Volume 158 — Pennsylvania State Reports

<p>Appeal, No. 408, Jan. T., 1893, by-Edward B. Watts, executor of Frederick Watts, deceased, from decree of O. C. Cumberland Co., sustaining exceptions to adjudication.</p> <p>Adjudication of executor’s account.</p> <p>The auditor, E. M. Biddle, Jr., Esq., reported as follows:</p> <p>“ In August, 1871, Mrs. Susan Gilmore, by her next friend, filed three petitions in the orphans’ court praying for a citation against John C. Gilmore, as administrator respectively of Mary Cronon, Ellen Shea and Margaret Woods, deceased, commanding him to settle an account in each estate, or to show cause, etc., alleging inter alia that she was a sister and next of kin to the three decedents ; that he had received money in each estate for which he had never accounted and to part of which she was entitled, and that Frederick Watts and Peter Spahr were the sureties on his bond as administrator in each estate. The citations prayed for were issued Aug. 28, 1871. On Oct. 28, 1871, John C. Gilmore filed an answer admitting that he was administrator in said three estates, and that he had never set tied accounts therein, averring that although money had been collected in each estate it had been received and retained by Frederick Watts, and that no part of it had ever come into his own hands. On Nov. 21, 1871, a general replication to this answer was filed by Mrs. Gilmore’s attorney, and on Dee. 12, 1871, A. B. Sharpe, Esq., was appointed auditor in the several proceedings ‘ to hear the evidence and report the facts with his opinion.’</p> <p>“ In tlie hearings before the auditor, Mr. Sharpe, evidence was offered on behalf of Mrs. Gilmore to show the amount in said three estates received by Judge Watts in 1859, and retained by him on account of the unpaid purchase money of a house and lot purchased by her in 1848, and that said amount, in addition to payments made by her and credits claimed by her, was largely in excess of said unpaid purchase money, and that therefore there was in his hands a balance due her.</p> <p>“Judge Watts testified that he had received in 1859 Mrs. Gilmore’s share of her sisters’ estates, and had appropriated it, with her knowledge, to the unpaid purchase money of the house bought by her in 1848. That the amount so received, together with the payments made by her was about $160 less than said unpaid purchase money, and that he had forgiven her the balance in consideration of her poverty.</p> <p>“ The auditor, Mr. Sharpe, in his report finds that the administration bonds of John C. Gilmore were signed by only one surety, Frederick Watts; that Judge Watts should be charged with $113, with interest from 1853 (being two years’ wages of her son, which amount Judge Watts should have credited on the purchase money of her house) ; that the amount received from the estates of Ellen Shea, Mary Cronon and Margaret Woods, while less than claimed by Mrs. Gilmore, was in' excess of the sum which Judge Watts admitted he had received; and that on Sept. 5, 1863, the date on which Mrs. Gilmore stated she had made a final payment of $300 to Judge Watts, he had received from Mrs. Gilmore (including inter alia in this calculation the amount received from the three estates, the son’s wages and the payment of $300 on said date) $330.10 in excess of the unpaid balance of the purchase money of the house and lot purchased in 1848. The auditor found, in conclusion, that this $330.10 amounted, with interest to March 5, 1874, to $538, and that after deducting the costs of audit there was in Judge Watts’s hands, payable to Mrs. Gilmore, the sum of $450.</p> <p>“ To this report exceptions were filed by W. J. Shearer, Esq., on behalf of Mrs. Gilmore, because the costs of audit were charged against the sum found in Judge Watts’s hands ; and by John Hays, Esq., ‘on behalf of exceptant,’ because the sum of $538 was found in Judge Watts’s hands. The report and exceptions were submitted to the court without argument, and the report was confirmed by the court without opinion filed. It is on the finding of the auditor, Mr. Sharpe, and the decree of the court thereon, that the claim of Mrs. Gilmore’s executors is based.</p> <p>“ The administration bonds of John G. Gilmore being signed by only one surety are ipso facto v.oid (4 "Rawle, 382, 31 Pa. 522), and no liability on the part of Judge Watts’s estate can be created thereby.</p> <p>“ The questions for the present auditor to decide are: are the former auditor’s report and the decree of the court thereon admissible in evidence to show a liability on the part of Judge Watts’s estate, and if admissible are they conclusive as to such liability? Your auditor thinks that both questions should be answered in the negative.</p> <p>“The proceedings before Mr. Sharpe were against John C. Gilmore as administrator of various estates, and it is not open to question that Judge Watts could have remained a stranger to them throughout had he so desired. ‘ It is entirely clear that a judge has no power to rule a stranger into court and compel him to answer: ’ Martin v. Gernandt, 19 Pa. 129. It is urged by the counsel for Mrs. Gilmore’s executors, however, that Judge Watts voluntarily became a party to the proceedings and so is bound by the decree; he having appeared before the auditor personally and by counsel, and having excepted to the finding of the auditor. The evidence of Judge Watts’s intention in this regard seems to your auditor very unsatisfactory. Mr. Sharpe in his report nowhere speaks of Judge Watts as a party to the proceedings. He is mentioned merely as a witness called on behalf of the respondent (John C. Gilmore). * There is nothing to show that Judge Watts was ever personally present at any of the hearings before the auditor. His evidence is in the form of a deposition apparently signed Aug. 12, 1878, and sworn to before Mr. Sharpe, Oct. 14, 1873. As to his representation by counsel, the auditor states that notice of the time and place of the first meeting was given to ‘ R. M. Henderson, the counsel for Hon. F. Watts; ’ but it does not appear that Mr. Henderson attended that or any subsequent meeting. An exception to the auditor’s report was presented by John Hays, Esq., ‘ attorney for exceptant,’ and W. J. Shearer, Esq., attorney for Mrs. Gilmore, swears that Mr. Hays was concerned for Judge Watts. Mr. Hays, however, says that he has no recollection of ever appearing before the auditor.</p> <p>“ Under the term parties (says Mr. Greenleaf, in his Law of Evidence, § 524), ‘ the law includes all who were directly interested in the subject-matter, and had a right to make defence or to control the proceedings, and to appeal from the judgment. The right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause.’ Under this definition the position of Judge Watts seems to your auditor that of one who considered himself a stranger rather than a party to the proceedings before Mr. Sharpe.</p> <p>“ Had it been Judge Watts’s intention, however, to become a party to the proceeding before Mr. Sharpe, it was not in his power to do so, or in that of the auditor to admit him as such. The action was against John C. Gilmore to compel him to settle accounts in the three estates in which he was administrator, and in that Judge Watts had no direct interest whatever. The finding of the auditor that Judge Watts had received from Mrs. Gilmore a sum in excess of the purchase money of the house she bought in 1848 was, if correct, a decision on a point foreign to the question at issue, and one over which he had no jurisdiction. His report shows that the sum found in Judge Watts's hands is made up, not of the money received from the estates of Ellen Shea et al., in 1859; but of a credit of $113 in 1852 which Judge Watts had not allowed, and of $300 which Mrs. Gilmore paid to him in September, 1863. To give effect to the auditor’s finding now would be to declare the orphans’ court the forum for the settlement of accounts between parties in full life and acting in their individual capacities.</p> <p>“ In Kille v. Ege, 82 Pa. 102, the Supreme Court says: ‘ It is well settled that the estoppel of a judgment extends only to the question directly involved in the issue and not to any incidental or collateral matter, though it may have arisen or been passed upon.’ Lewis & Nelson’s Appeal, 67 Pa. 153, is to the same effect.</p> <p>“ In Martin v. Gernandt, supra, Justice Gibson, approving and commenting on Fitzaldin v. Lee, 2 Dall. 205, says: ‘ Parties contesting the right to possession of land agreed to try the matter in a summary way in the common pleas, and to that end gave the proceeding the form of a plaint under the landlord and tenant act; but the judgment was reversed on error. Being coram non judice, because the common pleas has only appellate and restricted jurisdiction of such a case, it required no reversal ; but the decision shows that it is not every informal submission of a fact to a court and jury which precludes subsequent inquiry into the truth of it.’ ”</p> <p>The auditor therefore rejected the claim. Exceptions to the report, alleging that the auditor erred in not holding that F. Watts was a party and in disallowing the claim, were sustained by the court in the following opinion by Sadler, P. J.:</p> <p>“To John C. Gilmore, on the 25th of August, 1856, were granted letters of administration upon the estates of Mary Cronon, Ellen Shea and Margaret Woods, by the register of this (Cumberland) county. Upon his bond there was but one surety, the Hon. Frederick Watts. The estates of said decedents consisted solely of moneys which had been bequeathed to them by their deceased father, Henry Woods, late of Dauphin county, and which were still in the hands of the executor of the latter.</p> <p>“ Judge Watts acted as attorney for Mr. Gilmore, the administrator, and as such, through James McCormick, of Harrisburg, collected the moneys owing to estates of the said Mary Cronon, Ellen Shea and Margaret Woods. This was in the year 1859. Fifteen years having elapsed after the taking out of letters of administration by Gilmore, a citation was, on the 28th day of August, 1871, awarded, upon the petition of Susan Gilmore, a sister of the decedents, and interested in their estate as next of kin, commanding him to exhibit an account of her trust.</p> <p>“The administrator made answer that the ‘estates had in part been recovered by adverse proceedings in Dauphin county, but that the same had been received by Hon. F. Watts, and no portion had been paid by the latter to him.’ After replication to this answer, to wit, on Dec. 12,1871, A. B. Sharpe, Esq., was appointed auditor in the several proceedings, ‘ to hear the evidence and report the facts with his opinion.’</p> <p>“ According to his report he ‘ fixed a day to meet the parties, and of the time and place of meeting gave notice to Wm. Pen-rose, counsel for the petitioner, aud to R. M. Henderson, as counsel of Hon. F. Watts.’</p> <p>“ A number of depositions were made before the auditor, including that of Judge Watts. The latter, as appears by his said deposition, received the money belonging to the estates of which John G. Gilmore was the administrator, his recollection differing, however, somewhat as to the amount received, from what appeared by other evidence before the auditor. He stated that while the fund had not been paid over to Gilmore it was because in the year 1848 he had sold a house and lot to him (Gilmore) for $900 — of which the, latter paid $200 in cash and gave for the remainder of the purchase money seven bonds of one hundred dollars each, payable annually, and that on the 2d day of May, 1848, he, ‘ Gilmore, transferred their interest in Henry Woods’s estate as collateral security for said bonds.’</p> <p>“ He made the deed ‘ to Susan Gilmore, wife of the said John G. Gilmore, because her interest in her father’s estate had paid most of the purchase money.’ He further stated that ‘ when her interest in her father’s estate was appropriated there was still a balance of the purchase money d ue of about $160.’</p> <p>“ The auditor, however, found that there had been payments made by Mrs. Gilmore in cash and otherwise greater in amount than Judge Watts had a recollection of, and that, conceding .his right to appropriate out of the money which he had received as attorney for the administrator sufficient to pay the balance due on the purchase money in his hands, there still remained a considerable portion of the trust funds. This amount, after making an allowance to Mr. Watts of $87.95,.or ten per cent on the amount he had received from McCormick, and also de: ducting $25.00 for possible costs of administration, the auditor fixed at $330.10, which, with interest to 5th of March, 1874, time of making his report, aggregated $538.</p> <p>“ From this the auditor deducted the costs of the proceedings in the citation and those of the audit, making the amount payable to Mrs. Gilmore $450. This report was filed 23d March, 1874, and confirmed nisi.</p> <p>“ On the 30th of the same month, on behalf of Mrs. Gilmore, the report was excepted to ‘ because the auditor had appropriated any part of the money to the payment of the house; because he had deducted from the fund the expenses of the proceedings, including the auditor’s fee, and because the auditor had not found and reported in the hands of Judge Watts the whole amount received by him from Mr. McCormick, with interest from its receipt as due and payable by Mr. Watts to him, Gilmore.’</p> <p>“An exception had also been filed on the 25th day of the same month, stating ‘ that the auditor erred in finding and reporting the sum of $538 in the hands of Hon. F. Watts.’ This was signed ‘ Henderson & Hays, attorneys for exceptant.’</p> <p>“ Subsequently the following entry appears on the back of the report: ‘And now, to wit, 8th May, 1875, this report of auditor having been submitted by consent on the exceptions, without argument, and the same having been duly considered by the court the exceptions are overruled and the report confirmed. By the Court.’</p> <p>“Frederick Watts died on the 17th day of August, 1889. An auditor was appointed to distribute the balance in the hands of the executor. The executors of Mrs. Gilmore, now deceased, presented a claim for the amount found to be due her by the report of Mr. Sharpe.</p> <p>“ In support of the claim were offered the administration Dond signed by himself and Frederick Watts, and the report of A. B. Sharpe, Esq., and testimony to show that Judge Watts was represented before the auditor by counsel, and that exceptions had been filed in his behalf. The deposition of Mr. Watts and the decree of the orphans’ court confirming the report of the auditor were also relied upon to fix the liability of him, Judge Watts.</p> <p>“The auditor found that Judge Watts was not a party to the proceedings before the auditor, and that even had it been his intention to do so, ‘ it was not in his power to become a party or in that of the auditor to admit him as such.’</p> <p>“ He concluded that the decree of- the orphans’ court that F. Watts had $450 in his hands payable to Mrs. Gilmore as next of kin of her sisters was not conclusive upon him as to such liability, nor even admissible in evidence for that purpose. In his opinion the matter was not within the jurisdiction of the orphans’ court.</p> <p>“ Had the orphans’court jurisdiction? That ‘the orphans’ court has exclusive authority to ascertain the amount of a decedent’s property and order its distribution among those entitled to it,’ has long since been accepted as well settled.</p> <p>“ Indeed the value of an estate must be determined in that court before an heir or distributee can compel the payment of the share to which he is entitled. Mrs. Gilmore therefore proceeded properly in applying to the orphans’ court to compel the administrator of Mary Cronon, Ellen Shea and Margaret Woods to exhibit an account of his trust.</p> <p>“ Now, what relation did Frederick Watts bear to the trust? He signed the administrator’s bond of J. C. Gilmore. All the assets of three estates came into his hands. The administrator in his answer to the citation so avers. This was admitted by Judge Watts in the deposition made before the auditor. He stood before the auditor as a surety of the administrator and as one having received the entire trust fund.</p> <p>“ In Brooke’s Appeal, 102 Pa. 150, it was held that the orphans’ court might properly award a citation upon the surety of a guardian, who had the property of minor children in his possession, under an arrangement with the guardian, to surrender the same or its proceeds and to make an order and decree that the same be done. In this it was the guardian who instituted the proceedings and not the cestui que trust.</p> <p>“ It was held in Appeal of Odd Fellows’ Saving Bank, 123 Pa., 356, that it was proper to apply to the orphans’ court to compel the executors of an estate to commence proper legal proceedings for the recovery of certain shares of stock which had been improperly assigned by one of the executors to a savings bank, and that the court could compel the bank to restore the stock.</p> <p>“ It was held that ‘ the court had jurisdiction over the property for the reason that it belonged to the estate of a decedent.’ That to grant the relief prayed for was a proper exercise of the chancery powers conferred upon the orphans’ court. Equitable jurisdiction having attached, it was sufficient to embrace every relief necessary for a full disposition of the case, and that there was, therefore, no need to call in the aid of a court of law. The bank having interfered willfully with the orphans’ court’s possession of the assets of the estate, in violation of the trust under which they were held, must make restoration. Jurisdiction of the person who happens to be in possession of trust property follows necessarily when the fact is established that he has become its custodian.</p> <p>“ But it was contended in the argument of this case that Hon. F. Watts had not been made party to the proceedings before the orphans’ court, nor had he, in fact, become a party. It is true that the citation was not directed to him. But did he not become a party ? It was not pretended before the auditor that Gilmore had received any portion of the estates into his hands. The whole question was, how much had been received by Mr. Watts, and how much was he entitled to apply to payment of the purchase money owing to him for the house bought in 1848. The auditor states that notice was given to B. M. Henderson, as counsel for him. Judge Watts made a deposition before the auditor setting forth that the money had been received by him and accounting for the disposition of it. A statement of his account with Mrs. Gilmore was submitted to the auditor. Surely he was cognizant of the fact that the question before the auditor was, how much, if any, of the trust funds were in his hands. There is nothing to indicate that he appeared merely as a witness for Gilmore. Nothing in the proceedings before the auditor to indicate that his right to inquire into the manner in which Judge Watts had disposed of the trust fund was objected to or even questioned. Exceptions were filed by Mr. Hays, signing thereto the firm name of Henderson & Hays, of which he was a member. It appears that during the period that the matter was pending before the auditor this firm was composed of E.. M. Henderson and himself, Mr. Hays. While Mr. Hays has no recollection of having been before the auditor, nor as to the person for whom the exception was filed except what appears from the paper, he is sure that he ‘ was not employed for Mr. Gilmore and could not have been employed against Judge Watts.’ The exception complains of the finding against Hon. F. Watts, and no one would have been interested in filing the same except Mr. Watts and Mr. Gilmore, the administrator. The latter would hardly complain of a finding that supported the averments in his answer. Besides, Mr. Shearer, who was attorney for Mrs. Gilmore after Mr. Penrose had ceased to act for her, is certain that Mr. Hays was concerned for Judge Watts.</p> <p>“Again, Judge Watts permitted the finding of the auditor and decree of the court to stand against him unappealed from for more than fourteen years. It is extremely improbable that he would have permitted this decree to remain unquestioned if he himself had not acquiesced in it, and this is especially so when it is remembered that he was a lawyer of exceptional ability and quick to realize the peril he would be put in unless he, in some manner, manifested his dissatisfaction with the action of the orphans’ court.</p> <p>“ It was suggested at the hearing before us on the exceptions to the auditor’s report that the matters charged against Mr. Watts by the auditor were not trust funds, but wages of her son and liabilities of other kinds incurred in dealing with her, Mrs. Gilmore. This view is not supported by the facts as they appear from the proceedings before the auditor. J. C. Gilmore became indebted in judgments by reason of the purchase of a house and lot in 1848. On May 2d of that year he assigned the interest of himself and wife in the estate of Henry Woods. As a matter of course this assignment did not bind Mrs. Gilmore, as the act of April 11,1848,.had already been approved, nor did it purport to be of her interests in the estates of Mary Cronon, Ellen Shea and Margaret Woods, over which the subsequent contention arose. But, conceding that the assignment was held with her assent, it was only as collateral for the payment of the bonds. If paid in full the right of Judge Watts to any portion of the estate of Henry Woods ceased. If paid in part he could, in no event, apply more of the trust estate which came into his hands than would be sufficient to pay the balance due him on the purchase money. Now, the orphans' court has jurisdiction over trust funds, and it has determined, and the decree has not been appealed from, that of these trust funds belonging to the estates of the three above named decedents, the sum of $830.10 was remaining in the hands of Judge Watts, which, with interest to March 5, 1874, amounted to $538.</p> <p>“ Our determination is, therefore, that the orphans’ court had jurisdiction. That Judge Watts became a party to the proceedings which terminated in the decree of May 8, 1875, and that as this was unappealed from it is conclusive, and that his estate is liable to pay the same. This is not an action on the bond given by the administrator to enforce payment by the surety, so that it is not necessary to determine what, under the circumstances of this case, the liability of Judge Watts would have been had a proceeding been instituted to recover upon it, the said bond.”</p> <p>Errors assigned were (1-4) in sustaining the exceptions, and in entering the decree, quoting them.</p>

