number. The first and second state merely matters of fact, which we have found above as far as they have been proved.</p> <p>“6. The third specification raises the only legal question in this case and is as follows :</p> <p>“ ‘ The said payment to the stockholders was not a dividend, but a distribution of certain assets of the said company. The appellant is not taxable on dividends, but is liable only for the year ending on the first Monday of November, 1891, at the rate of three mills on the average market value of its stock during said year, to wit: for five hundred and seventy dollars, which has been paid to the treasurer of the commonwealth. The appellant is not indebted to the commonwealth of Pennsylvania.’</p> <p>“ The only objections to the settlement of an account by the auditor general and state treasurer, which the court can legally consider — as we shall' presently show — are those specified in the appeal which the act of 1811 authorizes, and, when made, requires to be filed with the appeal in the auditor general’s office.</p> <p>“ The sole question, therefore, before us, is that raised by the third specification quoted above: Whether defendant for the year, during which it made a dividend of eighty-five per cent, is taxable at the rate of one half mill for each o?ie per cent of dividend, or at the rate of three mills on the appraised value of its capital stock; and this we shall now proceed to decide.</p> <p>“ The act of June 1, 1889, § 20, P. L. 420, requires the secretary or treasurer of every corporation taxable under it to report in writing to the auditor general annually the amount of its capital stock, and the amount, date and rate per cent of all dividends made or declared during the year; and § 21 enacts.that every such corporation ‘ shall be subject to and pay .... annually a tax to be computed as follows, namely: If the dividend or dividends made or declared by such corporation .... during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one half mill upon the capital stock for each one per centum of dividend so made or declared; ’ and it further provides that if a dividend of less than six per centum be made or declared the capital stock is to be appraised and ‘ then the tax to be at the rate of three mills upon each dollar of valuation of the said capital stock.’</p> <p>“ The language of this act would seem to be so plain as to leave no room for doubt as to its meaning. It fixes the rate and mode of assessment of the tax when the dividend equals or exceeds six per cent. There is no provision for an appraisement of the capital stock when such dividend is made, or for assessing the tax at any other rate; and the blanks furnished by the auditor general, on which the reports of dividends are to be made, expressly state that when the dividends equal or exceed six per cent no appraisement is required.</p> <p>“ In Dame’s Appeal, 62 Pa. 417, Sharswood, C. J., says on page 420: ‘ It is a cardinal canon of interpretation, both of deeds and statutes, expressed in the maxim quoties in verbis nulla est ambiguitas, ibi rfuUa expositio contra verba fienda est: Broom’s Legal Maxims, 555. The words — the context — the subject-matter are to be considered equally, if not before, the effects and consequences or the reason and spirit.’ And in Abley v. Dale, 11 C. B. 378, Jervis, C. J., says on page 391: ‘If the precise words used are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. - Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.’ And in City of Pittsburgh v. Kalchthaler, 114 Pa. 547, Justice Green, on page 552, says: ‘We think it always unsafe to depart from the plain and literal meaning of the words contained in legislative enactments out of deference to some supposed intent, or absence of intent, which would prevent the application of the words actually used to a given subject. Such a practice is really substituting the theories of a court,' which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the lawmaking power. It is a practice to be avoided and not followed. It has been condemned by many text writers and by many courts. Occasionally it has been departed from, but the path is a devious and a dangerous one, which ought never to be trodden, except upon considerations of the most convincing character and the gravest moment.’</p> <p>“ Assuming these principles to be applied to this case we might safely stop here, and rest our conclusion, that the tax cnarged in the settlement appealed from is correctly assessed, on the plain unambiguous words of the act; but to preclude the possibility of any doubt on the subject we shall pursue it somewhat further.</p> <p>“ Our learned predecessor, Judge Pearson, aptly said in the Commonwealth v. Phoenix Iron Co., 1 Pears. 383 : ‘ In order to properly understand and construe our tax laws, we are obliged to look into their origin and history.’ If, acting on this suggestion, we look into the history of the tax on capital stock to be found in the several taxing acts, and the decisions of the courts, we shall find that its construction has been settled for nearly or altogether half a century. The act of June 11,1840, P. L. 612, provided that the capital stock paid in of all corporations ‘ on which a dividend or profit of one per cent per annum is made or declared shall .... pay for the use of the ■commonwealth a tax of one half mill on every dollar of the value thereof, and an additional half mill on every dollar of the value thereof for every additional one per cent per annum of dividend or profit, made or declared on said capital stock.’ This act imposed no tax where no dividend was made, and, therefore, of course, made no provision, nor was there any necessity for an appraisement or assessment of the tax in any other manner than according to the rate per cent of the dividend. It was superseded by the act of April 29,1844, § 83 of which provided ‘ that the amount of tax chargeable on the capital stock of all banks, institutions and companies .... on which a dividend or profit of six per cent per annum or more shall be made and declared, shall be at the rate of one half mill on each one per cent of such dividend or profit, and the same shall be assessed as provided in the act oí June 11,1840 ; ’ and, as the mode of assessment provided by the latter act was an assessment according to the rate per cent of dividend, this was, in effect, enacting that this mode must be adopted, where the dividend equaled or exceeded six per cent. Then the act of 1844 further provided for an appraisement, where less than six per cent or no dividend was made or declared, thus determining clearly when the rate was to be one half mill for each one per cent of dividend, and when it was to be three mills on the appraised value, but leaving no case in which the question whether it should be one or the other was to be determined by any other fact than the rate per cent of dividend made and declared.</p> <p>“ The act of April 12, 1859, took the place of § 38 of the act of 1844, and the scope and relation of these acts, to each other, and the difference between them, is thus stated by Agnew, C. J., in Phoenix Iron Co. v. Commonwealth, 59 Pa. 104: ‘ The act of April 29, 1844, § 33, charged the tax, which it imposes directly upon the capital stock of the corporations of this state. If a company declared a dividend or profit of six per cent on the capital, the tax was to be measured at the rate of one half mill on each one per cent of the dividend or profit; but when the corporation, failed to make dividends or declared less than six per cent per annum, then a valuation of the stock itself was .to be made and returned, and the tax was for a sum equal to three mills on every dollar of the capital stock thereof so estimated and appraised. The first section of the act of April 12, 1859, also imposed the tax on the capital stock, but changed the act of 1844 so far as, instead of a valuation of the stock when the dividend fell below six per cent, to require payment of the tax at the rate of a half mill for each one per cent of dividend made or declared, and provided for the valuation of the stock according to the act of 1844, only when the corporation failed to make or declare any dividend.’</p> <p>“Next came the act of May 1, 1868, a consolidation of all the previous acts taxing corporations for state purposes, the fourth section of which, imposing the tax on capital stock, is almost a literal transcript of the act of 1859. This act continued in force until it was replaced by the act of April 24,1874, P. L. 68, which was followed by the act of March 20, 1878, P. L. 6, and this in turn by the act of June 7,1879, all of which are shown, in Catawissa R. R. Company’s Appeal, 78 Pa. 59, and Bridge Co. v. Commonwealth, 117 Pa. 265, to be parts of the same taxing system and practically identical; and the act of 1889, under which the tax is claimed in this ease, is but a continuation of the former acts.</p> <p>“ Thus we see that the tax on capital stock has existed for half a century, and has been during all that time assessed and paid, where the dividends equaled or exceeded six per cent at the rate and on the basis on which it was computed and assessed in this case. During that time thousands of such settlements have been made by the auditor general and state treasurer, and hundreds of them have been appealed to this court, but in no case until now has it ever been even suggested in an appeal or argument that the tax could be charged at the rate of three mills on the appraised value of the capital stock when the dividends equaled or exceeded six per cent.</p> <p>“It has uniformly and consistently been held that under such circumstances the dividend whether earned or not furnishes the measure of the tax. Thus in Commonwealth v. Pennsylvania Insurance Co., 13 Pa. 165, the act of June 11, 1840, to which we have referred above, which imposed the tax at the rate of one half mill for each one per cent of dividend, from and after January 1, 1841, was considered, and the question was whether a dividend declared on December 31, 1840, on the business of the preceding six months was taxable; and deciding that it was not. Justice Coulter said : ‘ The dividend is not the subject taxed; it is the capital stock paid in which is taxed; the dividend only furnished the rule by which the amount of the tax shall be measured and that is one half mill on the capital stock; where the profit or dividend is one per cent per annum, an additional half mill on the capital stock for every one per cent that is made by the institution from and after January 1, 1841; but it was made and declared before that period, and for profits accruing before that date. It is, therefore, not within the purview of the statute. If any part of the profits had accrued after January 1, 1841, and the directors had mingled them with profits which accrued before, and then made a dividend, the case would have been different; because, in that event, the institution would voluntarily have run its head into a noose. We think the tax did not accrue in this case, and cannot be measured by a dividend, all of which accrued, and which was made and declared previous to 1st January, 1841.’</p> <p>“ As we have already pointed out, this act imposed no tax when no dividend was made and declared, and, therefore, the enactment that the tax was to be at the rate of one half mill for each one per cent of dividend must have been intended to furnish a hard and fast rule, which was to be applied in every case, where a dividend was made and declared; and this was certainly expressed as clearly as language could express it, and required no process of interpretation. Therefore, when the same rule was prescribed in the act of April 29,1844, for cases where the dividend equaled or exceeded six per cent, it was well understood. And as this act for the first time imposed the tax, where no dividend was made or declared, it also first provided for an appraisement, but this was to be made only when the dividend did not amount to six per cent, and the construction, therefore, was as stated by Judge Pearson in Commonwealth v. Phcenix Iron Co., 1 Pears. 383, that ‘ the tax was to be measured by the amount of dividends declared when they exceeded six per cent, and by an appraisement of the stock when they fell short of that sum; ’ or as stated by Agnew, C. J., in the same case, 59 Pa. 104 : ‘ If a company declared a dividend or profit of six per cent on the capital, the tax was to be measured at the rate of one half mill on each one per cent of the dividend or profit; but when the corporation failed to make dividends or declared less than six per cent per annum, then a valuation of the stock itself was to be made and returned, and the tax was to be “ a sum equal to three mills on every dollar of the value of the capital stock thereof so estimated and appraised.” ’ So in Atlantic & Ohio Tel. Co. v. Commonwealth, 66 Pa. 57, Thompson, C. J., says, speaking of the commonwealth: ‘ She has a mode of estimating and collecting her taxes from her own corporations, no matter who holds the stock. By whomsoever the stock is held the measure of the tax is upon the dividend declared, and no such thing as partial dividends is ever to be presumed. When a dividend is declared, that gives the measure and furnishes the rule for the tax. Dividends were declared for all the years to which the settlements apply, and the basis of the settlement in the auditor general’s office was faultless.’ And in Commonwealth v. Pittsburgh, Ft. Wayne & Chicago Ry. Co., 74 Pa. 83, Agnew, C. J., said on page 90 : ‘A dividend is not capital, but the product of capital, and this product it is which the law by its own terms makes both the criterion and the measure of the taxation of the capital. Thus, if a profit upon the actual capital or investment be either made or passed over to the stockholders without a declaration of dividend, or if a dividend be declared to them, the sum so made or so declared becomes the measure of the tax. ... If a dividend be declared and set apart to the shareholders, the stock is taxable on the basis of this declaration, of which it makes return by law to the auditor general. The company is estopped by its declaration and report, whether the dividend be earned or not. Atlantic and Ohio Telegraph Company v. Commonwealth, 66 Pa. 57. The late Chief Justice said, in the last case, the only question was whether the court below erred in regarding the returns as the evidence of what dividends were declared as the basis of the auditor general’s statement. He remarked, “ She (the commonwealth) is dealing with her own corporation, and acting solely on the evidence of its doings in regard to the subject of its liability to taxes, viz.: dividends made or declared. This is shown by its proper officer, the treasurer, in his return to the auditor general; and the basis of that taxation is the dividends declared and paid.” ’ And in Commonwealth v. Reno Real Estate Co., 2 W. N. 181, the court say: ‘ This is not a case where no dividends were declared, the consequence of which is a valuation of the stock as the means of measuring the tax. Where a dividend is declared, that becomes the measure of the tax. The fact that the dividend is appropriated to the shareholders of that part of the capital which is called preferred stock, does not change the criterion of taxation, which the commonwealth herself established, to wit, the dividend declared.’ Columbia Conduit Co. v. Commonwealth, 90 Pa. 807, is an instructive case on this subject. Judge Pearson found as a fact that although dividends amounting to two hundred thousand dollars had been made and declared during the year the earnings were only 1110,570.42, the differences having been occasioned by losses by fire, and the question was as stated by him : ‘ Can the court allow a credit for that loss, or, under the words of the statute, must we tax the capital stock according to the “ dividends made or declared by the company ? ” ’ And in answering this question he said: ‘ If the tax were imposed on the net profits there would be no difficulty. The sum which the stockholders were obliged to pay would be deducted. The profit to them is lessened by that much. Such is not the form of the assessment or the words of the statute. It is not even a tax on dividend, but on the capital stock, measured by the amount of dividend made or declared. . . . The dividends in the case under consideration were actually made and declared and this fixes the tax on the capital stock.’ This case was affirmed by the Supreme Court on Judge Peabson’s opinion. And in Matson’s Ford Bridge Co. v. Commonwealth, 117 Pa. 265, Mr. Justice Clark says, on page 276 : ‘ The value for taxation is to be fixed by the aggregate of the dividends of profits made or declared during the fiscal year. ... A profit made or passed to the stockholders becomes the measure of the state tax. The formal declaration of a dividend is conclusive; the company is estopped by it whether the dividend be earned or not.’</p> <p>“ The cases above referred to and many others which might be cited show that it is not the theory of the tax on capital stock measured by the dividends, that all the money divided was earned during the year in which the dividend is declared. On the contrary, the theory, as is distinctly shown by the Bridge Company case, is that it was not all earned during such year, and proof of that fact is not needed, or, if made, does not alter the rate or change the valuation. When an unusually large dividend is made either in cash or stock, it is assumed to be, and, in fact, always is, a distribution among the shareholders of earnings or profits, which have been accumulating for years, in respect to which no adequate tax has heretofore been assessed, and, therefore, it is proper it should furnish the measure of the tax when divided. True, the possession of the fund thus divided may to some extent have influenced the valuation of the capital stock in previous years, when no dividend, or less than six per cent was divided, and the capital stock was taxed at the rate of three mills upon its appraised value; but experience has shown that a comparatively low valuation is put upon capital stock which pays none or very small dividends, and a comparison of the appraised value upon the stock of this defendant during the years in which it made no dividends, with the value which would be indicated by the amount of profits claimed to have been made during those years, will show such to have been the case in this instance.</p> <p>“ Reference has been made to the recent case of the Commonwealth v. Brush Electric Light Co., 28 W. N. 527, [145 Pa. 147,] in which it would seem that the tax was computed, by the learned justice who wrote the opinion, at the rate of three mills on the appraised value of the capital stock, although the dividend declared during the tax year amounted to more than six per centum on its par value. The rate at which the ta,x was to be computed was, however, not one of the questions in that case, and could not have been, for the following reasons :</p> <p>“ First. Because there was, in the appeal filed in that case, no specification or objection to the assessment of the tax as made in the settlement appealed from, at the rate of one half mill for each one per cent of dividend.</p> <p>“ Second. Because this question was not raised or discussed in the court below.</p> <p>“ Third. Because as this question was not raised in the court below, by the specification of objections to the appeal, or in any other way, no ruling was made upon it by the court below, and, therefore, no assignment of error could have been made to any such ruling.</p> <p>“ Fourth. No assignment of error was, in fact, made, or claimed to be made, to any ruling or supposed ruling, on the question of the proper mode of assessing the tax, and this question was, therefore, not before the Supreme Court.</p> <p>“ Fifth. No claim or suggestion was made in the Supreme Court, by argument, either oral or written, that the assessment of the tax at the rate of one half mill for each one per cent of dividend, as made in the settlement appealed from, was not according to law.</p> <p>“ Sixth. It was expressly agreed and argued in the court below and in the Supreme Court, that the tax must be assessed, under the law, at one half mill for each one per cent of dividend in all cases where the dividend equals or exceeds six per cent.</p> <p>“ A reference to the specification of objections filed with the appeal in the Brush Company case, will show that none of the five specifications filed could by the remotest possibility raise the question discussed in the latter half of the opinion of the learned judge ; and we hazard nothing in saying that the able and careful counsel, who drew the specifications and filed the appeal, was, from his long experience in the auditor general’s office and his extensive practice in tax cases, so well acquainted with the uniform practice of that office, and with the tax laws, that it would never have occurred to him to object to a settlement for the reason that the tax was assessed at the rate of one half mill for each one per cent of dividend, where the dividends declared during the year amounted to more than six per cent; ■or to claim that such a settlement would be invalidated by-showing that the whole amount of the dividend was not earned during the year.</p> <p>“ The act of March 30, 1811, Purd. 1386, giving the right to appeal from a settlement made by the auditor general and state treasurer, provides ‘ that the appeal be filed in the office of the auditor general within sixty days after notice of such settlement and be accompanied with a specification of objections to the said settlement; ’ which appeal is to be transmitted by the auditor general to the clerk of said court. In Porter v. Commonwealth, 1 P. & W. 252, it was held that the person appealing from a settlement of the auditor general and state treasurer cannot raise, and the court to which the appeal is taken cannot hear and determine, any other objections to the settlement than those specified in the appeal. Chief Justice Gibson, delivering the opinion of the court, said: ‘ The act of March 30, 1811, requires an appeal from the auditor general to be accompanied with a specification of the appellant’s exceptions, and doubtless to indicate the very points to be determined by the court. As there is no reason to appeal in respect to points that are admitted, it would be flagrantly unjust to permit the accountant to hold in reserve anything that might have been allowed, had it been urged at the settlement, and thus subject the commonwealth to expense, and her officer to vexation without just cause.’ And after stating the specifications before him he added: ‘ These, therefore, are the only points which the court was competent to hear and determine.’</p> <p>■ “ This principle has been so strictly held that in Commonwealth v. Porter, — not the same case nor party appellant — 21 Pa. 385, the court held that a specification of objection to the •principal sum charged in a settlement appealed from did not, when the principal was properly charged, let in an independent objection to the charge of interest, this objection not having been specified when the appeal was taken. Lowkie, J., delivering the opinion of the court, said: ‘Under our laws the auditor general, aided by the state treasurer, and, when necessary, by the governor, constitutes a tribunal that is to examine, adjust, and decide upon all claims of the state against its revenue officers, subject to an appeal to the general judiciary. But no appeal is allowed without a specification of objection to the decision complained of. In this case the accountant filed a specification of objections to the principal items of the account as stated by the auditor general, but none to the item of interest. How then could the question of interest be raised on the appeal ? That it could not be has been several times directly decided: 1 P. & W. 252; 6 State Rep. 124; and this is one of the most plain and common principles of administrative law: 7 S. & R. 276: 2 State Rep. 153; 6 Id. 483; 1 W. & S. 480; 5 Id. 385. It is the rule always practiced on in relation to reports of auditors, masters, and arbitrators.’</p> <p>“ 4 It is said, however, that the objection to the charge of interest was unnecessary, because the objection to the principal includes it as an incident. True enough, so far as it is an incident, and, therefore, if the objections to the principal or part of it had prevailed, there would have been a proportional deduction of the interest. But, on the other hand, and on the same principle, an unavailing objection to the substance could not affect its shadow. ... It is only by a special objection that the mind of the court can be led to inquire whether, the principal being proved or admitted, the charge of interest is improper.’</p> <p>44 These cases are cited and approved in Del., Lack. & Western R. R. Co. v. Commonwealth, 66 Pa. 64, where in deciding the case Thompson, C. J., said: 4In Porter v. Commonwealth, 1 P. & W. 252, it was explicitly resolved that no point was examinable on the trial of an appeal from the settlement of an account in the auditor general’s office by the appellate court, nor reviewable in this court, unless it has been specified %s a ground of objection to the settlement in taking the appeal. This is an express provision of the act of March 30, 1811.’ And after quoting from the act and the opinions in the two cases above cited he says : ‘ Both of these cases show that only so far as the specifications go, are the questions raised in the appellate court.’ And quoting the specifications of objections in the case before him he adds : 4 These were the objections filed by the company to the settlement in the auditor general’s office, and were the only questions the court below could legally take cognizance of. This is not only so by force of the decisions referred to, but by force of the terms of the act of 1806, which require that a remedy specially provided by statute shall be strictly followed.’</p> <p>“ The cases above cited conclusively show that if the question was not raised in the specification of objections, it could not legally have been considered in the court below. In fact, it was not raised ñor attempted to be raised or considered ther'e, but, on the contrary, it was agreed by the counsel for the defendant in the court below that where corporations pay a dividend of six per cent or more, their capital stock is under the law taxed at one half mill for each one per cent of dividend ; and the claim of counsel simply was that ‘ owing to the varying conditions of corporate affairs, property and business, the rate of dividends is not a certain measure of the actual value of corporate stocks: ’ See 28 W. N. 528.</p> <p>“ The question not having been raised, there was, of course, no ruling upon it, and if anything has been settled it is that a court of error will not reverse on a point not made or decided in the court whose decision is brought up for review. In Commonwealth v. Wyoming Yal. Canal Co., 50 Pa. 410, Chief Justice Thompson (p. 417), says : ‘ The court will not reverse for a point not made in the court below.’ In Wright v. Wood, 23'Pa. 120, the court say: ‘ The 7 th assignment, viz.: “The court erred in charging that Wood, the plaintiff, was a bona fide purchaser for value,” is frankly admitted by the counsel to raise a point not made below, and we cannot permit it to be made here.’ In Drexel v. Man, 6 W. & S. 343, Sergeant, J., says: ‘ This court does not upon a writ of error sit to try the merits of the case, but merely those points which are raised by the record, ... To this alone can our attention be directed.’® In Bennett v. Hayden, decided January 4, 1892, 1 Adv. B. 105 [145 Pa. 586], Paxson, C. J., says, speaking of certain specifications of error: ‘We fail to find in the record anything to show that such point was made in the court below, or that it was even called to the attention of the learned judge. There is not a hint of it in the reasons assigned for a new trial. On the contrary, the court says in its opinion on the reserved questions, “ the only question argued before the court was this question: Were the proceedings under the act of 1836 or the act of 1853?” We must treat the case here as it was treated below.’</p> <p>“It was not claimed by counsel that any such point was raised in the court below, or that it was brought into the Supreme Court by any assignment of error. On the contrary, counsel for defendant in their argument in the Supreme Court quoted the admission in the court below referred to above and added: 1 Where there is no dividend or the dividend paid amounts to less than six per cent, the rate is always the same, namely, three mills. . . . On the other hand, when the dividend is six per cent or more, the valuation is always the same, namely par, but the rate changes. If the dividend is just six per cent the tax is three mills, one half mill for each one per cent of dividend. If the dividend is eight per cent the rate is four mills; if it is twelve per cent the rate is six mills, or if it is twenty-five per cent the rate is twelve and one half mills. . . If the dividend is more than six per cent the tax is always assessed upon the par value, whereas if the dividend is less than six per cent the actual value governs; ’ and the claim by the counsel was not that the tax was improperly assessed, but that it was unconstitutional because not uniform. We fail, however, to see why a tax levied in proportion to the income of the stockholders is not uniform; and this tax on capital stock is in its final incidence a tax on the stockholder: Gatawissa It. It. Co.’s Ap., 78 Pa. 59.</p> <p>“In Wolverton v. Commonwealth, 7 S. & It. 273, Chief Justice Gibson says, on 278: ‘No judge ought in justice to his own reputation as a lawyer or to the rights of suitors to allow any bill of exceptions, which does not contain the very point decided and nothing else.’ But what if cases are determined in the court of errors on points with respect to which there are no bills of exception whatever.</p> <p>“ For all those reasons we cannot but think that the mode in which the amount of the tax was computed by the learned justice in the Brush Company case, was an inadvertence and not the deliberate decision of the court, and that we would err if we should disregard the principles established by the cases quoted above, and change the assessment, made by the auditor general and state treasurer in this case in accordance with the uniform practice in the department, and the decisions of this and the Supreme Court.</p> <p>“ We, therefore, decide as follows: (1) The settlement appealed from in this case is legal and valid, the tax claimed therein is properly assessed, and the same is due from defendant to the commonwealth. (2) The commonwealth is entitled to recover from defendant the tax charged in said settlement less credit for payment made as follows:</p> <p>“ Tax, as per settlement, ¿ ■ $4,250.00</p> <p>“ Credit, payment made, . . - 570.00</p> <p>“Balance due, .... $3,680.00</p> <p>“ Interest from March 1st to 16th, 1892, at 12 per cent, ... ... 18.40</p> <p>“ Attorney general’s commission at 5 per cent, 184.00</p> <p>“Total, .... $3,882.40</p> <p>“ Judgment is, therefore, directed to be entered for this amount, if exceptions be not filed according to law.”</p> <p>Exceptions were filed and overruled and judgment entered in accordance with the opinion. Defendant appealed.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Title of executor to notes against testator — Evidence.</p> <p>An executor who is the payee of the note of his decedent'which is overdue at the time of decedent’s death, must show clearly that he held the note by a title hostile to that oí decedent. This he may do by showing that the note was in the custody of his wife immediately after decedent’s death.</p> <p>Evidence — .Decedents' estates — Witness.</p> <p>A wife may testify to a fact existing or an act occurring after the decedent’s death, where her husband is the claimant, although the evidence may in its effect tend to prove that the same fact existed prior to decedent’s death.</p> <p>Executor’s commissions — Mistake in account.</p> <p>A mere mistake in claiming a credit in an account, where there is no fraudulent intent, will not deprive an executor of his commissions.</p> <p>The commissions of an executor cannot be calculated in part upon his own debt to the estate.</p> <p> Costs of audit on exception and distribution. </p> <p>Where an auditor is appointed on exceptions to an executor’s account, and on distribution, and the exceptions to the account are sustained, it is proper to place part of the costs on the estate.</p>