Appeal, No. 1, Oct. T., 1892, by defendants, Francis M. Nall and Heater Null, from judgment of C. P. Westmoreland Co., Aug. T., 1886, No. 124, on verdict for plaintiff, Jesse Fries. Reargument; sci. fa. sur judgment in ejectment. The facts appear in 154 Pa. 573.

Appeal, No. 162, Oct. T., 1892, by plaintiffs, from judgment of C. P. Venango Co., Nov. T., 1888, No. 76, on verdict for defendants, H. G. Tinker and J. A. Ritchey. Trespass for conspiracy. At the trial, before Archbald, P. J., of the 45th judicial district, specially presiding, plaintiff offered in evidence a record of fourteen judgments all entered on Oct. 17, 1887, on judgment notes signed by H. G. Tinker in favor of J. A. Ritchey.

<p>Appeal, No. 36, Oct. T., 1893, by plaintiffs, J. L. Purvis et al., from order of C. P. Clarion Co., Nov. T., 1890, No. 91, making absolute rule to strike off mechanic’s lien.</p> <p>Buie to strike off mechanic’s lien on sci. fa.</p> <p>From the record it appeared that on May 4,1889, defendant contracted in writing with A. P. Karns & Co. “ to build and construct an addition ” to his house, “ and make repairs, etc., as designated in specifications hereto attached and made part hereof.” The specifications indicated repairs as well as addition to old building. Some disputes arose between the parties as to the deficiency of the work, and it was alleged by defendant that Karns & Co. never completed their contract, but have been paid in. full. On Jan. 15, 1890, plaintiffs filed their claim for $267.38 against defendant’s building, and issued a sci. fa. Defendant then moved to strike off the lien on the ground that no notice had been given as required by act of May 18, 1887, P. L. 118. The court made absolute the rule to strike off the lien, in an opinion by White, P. J., of the 40th judicial district, specially presiding.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 31, Oct. T., 1893, by the Commonwealth, from order of Q. S. Clarion Co., Nov. T., 1892, No. 18, quashing indictment.</p> <p>Indictment for swearing on public street.</p> <p>The material (3d) count of the indictment was as follows :</p> <p>“ The Grand Inquest of the Commonwealth of Pennsylvania aforesaid, upon their oath aforesaid, do further present that Holla Linn, late of said county, yeoman, Daniel Linn, late of said county, yeoman, being evil disposed persons, oh the day and year aforesaid and divers other times, as well before as since, at the county aforesaid and within the jurisdiction of this court, did, on the public streets and highways, profanely curse and swear and take the name of God in vain, to the evil example and to the common nuisance of the good citizens of the state of Pennsylvania and contrary to the form of the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”</p> <p>The defendants moved to quash the indictment for the following reasons: “ (1) The said count does not charge any of-fence or known crime against the law. (2) The facts charged in the third count of said indictment, in the manner and form charged, do not constitute any indictable crime against the laws of this commonwealth.”</p> <p>• The court, Clark, P. J., quashed the indictment.</p> <p>Error assigned was to order quashing indictment, quoting indictment, motion to quash and order.</p>

<p>Appeal, No. 59, Oct. T., 1893, by defendant, William Slater Pipes, from judgment of O. & T. Greene Co., Oct. T., 1891, No. 1, on verdict of guilty of manslaughter.</p> <p>Indictment for murder. Before Ewing, J.</p> <p>At the trial it appeared that about midnight on Aug. 22, 1891, defendant shot and killed Porter Huffman in South alley in the borough of,Waynesburg. Defendant testified in substance that on the night in question he saw from his bedroom window some person ride out of South alley toward his stable, from the direction of Morgan street, and in a very few moments after, he saw a flash of light in his stable, as if some person was striking matches there — that he hastily dressed himself, seized his revolver,-and went around his lot and the house of Elza Spragg, .up Whiskey alley, and through the cracks in the weatherboarding of his stable, saw a man inside the stable examining his harness by the light of matches which he was striking for the purpose. That he passed around the stable coming to the double door at the north side where he found the door open, and, as he stepped to the door the person inside the stable came to the door with a set of harness on his arm— that the man meeting defendant at the door, dropped the harness and struck defendant a blow with his fist in the face and after some scuffling, the man ran up South alley toward Morgan street and directly toward an electric light standing on Morgan street where it is intersected by South alley. That he pursued the man along the alley at a distance of some 60 or 65 feet, and that when the prisoner came to the mouth of a private alley he called twice to the man to halt, and that they were then twelve or fifteen feet apart. The man not halting he fired his revolver into the air to scare him. The man then turned upon defendant, made a grab at him with his left hand and tore his shirt and scratched his breast, and the prisoner, believing that his life was in danger, shot the man, as he alleged, in self defence. That immediately after shooting, the man fell and defendant went to him, found him lying on his face — that -he put his arms around his body under his arms, raised him up and carried him some ten feet back toward his stable, leaned him against the fence and immediately ran to the house of. a neighbor and gave the alarm.</p> <p>The commonwealth introduced evidence which tended to show ill feeling between defendant and deceased. There was also evidence tending to contradict some of the material statements of defendant in his account of the shooting.</p> <p>Defendant made the following offers :</p> <p>Defendant having testified that part of a set of harness belonging to him was stolen out of his stable in May, 1891, defendant offered to prove that said harness'was afterwards found in the possession of the deceased. Offered as corroborative of the evidence already in showing that deceased entered defendant’s stable on the night of Aug. 22,1891. Objected to for the reason that the same is incompetent and irrelevant. Objection sustained and exception. [1]</p> <p>Defendant having testified that part of a set of harness belonging to him, was stolen out of his stable in May, 1891, defendant offered to prove that said harness was afterwards in possession of deceased, that deceased traded the harness to another party for a sleigh, agreeing with said party to furnish the martingale and rings belonging to the set, on Sunday, Aug. 23,1891. Offered as corroborative of the evidence already introduced showing that deceased entered defendant’s stable on the night of Aug. 22, 1891, for the purpose of committing a larceny. Objected to as incompetent and irrelevant. Objection sustained and exception. [2]</p> <p>The court charged in part as follows:</p> <p>“ What the deceased was doing there, what the defendant was doing there, just what occurred between them on the ground before anybody else arrived is of vital inquiry for you. If you ascertain what the defendant was doing there, and what the deceased was doing there, you would doubtless have some light upon what subsequently followed as to determining exactly what happened between them when they did come to a conflict, you would be better able to ascertain under just what circumstances the shot was fired that occasioned the taking of Huffman’s life. . . .</p> <p>“ In ascertaining all these facts you necessarily must pass to a greater or less extent upon the credibility of the witnesses. It is your duty to try and reconcile the testimony, but when you cannot reconcile the testimony, it is your duty to determine which witness you will believe, that is your duty, and in determining the amount of credibility you give to every witness, you take into consideration anything that appears in his conduct on the stand, anything that appears in his conduct going to show any bias or feeling in the case, and all contradictions by other witnesses. When a witness has been successfully contradicted it would warrant you in discarding his testimonjr, at least so far as that contradiction goes, unless sustained by other testimony in the case or some other matters. Contradictions are introduced for the purpose of affecting the credibility of the witness, so you must take them into consideration in passing upon the testimony with regard to determining what the true state of facts may be.</p> <p>“ [The defendant is, of course, most deeply interested in your determination, and just so far as he fails in being substantiated and corroborated by other testimony in the case, or facts in the case, and that interest and feeling would bias him or prejudice him in giving his testimony, so far would you be warranted in discrediting that testimony. But notwithstanding the interest of any witnesses if they are corroborated by the testimony of other witnesses and other testimony in the case, then you cannot disregard it simply because of their feeling or interest in the case. It is only a matter for you to take into consideration in passing upon the amount of credibility you are to give the testimony of every witness.] ” [4] ....</p> <p>Verdict, guilty of manslaughter. Defendant was sentenced to pay six cents fine, and undergo an imprisonment of three years and three months. Defendant appealed.</p> <p>jErrors assigned were (1, 2) rulings on evidence ; (4) portion of charge in brackets, quoting bills of exception and instruction.</p>

Appeal, No. 30, Oct. T., 1893, by Della Karstorp, administratrix, from decree of O. C. Jefferson Co., Sept. T., 1890, No. 10, dismissing exceptions to auditor’s report on exceptions' to administratrix’s account in estate of H. L. Karstorp, deceased. Adjudication of administratrix’s account.

<p>Appeal, No. 180, Oct. T., 1892, by plaintiff, from judgment of C. P. Jefferson Co., Sept. T„.1885, No. 403, on verdict' for defendant.</p> <p>Assumpsit for goods sold and delivered. Pleas, non assumpsit and payment with leave, etc. [Cf. 130 Pa. 76.]</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, before Wilson, P. J., the court, under objection and exception, admitted evidence of the parol agreement referred to in the opinion of the Supreme Court. [1-4.]</p> <p>Plaintiff offered to show by S. W. Temple, a witness for defendant, on cross-examination, that when the school district was •negotiating with agents of other companies for the purchase of furniture, that it was a condition that whoever received the contract should indemnify the township against any action or .suit brought by plaintiff. Objected to, objection sustained and exception. [7, 8, 12-16.]</p> <p>The court, under objection and exception, admitted the evidence of various witnesses to the effect that the furniture delivered by plaintiff was .defective. [6, 6, 9, 10.]</p> <p>When T. F. Richard, a witness for defendant, was on the stand, he was asked: “ Q. State whether or not you would have voted for the resolution if those representations that you have testified to had not been made ? ” Plaintiff’s counsel object to the question as asking for a conclusion. Objection overruled, testimony admitted and exception. [11]</p> <p>The witness answered in the negative.</p> <p>The court, under objection and exception, admitted the telegrams quoted in the opinion of the Supreme Court. [17] Plaintiff’s points were among others as follows :</p> <p>“ 3. That if the jury find from the evidence that plaintiff has complied with his part of the contract in this case and that the defendant corporation elected to rescind the said written contract by setting up an alleged parol contemporaneous agreement giving them that right, and they acted on it, then they are bound by that election, and if they refused to receive the furniture and pay for it because of the alleged right to rescind, and before an actual bona fide inspection of the furniture, or an opportunity was had to judge of its quality or merits, then that was a waiver of all defences on account of the actual quality of the furniture, and unless the jury should find that the defendant has proven by clear, precise, and indubitable evidence that there was such a parol agreement, the plaintiff is entitled to recover in this action the contract price of the furniture.” Refused. [18]</p> <p>“4. That if the jury find from the evidence that the defendr ant corporation elected to rescind the contract and refused to receive the furniture before an actual bona fide inspection of it, or before an opportunity was had to judge of its quality or merits, then the defendant is estopped from setting up that the. furniture was not of the kind and quality called for in the contract.” Refused. [19]</p> <p>“ 5. That if the jury find from the evidence that there was no contemporaneous parol agreement made altering the written contract, and as the guaranty of the plaintiff, as therein contained, provides that the furniture shall be made of seasoned material and give good satisfaction, then if the jury further find that the defendant refused to receive and pay for the furniture as provided in the contract before they had any opportunity to examine it and ascertain whether it was of the kind and quality called for in the contract, then their rejection was prematurely made, and under the pleadings in this case the defendant cannot set up that the furniture was not of the kind and quality called for in the contract as a bar to this action.” Refused. [20],</p> <p>“ 7. That the evidence offered on the part of the defendant in this ease to set aside the written contract is not of that clear, precise, and indubitable character required to establish a com temporaneous parol agreement to set aside the written contract,.: and the written contract must be taken as the agreement of the. parties.” Refused. [21] ¡</p> <p>“ 8. Whereas the written contract in this case, dated July 25,. 1885, contains the following notice: ‘ This contract is to be the guide of purchasers, therefore make it plain to them and leave them a duplicate,’ and as this notice was strictly complied with, by the plaintiff’s agent, defendants are precluded from setting up any contemporaneous parol contract not contained or embraced in the written contract.” Refused. [22]</p> <p>Defendants’ points were as follows:</p> <p>“1. If the jury believe from the evidence that plaintiff’s: agent, H. M. Sweet, at the time of making the contract for the furniture, as an inducement to obtain the contract referred the defendant to furniture in the Du Bois and Coder school houses, or either of them, as specimens of the manufacture of the firm he represented, and agreed, if upon examination of the furniture th.ere found it was unsatisfactory, they need not accept the furniture ordered, and if the contract was executed by the defendant on the faith of such verbal agreement, and the defendant promptly made the examinations and found the furniture unsatisfactory and notified the plaintiff within a reasonable time thereafter not to ship it, they were not bound to receive it, and if the jury so find, their verdict should be for the defendant.” Affirmed. [23]</p> <p>“ 2. If Sweet, the plaintiff’s agent, made false and fraudulent representations of a material character to obtain the contract, by which the defendants were induced to make the contract, and as soon as defendants found such representations to be false, they annulled the contract and so notified the plaintiff within a reasonable time, they • were released, and if the jury so find, their verdict should be for the defendant.” Affirmed. [24]</p> <p>“ 3. If the jury believe from the evidence that, as an inducement to obtain the contract in suit, the plaintiff’s agent, Sweet, exhibited a sample desk to the school board and agreed that if the furniture to be shipped in pursuance of said contract should not be as good in all respects as the said sample, the defendant need not accept the same, and the contract was entered into on the faith of such representations and agreement, such verbal agreement would be binding on the plaintiff, and if the furniture shipped was not as good in all respects as the said sample, and the defendant refused to accept or pay for the same, and the plaintiff had notice of such refusal, their verdict should be for-the defendant.” Affirmed. [25]</p> <p>“ 4. If the furniture delivered at Brockwayville was not substantially up to the guaranty contained in the’ contract, the verdict of the jury should be for the defendant.” Affirmed. [26]</p> <p>“ 5. If the jury find from the evidence that only part of the furniture shipped was in accordance with the contract and that the rest was inferior, the defendant was not bound to accept any of it.” Affirmed. [27]</p> <p>“ 6. That if before any goods were shipped or set apart for the'defendant, the defendant countermanded the order, and the plaintiff received said countermand, the verdict of the jury-should be for the defendant.” Affirmed. [28]</p> <p>“7. If the jury find that Loughlin [president of plaintiff company] had no knowledge of the date of the shipment of the goods except what he derived from written entries on his books, not made by himself, or other written evidence not produced, they should disregard his testimony on that subject, in making up their verdict.” Affirmed. [29]</p> <p>The court charged in part as follows :</p> <p>“ The defendant also submitted another point, No. 8, and by their consent that point is not answered, but in lieu thereof this instruction is given: During the trial some of the members of the board were asked if they would have voted for the resolution on the minutes under the circumstances if they had not understood the contract as they now maintain it to be — or substantially the same, and they severally replied they would not. This testimony is struck out and withdrawn from the jury, and the objections taken thereto by plaintiff’s counsel are sustained, and the prior rulings in conflict herewith are changed as above. There is some doubt in the minds of the counsel as to exactly what was done. My recollection is that in some instances when witnesses were asked that question, exception was taken, in others, it was not; therefore, to make it plain, this instruction is given to the jury, — so that it is all out; that is, anything they would not have done if it had not been under the circumstances stated.” [30]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-17) rulings on evidence; (18-30) instructions; quoting bills of exceptions, evidence and instructions.</p>

Appeal, No. 252, Oct. T., 1893, by T. D. Collins, terre tenant, from order of C. P. Forest Co., Aug. T., 1892, No. 24, refusing to open judgment and stay execution, in Charles W. Pratt et al., to use of Fredonia National Bank of New York v. J. A. Waterhouse et al. Rule to open judgment, etc. Before Noyes, P. J7 From the record it appeared that, on Oct. 10, 1890, J. A. Waterhouse purchased certain lands from plaintiffs, and gave a mortgage to secure balance of purchase money.

<p>Appeal, No. 95, Oct. T., 1893, by plaintiff, F. M. McClain, from judgment of C. P. Venango Co., Aug. T., 1891, No. 112, on verdict for plaintiff for less than full amount of claim.</p> <p>Assumpsit on promissory note.</p> <p>The facts appear by the opinion of the Supreme Court, and the following charge of the court by Taylor, P. J. :</p> <p>“ The plaintiff brings this action to recover the sum of $550.35 with the protests $1.25, with interest from the time this note became due. It was dated April 30, 1885, due three months after date. Upon the face of these papers the plaintiff is entitled to recover from the indorser, Mr. Smith, the face of this note with the interest upon it from the time it was due. The defendant admits some liability, but contends that the value of a boiler and engine should be deducted therefrom.</p> <p>“ Some time along in 1885, Smith, the defendant here, leased a boiler and engine to one McCarter and a man by the name of Garrard. By the terms of this lease they obtained possession of a boiler and engine, the property of Mr. Smith, and were to pay him $50 a month as rent; to take the property somewhere out of the county, and were to deliver it back into the possession of Mr. Smith at the expiration of, I think, sixty days. It was taken out of the county with Smith’s consent, and these men, McCarter and Garrard, went operating for oil. They made a failure of it, and to raise money to pay indebtedness, etc., they made a bill of sale of certain property to the plaintiff. That bill of sale you will have out with you. It is made out September 29, 1884. In virtue of this bill of sale, they transferred the property mentioned in this bill of sale, which included two thousand feet of cable and a boiler, one boiler, carried out at $400, and an engine carried out at $200, and some other articles.</p> <p>“ Upon the face of the bill of sale, these men transferred the boiler and engine to the plaintiff, along with the other property. The whole bill amounted to $900, I think. So far as that bill of sale was concerned, these men had no right to sell that boiler and engine to the plaintiff under the uncontradicted evidence. They had no title to it at all. The property belonged to Smith, and wherever it was located, it was his. They could not divest him of it so long as there was no question of a creditor coming in.</p> <p>“ After the plaintiff made this purchase of the property, Colonel Cain went down and gave this note for it, indorsed by the defendant, Smith, and before the property was purchased by Colonel Cain, the plaintiff made some inquiry, if the deposition is believed, as to the responsibility of Smith, and telegrams, which have been given in evidence, and a letter which Mr. Smith says was his, passed between them. In virtue of those telegrams and that letter, the plaintiff asks you to find that Mr. Smith induced him to make that sale. The bill of sale was made out, as we remarked, before that was consummated. You will find the date of these papers are all about the same time, with the exception of the bill of sale, — the date of the letter, March 29th, the telegram about on the 28th or 29th, and the note you will find dated on the 30th of April; so that they all precede in pretty rapid succession the transfer of the property to Colonel Cain.</p> <p>“ These men had no right to sell that property, and a purchaser from them without Smith having said or done something to his injury, would take no title. Smith could take it anywhere he pleased. But Smith sent a telegram and this letter. The letter is to Mr. McClain, the plaintiff, dated March 30, 1885. In them he says: ‘ J. H. Cain, the party who was to see you a few days ago, will take the tools and machinery as per bill of salo, giving you his ninety day note indorsed by me for |511. Please advise me as soon as possible.’</p> <p>“ Then followed a telegram, in which Mr. Smith says: ‘ I have made the note just as per instructions in your letter of April 2d, J. H. Cain, indorsed by me.’</p> <p>[“Now, although these parties had no right to sell that engine nor the boiler, yet in virtue of these papers, if the boiler and engine were included in that bill of sale, the word ‘ machinery ’ would include an engine and boiler, and Smith would be estopped from now saying that these men had no right to sell it. Smith was bound to know what was in the bill of sale which would be included by the words ‘ tools and machinery.’ So that the question comes down to the simple proposition as to whether or not the engine and boiler was contained in the bill of sale at the time Smith sent this letter and telegram.] [1] The plaintiff asks you to find that it was there, and was read over to Garrard and McCarter before they executed the assignment, and that he paid a full price for them. The defendant asks you to find that the engine and boiler was not included in the bill of sale when read over to them, and if it was there, they did not know it and never knew it until thirty days after-wards.</p> <p>[“ If you find that the plaintiff at that time was induced to take the note and sell the property by reason of this bill of sale and including the boiler and engine, he would be entitled to recover the value of the note with interest upon it. Upon the other hand, if you find that the plaintiff perpetrated a fraud upon them, that the boiler and engine was not read out to them, and that there was no intention to convey the same, then your verdict would be for the balance of the note, less the value of the boiler and engine, with interest upon the same from the time the note became due.”] [2]</p> <p>Plaintiff’s points were among others as follows :</p> <p>“ 2. That if the defendant knew when he indorsed the note that it was to be used by John H. Cain to pay for the property bought of plaintiff, and also knew that part of the property was the same of which he now claims to be the owner, he cannot now set up his claim of title as a defence to this suit. Answer: Defendant could not claim ownership to any of the property which he knowingly induced the plaintiff to purchase, if such was the case.” [3]</p> <p>“ 3. That if, as consideration for the note in question, plaintiff delivered property, exclusive of the boiler and engine now in dispute, to a value in excess of the face of the note, defendant cannot set up any failure of title to said boiler and engine, known to him when the note was signed, indorsed and delivered, to avoid payment of said note. Answer: This point is answered in the negative as qualified by the charge.” [4]</p> <p>“4. That as all the evidence shows that the defendant indorsed the note in suit for the purpose of having Cain purchase the property in question as per the bill of sale from McCarter & Garrard to plaintiff, with full knowledge of his own claim of title to the boiler and engine, and the plaintiff, induced thereto by defendant’s letter to him, delivered for said note property, exclusive of said boiler and engine, of a value at least equal to the face of the note, defendant cannot set up a failure of title to said boiler and engine as a defence to this action, and the verdict must be for the plaintiff. Answer: This point is answered in the negative as qualified by the charge.” [5]</p> <p>Defendant’s point was as follows :</p> <p>“ That if the jury believe from the evidence that the boiler and engine in question were owned by the defendant, Smith, and that he leased the same to McCarter & Garrard, from whom the plaintiff, McClain, knowing the same to be the property of said Smith, obtained the possession thereof and thereafter refused to surrender such possession to the said Smith, but claimed the same as his own, whereupon the said Smith, for the purpose of obtaining the possession of the said boiler and engine, procured one J. H. Cain to contract for the purchase of the same, giving in payment therefor, with other goods, the note in suit, signed by said Smith as accommodation indorser for the said Cain, the said Smith is not liable on the said note for the value of the said boiler and engine, and may defend against payment of the same pro tanto. Answer: Affirmed if the jury further find that Smith did nothing to induce the plaintiff to purchase the boiler and engine.” [6]</p> <p>Verdict and judgment for plaintiff. Plaintiff appealed.</p> <p>Errors assigned were (1-6) instructions, quoting them.</p>

<p>Appeal, No. 103, Oct. T., 1893, by Edward Seifert, from order of C. P. Jefferson Co., May T., 1893, No. 2, distributing fund raised by sheriff’s sale of real estate under execution, B. J. Smyers v. J. B. Beam and Polly Beam.</p> <p>Distribution of proceeds of sheriff’s sale of real estate.</p> <p>The auditor, John W. Walker, Esq., found that “there was erected in the spring of 1888, by one McQuqwn and J. B. Beam, then joint owners of the lot against which the mechanics’ liens were filed, and from which the funds in dispute were realized by sheriff’s sale, a two storied frame building 2*2x 60 feet, the lower story being used for a store room and the upper story divided into small rooms fitted up and occupied as a dwelling house. And now, quoting from the testimony of J. B. Beam with reference to above building, he says: ‘ It was finished. After that building had been completed and we had been in business for a while, I bought McQuown out and took a deed from him. Then several years afterward — about three years —in 1891, I concluded to enlarge the building. I built what I call the opera house, on the McClure lot, and attached it to the first building.’ Again the witness says: ‘ In about three years after the first building was finished, I concluded to change it at length ; ’ the substance of which is, he built a two storied addition 25x80 feet, on the west side of and attached to the old building; he took out all partitions in the second story of the old building, took off its roof and the upper story of the west wall, spliced the studding in .the south, east and north walls of the old building so as to raise its upper story on a level with the upper story-of the new building, put it all under one roof and fitted out the upper story of the combined structure as an opera house, and the lower floor of the new addition as a store inom, leaving the remainder of, the old building substantially as it had been from its first erection.” The auditor further found : “ But all the liens except those of Wm. J. Bruce and Edward Seifert are so irregular that it is a very doubtful question whether or not they would hold under any circumstances ; yet as your auditor is of the opinion that this is an alteration of, and an addition to an old building, he does not feel called upon to enter into the question as to whether they would be otherwise valid or not. Your auditor finds as a fact, from the testimony of J. B. Beam, that the work was done and materials furnished in and about the alteration of and addition to an old building, and that the claims of all the mechanics and material men are governed by the act of May 18, 1887, P. L. 118, which provides as follows : ‘ That to entitle any one to the benefits of this act, he shall give notice to the owner or reputed owner of the property, or his or her agent, at the time of furnishing the materials or performing the work in and about the repairs, alterations, or additions to any house or other building, of his intention to file a lien under the provisions of this act.’ ”</p> <p>The auditor further found that no notice was given by any of the mechanics’ lien claimants of their intention to file their respective liens, and he disregarded their claims and distributed the balance of the funds in controversy to other judgment creditors.</p> <p>Exceptions to the auditor’s report by Edward Seifert were dismissed in an opinion by Clark, P. J. Exceptant thereupon appealed.</p> <p>JErrors assigned were dismissal' of exceptions, quoting them.</p>

<p>Appeal, No. 142, Oct. T., 1893, by-plaintiffs, Catharine Tarr et ah, from judgment of O. P. Westmoreland Co., May T., 1890, No. 575, on verdict for defendants, Matilda Robinson et al.</p> <p>Ejectment. ’ [Cf. Gilbert’s Ap., 85 Pa. 347, for construction of will.]</p> <p>At the trial, before White, P. J., of the 40th judicial district, specially presiding, it appeared that James R. Tarr died in 1864, leaving a will by which he devised a portion of his farm “ to my son, Melker Tarr, at thirty dollars per acre, the proceeds to be equally divided and paid to the rest of my children, in the same manner that they are to be paid by James R. Tarr and Rose Husband and to the same ones.” Testator by previous clauses in his will had made similar devises to James R. Tarr and Rose Husband. The executors appointed by the will renounced, and letters of administration with the will annexed were issued to William G. Husband, testator’s son-in-law, and James R. Tarr, one of his sons. The administrators went into possession of the real estate, in compliance with a direction in the will requiring the executors to rent the real estate until all of testator’s debts were paid. Plaintiffs gave evidence tending to show that Melker Tarr refused to accept the devise made to him. In 1870, while the administrators were still in possession of the land, the thirty acres devised to Melker Tarr were sold by the sheriff on a judgment against him, and bought by E. J. Keenan for five dollars, under whom defendants claimed. At the time of the trial Keenan was dead, and certain of the residuary devisees of the testator were also dead. Melker Tarr was one of the plaintiffs of record, but at the trial he disclaimed, and suffered a nonsuit.</p> <p>Under objection and exception Melker Tarr was rejected as a witness for plaintiffs to prove facts occurring prior to the death of Keenan. [1, 2]</p> <p>When Samuel H. Null, one of defendants, was On the stand, defendants’ counsel proposed to prove by him that about the summer of 1868, in a conversation with Melker Tarr, the latter told him that he was the owner of the thirty acres of land which is the subject of this controversy, or words to that effect, and that the same had come to him under the will of his father; this for the purpose of contradicting the testimony of the plaintiffs already given, and for the further purpose of showing, in corroboration of the other testimony of the defendants, that Melker Tarr had accepted the devise in his father’s will.</p> <p>Plaintiffs object to the offer for two reasons: first, that it is irrelevant; second, he is one of the defendants in the action, and part of the offer here could not be evidence under any circumstances. Objection overruled and exception. [5]</p> <p>The witness testified substantially as in the offer.</p> <p>The court charged in part as follows :</p> <p>[“ This case, however, was tried in this way : the plaintiffs showed ownership of this land by James R. Tarr’s will in question, and then accompanied it with evidence to show it went into this residuary clause by showing that Melker Tarr never accepted it. Of course in that case it was primarily incumbent upon the plaintiffs to show a prima facie case of nonacceptance; the burden of proof primarily was upon them in making out their case to show nonacceptance.] [8]</p> <p>[“ Now, gentlemen, we have answered all the legal propositions submitted, and the question comes down for you to decide, did Melker Tarr or not accept this devise ? If he did not, then your verdict should be for the plaintiffs for the fractional part of the land as appears in the paper which we will send out. If he did accept it, then jmur verdict should be for the defendants. From all of the testimony it is a question entirely for you to determine.”] [4]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were among others (1, 2, 5) rulings on evidence ; (3, 4,) instructions, quoting bills of exceptions, evidence and instructions.</p>

Appeal, No. 6, Oct. T., 1893, by plaintiffs, Michael Egly et al., from order of O. P. Armstrong Co., Dec. T., 1892, No. 166, awarding a writ of mandamus. Petition for mandamus.

Appeal, No. 26, Oct. T., 1893, by defendants, William D. Shaner et al., from order of C. P. Lawrence Co., June T., 1892, No. 185, refusing to grant rule to open judgment entered in favor of A. Seaton, plaintiff. Petition for rule to open judgment. Before Martin, J. The facts appear by the opinion of the Supreme Court. Error assigned was refusal of rule.