<p>[Marked to be reported.]</p> <p>Taxation — Revenue commissioners — Division of county — Transfer of credit from old, county to new — Act of May 24, 1878.</p> <p>Under the aet- of May 24, 1878, P. L. 126, the powers of the board of revenue commissioners are limited to the equalization of the valuation of property taxable for state purposes, and it has no authority where a county has been divided to apportion a credit allowed by the commonwealth to the old county and transfer a part of it to the new county: Com. v. Luzerne Co., 1 Mona. 418.</p> <p>Board of public accounts — Charging back void settlement of revenue commissioners — Act of April 8, 1869.</p> <p>The board of public accounts, composed of the auditor general, state treasurer and attorney general, has authority, under the act of April 8, 1869, P. L. 19, to revise and reopen such illegal settlement of the board of revenue commissioners and charge back to the old county the credit taken from it, where the action of the board of revenue commissioners has been declared illegal by the court.</p> <p>Tax settlement — Collateral attack.</p> <p>The action of the board of revenue commissioners in such case being beyond its powers and void, is not conclusive until appealed from, and its validity may be attacked collaterally.</p>

<p>Appeal, No. 21, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., June T., 1893, No. 329, in favor of Commonwealth on appeal from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>The case was tried by the court without a jury, the facts being found as follows by Simonton, P. J.:</p> <p>“ 1. A certain person, now deceased, commenced in his lifetime the development and operation of a coal property in Pennsylvania and the construction of a railroad partly in Pennsylvania, chiefly for the transportation of the product of said mines to market. The whole of the money for the purchase, development, construction and completion of said coal and railway properties was furnished either by him in his lifetime or from his estate by the trustees thereof after his death. The coal property is held in the name of a corporation of Pennsylvania, styled the Fall Brook Coal Company, the defendant in this suit, and the railway in the name oí a corporation called the Fall Brook Railway Company, chartered by the two states of Pennsylvania and New York. Part of the capital stock of the railway company stands in the name of the trustees of said estate, and the balance of it in the name of the Fall Brook Coal Company, and all of the stock of the Fall Brook Coal Company is held by the trustees aforesaid, who thus directly or indirectly own or control both corporations.</p> <p>“ 2. The capital stock of the Fall Brook Railway Company is $5,000,000, consisting of 100,000 shares of the par value of $50.00 each, of which 80,000 shares, or $1,500,000, are invested in New York, and 70,000 shares, or $3,500,000, are invested in Pennsylvania; all of the $3,500,000 invested in Pennsylvania is owned by the Fall Brook Coal Company, defendant.</p> <p>“ 3. For the tax year 1892 the Fall Brook Railway Company reported to the auditor general the 70,000 shares of stock invested in Pennsylvania, and appraised the same at $50.00 per share, or $3,500,000, upon which said capital stock so invested in Pennsylvania a tax was charged by the auditor general at the rate of five mills per annum, said tax amounting to $11,083.33 (a part of the stock having been issued within the year had been in existence only four and two thirds months). The tax thus charged by the auditor general upon the capital stock of the railway company has been paid into the state treasury.</p> <p>“ 4. The capital stock of the Fall Brook Coal Company, the defendant, is $100,000, divided into 1,000 shares of $100 each. For the tax year 1892 its proper officers made report to the auditor general, valuing the same at $375 per share, or $375,000, stating, however, that this valuation did not include ‘ the value of the capital stock of the Fall Brook Railway Company, owned by the Fall Brook Coal Company, and upon which tax is payable by the railway company.’ This report was accompanied by a letter or statement from George J. Magee, president of both companies, and also one of the trustees of the estate .aforesaid, fnlly and fairly setting forth the relations of the two companies to each other, and the relation of said trust estate to both of them. From this report and statement the auditor general, after some hesitation, settled an account against the defendant coal company, charging it not only 'with a tax of $1,875, being five mills upon the valuation of $875,000 aforesaid, but also with an additional tax of $11,083.83, being five mills upon the value of the shares owned by the coal company in the capital stock of the railway company, which was invested in Pennsylvania, and being the shares of the same capital stock upon which a tax was charged against and paid by the railway company, making the total charge of tax against the coal company $12,958.33. The coal company paid into the state treasury the sum of $1,875, which it admitted to be due, and appealed from the additional charge of $11,083.33, claiming that charge to be in duplication of the one already made against and paid by the railway company, as shown in finding of fact No. 2.</p> <p>“ 5. The $1,500,000 of the railway company’s capital stock invested in New York has been taxed by that state for the year 1892, and the railway company has also paid in that state the state and local taxes upon the valuation of the railway property in which said stock is invested.</p> <p>“ 6. All taxes paid by the Fall Brook Railway Company and the Fall Brook Coal Company, or either of them, fall ultimately upon the trust estate aforesaid.</p> <p>“ 7. No state tax is collected in Pennsylvania upon shares of stock of railroad and coal companies in the hands of individuals holding the same.</p> <p>“We are unable to discover any distinction in principle between this case and those of Com. v. Lehigh Coal & Navigation Co., 444 Sept. T., 1891, and Com. v. United Gas Impt. Co., 26 Jan. T., 1892, both of which are cited at length in note to Com. v. Westinghouse Air Brake Co., 151 Pa. 281, in which it was held by this court, Judge McPherson writing the opinion in the last mentioned case, that the capital stock of a corporation and the shares of stock in the hands of its holders are not identical; thus to impose a tax upon the one and also upon the other is not the imposition of duplicate taxation upon the same thing, and that, therefore, a corporation is not exempt from taxation upon any part of its capital stock because of the fact that it is invested in shares of other corporations of this state which have paid tax on their capital stock for the same tax year. The exceptions specified in defendant’s appeal are overruled, and judgment directed to be entered in favor of the commonwealth as follows:</p> <p>“Tax,........$12,958.83</p> <p>“ Less amount paid by defendant, . . 1,875.00</p> <p>“ Balance of tax, .... $11,083.33 “ Attorney general’s commission, . . 554.16</p> <p>“ Total,.....$11,637.49 unless exceptions are filed as provided by law;.”</p> <p>Exceptions were overruled and judgment entered. Defendant appealed.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeal, No. 18, May T., 1893, by plaintiff, from judgment of C. P. Dauphin Co., Jan. T., 1893, No. 292, for defendant, on appeal from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>The opinion of the court below was as follows, by McPherson, J. :</p> <p>“ This case was tried without a jury under the provisions of the act of 1874. We find the facts to be as follows:</p> <p>“ 1. The defendant was originally incorporated under the act of 1863, P. L. of 1864, p. 1102, relating to corporations, for mechanical, manufacturing, mining and quarrying purposes, but its present charter is to be found in the special act of 1872, P. L. 505, which is hereby made part of this finding. It has a capital stock of $652,100.</p> <p>“ 2. During the tax year ending the first Monday of November, 1890, it declared a dividend of thirteen per cent, whereupon a tax of six and one half mills was laid by the settlement now in question under the twenty-first section of the act of 1889, but was mistakenly levied upon $682,100 instead of upon the true amount, $652,100.</p> <p>“ [3. During said year the defendant was exclusively engaged in making and selling iron and steel bridges, buildings, roofs, viaducts, turntables and other articles and machinery composed wholly or in part of wood, iron, steel or other suitable material. The process is as follows: It buys from others in a rough and unfinished form all the necessary lumber, iron, steel and other metals; finishes, shapes, frames, designs and makes suitable for use the said material at its own shops in the city of Pittsburgh; sells the finished material for such use as may be intended or appropriate; and often frames, puts together and erects the said material into bridges, roofs and other structures, or machinery.] [1]</p> <p>“ 4. During said year the actual value of all defendant’s property was $836,801.73, in which is included $15,000, the value of certain houses and lots which it did not use in its corporate business.</p> <p>“ 5. It is not engaged in the brewing or distilling of spirits or malt liquors, and does not enjoy and exercise the right of eminent domain.</p> <p>“ CONCLUSIONS OP LAW.</p> <p>“ The defendant’s corporate authority is to be found in the first and second sections of the act of 1872, and we have examined them with care. Without quoting them at length, we think that all the powers which they contain are either direct powers to manufacture, or such as are added thereto, not as independent franchises, but expressly to aid the manufacturing purpose. Thus, in the first section, the defendant is authorized to ‘ purchase, acquire and hold in fee simple or for any less estate property real or personal; ’ but it must be such property as is ‘ necessary and proper for the purpose of carrying on and conducting their business.’ In the second section power is given ‘ to acquire, hold, use and apply inventions, plans and devices secured by letters patent of the United States; ’ but this may only be done ‘ when deemed necessary or needful to the success, promotion and purposes of their said business.’ So, also, the defendant may ‘ contract with any person or corporation within any of the states or territories of the United States, or elsewhere, or be contracted with in this state by any corporation of any of the states or territories of the United States or elsewhere; ’ but such contracts must be ‘ for and in respect to the manufacture, erecting and disposing of such bridges, viaducts and other articles so manufactured.’</p> <p>“ Since, therefore, the charter contains no separate and independent power to carry out any other purpose than manufacturing, the defendant must be held to be ‘ organized exclusively for manufacturing purposes,’ as required by the exempting clause of the act of 1889. This is the test prescribed by Com. v. Mann Co., 150 Pa. 64, and Com. v. Westinghouse Electric Co., 151 Pa. 265, and the correctness of the conclusion is not denied if the erection of bridges and the other structures named in the charter is properly included in the term ‘ manufacturing.’ This, then, is the point which requires our attention.</p> <p>“ It is quite true that in common speech we do not say that a bridge or viaduct or house or roof is manufactured, but built or erected or constructed, and it might perhaps be true that a corporation, whose only business was the erection of such structures after the parts had been fashioned and fitted by others, would not be accurately described as engaged in ‘ manufacturing.’ However that may be — and the question is not free from doubt — the case before us is very different. The defendant is unquestionably a manufacturing company up to the point when the various parts — beams, girders, rods, bolts and the rest — are ready to be put together in order to form the complete structure for which they were intended. The preparations of these parts from material, either raw or unfinished, is clearly manufacturing within any accepted definition of the word; and if in all cases the transaction was finished by a sale of the parts to a purchaser who would himself put them together and thus complete the structure for use, the exclusively manufacturing character of the corporation could not be questioned. Is this character destroyed, simply because the defendant, after having manufactured the various parts of a contemplated bridge or viaduct or turntable or roof, goes one step further, and finishes the structure ? Upon reason we think this question ought to be answered in the negative, and especially because the separate parts are comparatively useless and are made for no other purpose than to put them together. In the case of such a corporation as this, the power to build or erect (if indeed it ought to be considered as a distinct and separate power) is a proper, and perhaps a necessary, incident to the powers which are unquestionably manufacturing. In other words, if a corporation may frame and fashion all the parts of the bridge, it has an implied power to put the parts together in their intended seat. If it may build the bridge or the roof experimentally in its yard, it may surely build it in the very place for which it was designed. It is not easy to see why it becomes necessary to divide a business which seems to be a natural unit, and to regard it as incapable of being carried on unless two distinct franchises are given, one to prepare the material and the other to erect the structure. It seems to us more reasonable to hold that, if a corporation may manufacture a bridge in parts, it may under the same franchise put the parts together and deliver the bridge as a whole in place to the purchaser; and that it is exclusive^ manufacturing as truly when it is finishing the work as when it is only beginning. We see no escape from the conclusion if the subject is to be examined from this point of view.</p> <p>“ And the same result is indicated by the decision in Commonwealth v. Northern E. L. & P. Co., 145 Pa. 105, if the point of view there taken is to be adopted. Mr. Justice Williams says, on page 117, that the meaning of the word manufacture ‘ has expanded with the advance of the arts and sciences until it has come to mean as a verb the making of anything by human art or skill, and as a noun anything made by art or skill.’ Accordingly, if the case had required it, the court would have been led to the conclusion that a corporation, which produced or generated electricity in order thereby to furnish light or power to its customer's, was a manufacturing company. If the definition just quoted is to be applied to the present defendant, then putting a bridge or roof together is a making of something by art or skill, and is manufacture as truly as preparing the constituent parts. In this event, the exclusively manufacturing character of the defendant cannot be successfully questioned.</p> <p>“ But the case referred to was decided upon another ground, which also requires us to hold that the defendant is an exclusively manufacturing corporation. The court held that, when the act of 1885 exempted the capital stock of manufacturing companies from taxation, it meant those companies only which had been built up into a statutory class under the act of 1849, and succeeding acts; and that these statutes must be looked to, rather than definitions and dictionaries, to discover what the legislature meant by a ‘ manufacturing ’ corporation. This test (which excluded electric light and power companies) is to be applied also to the corporations claiming exemption under the act of 1889, now before us; for this act simply continues the policy of the act of 1885. It somewhat narrows the statutory class by requiring that the corporation must be ‘ organized exclusively ’ for manufacturing purposes, but it makes no change in the legislative definition of such purposes, and this remains as above declared by the court.</p> <p>“ Turning then to the acts of assembly, we find at least four to which we • may briefly refer as showing that the defendant belongs to the class which the legislature regarded as a manufacturing class. The first is the act of 1849, P. L. 563, authorizing the formation of companies for the manufacture of iron, etc. The second is the act of 1853, P. L. 269, section 2, which permits companies to be formed ‘ for the manufacture of articles from iron and other metals, or out of wood, iron and other metals.’ The third is the act of 1863, P. L. of 1864, p. 1102, which authorizes the incorporation of companies ‘ for the purpose of carrying on any mechanical, mineral, quarrying or manufacturing business in this commonwealth,’ under which the defendant was originally chartered. The fourth is the act of 187 2, P. L. 505, under which the defendant is now acting, and which speaks several times of the ‘ manufacture ’ as well as of the ‘erecting’ of bridges, viaducts, etc. We do not regard this use of the words as conclusive, but it is a circumstance which deserves to be considered. Taking these acts together we think it cannot be doubted that the defendant belongs to the statutory class referred to by Mr. Justice Williams, and, therefore, has been defined by the legislature itself as a ‘ manufacturing ’ company, whatever the lexicographers might have to say about some of its powers. The defendant’s original charter was under an act which only uses the word manufacture; but, for reasons already given, we hold that the power to manufacture bridges under that act necessarily implied the power to erect them, and that the act of 1872 only named a power which the act of 1868 gave without naming. As the power to build was thus implied in the power to manufacture, and was indeed a part of it, the defendant is an exclusively manufacturing corporation.</p> <p>“ Moreover, if the definition above quoted is to be applied, to build or make a bridge by art or skill is to ‘ manufacture; ’ and in that event also the legislation referred to is seen to give to the defendant none but manufacturing powers.</p> <p>“By any road therefore we arrive at the same result. Our conclusions are:</p> <p>“ [1. The defendant is a corporation organized exclusively for manufacturing purposes, and actually carrying on manufacturing within the state.] [2]</p> <p>“ [2. Its capital stock is exempt from taxation so far as employed in the corporate business.] [3]</p> <p>“ 3. It is taxable, however, in respect of the houses and lots mentioned in paragraph four.</p> <p>“The commonwealth is entitled to recover as follows: Six and one half mills upon 8Vg?6°oQr of $652,100, or upon $11,689.00 of capital stock, . . . $75 97</p> <p>Interest at 12 per cent from November 10,1891, to February 6,1893, . . . . . 11 80</p> <p>Attorney general’s commissions, . . . 8 79</p> <p>Total,.....$91 06</p> <p>for which amount we direct judgment to be entered, if exceptions are not filed according to law.”</p> <p>Exceptions (1-3, to the findings in brackets, and, 4, in not entering judgment for plaintiff) were dismissed and judgment entered. Plaintiff appealed.</p> <p>Errors assigned we re, (1-4) dismissal of exceptions, quoting them.</p>