<p>Appeal, No. 43, Oct. T., 1893, by defendant, R. B. Ivory, from judgment of C. P. Armstrong Co., March T., 1892, No. 126, on verdict for plaintiff, C. J. Jessop.</p> <p>Assumpsit for money paid for corporation stock.</p> <p>At the trial, before Rayburn, P. J., it appeared that in May, 1889, plaintiff subscribed $1,000 to the stock of the Rolled Steel Carriage Wheel Company, at request of defendant. Plaintiff claimed that at the time of the subscription defendant promised that he would refund to plaintiff his money with interest in case plaintiff became dissatisfied. Plaintiff claimed that in July, 1889, he became dissatisfied and tendered his certificate to defendant, and demanded back his money, but was refused. Defendant denied that he had made any such agreement, and claimed that the only condition upon which plaintiff was to have a return of his money was embraced in the receipt given at the time the money was paid, which was a provision that the money should be refunded if the company failed to secure a patent which had been applied for. Defendant offered in evidence plaintiff’s telegram of Jan. 13, 1890, directing a sale of the stock at $15 per share; his proxy of July 2, 1890, authorizing the voting of the stock at the annual meeting; his letter, of^ inquiry with reference to the progress of work at the factoiy, under date of March 16, 1891; and testimony of witnesses showing his attendance at the meeting of the stockholders, and participation in the transaction of the business thereof, and demeaning himself as the owner of the stock for a period of almost two years.</p> <p>When defendant was on the stand, under cross-examination, the following offer was made :</p> <p>Mr. Leason: It being in evidence that the capital stock is $600,000, we propose to ask the witness how that stock was issued ; how much of it was treasury stock; how much of it was issued to the incorporators, and what value they paid to the corporation for it. We do this for the purpose of laying foundation for contradiction, to prove that Mr. Ivory — for the purpose of asking Mr. Ivory if all the stock of the incorporation was not issued to the incorporators, and if he did not tell James M. * Hileman that that was the ease, and that the money received for this stock went into the pockets of the incorporators, and that the stockholders could see to furnishing money to run the corporation. Objected to : (1) because it is not cross-examination of any material fact drawn out of the witness in his direct examination; (2) because the books of the corporation are the best evidence of the fact; and (3) because the plaintiff has failed to cause any process to be served upon us to produce the books, if we were in possession of them, which we deny, and because the question is irrelevant. Objection overruled, and exception. [1-4]</p> <p>The witness testified substantially as in the offer.</p> <p>The court charged in part as follows:</p> <p>[“ Gentlemen, in considering the evidence in this ease, and in order to enable you to arrive at a correct conclusion, it will be necessary for you to take into consideration the testimony of these different persons who have been upon the witness stand, and if you would come to the conclusion from all the evidence that there had not been at the time of the purchase of this stock an agreement entered into between Ivory and Jessop that this money was to be refunded and the stock returned upon Jessop’s becoming dissatisfied, if there was no such an arrangement entered into at that time when Jessop purchased this stock and paid the money for it, and the only condition in the contract was that it was to be returned on the not granting of a patent, the plaintiff could not recover in this case. [But if you would find from the evidence that there was an agreement entered into between them at that time, that Jessop was to receive back his one thousand dollars and return the stock upon his becoming dissatisfied with it, and that he did go to Ivory and tender him this stock and demand his -money, and that there has not been anything done by the plaintiff to do away with that contract, or waive it in any way subsequent to that time and the bringing of this suit, he would be entitled to recover.] [6] And now we think, gentlemen, that the questions of law raised by these points, when we answer them in your hearing, you will have sufficient information in this ease to enable you to come to a correct conclusion as to what is right between these parties.- The evidence has been discussed very ably and fully by the counsel. Gentlemen of the jury, you will take this case from the evidence before you, and the instructions we have given you, and find whether or not the defendant owes the plaintiff, and how much. If he does not owe him, you find a verdict generally for the defendant. If he owes him, your verdict would be for the plaintiff for $1,000, with interest from the time of demand.”] [13]</p> <p>Plaintiff’s first point was as follows :</p> <p>“ 1. If the jury believes, from the evidence, that R. B. Ivory promised C. J. Jessop before he purchased the stock in dispute that he, Ivory, would refund to him, Jessop, his money with interest at any time he became dissatisfied, and in pursuance of this promise Jessop purchased the stock and paid for the same one thousand dollars; that afterwards Jessop called upon Ivory, offered to return to him his stock, stating his dissatisfaction therewith, and demanded his money, which Ivory refused to return, a right of action on the contract then accrued, and the verdict of the jury ought to be for the plaintiff for the amount of money paid by Jessop to Ivory, together with interest from the date when such demand was made.” Affirmed. [5] Defendant’s points were among others as follows:</p> <p>“ 3. If the jury should find from thevevidence a guaranty and promise by the defendant that he would at any time on demand refund to the plaintiff his money with interest, should he become dissatisfied with the purchase, and further find that the plaintiff did about June, 1889, make demand for the repayment of his money and offered to return the stock to the defendant, and that the defendant refused to repay the money and declined to accept the stock, but should also find that after such demand and refusal, the plaintiff treated the stock as his own, he is not entitled to recover, and the verdict must be for the defendant.” Refused. [7]</p> <p>“ 5. If the jury should find from the evidence a demand for repayment as recited in the two preceding points, it was the duty of the plaintiff thereafter to treat the stock as the stock of the defendant. And if they find that he afterwards exercised ownership over the same he cannot recover in this action, and the verdict must be for the defendant.” Refused. [8]</p> <p>“ 6. That the plaintiff’s telegram to the defendant of Jan. 13, 1890, his proxy to S. B. Cochran of July 2,1890, and his letter to the defendant of March 16, 1891, and his uncontradicted testimony of his ownership of the stock until the repayment of his money, amount in law to an abandonment of his alleged previous demand of June, 1889, and an absolute purchase of the stock, and therefore the verdict of the jury must be for the defendant.” Refused. [9]</p> <p>“ 7. That the plaintiff’s telegram to the defendant of Jan. 13, 1890, his proxy to S. B. Cochran of July 2,1890, his attendance at the stockholders’ meeting of June, 1890, and participation in the business thereof, and his letter to the defendant of March 16, 1891, are evidence of his absolute ownership of the stock in question, and strong presumptive evidence of an abandonment of his former demand, and an election to retain the stock, and if the jury should find therefrom, and from all evidence in the case such an abandonment and election, their verdict must be for the defendant. Ansioer : That point is refused. But we say to you, you take into consideration the facts as stated in that point as to whether or not there was such a contract entered into as the plaintiff alleges was entered into by him with the defendant as to the return of the money.” [10]</p> <p>“ 8. If the jury should find an abandonment of the demand for repayment and an election to retain the stock as recited in the preceding point, such abandonment and election amount in law to an absolute repurchase of the stock, and the liability for the defendant under the alleged original guaranty and promise to repay was at an end, and could not be revived by any subsequent demand.” Refused. [11]</p> <p>“ 9. It having been shown by competent evidence that at the time of the payment of the money the defendant gave to the plaintiff a receipt expressing the terms of the agreement, such written instrument must stand as the agreement of the parties, unless it is shown that airy of its parts were omitted by accident, fraud or mistake. Answer: That point we would affirm, but we say to you, gentlemen, in connection with that, that the receipt must be found by you to contain the entire contract of the parties, or what was the contract of the parties at the time it was given.” [12]</p> <p>Verdict and judgment for plaintiff for $1,208. Defendant appealed.</p> <p>JErrors assigned were (1-4) rulings on evidence, (5-13) instructions; quoting bills of exception, evidence and instructions.</p>

<p>Negligence — Contributory negligence — Questionfor jury.</p> <p>In an action to recover damages for personal injuries, whether plaintiff was or was not guilty of negligence which contributed to the injury must be inferred from all the facts and circumstances disclosed by the testimony ; and such inferences of fact are for the jury, and not for the court.</p> <p>In an action for personal injuries against a borough it appeared that plaintiff was injured by falling from a bridge which was not protected by a guard rail. The accident occurred on a darlt night. Plaintiff and her sister, provided with an oil lamp, -were crossing the bridge, when plaintiff stepped over the side of the bridge and was injured. Plaintiff was familiar with the bridge, and had crossed it several times in the daytime. Held, that the question of plaintiff’s contributory negligence was for the jury.</p>

<p>Negligence — Contributory negligence — Question for jury.</p> <p>In an action to recover damages for personal injuries, where the evidence as to defendant’s negligence and plaintiff’s contributory negligence is conflicting, and is of such a character that inferences of fact must be drawn therefrom, the case is for the jury. .</p> <p>“ Slop, look and listen" — Stopping at proper place.</p> <p>Where the injuries complained of were received by plaintiff while he was driving over a grade crossing, it is proper to chai-ge that if the jury find from the evidence that plaintiff stopped at a proper place or places, and properly exercised his senses of sight and hearing, and neither saw nor heard an approaching train, he would not be guilty of contributory negligence.</p>

<p>Appeal, No. 191, Oct. T., 1893, by plaintiff, Joseph M. Wright, from judgment of C. P. Armstrong Co., March T., 1893, No. 2, on case stated in favor of defendants, S. G. Donaldson et al., commissioners of Armstrong county.</p> <p>Case stated to determine liability of county for witness fees.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, Rayburn, P. J., entered judgment for defendant.</p> <p>Error assigned was entry of judgment as above.</p>

Appeal, No. 143, Oct. T., 1893, by plaintiff from order of C. P. Armstrong Co., Dec. T., 1882, No. 154, discharging rule against Plumcreek Township Overseers.

<p>Negligence — Railroad—Grade crossings — Passenger in street car.</p> <p>Where a train of oars on a steam railroad collides with a street car at a grade crossing, and a passenger in the street car is injured, both companies are answerable to the passenger, if they were both negligent, and the passenger may maintain his suit against either. If the collision was the result wholly of the negligence of the street ear company, the railroad company is not liable.</p> <p>A passenger in a street ear approaching a grade cros'sing of a railroad is under no obligation to look out and listen for approaching locomotives, and to jump off the ear in apprehension of a possible collision. Crescent Township v. Anderson, 114 Pa. 643; Dean v. Pa. R. R., 129 Pa. 514, distinguished.</p> <p>Plaintiff, a shoemaker by trade, and a cripple from birth in both feet, took a seat in a street car. When the car came to a point about seventy-five feet from the crossing a locomotive approached; the watchman lowered the gates, the street car stopped, the locomotive crossed, the watchman raised the gates, the car started, and as it reached the raifroad track was struck by another locomotive following the one that had passed. Plaintiff was thrown out and injured. The court charged that if plaintiff by looking up the railroad could have learned whether an engine was or was not approaching, and could at the time have gotten off the car if he discovered an engine approaching, and did not do so, he would be guilty of contributory negligence and could not recover. Held to be error.</p>

<p>Appeal, No. 147, Oct. T., 1893, by defendants, S. M. Hamilton et al., trading as S. M. Hamilton & Co., from judgment of C. P. Somerset Co., Feb. T., 1890, No. 98, on report of referee in favor of plaintiffs, John T. Hooking et al., trading as the 'Hooking Coal Co.</p> <p>Assumpsit for breach of contract to purchase coal.</p> <p>The case was referred to H. L. Baer, Esq., as referee.</p> <p>The material portions of the contract, signed and sealed by the parties named, were as follows:</p> <p>“ This agreement, made and entered into this third day of December, eighteen hundred and eighty-seven, between S. Mar-land Hamilton, of the city of Baltimore, and state of Maryland, of the first part, and Hocking Coal Co., John T. Hocking, of Meyersdale, and state of Pennsylvania, of the second part, witnesseth:</p> <p>“1st. The party of the first part agrees to buy and take from the party of the second part fifty thousand tons of coal mined at the mine known as the Hocking mine and shipped as hereinafter specified from the date hereof to Jan. 1, 1889. Said quantity of coal to be shipped in monthly instalments of about four thousand tons per month, and the party of the second part hereby agrees to mine and ship to said party of the first part said quantity of fifty thousand tons as aforesaid. And it is further agreed that the party of the second part shall not, during the continuance of this contract, sell, give, deliver or ship to any person or corporation other than the party of the first part, any coal except upon the written order of said party of the first part, and in ease party of the second part should sell, give, deliver or ship any coal to any person or corporation other than party of the first part or on his written order, then the party of the second part shall owe and pay to the party of the first part the sum of one thousand dollars for every such shipment or sale, as liquidated damages for the breach of this stipulation. The party of the second part, however, shall be at liberty to supply what is known as the farm and home trade by deliveries in wagons or carts at the mine, said trade not to be supplied by shipments by rail, except on the written authority of the party of the first part. In case the party of the second part shall be able to mine and ship more than the above mentioned quantity of fifty thousand tons of coal, then the party of the first part shall be entitled to purchase all or a part of such excess at the same price and on the same terms as is hereinafter named for said fifty thousand tons, but it is understood that no coal mined in excess of said fifty thousand tons shall be sold by party of the second part to any person or corporation other than party of the first part. Party of the second part, however, has the right to sell to Balto. & Ohio R. R. Co. for its own use.</p> <p>“ 2d. It is agreed that the price to be paid party of the second part by party of the first part shall be for all good clean marketable coal free on board railroad cars at tipple, as follows, that is to say, in hoppers and gondolas for run of mine coal sixty-eight (68) cents per ton of 2240 lbs.</p> <p>“3d. Weight to be taken in settlement for coal to be Balto. & Ohio R. R. Co. Sand Patch weight. It being fully understood and agreed that party of the second part shall place on each car a weight of coal not less than the capacity as marked on said car.</p> <p>“4th. Settlement for coal shipped shall be made monthly; that is to say between the 10th and 18th of each month, party of the first part is to remit check to party of the second part for all coal shipped party of the first part by party of the second part in the previous month.</p> <p>“7th. In the event of miners’ strikes, labor difficulties, accidents or stoppage of supply of cars from any cause other than that party of the first part having too heavy stock of coal in cars at Locust Pt., the quantity of coal to be shipped by the party of the second part to be taken by the party of the first part shall be reduced in proportion to the time during which such strike or other obstructions shall continue to exist.</p> <p>“ 9th. It is understood and agreed that the party of the second part shall mine and ship only good clean black coal ordinarily free of rust and slate, and for each and every car of coal shipped that contains a quantity of rust or slate to affect its marketable appearance or value party of the first part has the right to reject same at destination and charge partjr of the second part all expenses of transportation on such car or cars of coal, or should the inferior quality of the coal not be noticeable till car is being unloaded, then the party of the second part shall accept a reduced price for such inferior coal.”</p> <p>S. Marland Hamilton was at the time of making this agreement and now is a member of the firm of S. M. Hamilton & Co., composed of the following persons, namely: Silas M. Hamilton, Benj. Wallis and S. Marland Hamilton. Their place of business was in the city of Baltimore, and they were then and now are engaged in the business of shipping coal to different points along the Atlantic seaboard and elsewhere. Plaintiff was engaged in tire business of mining and shipping coal in the Elklick coal region in Somerset county, Pennsylvania, under the name of the Hocking Coal Company.</p> <p>Prior to the making of the agreement, defendants sent out circulars to different operators in this region, proposing to make contracts with them, and these different operators were met by- . S. Marland Hamilton.</p> <p>Under the agreement defendants from time to time ordered coal from plaintiff, always designating the kind of cars to be used and the place to which the coal was to be sent. For the coal thus shipped, monthly remittances were made by checks of the firm. On March 18, 1888, plaintiff wrote to defendants, claiming 1815.80 shortage by reason of deficiency in tonnage up to that time, to which defendants replied under date of 22d of same month that the claim was erroneous. In July, 1888, defendants in their correspondence commenced to complain about the price of coal, and requesting a reduction in the price to 65 cents per ton.</p> <p>There was evidence to the effect that defendants agreed to and did order the cars of the railroad.</p> <p>On Aug. 13, 1888, defendants notified plaintiff that they would decline to receive any more coal under the contract, and plaintiff could therefore sell to other parties, but if they needed coal from him they would order from time to time.</p> <p>On Aug. 30, 1888, S. Marland Hamilton wrote plaintiff: “ Please take note that I do not recognize any contract or agreement with you, and have and will continue to authorize S. M. H. & Co. to buy wherever they can buy the cheapest the best coal and get prompt shipment.”</p> <p>On Sept. 1, 1888, he wrote: “We can take care of all the hoppers you can load next week for Locust Pt. Nothing but best Hocking Mine coal, bear in mind, and price 68e.”</p> <p>Defendants did at various times subsequently order coal from plaintiff, for all of which they paid, except the shipments of December, 1888.</p> <p>This action was brought Jan. 8,1889, to recover the amount due plaintiff for coal shipped in December, 1888, and for damages for shortage under the written agreement.</p> <p>The referee found that defendants ratified the contract and that it was terminated before suit brought. He found in favor of plaintiff for $5,287.51.-</p> <p>' Exceptions by defendants to the referee’s findings were dismissed by the court, Longenecker, P. J., and judgment entered. Defendants thereupon appealed.</p> <p>_Errors assigned'were dismissal of exceptions, quoting them.</p>

Appeals, Nos. 263-6, Oct. T., 1892, by defendant, from order of C. P. Butler Co., Dec. T., 1891, Nos. 413-16, discharging rules to open judgments, H. W. Christie, for use, against Amos Steelsmith. Rules to open judgments. Before Hazen, P. J. The opinion of the court below was in part as follows : “ Defendant, in his petition, avers that John H. Sutton was the plaintiff’s agent for the sale of this leasehold interest and property, and negotiated this sale to him for plaintiff.

<p>Appeal, No. 288, Oct. T., 1893, by defendant, from judgment of C. P. Butler Co., March T., 1891, No. 91, on verdict for plaintiff, Joseph Bennett.</p> <p>Trespass for personal injuries. Before Hazen, P. J.</p> <p>At the trial it appeared that plaintiff, a boy fifteen years of age, was engaged in attending a revolving polishing table used by defendant company for the purpose of polishing plate glass. The table was kept in motion by an engine located some four or five feet distant from the table. From the engine a revolving shaft ran to the end of the table through a trench about three feet wide and three feet deep. Near the table some planks had been placed over the trench upon which the employees might walk in performing their duties at the table. Against the plank farthest from the table, and nearest the engine, a guard or barrier was usually maintained. It was testified that this barrier had been removed for some time before the accident; plaintiff said two or three weeks, other witnesses said three or four days. The duties of plaintiff were to keep continually walking around the table throwing or sprinkling rouge from a bucket with a brush upon the glass to keep it from drying, and also to inspect the glass so as to see that it kept its place upon the table. »</p> <p>On Aug. 21, 1891, plaintiff, while in the performance of his duties, slipped on the planks covering the trench, and fell into the open space on the revolving shaft, and was injured. It appeared from the testimony that the general manager of defendant was in the room almost every day.</p> <p>Plaintiff’s points were among others as follows:</p> <p>“5. If the defendant company removed the guard or barrier where the accident occurred, and voluntarily subjected the plaintiff to danger, which in good faith defendant ought to have provided against, they are liable for any injury arising therefrom.” Affirmed. [1]</p> <p>“ 6. If the plaintiff, in obedience to the requirements of the defendant company, and exercising ordinary prudence, was required to keep walking around the polishing table, supplying it with the polishing material, in the discharge of the duties imposed upon him, it would not be contributory negligence on his part if he did know that the guard or barrier had been removed, and was not being maintained by defendant, unless it was so obviously and immediately dangerous that a man of Common prudence would refuse to work. Answer: This is affirmed, but this is a question of fa'ct for the jury to pass upon from all of the evidence.” [2]</p> <p>Defendant’s points were as follows :</p> <p>“ 1. The danger in operating the polishing bench where the accident happened was patent and known to Joseph Bennett. There is no evidence that he notified the defendant company and requested that the barrier or guard should be replaced. He assumed the risk attendant on the use of the machinery in that condition, and is not entitled to recover for the injury received by him. Answer: This is affirmed, save the last clause, which is refused.” [3]</p> <p>“ 2. The evidence on the part of the plaintiff shows that the barrier was removed by the machinist, a fellow employee of Joseph Bennett. The undisputed testimony in the ease is that the machinist had orders to replace the barrier or notify the carpenter, and that the carpenter was not notified. If there was any negligence it was that of a fellow servant, and there can be no recovery for such negligence. Under the undisputed testimony, therefore, there can be no recovery in this case. Answer: As a Adióle, this point is not affirmed.” [4]</p> <p>“ 3. The evidence shows that the machine could have been stopped when it was necessary to go in the dangerous place, if it was necessary to go in there, and that the machine could have been operated without passing the place of danger, though not so conveniently. Joseph Bennett therefore assumed the risk and cannot now recover. Answer: This as a whole is not affirmed. But this is a matter of fact for the jury to pass upon from all of the evidence.” [5]</p> <p>4. Request for binding instructions. Refused. [6]</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned were (1-6) instructions, quoting them.</p>

<p>Appeal, No. 27, Oct. T., 1893, by defendants, William Guckert and John A. Steel, trading as Guckert & Steel, from order of C. P. Butler Co., June T., 1892, No. 33, entering judgment in favor of plaintiff, C. E. Bartoe, for want of sufficient affidavit of defence.</p> <p>Buie for judgment for want of sufficient affidavit of defence in assumpsit for penalty under act of June 10,1881, for failing to plug abandoned oil well.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Frror assigned was entry of judgment.</p>

<p>Trespass quare clausum fregit — Possession.</p> <p>An action of trespass quare clausum fregit cannot be sustained unless the plaintiff has possession, actual or constructive, of the close which he alleges has been invaded. If the land entered by the trespasser is unimproved, possession will be presumed to accompany the title, and this constrnctive possession will support an action. If the land is improved, that fact shows that it is in the actual possession of some one. In such case the plaintiff cannot rest on his title, but must show his possession.</p> <p>Plaintiff and defendant owned and occupied adjoining lots in a borough. Plaintiff bought from defendant a strip eight feet wide to add to his own* lot. Defendant ran off this strip, delivered possession to plaintiff, and on the line so run began the erection of a building. -When the building was up about one story, plaintiff caused the line to be run, and discovered, as he alleged, that the rear end of defendant’s building was three and one half inches over the true line. This was denied by defendant. Held, that if defendant did not run the line in the right place, or turn over to plaintiff all that he was entitled to, plaintiff, had never been in the actual possession of the land so withheld from him, and the action could not be sustained.</p>

<p>Appeal, No. 4, Oct. T., 1893, by defendant, from judgment of C. P. Washington Co., Aug. T., 1891, No. 261, on verdict for plaintiff, Rosa Fleming.</p> <p>Trespass for death of plaintiff’s daughter. Before Stowe, P. J., of the 5th judicial district, specially presiding.</p> <p>At the trial, there was evidence that, on February 16,1891, plaintiff’s daughter, Clara, aged fifteen years, was killed while traveling as a passenger on defendant’s railroad. On the day in question, there was an obstruction on the east-bound track near Point Bridge in the city of Pittsburgh, consisting of rocks and dirt which had been loosened by heavy rain during the previous night, and had slipped down off the precipitous hillside which rose above the railroad. The train upon which the deceased was riding was transferred to the west-bound track, and while moving along the base of the hill a large stone fell or bounded from the hillside against the car in which she was riding, breaking the window and instantly killing her. At the point where the accident occurred, there was a perpendicular rock cut thirty-three feet high. The stone which fell started from a point about three hundred and fifty-six feet from the track, bounded down some forty feet, and struck, again bounded twenty or thirty feet, making four bounds before it struck the train. Evidence on behalf of the railroad tended to show that the company employed a gang of men to go over the face of the hill during and after all rains, and remove any loose stone which might be found; that on the morning of the accident, anda few minutes before the train on which Miss Fleming was riding arrived, the foreman of this gang, Samuel Wright, walked over the face of the hill opposite the point where the accident occurred, going from the track to the top of it, and saw “ no slips, no loose rock; ” that about two hours after the accident he again went up the hill, and when at a point distant above 850 feet from the track, measured horizontally, he found a slide about eight or ten feet long in the clay or dirt of the hill reaching to the edge of the bluff; that about forty feet below the edge of the bluff he saw an impression where a stone must have hit in its fall, and that lower down the hill he found three other marks or impressions where one had hit, the last mark being in the neighborhood of one hundred feet above the track from the point where the train was hit; that on his first inspection of the hill that morning he had passed over the spot where the first slip was afterwards found and there was no loose dirt or rock there, and the appearance of the dirt on the second visit showed the slip was recent; and that the stone which killed Miss Fleming was of a formation, found near and above the first slip, which is near the top of the hill, the stone outcropping there.</p> <p>Defendant further gave evidence to the effect that the road was the proper and usual one employed for roads running along or near the base of hills and mountains, and that the company did not own the property outside of the line of its right of way.</p> <p>Defendant’s points were among others as follows :</p> <p>“ [2. The burden of proof is on the plaintiff to show that the death of her daughter was caused by the defendant; and, under the circumstances of the present case, the burden resting on the plaintiff is not satisfied by the mere presumption of negligence, which sometimes arises against the carrying company when a passenger is killed or injured. Answer: This is refused.] [1] The fact that she was killed as she was killed, raises a prima facie presumption, — -not a conclusive one, — but raises a presumption that somebody connected with the railroad company was in default; without that we don’t know, nobody could say, whether the hillside from which the rock fell was not under the absolute control of the company.; it turned out not to be so; but merely the absence of testimony indicating that the company have exercised due care, or that the accident arose from something for which they were not responsible, would not justify and make it the duty of the jury to find a verdict for the plaintiff; and that puts what we call the duty upon, them, or casts the burden of proof upon the defendant to satisfy you from the evidence adduced by^ them that the presumption created by the law under those facts is not the fact, not in fact true; it is' mere inference of the law, and you then look at the testimony adduced on the part of the defendant, and see whether or not as an actual matter of fact the defendant has been guilty of that negligence that would warrant a verdict.”</p> <p>“ 8. Under the circumstances of the present case the.burden of proof is not shifted from the plaintiff by the mere fact that her daughter was killed while a passenger on the defendant’s railroad; but the plaintiff must show such facts as will connect the defendant or its servants, or some of the appliances of transportation, with the happening of the injury.” Refused. [2]</p> <p>“ 4. If the jury find from the testimony that the stone which killed plaintiff’s daughter fell from some point high up on the hillside, outside the property line of the defendant company; that the defendant’s watchman had passed along the hillside within an hour of the accident and failed to find any indications of probable danger; that there was no negligence in the handling of the defendant’s train or the condition of its roadbed, or other appliances of transportation, and that every reasonable precaution to prevent such accidents was taken, the defendant’s d ity was fully performed, it was guilty of no negligence, and their verdict must be for the defendant. Answer: Refused. It is for the jury to say whether under such circumstances the defendant was duly diligent. It might seem to me that it was, but it is a fact for the jury to decide and not one for the court.” [3]</p> <p>8. Request for binding instructions. Refused. [4]</p> <p>Verdict and judgment for plaintiff for $2,700. Defendant appealed.</p> <p>Errors assigned were (1-4) instructions, quoting them, as indicated by brackets.</p>

Appeal, No. 118, Oct. T., 1893, by plaintiff,. J. B. McJunkin, from order of C. P. Butler Co., June T., 1892, No. 92, quashing writ of replevin against John Mathers, constable. Motion to quash writ of replevin to recover cattle seized and impounded by constable. The facts appear by the following opinion, by Hazen, P. J.: “ The borough of Butler is under the borough act of April 3, 1851, P. L. 320.

<p>Appeal, No. 134, Oct. T., 1893, by defendant, Samuel Thompson, from judgment of O. P. Washington Co., Feb. T., 1892, No. 62, on verdict for plaintiffs, J. M. Kistler and Martha Kistler, his wife.</p> <p>Trespass for destruction of plaintiff’s spring, caused, as was alleged, by the caving in of defendant’s mine, where supports had been withdrawn in defendant’s coal mine.</p> <p>At the trial, before McIlvaine, P. J., it appeared that plaintiff owned the surface over a vein of coal belonging to defendant. Defendant did not mine the coal himself, but leased it to other parties. The leases were lost, but plaintiff gave evidence which tended to show that defendant either reserved the right to indicate the amount of coal which should be taken out, or afterwards made some agreement with the lessees operating the lease as to the amount of coal that should be taken out, and the amount of support wliich should be left. There was evidence that defendant actively intervened in the mining operations, and gave frequent and explicit directions as to taking coal from the pillars and supports of the mine. Some of this evidence is quoted in the opinion of the Supreme Court.</p> <p>The court charged in part as follows':</p> <p>"Now, where the owner of land conveys the coal to another, he has the right to remove the coal, and if, in so doing, he should interfere with the hidden streams of water that may be running through the earth and thus drain the spring of another,he would not be liable for damages if the spring failed simply because, in the ordinary operation of the mine, some subterranean stream was tapped and by this means the water, in place-of flowing to the opening in the ground where the spring was, flowed to some other place — I say, he would not be liable, if that was the case, for the loss of the spring; because he has a right to take out his coal, and if a hidden stream is interfered with it cannot be helped; and he would not be responsible because he would not know where those hidden streams were; and if the consequence is to divert the stream of water so that it fails to come out where it did before, but passes out some place else, he would not be liable. But notwithstanding that is the case, he is required to leave enough coal to support the surface; or, if he takes out all of the coal (he being the owner of it), he must substitute sufficient supports to keep the surface in place ; that is a duty that is imposed upon him. Now, if he fails to leave sufficient support, either by leaving the natural coal, the natural support in the shape of pillars of coal, or fails to put in other supports in place of the coal that he takes out, or such as to give the owner of the surface sufficient support, and by reason of this failure to leave sufficient support the ground sinks, subsides and cracks, and that sinking and cracking diverts a stream of water, then he would be liable, because that would be the direct result of his wrongfully withdrawing the support that is necessary and sufficient to sustain the surface. You will see the distinction. If he leaves sufficient support to keep up the surface, and the surface is not disturbed, and a spring of water is diverted from its natural channel by the simple operations of the mine by striking some-hidden stream, he would not be liable for the loss of the spring under circumstances of that kind; but if he fails to leave sufficient support, and the support that is necessary to keep up the surface being withdrawn the surface subsides and cracks, and that is the cause of the diversion of the stream of water from where it comes out of the ground and makes a spring, then he would be liable. Now, you will keep that in mind in considering this case.</p> <p>“ Now, the next question that I wish to call your attention to, that is legal in its character, is this: that where a man has the title to a coal vein or to a coal mine, and leases it, in general terms, to another, and he operates it, that is, the lessee operates it, with full control over the mine as to the manner of operating, and the lessee withdraws the support or fails to leave sufficient support, the lessee is liable, and not the owner of the coal mine, who, in that instance, would be the lessor. [But, on the other hand, if, by the lease that is made, the lessor provides how the coal shall be mined, the extent of the support that is to be left, designates the size of the rooms and the extent of the pillars or stumps or ribs that are to be left, and the lessee, accepting the conditions, mines the coal in accordance with the terms specified in the lease, leaving the support that the lessor specifies, and that is insufficient and the surface would fall, then the owner of the vein of coal, the lessor, would be liable, because he, in his lease, had indicated the support that ought to be left, and he would be liable as well as the lessee who took out the coal.] [1] [Or if, after a lease is made, which might be general in its terms, without any qualifications as to the manner in which the coal should be taken out, the lessee and lessor would agree and have an understanding that certain coal should be taken out, or certain supports then existing should be removed, and they were removed in consequence of that mutual agreement subsequently made by the lessor and lessee, then the lessor, or the owner of the vein of coal, would be liable as well as the lessee.] [2]</p> <p>“ Now, gentlemen, I think that is about all that I need say in regard to the law as applicable to this case, and I need now only briefly call your attention to the claims of the plaintiff and defendant upon the questions of fact that you will have to determine. Now, there is no dispute here that Mr. Thompson, since he bought this coal and since this mine has been operated, has been operating it through leases; that is, he, as the owner of the coal, has never operated it himself. The first lease that we have knowledge of, from the evidence, was made to Morgan & Gregg, perhaps back as far as 1882, about the time, or beyond the time, perhaps, at which the plaintiff in this case obtained title to her lot of ground. Then after that the mine was leased to two men by the name of Stone, and after that lease expired it was leased to T. J. Wood, who appears to be in possession and operating the mine at the present time. Now, these leases that were in existence before 1889 (when this surface is alleged to have subsided and this spring to have disappeared) to Morgan & Gregg and to the Stones, these leases, Mr. Thompson testifies, were in writing, but he says that he has lost the leases and he is unable, after diligent search, to find them, and of course they are not in evidence before you in this case; and therefore, under the law, the best evidence, which would be the written leases, being lost, the defendant was entitled to give oral testimony as to what the contents of the leases were. Now, it is claimed by the plaintiff here that the facts proven in this case in regard to the declarations of Mr. Thompson, and in regard to certain acts that were done by him and by Isaac "Ledbeater (who, they claim, was his agent) show that Thompson, when he made this lease, either reserved the right to indicate the amount of coal that should be taken out, or afterwards made some agreement with the lessees operating the lease as to the amount of coal that should be taken out and the amount of support that should be left. In other words, they claim that Thompson exercised authority, presumably rightfully, over those that were mining the coal there, and gave directions as to the removal of certain supports that had originally been left to hold the surface in place, and that he, having done that, is liable in this case. N ow, the defence claims that is not correct. They claim, especially in view of the testimony of Mr. Thompson and Mr. Ledbeater, that these facts on which the plaintiff relies to show that he had the right to control the manner in which the coal was mined, and especially the right to control the amount of support that was left, are not established, and that he had nothing to do with the mine, and if there was an insufficient support left in this mine prior to 1889, which caused this subsidence, that that wrong was perpetrated by these lessees of Mr. Thompson and he had nothing to do with it. [Now, that is one of the questions you must determine; these leases being lost, and the contract resting in parol, it is for the jury to determine ; and the question now before you on this branch of the case is, did Mr. Thompson, when he originally made these leases, or at any other time after that, have an agreement, an understanding, with the men that operated the mine that certain coal that ought to have been left for supports was to be removed; did he direct that; did he consent to it; was he a party to it; if he was, then he would be liable in this suit, providing the other branches of the case, that we shall refer to presently, have been made out; that is the first question, and you will recall the testimony bearing upon that question, and the argument of counsel on both sides, and determine whether or not Mr. Thompson reserved to himself, or, by agreement with the lessees, exercised the direction and control over the removal of coal that ought to have been left there to support the surface.] [3] Now, if you find that he did not, and that these pillars of coal were removed, or insufficient support was left by the lessees, independent of Mr. Thompson, he not having any control over that matter, then your verdict should be for the defendant, and you need go no further.”</p> <p>Defendant’s points were among others as follows:</p> <p>“ 2. If the jury find from the evidence that prior to the mining of the coal on entry No. 4, the defendant leased the mine by a written agreement to Morgan & Gregg for a term of years, and that under that agreement the lessees had a right to mine all the coal they saw proper beyond the minimum amount stipulated for annually, and that they were to pay the lessor a stipulated price per hundred bushels, this contract operated as a sale of the coal in place and the defendant is not responsible for the manner in which the lessees operated the mine. Answer: That is affirmed, unless you should further find, as we have said in our charge, he reserved some right to direct the manner in which the coal should be taken out, and what amount of support should be left; but the point as drawn, is affirmed.” [4]</p> <p>“ 8. If the jury find from the evidence that at the time the coal was mined under the plaintiff’s lot the mine was being operated by Morgan & Gregg under a lease from the defendant, with the right to miñe as many bushels per year as they saw proper beyond the minimum amount stipulated for, then the defendant is not liable for the manner in which the coal was mined, if the men who did the work were in the employ of Morgan & Gregg, and were not the servants of the defendant and subject to his control. Answer : Affirmed, subject to what we have said in our general charge.” [5]</p> <p>“ 6. Under all the evidence the verdict should be for the defendant. Answer: That is refused; this case, we think, is one that the jury must determine; it is a question of fact, and the court can only direct a verdict for the defendant, or for the plaintiff, where the facts are undisputed, and the law is such as requires, on those undisputed facts, that the verdict should be one way or the other.” [6]</p> <p>Verdict and judgment for plaintiff for $450. Defendant appealed.</p> <p>Errors assigned were (1-6) instructions, quoting them.</p>

Appeal, No. 139, Oct. T., 1893, by defendant, Robert Yanderlin, from order of C. P. Butler -Co., Sept. T., 1888, No. 72, dismissing exceptions to levy and inquisition, in Levi Porter et al., executors, for use of A. F. Hollister, now for use of A. G. Egbert and George B. Sheasley, v. Robert Yanderlin. Exceptions to levy and inquisition.