Appeal, No. 16, May T., 1893, by plaintiff, from judgment of C. P. Dauphin Co., March T., 1892, No. 109, in favor of defendant on appeal from tax settlement. Appeal from tax settlement. The opinion of the court below was as follows, by McPherson, J.: “This case was tried without a jury under the provisions of the act of 1874. We find the facts to be as follows: “1.

Appeal, No. 14, May T., 1893, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1891, No. 442, in favor of defendant on appeal from tax settlement. Appeal from tax settlement. The opinion of the court below was as follows, by McPherson, J.: “ This case was tried without a jury under the act of 1874. We find the facts to be as follows: “1.

Appeal, No. 28, May. T., 1893, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1891, No. 570, for plaintiff, on case tried by court without jury. Assumpsit for commissions illegally paid to public officer.

<p>Appeal, No. 25, May T., 1893, by defendant, Peter Baptist, from order of C. P. Dauphin Co., Sept. T., 1892, No. 471, making absolute rule for judgment for want of a sufficient affidavit of defence.</p> <p>Rule for judgment for want of sufficient affidavit of defence in scire facias sur municipal claim.</p> <p>Defendant in his affidavit of defence averred that:</p> <p>“ The paving referred to in the claim filed, was not an original paving of Walnut street, and the defendant is credibly informed, verily believes and expects to be able to prove on the trial that the petition for the paving showed a majority for an asphaltum block pavement, which is usually laid and was expected by the petitioners to be laid, including the defendant, and at the signing it was represented that it would be laid, upon a foundation of sand on the old pavement, making the pavement considerably cheaper than a sheet asphaltum pavement; but that the pavement laid is of asphaltum blocks laid upon an expensive base of hydraulic cement concrete, made more expensive by 30 cents per square yard than sheet asphaltum, and was made so much higher in price than that petitioned for by the defendant and the majority of signers to said petition as to be a fraud upon the petitioners, and to invalidate any claim the city or the contractor might otherwise have had for the paving, the old and solid Macadam pavement on the street even being taken from the street and concrete being put in its place instead of being covered with sand and the asphaltum blocks laid upon it.</p> <p>“ And before the councils of said city of Harrisburg had approved of the contract for said paving, a remonstrance, signed by defendant and others who had signed said petition, was presented to the select council of said city, protesting against the laying of said asphaltum block pavement upon a concrete base, and giving notice that such signers would resist payment of the cost of such pavement so laid, the said remonstrance or protest being presented Aug. 11, 1890, and the paving contract approved by select counsel Aug. 25, 1890, and by common counsel Sept. 8, 1890.</p> <p>“ The pavement laid was not of the kind and materials called for by the specifications, contract and ordinance, in that the ‘ blocks ’ were to be ‘ of the best of their kind in the market and made of first-class materials in the best manner,’ but the contractor laid the pavement of asphaltum blocks, such as are termed ‘ thirds,’ far infeiior to the best of asphaltum blocks, as the defendant is credibly informed, verily believes, and expects to be able to prove on the trial; but the difference in price between the pavement laid of thirds and of first-class asphaltum blocks, the affiant has not been advised of, although considerable, but expects to be able to show on the trial such difference.</p> <p>“ And the defendant submits, that the city of Harrisburg did not in good faith enter into the contract of paving in pursuance of the petition; that the defendant had remonstrated against such pavement as was called for by the specifications for bids before the councils had approved of the contract; and the contractor did not comply with his contract.”</p> <p>Opinion of court below was as follows, by McPherson, J.:</p> <p>“ If this affidavit is intended to raise a question similar to that which was decided in Harrisburg v. Segelbaum, 151 Pa. 172, it is much too meagre. Upon this point no facts at all are averted ; we do not know when or with what material the street was originally paved, or by whom'the cost was borne. Nothing is stated except that ‘ the paving referred to in the claim filed, was not an original paving of Walnut street; ’ and this is merely the defendant’s opinion, the correctness of which (as he gives no facts) we are not able to review. Moreover, even if this averment was sufficient, the defendant is not at liberty to raise the question.- He petitioned councils to do this paving and to assess the cost against abutting owners according to the foot-front rule, and he is therefore estopped from denying that councils had the power which he induced them to exercise : Bidwell v. Pittsburgh, 85 Pa. 412, McKnight v. Pittsburgh, 91 Pa. 273; Dewhurst v. Allegheny, 95 Pa. 437; Person’s Ap., 96 Pa. 140; Pepper v. Philadelphia, 114 Pa. 97.</p> <p>“ The second branch of the defence is misrepresentation and fraud, but the averments on this subject are not sufficiently full and distinct. We are not informed by whom the misrepresentations were made or the fraud was committed, or what connection the city’s officers or agents or the contractor had therewith. The affidavit avers that when the petition was signed the defendant ‘ expected ’ that the asphalt blocks would be laid upon a foundation of sand on the pavement, but it does not give the reason for this expectation. If the reason is to be inferred from the further averment that ‘ it was represented ’ that the blocks would be thus laid, we do not find this to be of much help, for we are not advised by whom or to whom these representations were made. It is then averred that, while the pavement, if laid upon sand, would have been cheaper than sheet asphalt, it was in fact laid upon an expensive base of hydraulic cement concrete, ‘ made more expensive by 30 cents per square yard than sheet asphaltum, and was made so much higher in price than that petitioned for by the defendant and the majority of the signers to said petition as to be a fraud upon the petitioners,’ etc. If the defendant had also told us who committed these alleged fraudulent acts, it would have been much to the point, but he did not see proper to do so. These are examples of the vague and general language of the affidavit, and may sufficiently show that the allegations of fraud are fatally lacking in precision.</p> <p>“ The third ground of defence is a written protest, of which the following is a brief account. The petitioners asked councils to pave the street with ‘asphalt block,’ leaving details to the discretion of the municipal authorities. There seems to be several methods of laying asphalt block, and councils adopted the one which requires a base of hydraulic cement. Upon learning this fact and before councils had finally ratified the contract (although it had already been awarded by the highway commissioners), the defendant and certain other petitioners signed and presented to select council a paper in which they declared: (We) ‘ do respectfully protest against placing the blocks on a concrete base. When we signed the petition to your honorable bodies asking that the street be paved with blocks, we did not know that such a base was necessary, and do not now believe the same to be necessaiy. If the pavement is laid upon a concrete base we pledge ourselves to resist the payment thereof.’</p> <p>“ In our opinion this protest is of no particular importance. The signers still desire to have the pavement; they make no effort to withdraw their names from the original petition; they merely declare that on this question of method they do not agree with the city, and that they will resist payment if their view is not followed. This, however, laid no obligation upon the city. The petition had already given to councils jurisdiction to lay an ‘ asphalt block ’ pavement, and this necessarily included the power to choose the method of putting it down, even if the method chosen was not the usual one. This jurisdiction and power the protest does not even attempt to avoid, and it seems clear therefore that, as the good faith of the councils has not been successfully questioned, their choice of methods was a lawful exercise of discretion, and binds the defendant in spite of his protest. These details must necessarily be left to the municipal authorities.</p> <p>“ This leaves for consideration the fourth ground of defence, namely: Defective workmanship. It is averred that the blocks were to be of the best kind in the market, made of'first-class material, in the best planner; whereas the contractor laid the pavements of blocks, ‘ such as are termed thirds, far inferior to ‘ the best of asphaltum block,’ and at a difference in price of which ‘ the affiant has not been advised, although considerable.’ If the affiant knows that the difference is considerable, one would suppose that he would state it approximately at least; but passing this point, there are two other objections to this defence: First, it does not inform us in what the inferiority of quality consists, but simply gives us the defendant’s opinion without the facts upon which it is founded. And second, it does not aver that the pavement in front of the defendant’s property, for which alone he is called upon to pay, is in any respect defective or unsatisfactory. This was held to be important at least, if not essential, in Erie City v. Butler, 120 Pa. 374, where a far stronger and fuller affidavit than this was held insufficient; and in Pittsburgh v. MacConnell, 130 Pa. 463.</p> <p>“We direct judgment to be entered in favor of the plaintiff for want of a sufficient affidavit of defence, the amount to be liquidated by the prothonotary.”</p> <p>Judgment accordingly. Defendant appealed.</p> <p>Error assigned was above order.</p>

<p>Receivers — Appointments—Quo warranto.</p> <p>A receiver is not a common law officer, and no authority exists for Ms appointment in quo warranto proceedings, unless it can be found in express statutory provision.</p> <p>Corporations — Dissolution — Receivers—-Supreme Court — Original jurisdiction— Constitution, Act of April 4, 1872.</p> <p>Under the act of April 4, 1872, P. L. 46, relating to dissolution of corporations, the regular and ordinary course of administration of the assets is by the officers of the corporation as trustees, and the power to supersede this mode by the special appointment of a receiver is in the Supreme Court, without regard to the court which rendered the judgment of ouster.</p> <p>Not determined whether this power is an exercise of original jurisdiction which was taken away by the constitution of 1874.</p> <p>Jurisdiction — Common pleas — Re ceiver.</p> <p>A court of common pleas has no jurisdiction under the act of 1872 to appoint a receiver of a corporation, where none of the property of the corporation is in the county, where none of the officers are resident or are served, and the application is made by the commonwealth and not by a creditor or stockholder.</p> <p>On an application by the commonwealth for the appointment of a receiver of a corporation against which a judgment of ouster has been entered, jurisdiction will not be given to the common pleas by the filing of informal letters from stockholders, which contain no averments of fact upon which the court may act, and which are not sworn to.</p> <p>Statutes — Receivers—Jurisdiction—Act of April 26, 1893.</p> <p>The act of April 26, 1893, authorizing the appointment of receivers-where corporations have been dissolved by judgment of ouster, does not apply to a case where the affairs of a corporation, after judgment of ouster, are at the date of the passage of the act in course of adjudication by a competent court.</p> <p>The direction in the act that the receiver “ shall be held to supersede an assignee of the corporation in possession,” will not authorize the court appointing the receiver to make summary orders upon an assignee who is-under the jurisdiction of another court. The receiver must go into that court for an account and order to turn over the property by the assignee.</p> <p>Assignment for creditors — Employment of counsel.</p> <p>An assignee for the benefit of creditors is entitled to select his own counsel; and if other parties-are not satisfied that their interests are being-properly cared for, they must employ their own counsel.</p>

<p>Bill in equity by Samuel C. Perkins, William Brice, Mahlon H. Dickinson, Isaac S. Cassin, Thomas-E. Gaskill, John L. Hill, Richard Peltz, William S. Stokley,. Hiram Miller and William H. Wright, constituting a majority of the Commissioners for the Erection of the Public Buildings, and all of the members thereof excepting the Mayor of Philadelphia and the Presidents of the Select and of the Common. Councils, against The City of Philadelphia and James II.. Windrim, Director of the Department of Public Works of said' city.</p> <p>The bill averred:</p> <p>“ 1. That by an act of assembly, approved the fifth day of August, one thousand eight hundred and seventy, of which the relators annex hereto a copy and which they crave leave to refer to, Theodore Cuyler, John Rice, Samuel C. Perkins, John Price Wetherill, Lewis C. Cassidy, Henry M. Phillips,William L. Stokes, William Devine, the mayor of the city of Philadelphia, and the presidents of select and common councils, for the time being, were constituted commissioners for the erection of ■the public buildings required to accommodate the courts, and for all municipal purposes in the city of Philadelphia, and they were therein required to procure plans for the said buildings; to do all acts necessary in their judgment to cariy out the intent of said act of assembly in relation to the said public •buildings ; to fill any vacancies which might happen by death, resignation, or otherwise, and if, in the judgment of said commission, they should deem it advisable to increase their number, they might, by a vote of a majority of their whole number, increase said commission, from time to time, to any number not •exceeding thirteen.</p> <p>“ 2. That said commissioners so appointed by said act of assembly did, August 27,1870, elect William S. Stoldeyin place •of William L. Stokes, unknown, and Henry W. Gray in place •of William Devine, who had deceased ; and afterwards deeming it advisable to increase their number to thirteen, by vote •of a majority elected Samuel W. Cattell and Wm. Brice, in order to increase their number to thirteen. That, from time to time, vacancies in their number were caused by death and resignation, and others were duly elected to fill such vacancies, until the commission is now composed of the ten members named in the first paragraph and the three ex-officio members.</p> <p>“ 3. That the said commissioners and their successors, as •aforesaid, entered upon the duties of their office after their appointment, and proceeded to make contracts for the construction of public buildings required to accommodate the courts, and for all municipal purposes in the city of Philadelphia, and do do all other acts necessary in their judgment to carry out the intent of the said act of assembly in relation to said public buildings, and there has been already constructed a large portion of the said buildings, which are, however, at present unfinished.</p> <p>“ 4. And your orators further aver that your complainants sire progressing with the work committed to them by said act, smd have been delayed and are now hindered in the execution -of their duties thereunder by the failure of the councils of said •city to raise the amount sufficient for the performance of their «duties, although requisitions have been made therefor, from year to year, in accordance with the act of 1870, as aforesaid.</p> <p>“ 5. And your orators further aver that the requisition last made was primarily for the purpose of fitting up the rooms required for the accommodation of the county courts of Philadelphia, and the necessary approaches and conveniences accessory thereto, in the trial of civil issues; and. although said rooms have been selected with the approval of the judges of the county, and have been assigned for said purpose by your complainants, yet, by reason of the total failure to make any appropriation-therefor, in accordance with said last-mentioned requisition, the-entire work with regard to the same is now stopped.</p> <p>“ 6. And your orators further aver that they believe, and so-charge, that the said defendant, the city of Philadelphia, declines to provide funds for the performance of the work committed to your orators, by reason of the pendency in the general assembly of an act afterwards approved the 24th day of May,. 1898, entitled ‘An act to abolish commissioners of public-buildings, and to place all public buildings heretofore under the control of such commissioners under the control of the Department of Public Works, in cities of the first class.’ And your orators are advised and charge that said act is wholly invalid and in violation of the constitution of this commonwealth ; and in support thereof your complainants specifically assert, that it is provided by the constitution of this commomvealth, in section 20, article 3, that ‘ the general assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere-with any municipal improvement, money, property or effects,, whether held in trust or otherwise, or to levy taxes, or perform any municipal function whatever; ’ and that, notwithstanding said prohibition, this act, in the first section thereof, proposes to commit the direction, control and administration of the erection, completion, construction, repair, removal and protection of all public buildings therein referred to, to the Department of Public Works, the same being under the charge of one individual, and said act, neither by enactment or reference,, referring to the proper supervision and municipal control which, under the constitution, should be given to the municipal corporation of which he is an executive officer, nor placing exclusively the municipal improvement or municipal function in the-city of Philadelphia.</p> <p>“ 7. And your orators further specify that by the 8th section-of article 3 of the constitution of this commonwealth it is provided : ‘ No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted, and published at length.’ And your orators charge that, notwithstanding said prohibition, said act, in its first section, proposes to transfer the erection, completion, construction, repair, removal and protection of all public buildings heretofore under the control of commissioners created by any special act of assemby for the erection and construction of public buildings required to accommodate the courts and for municipal purposes in cities- of the first class, without specifying the act by recital providing for such erection, such completion, such construction, such repair and such removal, and without, by enactment, determining the transferred duty imposed upon the Department of Public Works in the granting of direction, control and administration thereto. And your orators are advised that said act, by reason of such transgression, is wholly invalid.</p> <p>“ 8. And your orators further specify that it is provided by the 8th section of article 3 of the constitution that ‘ no local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published, in the locality where the matter or thing to be affected may be situated, which notice shall be at least thirty days prior to the introduction into the general assembly of such bill, and in the manner to be provided by law; the evidence of such notice having been published, shall be exhibited in the general assembly before such act shall be passed; ’ and that the general assembly, in furtherance of said constitutional mandate, did enact, by an act entitled ‘ An act regulating the publication of application for local or special legislation,’ approved February 12, 1874, P. L. 43, that ‘no local or special bill, either to repeal or enact a law, shall be passed by the legislature, unless notice of the intention to apply therefor shall be published in the locality where the matter -or thing to be affected may be situated, which notice shall state .-specifically the title and objects of the bill, and shall be published by not less than four insertions in at least two daily or weekly newspapers, one of which may be in a language other than English, once a week for four consecutive weeks, printed in the county, or in each of the several counties where such matter or thing to be affected may be situated; ’ as, by reference to said act more specifically will be made manifest. And your orators are advised that the effect of the passage of said act in accordance with the mandate of the constitution is, until the same shall be changed by a general statute otherwise providing, to make the method of procedure for the repeal or the enactment of a law which is local dependent entirely upon a notice given in accordance with the said act at least thirty days immediately preceding the introduction of such bill into the general assembly; and that the said act of May 24,1893, transgresses said prohibition in that, although the same is entirely local in text and reference, and although it proposes to repeal the act, which is local in character (if it be held to apply to the act under which your commissioners were created), yet no advertisement or publication whatever was made before the meeting of the general assembly at which the same was introduced, nor was any advertisement whatever made before the same was introduced.</p> <p>“ Wherefore your orators charge that, by reason of the invalidity of the said act, by reason of its attempt to delegate to one person a municipal function, and by reason of its attempt to transfer the duties now vested in your complainants to one person, and by reason of the failure to give notice of the introduction thereof as aforesaid, no valid legislation has taken place to disturb the complainants in the performance of their duty particularly imposed upon them by the act of 1870 as aforesaid; but they fear that the defendant the city of Philadelphia, and especially the defendant James H. Windrim as director of the department of public works, will seek to take possession of the buildings now in the legal custody of your complainant, and to interfere with their completion and their further construction, and will introduce such confusion into the administration of their duties relative thereto that no adequate relief can be secured by any process known to the law; and they therefore ask relief from this court, sitting as a court of equity, and, among other things, pray:</p> <p>“ (a) That it be decreed that the defendants, and each of them, may fully answer the premises.</p> <p>“ (i) That it be decreed that the defendants, and each of them, and the officers, agents and servants of either and of both of them, may be specially enjoined until final hearing, and perpetually thereafter, from interfering with your complainants in the construction and completion of the buildings for which, by the act of 1870, they were created; and that, until your complainants become defunct by the full completion of all the duties imposed upon them, they may be adequately protected from time to time by your Honors.</p> <p>“ (e) Such other and further relief in the premises as the nature and circumstances of their case may require, and to your Honors shall seem meet.”</p> <p>The act of May 24, 1898, is as follows:</p> <p>“ An act entitled An act to abolish commissioners of public buildings and to place all public buildings heretofore under the control of such commissioners under the control of the department of public works, in cities of the first class.</p> <p>“ Section 1. That commissioners created by any special act of assembly for the erection and construction of public buildings required to accommodate the courts and for municipal purposes in cities of the first class in this commonwealth are hereby abolished, and the erection, completion, construction, repair, removal and protection of all public buildings heretofore under the control of such commissioners in said cities shall be under the direction, control and administration of the department of public works.</p> <p>“ Section 2. An act entitled ‘ An act to provide for the erection of all the public buildings required to accommodate the courts and for all municipal purposes in the city of Philadelphia, and to require the appropriation by said city of Penn square at Broad and Market streets to the Academy of Fine Arts, the Academy of Natural Sciences, the Franklin Institute and the Philadelphia Library, in the event of the said square not being selected by a vote of the people as the site for the public buildings for said city,’ approved the fifth day of August, one thousand eight hundred and seventy, and so much of section one, article four, of an act entitled ‘ An act to provide for the better government of cities of the first class in this commonwealth,’ approved the first day of June, one thousand eight hundred and eighty-five, and reads as follows, ‘ That nothing in this section contained shall be construed to repeal or conflict with an}*- special acts of assembly providing for the erection and construction of public buildings,’ and all laws and parts of laws inconsistent herewith shall be and the same hereby are repealed: Provided, that nothing in this section contained shall be construed to repeal or conflict with an act entitled ‘ An act appropriating ground for public purposes in the city of Philadelphia,’ approved the twenty-sixth day of March, one thousand eight hundred and sixty-seven.”</p>

Appeal, No. 11, May T., 1893, by defendant, from judgment of G. P. Dauphin Co., June T., 1892, No. 301, in favor of plaintiff, James A. Beaver, trustee of estate of Margaret II. McAllister, deceased, on ease stated. The case stated was as follows: “ The plaintiff is the owner of land in the city of Harrisburg, 'fronting on Mulberry street, described in the plaintiff’s statement filed in this case.