<p>Appeal, No. 170, Oct. T., 1893, by-Mary H. Black and C. H. Black, assignees of Mrs. Clementine Mort, an heir, from decree of O. C. Washington Co., dismissing exceptions to auditor’s report in adjudication of estate of Wm. Hodgson, deceased.</p> <p>Exceptions to adjudication. Before McIlyaine, P. J.</p> <p>John M. Grable filed his account as administrator of the estate of William Hodgson, deceased. The heirs and next of kin of the decedent, among them Mrs. Clementine Mort, appellants’ assignor, filed exceptions to the account, claiming among other things that accountant should be surcharged for royalty on the difference between 2,000,000 bushels of coal, and 1,228,348 bushels, amounting to $4,228.59, this being, as alleged, the difference between the amount collected and which should have been collected under the coal lease.</p> <p>The record did not show any assignment from Mrs. Mort to the Blacks.</p> <p>The case was referred to J. M. Braden, Esq., as auditor, who reported on this claim as follows:</p> <p>“ First let us consider the question as to whether or not the accountant shall be surcharged with $4,228.59, the difference between $11,500 royalty, which the exceptants claim the accountant should have collected for the two years from September 1, 1885, to September 1, 1887, and $7,210.41, the amount actually collected and accounted for.</p> <p>“ The lease provides that ‘ the said parties of the second part (the Hilldale Coal Company) covenant and agree to and with the said party of the first part to mine and remove at least ten million bushels of coal during the continuance of this lease, and it is expressly agreed that the said parties of the second part shall and will mine, remove and pay for one million bushels of coal, of the above amount, for each and every year, from the date of this lease, that is, one million bushels on or before the first day of March, A. D. 1888, one million bushels on or before the first day of March, A. D. 1884, and so on, until the said ten million bushels are mined and removed in said ten years of this lease. And it is further agreed that should said parties of the second part fail to mine and remove the whole amount of one million bushels, for each and every year as above stated, then the said number of bushels, or amount of coal, of the one million bushels not mined, must be mined and removed and paid for the next and following year in which they, failed to mine and remove the said one million bushels, as above stated, except at the end of the tenth or last year of this lease, in which case, should there be any amount of the ten million bushels not mined and removed, then the same is to be forfeited to the said party of the first part, his heirs or assigns,’ etc.</p> <p>“ It would seem to your auditor, from a consideration of the language of the contract, the circumstances surrounding its making, and the purpose for which it was made, that a reasonable construction of it would require the Hilldale Coal Company to mine, remove and pay for 1,000,000 bushels of coal for each year of the term fixed by the lease, and that if they fail to do this, then the portion of the 1,000,000 bushels remaining unmined must be mined, removed and paid for in the following year, except the last year of the term, when the portion remaining unmined is forfeited to the lessors.</p> <p>“ But this is not the view taken by the accountant and his counsel. The 'accountant testifies as follows: ‘ The lease requires them to mine so much coal, but they have a certain length of time to take it out in, they could take it out the last year if they wished to.’ And, again, he testified that in the collection of these royalties he tried to use his own judgment in the case, that he consulted his attorney and was advised by him that the Hilldale Coal Company need pay no more royalty than they did pay, and if he had thought otherwise, he would have tried to collect it.</p> <p>“ Assuming that the construction put upon the lease by the accountant and his counsel is a mistaken one, should the accountant be surcharged $4,228.59 on account of this error of judgment ? Your auditor is of opinion that it would not be just so to do. The accountant does not stand in the place of the Hilldale Coal Company, nor is the matter of this attempted surcharge to be viewed in the light of an action against that company for a failure to mine the number of bushels of coal specified in the lease. The accountant is a trustee, and is responsible to his cestuis que trust, who in this case are heirs, for which reason this matter is to be decided upon a more liberal view of the trustee’s discretion than as against creditors: Bruner’s Appeal, 57 Pa. 46. It is not proven, or even claimed, that a dollar of this sum with which exceptants seek to surcharge the accountant ever came into his hasids, nor is it proven or claimed that he has been gnilty of bad faith in any matter pertaining to his duties as trustee.</p> <p>“ ‘ It is said to be the harshest demand that can be made in equity, to compel a trustee to make up a deficiency where the money has not come into his hands. In such a case equity will not charge him, unless he has been guilty of negligence so gross as almost amounts to fraud: ’ Nyce’s Estate, 5 W. & S. 254; Pim v. Downing, 11 S. & R. 66; Johnson’s Ap., 12 S. & R. 317. ‘All the authorities distinguish between such a case and that where a trustee has actually received the fund: ’ Nyce’s Estate, supra. ‘ A trustee should not be surcharged for a loss arising from what at most may be a doubtful error of judgment, when not guilty of any willful neglect or default: ’ Per Curiam, Supreme Court of Penna.; Bailey’s Ap., 2 Cent. R. 310; Hanbest’s Ap., 8 W. N. 208; McCourt’s Ap., 11 W. N. 161; 12 Pa. 482; Scott’s Intestate Law, 151.</p> <p>“ In this case it has not been shown that the accountant was guilty of any willful neglect or default. No such gross negligence ‘ as almost amounts to fraud ’ has been shown. On the contrary, the evidence shows that the accountant considered the matter of the amount of royalty this company should pay under the terms of the lease, that he consulted his counsel about it, and was advised that the company need pay no more royalty than they did pay, and that, had he believed the company liable under the lease for more royalty than the amount paid, he would have endeavored to have collected it. There is not the slightest intimation of collusion between the accountant and the coal company, and the auditor is irresistibly led to the conclusion that, if a mistake has been made by the accountant in the amount of royalties collected by him, such mistake was mere error of judgment, free from' any taint of bad faith, not attributable to gross negligence, and is such an error as the accountant cannot be held liable for.</p> <p>“ There are other difficulties in the way of surcharging the accountant with royalties, as desired by exceptants. The evidence does not disclose whether or not the coal company mined 1,000,000 bushels of coal between September 1, 1884, and September 1, 1885, hence the auditor is not informed as to the amount of coal to be mined, paid for and removed between September 1, 1885, and September 1, 1886; and although the evidence does show that the amount required by the lease to be mined was not mined, between the above mentioned dates, yet, according to the terms of the lease, the coal company had from September 1, 1886, to September 1, 1887, to make up the deficiency, and in August, 1887, the coal property belonging to the decedent’s estate and covered by this lease was sold, for the payment’of debts, with the rights and subject to the conditions of the lease thereon, and included in this sale was, of course, the coal which ought to have been mined between September 1, 1886, and September 1, 1887, the coal company having the right to make up the deficiency, in the year embraced in these dates, in the succeeding year. By this sale the heirs of the decedent would, it is to be presumed, receive the price or value of the coal which'ought to have been mined by the coal company, but was not, and remained unmined at the date of the sale, although the benefit derived may not have been so great as they would have received had the coal been mined, removed and paid for at the contract price.</p> <p>“Under all the circumstances the auditor feels warranted in declining to surcharge the accountant with the said sum of $4,228.59, as desired by exceptants.”</p> <p>The auditor also charged the cost of the audit to the estate.</p> <p>Exceptions to these findings and conclusions were dismissed by the court below in an opinion in part as follows, by McIlvaine, P. J.:</p> <p>“ When Mr. Grable took out letters of administration, the heirs gave him a written authority ‘to ask, demand, distrain for, sue for, collect and receive all such rents and arrears of rents as now are or may hereafter grow due or owing to us from the Hilldale Coal Company,’ etc.</p> <p>“ Under the contract or lease which had been executed by Edward Kelly, Jr., committee of the decedent, and the Hilldale Coal Company, the administrator collected from the company the sum of $9,227.35 royalties or rent. The exceptants claim that he did not collect this rent when it was first due, and also that he did not collect all the rent that was due and owing under the terms of the contract or lease, and that he ought to be surcharged with the rent he failed to collect, and also with the interest on the delayed payments of rent that he did collect. We are satisfied with the auditor’s disposition of that part of the except-ant’s claim which seeks to charge the accountant with the rental price of the coal that was not mined. The lease required that a certain amount of coal be mined and paid for each year, but it did not provide that so much coal should be paid for whether mined or not. If the amount specified was not mined, the remedy was a suit for damages in an action of covenant. And before any unreasonable delay in bringing such a suit had transpired — if indeed, it could have been brought before Sept. 1, 1887, — this court granted an order to the administrator to sell this- coal tract, with all the rights of the Hodgson estate under the lease, including the coal in place which had not been mined, but which ought to have been mined under the terms of the contract, and a sale was so made, and confirmed on the 23d day of August, 1887. We are also satisfied that the accountant ought not to be charged with interest, which the exceptants claim was due and owing from the Hilldale Coal Company on account of their delay in paying the rent or royalties that were paid. The auditor finds that this delay was, at least in part, caused by the action of the representative of one of the heirs, in notifying the company not to pay the administrator, and as the accountant never received the money, it would be inequitable to hold him liable when the loss of the use of this rent is, in some measure, attributable to the exceptants themselves.”</p> <p>Errors assigned were (1, 2) refusal of surcharge; (3) decree as to costs.</p>

<p>Supervisors — Bond—Township auditors — Act of March 16, 1860.</p> <p>Where a supervisor is duly elected, and is ready and willing to give a proper bond, as required by the act of March 16,1860, P. L. 174, the township auditors cannot refuse to accept the security on the ground that the supervisor owes a debt to the township which he refuses to pay.</p> <p>In such a ease the duties of the auditors are to accept the security offered if sufficient, and, if a balance is due to the township by the supervisor, to proceed to collect the same by legal process.</p>

Appeal, No. 41, Jan. T., 1893, by-Owen Conroy et al., from order of Q. S. Schuylkill Co., appointing school directors. Petition to remove school directors. Before Pershing-, P. J. The facts appear by the opinion of the Supreme Court.

<p>Master and servant — Negligence—Safe appliances.</p> <p>It is the duty of an employer to furnish his employees reasonably safe appliances with which to do the work assigned to them, and also to know what appliances are suitable and in common and ordinary use for the purpose.</p> <p>In an action to recover damages for death of plaintiff’s husband, it appeared that it was the duty of deceased to remove the manheads from the stills in an oil refinery after the fires were drawn. While in the performance of his duty he was killed by an explosion of gas in one of the stills. Evidence for plaintiff tended to show that it was customary to use steam in the stills after the fires were drawn for the protection of the men in removing the manheads, and that there was in common and ordinary use a contrivance by means of which the Stillman was enabled to remove the manhead without lifting it from its place, or standing immediately in front of it. It appeared that neither this contrivance nor steam was used in defendant’s works. Held, that the evidence was sufficient to support a verdict and judgment for plaintiff.</p> <p>Contributory negligence — Evidence—Inferences from facts.</p> <p>In the above case it appeared that after the accident the manhead was found leaning against the still at one side of the manhole, and that there was a lantern with the glass globe slightly cracked, and a light still burning in it at the time, about twenty-five feet beyond the place where the deceased was found enveloped in flames. From these facts it was claimed as an irresistible inference that after deceased had removed the manhead he negligently passed in front of the open manhole with the lantern in his hands, thereby exploding the gas issuing from the opening. Held, that such an inference could not be drawn by the court, and that the case was for the jury.</p> <p>Risk of employment — Latent dangers — Appliances.</p> <p>An employee is not presumed to know whether his employer has furnished appliances which are reasonably safe and in ordinary use, in case of latent dangers, and in such case he is not chargeable with an assumption of the risks involved in the failure to provide them.</p> <p>Measure of damages — Charge of court.</p> <p>In an action by a widow to recover damages for the death of her husband, the court charged: “ It is simply a question of compensation. What in your judgment, as well as you can ascertain from the evidence furnished you, will compensate her for the loss she has sustained. They have given you the age of this man, thirty-eight years of age. A man such as the testimony says was in active life, working daily, earning from $13.50 to $14.00 a week. You will see what under all the evidence will compensate this lady for the loss she has here sustained, and you will give her a verdict for that amount.” The jury gave a verdict for $3,000. Held, that the charge was not improper.</p>

<p>Municipalities — Power to enforce lien for water outside of limits of city— Act of March 7, 1843, sec. 4.</p> <p>Under the act of March 7, 1843, § 4, P. L. 47, which empowers the city of Pittsburgh “ to recover water rents due and unpaid beyond the limits of the city, as well as within the same, in the same way as city taxes are now recoverable,” the city may furnish water to property outside of the municipal limits, and enforce the collection of the water rents by the entry of a lien therefor against the real estate upon which the water was furnished, according to the contract made with the customer.</p>

<p>Appeal, No. 179, July T., 1893, by defendant, .George T. Miller, from judgment of C. P. Franklin Co., Feb. T., 1890, No. 191, on verdict for plaintiff, James B. Robisson.</p> <p>Ejectment. Before Stewart, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, plaintiff offered in evidence the following entries in the prothonotary’s office, as an acknowledgment of the sheriff’s deed to J. McD. Sharpe:</p> <p>“13th August, 1874. J. McD. Sharp.e, Esq., for all the real estate of John C. Robisson, to wit, a tract or piece of land situated in Montgomery township, Franklin county, Penna., and containing 128 acres of land, more or less, bounded, etc., seized and taken in execution as the property of John C. Robisson and sold by virtue of a writ of vend. ex. No. 66 of August term, 1874, on the 11th day of August, 1874, to J. McD. Sharpe, for 1600. Same day, on motion of Vm. Adams, Esq., court granted a rule on sheriff to bring money into court. Service of rule accepted by the sheriff. And E. J. Bonbrake, Esq., appointed auditor to make distribution.</p> <p>“ 19th June, 1876, report of auditor filed. 1st August, 1876, exceptions to the report of auditor filed. 27th March, 1877, opinion of the court overruling the exceptions, confirming the report- and distribution ordered accordingly. Jiro. A. HysSONG, Pro.”</p> <p>Mr. Brewer: We object to the evidence of the sheriff’s deed: (1) Because no evidence has been offered to show a sheriff’s sale. (2) No return. (3) For the reason that this record is not evidence of itself. It is a mere memorandum made in the common pleas book here of the fact that a sheriff’s deed was executed. Objection overruled and bill sealed. [7]</p> <p>The court charged in part as follows :</p> <p>“ [I am of opinion that, notwithstanding the levy antedated the giving the recognizance, which act vested in the defendant the whole title to the tract in dispute, the fact that this vesting occurred before the sale made the sale efficacious to pass the whole title.] [2] I am not aware of any express adjudication of the question in our own state; but the conclusion stated seems to be warranted by the plain "and reasonable inferences which are to be deduced from well established principles. Had the levy and sale followed the giving of the recognizance, all the defendant’s title to the particular tract set apart to him would unquestionably have passed by the sale, notwithstanding the fact that the judgment when obtained was a lien only upon his undivided interest in all the lands. When a division of lands occurs between tenants in common, a judgment which had been obtained against one of the tenants ceases to bind his undivided interest in the whole, and is restricted in its lien to the part set out in severalty to the judgment debtor: Bavington v. Clarke, 2 P. & W. 124; Long’s Appeal, 77 Pa. 153; Stewart v. Bank, 101 Pa. 345.</p> <p>“ But under such judgment the defendant’s interest in all of the lands held in common may be levied upon and sold before partition; though this is not true of a parcel only. A levy upon defendant’s interest in a parcel of the land is held invalid, because, otherwise, the effect would be to create new tenancies in common in tracts and parcels to the prejudice and injury of the common estate: Blossom v. Brightman, 21 Pick. 283. But, as was said in Brown v. Bailey, 1 Metc. 254, this invalidity is with reference to and for the benefit of the cotenant of the debt- or, for if, on partition being had, the part levied upon should happen to be assigned to the creditor, the debtor will be estopped by the partition, and the title of the creditor will relate to the time of the levy. To the same effect is Bartlett v. Harlow, 12 Mass. 348.</p> <p>“Now in the present case the levy was upon all the defendant’s interest in one parcel of the estate held in common; but before the sale partition had been made between the cotenants, and the very tract levied upon had been set apart to him in severalty to the judgment debtor. It would follow from the authorities cited that the sale operated to pass such title to the vendee as the debtor then had.</p> <p>“ It is further contended by the defendant’s counsel that the failure of the plaintiff to produce the sheriff’s deed to Mr. Sharpe, or to show that such had ever been delivered by the sheriff, is a fatal defect in the plaintiff’s chain of title.</p> <p>“ [That the sale was made by the sheriff is abundantly established by the records. There is the sheriff’s return to the last vend, ex., and, what is conclusive of the facts beyond all question, the entry of the acknowledgment of the deed by the sheriff upon the common pleas record.] [3] The actual delivery of the sheriff’s deed to Mr. Sharpe was not necessary to vest the title in him. With the acknowledgment of the deed the defendant’s title was divested, and transferred to the sheriff’s vendee. ‘ After acknowledgment, the validity of the title cannot be questioned in any collateral action involving the title, except for the absence of authority, or the presence of fraud in the sale: ’ Cock v. Thornton, 108 Pa. 641.</p> <p>“ Nor was it necessary that the plaintiff should show actual payment of the purchase money by Mr. Sharpe to the sheriff. By acknowledging the deed, the sheriff himself became liable for the purchase money to whomsoever was entitled to it. It was, to that extent at least, an admission of his that it had been paid, no matter how the actual fact stood, and the parties interested in the fund could look to him alone. Thereafter it became a question between the sheriff and the purchaser, in which no one but themselves could be interested or concerned.</p> <p>“ [The records produced in evidence show the payment of the money into court,] [4] and an auditor’s report, regularly confirmed, by which the money realized on the sale was appropriated to the original recognizances which were given in the partition proceedings.</p> <p>“ Now, if this sheriff’s sale was regular and operated to pass the title of the defendant in the land, then the lien of the recognizance, which was the basis of the proceeding under which the defendant in this action claims to hold, the land, was wholly divested, and this land could not be sold a second time for that debt.</p> <p>“ [I do not see that there is any question of fact in the case to be submitted to the jury. I therefore instruct you, as matter of law, that the plaintiff’s case as presented in the evidence shows an adequate and sufficient title in him, and the facts relied upon not being in dispute at all, he is entitled to a verdict at your hands for the land described in the writ. You will so render your verdict.] ” [6]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) in directing judgment for plaintiff; (2-4, 6) instructions; (5) in not submitting to jury questions of acknowledgment and delivery of sheriff’s deed; (7) ruling on evidence; quoting instructions and bill of exceptions.</p>