Bill in equity by Samuel C. Perkins, William Brice, Mahlon H. Dickinson, Isaac S. Cassiu, Thomas E. Gaskill, John L. Hill, Richard Peltz, William S. Stokley, Hiram Miller and William H. Wright, constituting a majority of the commissioners for the erection of the public buildings, and all of the members thereof excepting the mayor of Philadelphia and the presidents of the select and of the common councils, against the city of Philadelphia and James H. Wind-rim, director of…

<p>Trust — Declaration—Delivery—Creditors—Public policy.</p> <p>An intention to create a trust with respect to personal property in the settlor’s control, looking to the future and not to the present, and resting upon a naked declaration merely, without signing, or delivery, or promise to deliver, is not sufficient to vest any right in a creditor for whom the trust was intended. Such a trust would be against public policy.</p> <p>Barker Bros. & Co., as agents and bankers, received deposits for stock subscriptions. Delay occurring in the issuance of the shares, Barker Bros, wrote a declaration that certain enumerated securities were “ held as collateral security against deposits of subscribers and underwriters.” This declaration was not signed, and, with some of the securities, was placed in an envelope indorsed as containing the collaterals. This envelope, with the rest of the securities enumerated, was placed in a tin box which contained nothing else, and the box was deposited for safe keeping in the custody of a trust company to the credit of Barker Bros. & Co., until they made an assignment for benefit of creditors. The assignee demanded and received possession of the box. Barker Bros. & Co. -were discharged as trustees of the securities and plaintiff was appointed trustee in their stead. Before the assignment the assignee and one of the subscribers were told that the securities were set aside to secure the subscribers. Held, that a court of equity would not decree a transfer of the securities by the assignee to plaintiff as trustee.</p>

Appeal, No. 172, July T., 1892, by defendants, Weiss Bros., from judgment of C. P. No. 4, Pbila. Co., Dec. T., 1890, No. 487, on verdict for plaintiffs, G. Wessels & Co. Sheriff’s interpleader. Before Willson, J. The facts appear by the opinion of the Supreme Court. Defendant’s points were, among others, as follows : “ 1.

<p>Appeal, No. 74, July T., 1892, by plaintiff, Sarab Yeakel, executrix of Maria Corson, from decree of C. P. Montgomery Co., Doc. T., 1886, No. 8, on bill in equity against J. Q. McAtee and J. Q. McAtee, executor of Mary Ann Corson.</p> <p>Bill to compel transfer of stock and bonds.</p> <p>The case was referred to B. E. Chain, Esq., as master, who reported a decree in favor of tlie plaintiff. Exceptions to the master’s report were sustained by the court in the following opinion by Swartz, P. J.:</p> <p>“ The master states clearly the facts upon which he bases bis conclusion. There was before him a great mass of testimony. Much of this evidence was taken in the prior controversies under the will of Mary A. Corson and submitted to the master in the present equity proceeding. The report fails to state clearly what portions of tbis testimony are competent and relevant in the present controversy.</p> <p>“ Maria Corson, the mother of Mary A. Corson, began the litigation by contesting the will of her daughter on the grounds of her daughter’s mental weakness and the fraud and undue influence on the part of said John Q. McAtee, the defendant in the present bill. Other litigation followed and the equity proceeding was instituted. Mrs. Corson also made an effort to surcharge Mr. MeAtee, the executor of the daughter, with the value of certain stocks which MeAtee received from the daughter as a gift. The will was sustained and the effort to surcharge the executor with the value of the stocks failed. The testimony taken before the auditor in the latter controversy was submitted to the master under the following agreement of counsel: ‘ Agreed that the testimony taken before the auditor in the estate of Mary Ann Corson-and filed May 7,1888, shall be taken in this case with the same force and effect as if the witnesses had appeared, been qualified and examined in this case, but the testimony so received shall be and is subject to all legal exceptions by the counsel on either side, this agreement to include all documentary evidence offered in said audit, subject to the same objection.’</p> <p>“At the death of Mary A. Corson the following stocks and bonds stood in her name: Sixty-six shares of preferred stock of the Northern Pacific R. R. Co., bonds of the United States for twenty-four hundred dollars, and three and one half shares of the Jefferson Fire Ins. Co. The complainant alleges in her bill that these stocks and bonds are her property and prays that they may be transferred to her. She claims that she never knowingly transferred these stocks and bonds, that they are still her property and never belonged to her daughter. The testimony of the complainant submitted under the foregoing agreement was received and the master says he fully considered her evidence. [She was not a competent witness. She does not claim these stocks by devolution on the death of the owner, but claims them as a part of her own estate by a title prior to the death of her daughter. Her interest is adverse to the right of the deceased and she is incompetent as to any matter occurring prior to the death of her daughter. Section 5, clause (e), act of May 23, 1887. Nor can her testimony be admitted as a deposition, for when she was examined before the auditor, Mary A. Corson was dead.] [1] [Nor is she competent against J. Q. MeAtee for whatever fraud or-wrong he may have perpetrated, if we are to believe her evidence, enured to the benefit of Mary A. Corson. Under the complainant’s allegation he was but the instrument or agent to put the stocks in the name of the deceased. Under the act of 1887, the prohibition extends to any matter occurring before the death of Mary A. Oorson, whether it took place between the surviving party and the deceased or any other party:] [2] Southerland v. Ross, 140 Pa. 379. This evidence was submitted prior to the act of June 11, 1891, P. L. 287. [Maria Corson, the complainant, died shortly after her evidence was submitted. John Q. McAtee was competent to testify against her, for she was living at the time his evidence was offered. He was not adverse to the interest of the deceased, but on the contrary was testifying for the estate.] [3] Objection is made by the defendant to the testimony of George Follett, taken under a commission to the state of New York. This evidence was taken in the proceedings between Maria Corson, the contestant of the will of Mary A. Corson, and John Q. McAtee, the executor who was cited to show cause why an issue should not be awarded to try the validity of the will. He appeared and successfully defended the probate of the will. This deposition was therefore taken in a controversy between the same parties and involved, at least in part, the same subject-matter, to wit: the fraud and undue influence of Mr. McAtee. We think the testimony is competent, but of little importance. True, it shows that the sixty-six shares of Pacific railroad stock were transferred upon the books of the company but two days before Mary A. Corson’s death. This was sufficient to give the daughter a complete legal title to the stock. The transfer was absolute; whether the certificate was received by her in her lifetime is immaterial. The best evidence of ownership is the transfer on the books of the company. The certificate is but secondary evidence of such ownership; it is nothing more than an official declaration by the company of what already appears on their books: Roberts’s Appeal, 85 Pa. 87.</p> <p>“Much of the evidence found in the two hundred pages of printed testimony is irrelevant. It is hardly fair to the master or the court to hurl this mass of testimony at us, and say, ‘ We, as counsel, object to this evidence, but you pick out that which you find relevant and competent.’ This method is labor-saving to counsel, hut I can’t say that it is altogether satisfactory to the master or the court. While the master was in error in considering the testimony of the complainant, it does not appear that it influenced him in 1ns findings of fact. He evidently did not believe her, for he finds that she made the transfers of stocks and bonds and knew that she made the assignments to her daughter. [His findings are approved with the following modifications and additions. We cannot agree that Maria Corson ‘ was entirely dependent on her daughter.’ True, the daughter was her faithful attendant in her blind and helpless condition, but she had sufficient means to provide other helpers.] [4] She had relatives who were quick to offer their services after the daughter’s death, even in her alleged reduced financial condition. [The distribution of her property, that is, the gifts to her daughter, did not ‘ render her without means.’ She was still the owner of real estate worth from eight to ten thousand dollars; she'also had some little personal estate. With her frugal habits and simple tastes this sum was sufficient to maintain her the rest of her days, even if her life had been prolonged beyond expectation.] [5] Mr. McAtee as one of the legatees under the will of Mary A. Corson was not interested in having the bonds transferred to her. Their bonds were transferred to Mary A. Corson in April, 1885, and the will which makes Mr. Mc-Atee one of the residuary legatees was not executed until February, 1886. The prior will gave him a specific legacy which was in no way dependent upon this transfer of bonds.</p> <p>“ This finding, if confined to the railroad stocks, is supported by the evidence. It is by no means clear that the complainant ‘ never anticipated that her daughter would die first.’ Her own will in 1885 provided for this very contingency. She gave everything to her daughter, but, if the daughter died first, then to the- children of Sarah Yeakle and others. That she fully understood this will is shown by the subscribing witnesses who testify that she gave her reasons for the bequest over should she survive the daughter. [The master does not question the truthfulness of the testimony of Mr. McAtee and his wife. There is no competent evidence contradicting their testimony as to declarations made by the complainant, ‘ that Mary kept house for her and nursed her and cared for her so many years during her blindness, .... that she would give them {the government bonds) as compensation to her for her kindness and affection in nursing her.’ The master should have found as a fact that the foregoing was the reason assigned by the mother for the transfer of the bonds to the daughter. ] [6] Likewise the complainant declared that she would retain her ‘ scrip ’ — she might need money — but would give her daughter the railroad stocks and 1 then she would have nothing to worry her mind about; ’ ‘ she (the mother) could die in peace and think about other matters : ’ that 4 she had willed it to her, and Mary was her only heir anyhow.’ [There is no evidence to sustain the allegations of fraud or undue influence on the part of Mr. McAtee. The transfers to the daughter were not suggested by him; he did not advise them, he did not solicit the mother to make them. Through her importunities he assisted her in carrying out her purposes.] [7] This was not the case of a child taking care of an aged mother of feeble mind, for the plaintiff’s witnesses say that4 the mother in her old age, at the time of her daughter’s death, had a stronger mind than the daughter ever had.’ Another of the complainant’s witnesses, in answer to the question, 4 Which one could influence the other one?’ replied, 4 The mother, of course.’</p> <p>44 The master bases his conclusions upon two deductions that he draws from this evidence. First, The mother never anticipated that the daughter would die first and her confidential adviser and agent failed to call this contingency to her mind. Second, The confidential adviser never informed her that the gifts were irrevocable.</p> <p>44 As already shown their findings have no application to the United States bonds. She gave them to her daughter in April, 1885, and. in January of the same year she made her will, in which she carefully and intelligently provided for the contingency that she might survive her daughter. [She must have known that the transfer was irrevocable; she intended to give it that effect, for she declared that the daughter was to take these bonds as compensation for her long devoted services to her.] [8] But suppose the master is correct in his findings. Gan it be said that the daughter mayr not hold these bonds unless she first shows that her mother knew that the transfer was irrevocable, and that she might survive the daughter ? If under the circumstances this burden is cast upon the daughter, then few gifts from parent to child can stand. [At the time the bonds were transferred the mother had an estate of at least $15,000;] [9] her only child, sixty years old, remained with her and kept house for her. For twenty years this child administered to every want of her blind mother. The mother is continually speaking in the highest terms of the filial devotion of this daughter. The mother, now eighty-seven years old, knowing that her days can be but few, declares that she will give to her daughter one sixth of her estate as an appreciation for this devotion and affection. She gives her money, which amounts to but one hundred dollars per year for the last twenty-five years’ services; it is a small sum, but it shows her gratitude. But the daughter as soon as she had the money is compelled to return it, because she cannot show that she told her mother that such gifts were irrevocable and because she forgot to remind her that life is uncertain and that the child may die before the parent.</p> <p>“We must not encourage children in their efforts to secure compensation for care bestowed upon parents, but this does not mean that a child must not take such compensation voluntarily given by a parent who is financially able to pay over the money as a token of her appreciation of the child’s loving, faithful devotion. [The daughter held these bonds for more than a year-before the mother makes any claim to them. The interest was paid to the daughter in several payments for one year. There is no doubt in our mind that the mother fully understood that these bonds belonged to her daughter.] [10] [The transfer was made with a full knowledge of its import and the mother intended to give her child an absolute title.] [11] Is there anything to impeach the daughter’s title to the sixty-six shares of railroad stock ? [These stocks were worth at the time of the transfer thirty-six hundred and thirty dollars. They were given to the daughter because she was the only child and heir, to save the mother all worry and annoyance over them and to avoid commissions and expenses in the settlement of the mother’s estate.] [12] We think a twofold error runs through the report of the master. First, he treats the case as if the gift proceeded from the child to the parent; and, secondly, he fails to draw the distinction between a gift to the daughter and one to a confidential adviser. The gift was not made to Mr'. McAtee nor suggested by him. This is not the case of a spiritual adviser taking advantage of the relationship to fill his own pockets. It is true he was benefited by the gift of the stocks to the daughter, for he is interested in her will, but unless we find that the whole transaction was a part of a fraudulent scheme to swell the daughter's estate for the purpose of benefiting himself, it proves nothing.</p> <p>“ There is no evidence upon which we can base actual fraud. The master finds no fraud, but concludes the gifts are void because, under the circumstances, they are against the policy of the law. Miskey’s Appeal, 107 Pa. 616, does not sustain the complainant’s contention. In that case the son deeded his property to his father, making but a slight provision for wife and child. The son’s mind was wrecked by habits of intemperance, and he never passed beyond the parental control or influence of the father. The father was a man of large means and not in need of his son’s gift. Under such circumstances the donee must show that the donor understood that the gift he made was irrevocable or it cannot stand. Even in this case it was said that the mere absence of a power of revocation is not sufficient of itself to set aside an instrument unless the other circumstances of the case required it. What circumstance is there in the case before us to demand the return of stocks ? Not the necessities of the complainant, for at the time of the filing of her bill she was possessed of an estate consisting of land worth eight to ten thousand dollars, and under the will of her daughter she was entitled not only to the income of the very stocks in question, but of all her daughter’s estate. The transfer of stocks is unlike the case of a trust where the grantor retains a life interest. In the latter case he may well think that he retains such an interest as will enable him to recall his proposed disposition of the property, but it requires but a mild form of intelligence for a person to understand that a transfer of stocks as a gift, with immediate delivery of the certificate and evidences of title, means a final, absolute disposition of the property. How could Mrs. Corson fail to understand that the transfer of the stocks to her daughter, in the presence of witnesses to whom she declared her knowledge of what she was about to do, meant an absolute disposition of her property so handed over to her daughter ?</p> <p>“ [Where a gift is made by a child to a parent while the parental authority and influence still continue, it may well be that a presumption arises against the validity of such gift, but where the gift proceeds from the parent to the child .there can be no such presumption.] [18] On the contrary, the presumption, if any, is in favor of the child, that the gift upon full delivery is irrevocable and intended to aid the child. There must be some evidence of undue means to shift this presumption: Cowee v. Cornell, 75 N. Y. 101. That parents will, especially in old age, settle part of their estates upon their children, is the rule and not the exception. Where there is no evidence of mental weakness, or fraud, or undue influence, a gift from parent to child does not cast the burden upon the' child to show that the gift was free, a voluntary and intended gift of the donor ; certainly not where the evidence failed to establish that the gift was improvident. But suppose the gift and relationship, standing alone, do raise the question of constructive fraud, the presumption is overcome by the fact that the gift to the daughter is no more than a just, adequate settlement by the parent upon an only child who spent much of her entire life caring for her helpless mother. [But it is contended that although the spiritual adviser did not receive the gift, it was by reason of his relationship that the daughter secured the stocks, and therefore her title must be tested by the same rules of law that are applicable to the confidential adviser. This is a.violent assumption, for how can we say that the gifts to the daughter are the result of the intimate and friendly relation of Mr. McAtee and Mrs. Corson ? What evidence is there that the daughter is indebted to Mr. McAtee for the gifts ? There is no evidence of any act, word or deed on the part of Mr. McAtee that suggests these gifts to .the daughter.] [14] Suppose a child were to perform these same offices for a parent that were extended by Mr. McAtee to Mrs. Corson, still we do not see how this fact could invalidate the gifts under the circumstances in the case before us. Under the same pending relationship and surroundings, Mr. McAtee secured a gift of one hundred shares of stock from the daughter. Although she was weaker mentally than her mother, this gift, after careful consideration, was found to be valid: Corson’s Estate, 137 Pa. 168. Now, when the same person secures a smaller gift of sixty-six shares of the samé stock, not for himself, but for a faithful daughter, we cannot agree that such a gift is void.</p> <p>“The three and one half shares of Jefferson Fire Insurance stock belonged to the estate of Maria Corson. The agreement of January 20,1886, shows that this stock, while in the name of Mary A. Corson, was in fact the property of Maria Corson. This agreement may be treated as a declaration of trust by Mary A. Corson in favor of her mother. There was nothing subsequent to this agreement that gave Mary A. Corson title to this stock, [and now, May 2,1892, the exceptions to the master’s report so far as they relate to the bonds and railroad stocks are sustained.] [15]</p> <p>“ [ And now, May 6,1892, this cause came to be heard at this term and was argued by counsel, and thereupon on consideration thereof it is ordered, adjudged and decreed as follows, viz.: That the said 66 shares of preferred stock of the Northern Pacific Railroad Company, and the said registered bonds of the United States for twenty-four hundred dollars, belong to the estate of Mary A. Corson, deceased, and shall be so held and distributed by said defendant, JohnQ. McAtee, executor of Mary A. Corson, deceased; that the said defendant transfer to the executrix of Maria Corson, deceased, the said 8^ shares of stock of the Jefferson Fire Insurance Co., and all dividends thereon collected by him; and that two thirds of the costs of this suit be paid by the estate of Maria Corson, deceased, and one third by the estate of Mary A. Corson, deceased. The fees of the master are fixed at one hundred and seventy-five dollars.] ” [16]</p> <p>Errors assigned were (1-16) portions of opinion as above, and decree, quoting them.</p>

Appeal, No. 169, July T., 1892, by defendant, from judgment of C. P. Montgomery Co., Dec. T., 1891, No. 41, on verdict for plaintiff, Benjamin S. Frederick. Trespass for flooding land. Before Weand, J. The pleadings were not printed in the paper-books, and it did not appear what was the exact cause of action.

<p>Appeal, No. 312, Jan. T., 1892, by plaintiff, Charles J. Price, from judgment of C. P. Chester Co.. Aug, T., 1891, No. 100, on verdict for defendant, Jennie E. Price.</p> <p>Issue to determine domicile on appeal from probate of will.</p> <p>At the trial, before Hemphill, J., it appeared that Henry F. Price was a native of West Chester, Chester county, Pa. Shortly before reaching his majority he left West Chester and resided for several years in Philadelphia, where he was in business. Subsequently he engaged with the Laflin & Rand Powder Co., as bookkeeper, went to Brooklyn, and resided in that city for fifteen years until June 30, 1890. He then returned to West Chester, where he remained until Aug. 26,1890, when he died, leaving a will good in Pa. but not in N. Y.</p> <p>The further facts appear by the charge of the court, which was in part as follows :</p> <p>“ It becomes important for you to determine what was the purpose — -what the intent — of Mr. Price when he left the city of Brooklyn; and was that intention consummated by his subsequent acts ? Now, all the testimony that has been offered as to what occurred previous to his departure from Brooklyn is for the purpose of showing you what his intentions were, and that they were carried out, or were not carried out by his subsequent actions; because his mere intention would avail nothing unless consummated by subsequent acts. It appears from the testimony that he contemplated at one time going to West Chester to live; at another time residing in Phoenix ville; at another time Birchrunville ; and at another time in Philadelphia. It is in evidence that his intentions at one time were merely to come to West Chester, not for the purpose of making it his residence, but on account of his illness, and because he could get better nursing or better care here, and with a view of returning to his residence in the city of Brooklyn. Now you will call to mind the testimony produced. There can be no doubt that, some time in May, he determined to quit his business in New York; his health would not permit of the sedentary life he was then leading. There can be no question about that; it is not a disputed question in this case; and with that in view he first spoke to the president and told him of his intention of resigning about June 1, 1890 ; that he followed that up by his actual resignation; that he subsequently packed up all his pictures (or all except one, I believe), and his books, and stored them in the basement of the building in which he had been employed ; that he had his trunks packed and ready for removal; that on the 5th of June his condition became such that, under the advice of his physician, he was removed to the hospital, to the homoeopathic hospital in Brooklyn. He remained there until brought to West Chester, which was on the 30th of June. Before leaving, he gave up his room in the boarding house, in the city of Brooklyn; brought with him to West Chester the two trunks that he had left there, or had had conveyed to the hospital with him, I am not certain which, and paid his board bill.</p> <p>“Now the plaintiffs, upon whom the burden rests to satisfy you that there was a change of residence from the city of Brooklyn to West Chester, first offer these facts, which are uncontroverted, and ask you to infer from them that he thus acted, thus severed all his business relations, and his boardinghouse relations in New York, because he then contemplated coming to the borough of West Chester to make it his residence -and to leave his residence in the city of Brooklyn. He came here in company with Dr. Vietor, a physician who had been attending him before he went to the hospital, and went to his sisters’ home. What was his purpose in coming? You have learned of his various declarations and of his various intentions, and it is for you to weigh one with the other. Letters have been read to you from him to his daughter, to his brother, to his farmer, and to the senator in New York, from whom he purchased this patent irrigation, and several others whom I do not now recall, for the purpose of showing you, preceding his coming here, what his intentions were, and those after he had come, to show you that he had either consummated them or to satisfy you that he was only here temporarily, and intended, as soon as his health was restored, to go back.</p> <p>“ Now, gentlemen of the jury, if he came here solely for the purpose of recuperation, if he had no intention of remaining here longer than necessary to recover his health or to gain strength, then I say to you he had not acquired a residence here. A man may go abroad for years seeking health, seeking amusement, or on business, and never lose his residence, if he lias what the law terms the animum revertendi, the intention of returning. The plaintiffs have produced evidence as to the declarations he made, with a view of satisfying you that he came here, not merely to remain until his health was restored, or on a visit to his sisters, but for the purpose of making it his permanent home. They have shown you that he purchased a property in April with a view of making a change in his business — that property was located near Birchrunville — and that he had said he would spend his time in Phoenixville, Philadelphia and West Chester. They have attempted to satisfy you by the testimony of his sister, who waited on him after he came here, and by the testimony of his brother, that he had no intention of returning to New York, unless it was, as he said, to visit bis friends. You will bear in mind, that these sisters and this brother are interested parties, and in weighing their testimony you will consider how far that interest, that pecuniary interest which they have here, is likely to influence or affect them in giving their testimony. In addition to the testimony of these witnesses, you have also the declarations of Mr. Price, the decedent, which you have heard commented upon by both sides. Both consider his declarations as favorable to their respective sides. You will say what your judgment is. Letters written after his arrival here have also been offered, and in addition to these his verbal declarations by the one side or the other; there was also produced a will, as it is called, a letter of direction, a paper of a testamentary character, written to his brother to take effect after his death, and you are asked — from the fact that in it he crossed out his late residence, in which he said “I reside at 193 Livingstone street, New York” — to deduce from that that it was his intention therebjr to give up his residence there. In fact, to say: ‘ It is no longer my residence, West Chester is to be my residence — I have changed my residence.’ And as further evidence of his intention they have produced a draft here of his contemplated improvements to the house of his sisters — the old homestead, as it is called. It is in testimony also that the draft was made by himself — that it was his intention and purpose to have built two rooms in the rear of his old homestead — the one below to be a summer kitchen, and the upper one a room for himself, which was to be fitted up for his own uses and purposes. They ask you to say from that that he intended to make that place his permanent home and that he had ceased to be a resident of Brooklyn. Now, gentlemen of the jury, as I said to you at the outset, I do not propose to review this testimony; it has been carefully and laboriously gone over by counsel for both sides. I have, so far as I can recall the salient points, hastily gone over them, as they have presented themselves to my mind. There may be others which I have overlooked, which I do not remember, but [it is the duty of the jury to recollect all the evidence, to pass upon the credibility of the witnesses, and then, after considering all the evidence, say whether or not Mr. Price had changed his residence, prior to his death, from the city of Brooklyn to the borough of West Chester. He did not change it to any other place. You cannot go astray on that point, for he never went any other place, no matter what his intention may have been. His intention may have been to go to Birehrunville or Philadelphia, but an intention not carried out, not consummated by actual removal, amounts to nothing. It does not change his residence. His residence would remain where it was previous to any such thought or the existence of any such intention. But if he came here from Brooklyn, if he severed all his business relations and connections and came here to make this his residence, or if after he came here, perhaps not coming with the intention of remaining permanently, but temporarily, he changed his mind and then not only intended to but actually made this his residence by remaining here, then he changed his residence; otherwise, gentlemen, if his residence was not changed to West Chester, it still remained in Brooklyn.] [8] [If the plaintiff has satisfied you that he changed his residence in the way in which I have described to you, that the law requires it shall be changed, — then your verdict will be lor the plaintiffs. If the plaintiffs have failed to satisfy you that he changed his residence, or if you are convinced from the evidence that he did not change it, then your verdict will be for the defendant.”] [9]</p> <p>Defendant’s points were as follows :</p> <p>“ 1. Henry F. Price having been a resident of the city of Brooklyn, in the state of New York, for more than fifteen years prior to June 80, 1890, the burden of proof is on the plaintiff in this cause to satisfy the jury that, at the time of his death, to wit, August 26, 1890, his legal residence was other than in the city of Brooklyn aforesaid.” Affirmed. [1]</p> <p>“ 2. The plaintiff having alleged that the legal residence of Henry F. Price, at the time of his decease, was in West Chester, said plaintiff must satisfy the jury of this fact, otherwise the verdict must he for the defendant.” Affirmed. [2]</p> <p>“ 8. If the jury find that the legal residence of Henry F. Price, at the time of his decease, was anywhere else than in the borough of West Chester, Penna., the verdict must be for the-defendant.” Affirmed. [3]</p> <p>“5. If the jury are unable to find where the legal residence of Henry F. Price certainly was, at the time of his decease, the law presumes that said residence was at his last well-known place of residence, to wit, in the city of Brooklyn, and therefore the verdict must be for the defendant.” Affirmed. [4]</p> <p>“ 6. In order for the jury to find that the residence of Henry F. Price, at the time of his death, was at West Chester, they must be satisfied that he not only lived here in point of fact, but that it was his intention to make West Chester his home.” Affirmed. [5]</p> <p>“ 9. If the jury should conclude that Henry F. Price abandoned his residence in Brooklyn, with the intention of residing in West Chester, at Birchrunville, or in Philadelphia, but died before consummating that intention, Brooklyn still continues to be his legal place of residence, and the verdict must be for the defendant. Answer: That I affirm, for I have already said to you, gentlemen, that his last residence continues to be his residence until he acquires a new one.” [6]</p> <p>“ 10. If the jury conclude’that Henry F. Price left Brooklyn and came temporarily to West Chester, by reason of his illness, with the intention of residing on his farm, at or near Birchrunville, the verdict must be for the defendant. Answer: That point is also affirmed. An intention to remain temporarily does not constitute residence. It must be to make that a permanent place of abode.” [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-9) instructions, quoting them.</p>