<p>Appeal, No. 84, Jan. T., 1893, by Thomas A. McClelland, executor of Eliza Gilmor, deceased, from decree of O. C. Franklin Co., dismissing exceptions to auditor’s report distributing estate of John Gilmor, deceased.</p> <p>Adjudication of executor’s account. Before Stewart, P. J.</p> <p>The account was referred to Alexander Stewart, Esq., as auditor, from whose report it appeared that testator died Nov. 30, 1889, leaving a will by which he directed as follows:</p> <p>“ 1st Item. I give and Bequeath to my beloved Sister Eliza all my Estate real personal and mixed she to receive the interest & profits of the same Dureing her natureal Life should the said Eliza survive me.</p> <p>“ 2nd Item. The bequest to my Sister Eliza is to be managed by my Executors hereinafter mentioned. The United States Government Bonds are not to be Converted into money but to be held By my Executors for the purpose above mentioned. I heirby autherize and empower my Executors to sell my real Estate either at Publick or Private whichever way the same can be sold to the best advantage. But said real Estate is not to be sold unless it can be sold for an advantageous Price.”</p> <p>Eliza Gilmor, testator’s sister, and the life beneficiary under his will, died Feb. 24,1891, leaving a will under which Thomas A. McClelland was executor and a legatee.</p> <p>The auditor reported as follows:</p> <p>“At John Gilmor’s death his executor, Thomas A. McClelland, discovered, in the former’s desk, to which the testator alone had access, a box containing money and three pocketbooks or wallets. One (exhibit H) was labeled, in testator’s handwriting, ‘John Gilmor.’ It contained transcripts of all his judgments except two. It contained nothing else. The second pocketbook (exhibit J) was similarly marked or labeled, in testator’s handwriting, ‘Eliza Gilmor.’ On the inside of the book, on the paper lining, was written in ink, in testator’s writing, ‘ Eliza Gilmor,’ and on the same lining and in the same handwriting, was written twice, in lead pencil, ‘ Eliza Gilmor’s money.’ This book contained transcripts of the testator’s two remaining judgments and all the mortgages he held except one. The missing mortgage was, in part, owned by another man, and was in the custody of Mr. Gehr. This book (‘ J ’) also contained exhibits ‘ D,’ ‘ E,’ ‘ F ’ and ‘ G,’ described in the following paragraph. The third book (exhibit ‘ L ’) was similarly labeled, ‘ John Gilmor,’ and contained some money.</p> <p>“The exhibits above referred to as ‘D,’ ‘ E,’ ‘F’ and ‘G,’ found in the pocketbook ‘ J,’ are described as follows: Exhibit ‘ D,’ a single bill or duebill, in the writing of John Gilmor, and signed and sealed by him, in favor of Eliza Gilmor, dated July 1, 1889, for $8,450. Written below that, in the handwriting of John Gilmor, was another duebill in favor of Eliza Gilmor, signed by the testator, for $500, dated October 1, 1889. Exhibit ‘ E ’ was a promissory note, signed by John Gilmor, to the order of Eliza Gilmor, for $50,000, dated April 1, 1889, due one day after date. The entire note was in the testator’s handwriting. On the same piece of paper, to the left of and below the note, was this memorandum: ‘N. B. This note is invested in Government Bonds at 4 per cent Belonging to Eliza Gilmor.’ Below the note, and to the right of this memorandum, were written, in the testator’s writing, two receipts, dated respectively, ‘ Julyl, ’89,’ and ‘October 1st,’ for ‘ five hundred dollars interest on note.’ Each of these receipts was signed ‘ E. Gilmor.’</p> <p>“ Exhibit ‘ F ’ was a note similar to ‘ E ’ in payee, amount, date and time, and was in testator’s writing. The signature had been cut and torn away and was not produced. As in ‘ E,’ to left of and below the note was a memorandum, in testator’s writing, in these words: ‘N. B. This note is for Money invested in Government Bonds at four per cent of Belonging to Eliza Gilmor.’ This memorandum and the figures ‘ $50,000 ’ had been canceled by pencil marks. Indorsed on the back was this receipt : ‘ July 1, ’89, Received on the within note $500 interest.’ (Signed) E. G. This was canceled by pencil marks.</p> <p>“ Exhibit ‘ G ’ was a promissory note exactly similar to ‘F,’ with the memorandum in these words: ‘N. B. This Note is for Money Invested in Government Bonds at Four Per Cent Belonging to Eliza Gilmor.’ The signature to the note had been cut and torn from it. Below the place where it had apparently been was this receipt: ‘July 1, ’89 Reced. $500 Dols. interest on Note E. Gilmor.’ The note, memorandum and receipt were in testator’s writing, and had been canceled by pencil marks.</p> <p>“ Below the memorandum and receipt, at the foot of the same sheet of paper, was a duebill, in testator’s writing, in favor of Eliza Gilmor, for $1,450, dated July 1, 1889, from which the signature had been clipped. The amount in figures ($1,450) had been canceled by pencil marks. Between the duebill and the memorandum and receipt was the word ‘ Cansled,’ in lead pencil.</p> <p>' “ In the same drawer with the pocketbooks was found exhibit ‘ M,’ a long strip of paper wound around a pack of testator’s letters. Across one side of it was written in testator's hand, ‘ Mortgage Belongs to Eliza Gilmor $4,000.’ Through this were numerous pencil marks.</p> <p>“ In order to show that Eliza Gilmor had an estate or was entitled to one equal in amount, at least, to the combined amount of the note ‘ E,’ duebills ‘ D ’ and the contents of pocketbook ‘ J,’ and that it was in testator’s custody at his death, evidence was submitted on behalf of Eliza Gilmor’s executor, from which the following facts are found:</p> <p>“ John Gilmor (the elder) left eight children. In 1863 seven were living — Samuel, William, James, Mary, Joseph, John and Eliza. The other had died unmarried and without issue. Between 1863 and the date of John Gilmor’s death, Samuel, Mary, James, William and Joseph Gilmor died, all dying intestate, unmarried and without issue. Each one left to survive him or her as his or her next of kin and heirs at law those of the brothers and sisters then surviving, upon whom the law cast the respective decedents’ estates in equal proportions.</p> <p>“As each one died, administration of the estate-was committed to one or more of the survivors, and an appraisement was made of the estate for the collateral inheritance tax. From the records of these appraisements, and of the settlement of the tax, it appears that each one had, at his or her death, a considerable estate, being, respectively, as follows: (1) Samuel, 1863, personal $5,373.95, real $6,496, total $12,869.95, less debts $8,989.84, net balance, $4,780.11. The debts here deducted appear to have been due to his sisters then living. (2) Mary Gilmor, personal $6,116.02, real $1,200, total $7,316.02, less expense $500, net succession $6,816.02. (3) James Gilmor, net succession $27,203.49. (4) William Gilmor, net succession $21,105.47. (5) Joseph Gilmor, net succession $30,592.82.</p> <p>“Included in these appraisements was the undivided share or interest of each in several tracts of land held by the brothers and sisters in common. Previous to John Gilmor’s death all this land was sold, at various times, except the farm and mountain or wood land above mentioned. The land so sold brought, in all, about $30,927.50. One sale, that to John White, by John and Eliza, made in March, 1888, yielded $21,000, which money was all invested by Mr. Gehr in John Gilmor’s name.</p> <p>“ On July 1, 1879, by letter of attorney of that date, Eliza Gilmor constituted John Gilmor her attorney in fact, with full power to receive and collect any money, debts, etc., due her, and generally to take charge of and manage all her personal property and estate, and to invest the same in any securities that to him might seem safe and satisfactory, and to manage her real estate and take the profits thereof. John Gilmor acted under this authority to some extent until his death. It was not proven to what extent he acted under it.</p> <p>“ The foregoing facts represent as fully the evidence taken on this subject as the auditor deemed practicable or necessary. He has endeavored to make them embody every material fact. He does not find anything in them or in the evidence to warrant his finding that the testator was indebted to Eliza Gilmor, as trustee or otherwise, in anj' sum greater than that represented by the duebills ‘ D ’ and the note ‘ E.’ He therefore finds that the testator, at his death, was indebted to Eliza Gilmor in the amounts of the duebills ‘ D,’ with interest from their dates, at six per cent, and in the amount of the note ‘ E,’ with interest from October 1,1889, at four per cent, and in no further sum.”</p> <p>The auditor further reported in a supplemental report:</p> <p>“ The claims of Eliza Gilmor’s executor were : (a) for the United States bonds or their value in money, and (5) for certain mortgages and a judgment found in the pocketbook marked with- her name, or the proceeds thereof. The facts relating to these claims are fully set out in the report, (a) The first claim was rejected. So far as it was for the bonds in specie it was in the teeth of the well known rule that in a distribution of the orphans’ court no claim to the decedent’s property can be adjudicated when made adversely to the decedent’s title thereto. In this forum only creditors, legatees and next of kin can be heard: McBride’s Ap., 72 Pa. 480; Gravenstine’s Ap., 2 Penny. 61; High’s Est., 136 Pa. 222.</p> <p>“ It was sought to bring the claim within the exception to this rule established by Marshall v. Hoff, 1 Watts, 440, and Miller’s Ap., 84 Pa. 391, namely, that the fund sought to be recovered ‘may be shown tobe wrongfully in the account, either because, though in the name of the decedent, it is really a trust, or because the title is in another person,’ and in this aspect the value of the bonds in money was claimed.</p> <p>“ The right and power of the orphans’ court to assume jurisdiction of such a claim cannot be doubted, but the evidence produced before the auditor wholly failed, in his opinion, to establish it. It was shown that for some years the testator had acted as Eliza Gilmor’s attorney in fact, and had, from time to time, received into his hands a large sum of money belonging to her. On April 1, 1889, a few months before his death, he made, in her favor, a promissory note of $50,000, and below it wrote a memorandum to the effect that it was ‘ invested in government bonds at four per cent, belonging to Eliza Gilmor.’ How this can b$ construed into a declaration that all of the bonds in testator’s name belonged to Eliza Gilmor, or that he held them in trust for her, the auditor cannot see. The note was a declaration that-the testator owed Eliza $50,000 on the date thereof, and the memorandum seems to do no more than indicate where it was invested. If it had appeared that the testator had bought, with $50,000 of Eliza’s money, bonds of that par value, and had held them as hers, then her right to any increase in their value would be clear. But there was not a word of evidence to show when, with whose money or at what price the bonds had been bought. For all that the evidence shows the testator may have bought them on April 1,1889, or at any other time, using $50,000 of his sister’s money and enough of his own to make up the balance of their cost. The memorandum seems entirely consistent with such a theory, and, when taken in connection with the note, inconsistent with any other.</p> <p>“ An additional reason why, even if the evidence had been thought sufficient, the auditor would be compelled to reject this claim is that the premiums on the bonds do not enter into the account, and it would be impossible to ascertain their amount, and, if ascertained, to award them.</p> <p>“ The claim was accordingly rejected in so far as it exceeded the face of the note, $50,000, with interest. The duebills found with it were also allowed, with interest.</p> <p>“ (5) The second claim was for the mortgages and judgment in the pocketbook, or their proceeds. It was rejected for much the same reason as the former claim — the auditor did not think the evidence sufficient to sustain it in any aspect in which it might be considered. As the auditor gathered from the arguments of the claimants’ counsel, there were three grounds upon which the claim might be rested : (1) That the setting aside of these securities in the wallet marked with Eliza Gilmor’s name, and containing the note and duebills above mentioned, amounted to a gift of them to her; (2) that, taken in connection with his relation to her as attorney in fact, it amounted to an acknowledgment of his indebtedness to her in that amount; and (3) that it amounted to a declaration of trust on his part in her favor.</p> <p>“ The evidence of the testator’s indebtedness to Eliza Gilmor, as shown by the report, was that she had inherited from her brothers and sisters, dying intestate, at various times from 1863 to 1879, about 133,000, and that in 1879 she had given the testator a general power of attorney for the management of her estate. Apparently it had all passed into his hands, for when she died her executor found nothing, practically, upon which to administer. This seemed sufficient to the auditor to warrant the conclusion that the testator died indebted to his sister, and the note and the duebills above referred to confirm that conclusion. But the evidence seemed by itself, without any declarations or admissions of the testator, insufficient to fix the amount of the indebtedness. These were altogether wanting, except in the notes and duebills, and in determining this question and that concerning the United States bonds, the auditor has looked upon the notes and duebills as furnishing the only safe measure of the testator’s indebtedness. It seemed incredible that the testator should have taken such pains accurately to fix and ascertain a portion of this indebtedness, and then leave the balance to be evidenced by his' sister’s name on the receptacle of certain papers. The auditor does not wish to be understood by this as admitting the testator to limit his liability by his own declaration. What he means is that without such declaration it would be impossible to fix the liability at all, and that when the placing of these securities in the marked book is contrasted with the care with which the note and duebills were prepared, it loses all force as an admission of indebtedness. If this be so, then the second ground upon which the claim is made- — -as a debt — must fail, because no indebtedness is established. The first ground also fails, for as a gift it is without consideration and void, because .unexecuted. Plumstead’s Ap., 4 S. & R. 545; Crawford’s Ap., 61 Pa. 52.</p> <p>“ This leaves the claim to be sustained, if at all, upon the footing of a declaration of trust, and the auditor finds the evidence upon this subject quite as unsatisfactory as upon those already discussed. It consists of the placing of the securities claimed in a pocketbook, along with the notes and duebills, the book bearing on the outside a label with 4 Eliza Gilmor ’ written thereon in the testator’s writing, and the words 4 EIRa Gilmor’s Money,’ written in the same writing, in pencil, on the paper lining of the book. There was nothing whatever to connect these marks on the book with its contents. There was nothing to show at what time or for what purpose they were made. They stand alone and upon them the trust, if trust there be, must rest.</p> <p>"'There is no certain form required in the creation of a trust. In the case of personal property or choses in action trusts may be proved by parol. If the declaration is in writing .... it may be couched in any language which is sufficiently expressive of the intention to create a trust.’ Clark, J., in Smith’s Est., 144 Pa. 428.</p> <p>"'The intention must be plainly manifest and not derived from loose and equivocal expressions made at different times and upon different occasions. The donor need not say in so many words, 441 declare myself a trustee,” but he must do something which is equivalent to it and use expressions which have that meaning; for, however anxious a court may be to carry out a man’s intention, it is not at liberty to construe the words otherwise than -according to their proper meaning: ’ Id. 487.</p> <p>44 The requisites for raising a trust of this nature (and it will be observed that the auditor, having found no indebtedness be-tween the parties, treats this as a purely voluntary one) are stated by Mr. Bisphara to be three in number — sufficient words to create it, a definite subject, and a certain or ascertained object; to which may be added another, that the terms of the trust should be sufficiently declared: ’ Eq. 65.</p> <p>"And in the English case of Warriner v. Rodgers, L. R. 16 Eq. 340, Bacon, V. C., makes it indispensable to the validity of such a declaration that the donor part absolutely with that interest in the subject-matter which has been his up to the declaration, and put the property out of his power, at least in the way of interest.</p> <p>"Now applying these principles to the facts of this case it .seems to the auditor almost beyond question that the declaration of trust, if any was intended, must fail for want of the .most essential and necessary features. The only one of Mr. Bispham’s requisites which is present is the ‘ certain or ascertained object ’ — Eliza Gilmor. The subject is altogether uncertain, for the words on the book are in no way connected with its contents; and the words used are certainly, in the absence of such connection, insufficient to create it, for they are expressive of no intention whatever. Mr. Bispham’s additional essential is also wanting, for there is no declaration of the terms of the trust.</p> <p>“ Then, too, the fact that this disposition of the securities was never made known by the testator to any one in his lifetime, is important. It would not be essential that he had done so, if the memoranda on the book appeared to be the deliberate expression of his purpose, or if such fact could be established by any circumstances. But the failure of the memoranda, so to speak, and the absence of any such circumstances would seem to make it a significant fact that the trust was kept secret by the testator.”</p> <p>Exceptions by Thomas A. McClelland, executor of Eliza Gilmor, deceased, dismissed; whereupon exceptants appealed.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