<p>Appeal, No. 176, July T., 1892, by H. James Bramberry, from decree of O. C. Chester Co., distributing estate of Rachel A. Bramberry, deceased.</p> <p>Exceptions to auditor’s report on exceptions to administrator’s account, and on distribution.</p> <p>The account filed by appellant, husband of decedent, was referred to William T. Fulton, Esq., as auditor, who found the facts as stated in the opinion of the Supreme Court. The auditor surcharged accountant with one half of a mortgage given jointly to himself and his wife, the decedent, and distributad the same to her heirs. Exceptions to the auditor’s report by accountant were dismissed by the court, Waddell, P. J.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

<p>Appeal, No. 184, Jan. T., 1893, by Elizabeth Jackson, legatee, from decree of O. C. Chester Co., dismissing exceptions to adjudication in estate of Richard B. Baily, deceased.</p> <p>Exceptions to report of auditor on exceptions and distribution, in decedent’s estate. Before Hemphill, J.</p> <p>From the report of the auditor, H. H. Gilkyson, Esq., it appeared that Richard B. Baily gave by his will $4,000, to Francis Worth. At the time of his death, testator and Francis Worth were sureties upon the bond of Ebenozer Worth, guardian of Jesse Anna Phipps et al. After the will was probated Francis Worth offered to sell his legacy to J. Mitchell Baker. Baker called upon one of the executors, and was told that the legacy was all right, and that Worth was entitled to it. Baker then took an assignment of the legacy, paying for it its full value, less collateral inheritance tax and interest. Subsequently Ebenozer Worth, guardian, filed his account, showing a balance of $3,592.16 due his wards. The guardian was unable to pay the balance. Cloud Pyle was substituted guardian in Worth’s place, and to him Baily’s executors paid the whole amount. The auditor awarded the whole amount of the legacy less collateral tax to J. Mitchell Baker, refusing to deduct one half of the loss caused by Ebenozer Worth’s default. The auditor reported in part as follows :</p> <p>Francis Worth is entitled to a legacy of four thousand dollars under the will of Mr. Baily. This legacy he sold and assigned to J. Mitchell Baker, on October 3, 1890, and upon the same day the executors accepted notice of the assignment. On the 13th of October, 1890, Mr. Baker secured a bond of indemnity from Francis Worth, with Samuel P. Webb as surety, on which they covenant to pay and make up any deficiency, to Mr. Baker, which may exist or arise with said legacy by reason of any deduction or diminution in the hands of the executors.</p> <p>“ On March 25,1891, the executors paid to Cloud Pyle, guardian of Jesse Anna Phipps, the sum of $3,681.96, being the amount due upon a bond given by Ebenezer Worth, a former guardian, and upon which Richard B. Baily and Francis Worth were co-sureties, and jointly and severally both. The executors claim the right to set off the one half due on said bond by Francis Worth against his legacy of four thousand dollars in their hands, and J. Mitchell Baker claims the legacy by virtue of his assignment.</p> <p>“ The right of the executors to the set-off claimed must depend upon the proper application of the principles relating to contribution, and the time when that contribution can be enforced.</p> <p>“ ‘ The right of contribution arises between sureties when one has been called upon to make good the principal’s default, and has paid more than his share of the entire liability, and the right does not arise until that surety has paid more than his share of the dept: ’ Adams’ Equity, * 269; Wood v. Leland, 1 Mete. (Mass.) 387; Bispham’s Equity, §§ 528-330 : 1 L. C. Eq., part 1, (text book series,) *120.</p> <p>“ Payment must have been compulsory; that is, one which the surety could not resist: 4 A. & E. Ene. L., page 5, note.</p> <p>“ Payment in the case was made by the executors to Cloud Pyle on March 25,1891, and in that payment was included the one half due by Francis Worth upon the bond. The right of contribution, therefore, arose at that time, and the set-off was complete against Francis Worth’s claim for his legacy. If tliis were a claim by Worth himself, or by his creditors, this set-off would be effectual, for the creditors of Worth would be in no better situation than Worth himself. But can the interest of a prior bona fide purchaser for value, without knowledge or notice of this set-off, be affected by it ? It seems clear to the auditor that it cannot.</p> <p>“ It is a fact not seriously controverted, and the auditor so finds, that Baker was a bona fide purchaser for value of this legacy prior to March 25,1891, and without notice of any claim for defalcation or set-off. Everything in the testimony points to an honest and fair assignment of the legacy to an innocent party for value. Whatever Francis Worth may have known, or feared, or suspected in regard to his right to claim this legacy as against his contingent liability on the guardian’s bond, there is no evidence that he communicated these fears or suspicions to Mr. Baker, or gave the latter cause to doubt the merit of his claim. It is true Mr. Worth testifies that, at the time of the execution of the assignment, Mr. Baker knew that he (Worth) was a co-surety with Richard Baily upon the bond of Ebenezer Worth. This is denied bjr Mr. Baker, but whether true or false, such knowledge was not sufficient to putMr. Baker upon guard or inquiry, particularly in the light of the subsequent acts and silence of. the executors themselves. The mere fact that Baker knew of the existence of the bond, if true, could not raise a presumption against the bona fides of the assignment to him, because it was not the bond, but the payment of more than their share by the executors that created the right of set-off against Worth.</p> <p>“Worth’s title in the legacy was complete and perfect at the time of the assignment. He had an absolute, indefeasible interest, capable of assignment, and liable for seizure for his debts. Whatever rights Worth and the executors had in this legacy were fixed and determined by the assignment of the legacy to Baker and notice thereof to the executors. Baker’s interest in the legacy is exactly that of the legatee himself, as it stood affected by countervailing equities at the time of the assignment. He took it subject to every defence that would be valid between the original parties, but to no defence that was not valid and subsisting at the time the executors received notice of the assignment. It would be most inequitable and unjust to permit the executors to make any defence against the assignee, which, at the time of the assignment of the legacy or notice of it, they could not have made against Worth himself.</p> <p>“ Another fact not to be lost sight of in adjusting the rights of these parties is that no negligence nor default appears in the conduct of Baker. He took every precaution to inform himself of the real situation by the original parties, and their relations to each other. His course was that of a prudent, cautious man, desirous of ascertaining all the facts relating to the legacy, and of protecting himself from all loss. Before he paid the money on the assignment he called upon Mr. McFarland, the executor, who was in a position to have the best information upon matters pertaining to the estate, and was told by that gentleman ‘ it (the legacy) was all right, if he had the money he would buy it himself.’ All three of the executors signed an acceptance of notice of the assignment before Baker paid the money, and no intimation was given by any of them that the full amount of the legacy was not due from the estate of Worth ; in fact, those of the executors who knew of the guardians’ bond did not believe that Worth’s liability thereon could be set off against his legacy, and acted upon that presumption. Advice of counsel, if asked, might or might not have changed their views, but as the advice was not asked these views remain firmly fixed. No warning reached Mr. Baker from them that Worth was co-surety upon a bond with Richard B. Baily, that that bond would eventually have to be paid by the estate, and that when paid the executors would claim to set off the one half thereof against Francis Worth’s legacy. This silence on the subject, whether proceeding from ignorance of the fact, or mistake as to their. legal rights, would effectually bar them from setting up that defence after the assignee had parted with his money on the faith of that silence.</p> <p>“ The silence of two of the executors and the language of one was in effect a declaration to Baker of no set-off and they are estopped from setting up any defence which existed at the date of such declaration. Baker had a right to rely upon the statement of one of the executors that ‘ the legacy was all right,’ and upon the silence of all of them as to any defalcation or defence. If he was misled thereby in purchasing this legacy; if he took it upon the faith of these representations and loss occurs, it must fall upon those whose acts occasioned the loss, for it is a well established principle that where a loss must fall upon one of two innocent persons it shall be borne by him whose act occasioned it.</p> <p>“ Mr. Baker, therefore, being a bona fide purchaser for value, prior to the right of contribution, and without notice of any defalcation or defence upon the part of the executors, is entitled to take the legacy by virtue of his assignment and it will be awarded to him in the distribution.”</p> <p>Exceptions were filed by Elizabeth Jackson, a residuary legatee, as follows:</p> <p>The auditor erred in allowing the payment to Cloud Pyle, guardian, as a proper credit. [1]</p> <p>The auditor erred in awarding to J. Mitchell Baker, assignee of Francis Worth, the full amount of the legacy bequeathed to Francis Worth. [2] ,</p> <p>The auditor erred in awarding any sum whatever to J. Mitchell Baker, assignee of Francis Worth. [3]</p> <p>The auditor, having awarded J. Mitchell Baker, assignee of Francis Worth, $3,914, should have surcharged the executors with that amount, having found as a fact that “ Baker had a right to rely upon the statement of one of the executors that the legacy was all right, and upon the silence of all of them as to any defalcation or defence.” [4]</p> <p>Exceptions dismissed. Exceptant thereupon appealed.</p> <p>Errors assigned were (1-4) dismissal of exceptions, quoting them; (5) in not reducing the sum awarded to Baker, assignee of Francis Worth, to the extent of $1,368.32; (6) in not treating the claim made by Baker, as the claim of Francis Worth, in view of the indemnifying bond held by Baker, together with all the facts of the transaction.</p>

<p>Bridges — County commissioners — Discretion.</p> <p>County commissioners cannot be controlled by a private citizen in the exercise of their discretion in building a county bridge, either as to the size of the bridge, its plan, or the location of its piers and abutments: Delaware County’s Ap., 119 Pa. 159.</p> <p>Injury to water power of mill — Evidence.</p> <p>In an action by a mill owner against a county to recover damages for an injury to his water power caused by the construction of a county bridge, it is not improper to ask a witness whether the bridge was located in the best practical way to pass the waters in time of flood, where the general scope of the testimony of the witness was that in time of freshets the abutment of the bridge seriously obstructed the ventage of the water, and thus interfered with plaintiff’s water rights.</p> <p>In such a case it is not improper for the court to charge that if, under the circumstances, a larger span would have obviated the damming up and flooding, plaintiffs were entitled to recover for the injuries sustained.</p> <p>Notice of character of bridge■ — Estoppel.</p> <p>Plaintiffs were not estopped by the fact that before the erection of the bridge they were informed by the commissioners of its character and manner of erection, and permitted the commissioners to commence and complete the bridge without objection.</p> <p>Contributory negligence — Erection of milldam.</p> <p>Where the milldam and other structures injured by the construction of the bridge were all erected prior to the construction of the bridge, the general rule as to contributory negligence cannot be invoked by the county to defeat a recovery.</p>