<p>Tenants in common — Partnership—Dealings—Presumption— Oil lease.</p> <p>Tenants in common may become partners, like other persons, where they agree to assume that relation towards each other; but the law will not create the relation for them as the consequence of a course of conduct and dealing naturally referable to the relation already existing between them, which makes such a course of conduct to their common advantage.</p> <p>An agreement between two tenants in common of an oil lease to drill an additional well on the leasehold at the common cost of the eotenants will not as between themselves create a partnership. In the absence of a distinct agreement between them that their relations to the property and to each other should be changed, the presumption is that the old relation continued, and that they treated with each other as owners of separate interests in an undivided lease.</p>

<p>Appeal, No. 264, Oct. T., 1893, by defendants, Benjamin W. Morgan et ux., from decree of C. P. Beaver Co., Sept. T., 1891, No. .1, in favor of plaintiff, R. S. Sutton, on bill in equity.</p> <p>Bill to rescind contract for sale of real estate.</p> <p>The ease was referred to Andrew S. Miller, Esq., as master, who recommended that the bill be dismissed.</p> <p>Exceptions to the master’s report were sustained by the court in the following opinion by Wickham, P. J.:</p> <p>“ In the year 1880, Mrs. Martha B. Morgan bought for the price of $18,500 a farm in Economy township, Beaver county, lying on the Ohio river, and cut in two by the Pittsburgh, Fort Wayne & Chicago Railway. The farm contained one hundred and forty acres and some perches of land. The Morgans sold to the railway company seven and forty-four hundredths acres, and, in the year 1889, placed the remainder of the farm on the market at the price of $30,000. An active and efficient real estate broker was employed to make the sale, but all his efforts proved unavailing. He was to receive five per cent commission if he effected a sale.</p> <p>“ In the fall of 1890, one J. Clark Williams, a school-teacher of Pittsburgh, and without any means, got it into his head that he would lay out a town, after the manner of the founders of Charleroi and similar places near Pittsburgh, and grow rich suddenly. He sent a scout, one Heiner, down the Ohio river to find a site for the contemplated town. Heiner returned and told Williams about the Morgan farm. The next day B. W. Morgan, the husband of Martha B. Morgan, appeared on the scene in Pittsburgh, and negotiations commenced. The price asked for the farm at this time, by Mrs. Morgan, was forty thousand dollars.</p> <p>“ According to the overwhelming weight of the evidence, the property was not then, or at any time since, worth, for any purpose, more than thirty thousand dollars. Some of the witnesses, especially those who live near by and have, under peculiar circumstances, sold strips of land to the railway company at fancy prices, seem to think otherwise. It is not unjust to these witnesses to say, that they have inflated ideas of the value of their property, and that they are more or less unconsciously influenced by a desire to keep up the prices of the real estate they yet own. It is a noticeable fact that, while the plaintiff called a number of experienced real estate brokers of the neighborhood to testify to the value of the farm, the defendants did not put a single person of this class on the stand. It may also be added that the learned master, who is a resident member of the bar of Allegheny county, is probably less able to correctly determine what weight should be given to the testimony of the witnesses who testify as to value, than is the writer of this opinion, who is either personally acquainted with every witness who has testified on the subject, or well knows his character, peculiarities and means of knowledge.</p> <p>“ Williams started out in that frame of mind which made it an easy matter to delude him, and it is clear, from the evidence, that Morgan, who visited him very often, did not limit himself merely to exaggerated praise of his wife’s farm. He told Williams, among other things — some of them not so important— that the shops of the Pittsburgh, Fort Wayne & Chicago Railway Company were about to be removed to the neighborhood. This was stated, not as a matter of conjecture or opinion, but substantially as a fact which he, Morgan, had ascertained from competent sources. Any one reading the evidence cannot help being convinced that the intention of Morgan, and Glass, Mrs. Morgan’s other agent, was to satisfy Williams that the removal of the shops had been determined upon, and that, therefore, it was not worth his while to inquire farther into the matter, as he might and doubtless would have done, if it had been put at him in the shape of a mere rumor or report floating about in the community.</p> <p>“ During the time Morgan was making these representations, he well knew that Williams was unable to buy the property himself, and that he would be compelled to secure partners or backers. When Williams was on the witness stand he was asked the following questions : ‘ Q. Now state whether or not when he, Morgan, called at your place you mentioned to him that you had presented this property to certain parties ? A. I presume I did; I think we talked the matter over and said that there were several parties talking of it. Q. And you mentioned the parties ? A. I am not sure whether I told him the names as to who they were and all that; we talked the matter over, as there was a possibility, at least, of organizing a company and making a sale of the property. Q. Didn’t he state to you to go on and dispose of it, if you could ? A. He didn’t object to our purchasing the property; I don’t know that he said to go on and sell it, directly in those words, but it was understood that I would probably organize a land company and sell the property to the land company.’ Under these circumstances Morgan must be held to have contemplated and intended that the representations he made to Williams would be repeated by the latter to any person or persons whom he might seek to induce to buy the property with him. As Williams well says in his testimony, in answer to a question : ‘ Mr. Morgan made the representations to me that I made to Doctor Sutton, and to any other person with whom I talked with regard to that farm, and, of course,'it did not require any special authority from him to repeat those representations that he made.’ Morgan loaded the gun with the hope and expectation that it would be used against some one for his wife’s benefit, and I think that she, under the circumstances of the case, is as liable as one whose agent issues a false prospectus or advertisement, expecting and hoping that some one, he knows not and cares not whom, will be deceived thereby.</p> <p>“In the month of January, 1891, or earlier, the Morgans employed J. E. Glass, a Pittsburgh real estate broker, to sell the farm for $58,500, agreeing to give him $1,300 as a commission in case he proved successful. His efforts to sell at this or any other figure were futile. In April of the same year, Glass obtained from the Morgans a five days’ option on the farm, with a view to organize a syndicate and sell the property to it for $75,000, to wit: Twenty-five thousand dollars in cash, a mortgage for $40,000, and $10,000 stock in the company to be formed. The Morgans, it seems, were to receive as their share the cash and the mortgage, while Glass was to get the $10,000 in stock for his services. Glass was unable to organize the syndicate, and the option expired on April 19,1891. He continued, however, to act as agent for Mrs. Morgan, at the same time keeping the syndicate matter in view, until the sale was made to the plaintiff, and, as will be seen hereafter, he rendered very efficient service in aiding her to make that sale by his false and misleading statements to Williams.</p> <p>“ On May 1,1891, Williams for the first time approached Doctor R. S. Sutton, the plaintiff, a practicing physician in the city of Pittsburgh, and managed to interest him in the Morgan farm, the price whereof had been raised from forty thousand dollars in October, 1890, and fifty-three thousand and five hundred dollars in January, 1891, to what the master properly terms the ‘magnificent’ price of sixty-five thousand dollars. Nothing had occurred in the meantime to enhance the real or apparent value of the land, if we except the misrepresentations of Morgan and Glass, made from time to time to Williams, who was their dupe from beginning to end.</p> <p>“All that had been told Williams was eagerly and enthusiastically detailed by him to Sutton on the day of their meeting. Sutton having to go to Washington, D. O., was unable then to visit the property (indeed he never saw it until after it was bought), and empowered Williams to represent them both, if a purchase were to be made. Three days later, namely, on the 4bh of May, 1891, Sutton being then in Washington, Morgan visited Williams and learned from him that Sutton was to be his partner and financial backer. As has been said before, Morgan knew all along that Williams had no money wherewith to purchase. On this occasion Morgan repeated his statements, that the shops would certainly be removed, and also added, in substance, that a syndicate, consisting of Robert Pitcairn, a prominent official of the Pennsylvania Railroad Company, living in Pittsburgh, Hon. George F. Huff, a capitalist of Greens-burg, and others, had been formed or was practically organized, and about to buy the farm for seventjr-five thousand dollars ; ‘ that they were about to close the matter,’ and all that was wanting now was Mr. Huff’s presence, he being temporarily absent, and that he would be home in a day or two and close the deal. Williams, knowing Glass’s relation to Mrs. Morgan, at once hastened to see him. Glass confirmed Morgan’s statements and embellished the same. To quote from Mr. Williams’s testimony, ‘ Mr. Glass said he had a friend on the inside with the Fort Wayne board, and that he expected any hour to have information that the shops had been officially removed — -ordered to be removed to Conway.’ He, Glass, also added that the capital stock of the syndicate was fixed at one hundred thousand dollars, and that Mr. Huff had agreed to take five shares at fifteen thousand dollars each. All of which was news to Mr. Huff when he was questioned as a witness in this case.</p> <p>“ The effect of these statements on the already infatuated Williams can be best described by an extract from his own testimony. The question was asked him: ‘Was it on the strength of this conversation with Glass, and this information of the syndicate, as you had learned partly, that you sent this telegram to Doctor Sutton ? A. Certainly; that and Mr. Morgan’s representations in the same connection. I felt that the property was about to be sold for seventy-five thousand dollars, that the railroad shops were about to be located; that the property had been advanced from 153,600 to -165,000, on a good financial basis. Owing to these facts, and taking the whole in consideration all through, I felt certain that we were safe in making a purchase of that kind, and counted on a good large profit for Doctor Sutton and myself in the deal. Had I not expected, to realize handsomely on it I should never have taken the trouble to go into it.’ The important fact should be borne in mind that when these representations were made Morgan had been informed, by Williams, that Sutton was to be connected with the purchase, and therefore Mrs. Morgan and her agents would be responsible for the representations made to Williams, as if they were made to Sutton directly. Sutton was still absent in Washington. Williams asked for an option of a few daj’S, to which Morgan replied that ‘ he would not give anybody an option for three or four hours.’ Williams, excited by the fear of losing what he supposed to be a great bargain, and not being able to pay even the one per cent of the sixty-five thousand dollars, demanded as hand money, sent the following telegram to Sutton at Washington: “ Pittsburgh, Pa., May 4,1891. To Doctor R. S. Sutton, Arlington Hotel, Washington, D. C. Pitcairn offers $75,000. I need $600 to close at $65,000. Can you wire it? J. Clark Williams.’ As Williams explains in his testimony, he used Pitcairn’s name because he understood he was the head of the syndicate. Sutton, who, from his previous conversation with Williams, had learned something of the proposed syndicate, understood the meaning of this telegram. He arranged, by telegraph, for the needed money; and on the following day, to wit, May 5, 1891, a preliminary agreement was drawn up and signed by Morgan for himself and wife, and Williams for himself and Sutton. On May 6th a more formal agreement was prepared and signed bjr Morgan and wife and Williams, a blank space being left for Sutton’s name. The latter executed the agreement on his return from Washington. By an understanding between Sutton and Williams, the deed was made to the former alone. This was done so that the lots in the contemplated town, could bé more easily and cheaply conveyed to the expected purchasers. On the 11th of July, 1891, Sutton having become satisfied that Williams was utterly unable to furnish either money or influence towards developing the farm, repaid him the trifling sum he had advanced, and Williams stepped out.</p> <p>“ That Morgan and Glass made the statements attributed to them is absolutely certain. They do not deny it. Morgan evades, Glass refuses to testify. That these representations were the main inducing causes that led to Sutton’s purchase, is clear from the evidence and is not seriously disputed; that the statements were false is equally clear; that they were intended to deceive and excite Williams is quite apparent to any one who reads the evidence. Neither Morgan nor Glass had any right or reason to make the statements concerning the removal of the shops and about the syndicate in the manner wherein such statements were made. They were calculated to deceive and did deceive. Without these misrepresentations, no sale would have ever been accomplished. Perhaps no better or more ingenious mode could have been adopted for backing up the false assertion that the removal of the shops might be expected at any hour, than the equally false syndicate story to the effect that the Pitcairns, Huff and others intended making immediate purchase of the farm at an immense price. Naturally, Williams and Sutton would conclude that the removal of the shops must have been certaiuly determined on, when prominent railroad men and capitalists connected with them were, seemingly, so eager to buy.</p> <p>“ Glass’s part in the whole matter is particularly reprehensible. No sooner had he got through helping to put Sutton in the toils, where, as was supposed, he was inextricably involved, than he, Glass, concluded to do a stroke of business on his own account, and made an attempt to extort five thousand dollars from the man whom he had already victimized. This was sought to be accomplished through a dishonest use of the option, which had expired more than two weeks before Sutton bought the farm, and at the best was never enforceable against Mrs. Morgan, she not having acknowledged it. When put on the stand as a witness for the plaintiff, Glass insolently refused to testify. He was not called for the defence.</p> <p>“ In a few months, Sutton discovered the deception which had been practiced upon him. He then promptly tendered a reconveyance for the land, which was refused. With the exception of some unimportant changes, made before he discovered the fraud, and which the master very properly finds can be compensated for, the farm remained and yet remains the same as when purchased. Unless equity affords no remedy to a man who, through fraudulent artifice, has been led to agree to pay sixty-five thousand dollars for a property, not reasonably worth the one half of that sum, the court is clearly of the opinion that • the plaintiff is entitled to relief.</p> <p>“ It must be kept in mind that a proceeding to rescind a contract, induced by fraud, is governed by a different rule than that which is invoked in an action for damages, for deceit. In Leake on Contracts, 3d ed., 1892, 292, it is said : ‘A misrepre sentation thus made, for the purpose of inducing an agreement, is described in law as fraudulent, but in actions or proceedings taken to avoid an agreement, so obtained, it is sufficient to allege the facts and circumstances which render the agreement voidable in law, without alleging or proving as a fact a fraudulent motive or intention beyond that of obtaining the agreement.’ Again, on page 309, the same author says: ‘ But an untrue representation, made with belief of its truth, though it may be sufficient ground for avoiding a contract obtained upon the faith of it, is insufficient to support a substantive action of deceit for damages against the party making it, because, in order to support such action at common law it is held necessary that the false statement should be made fraudulently; that is, at least, without an honest belief in its truth.’</p> <p>“ In Kerr on Fraud and Mistake, 68, it is said: ‘ It may be material, where proceedings at law are aimed against a man, with a view to obtain damages from him personally for false representations, that he may have believed statements made to him by agents to be true, but it is immaterial where the transaction is sought' to be set aside.’ On the same subject Mr. Wharton, in his work on Contracts, vol. 1, sec. 214, states the doctrine as follows: ‘ As is elsewhere shown, a party is as reponsible in an action for deceit for a reckless misstatement of a matter of which he had no knowledge as he would be for a deliberate statement which he knew to be false. But the misrepresentations now before us are neither fraudulent nor reckless, but are honest misstatements, which the party making believed to be true. They do not expose him, therefore, to an action for deceit though thej'- avoid a contract to which they led. On this topic, therefore, we may hold to the following position: A contract assented to by one party on the faith of material misrepresentations by the other party will be rescinded at the option of the party injured, although the misrepresentations were made neither fraudulently nor negligently.’ See also Bower v. Fenn et ux., 90 Pa. 359, wherein it was held that, ‘ If Bower chose to permit Fenn to contract with him on the faith of his statements of value, he was bound not merely to believe, but to know, that they were true.’ But, in the opinion of the court, actual fraud has-been shown in the ease in hand.</p> <p>“ The master intimates, also, that the plaintiff and Williams were culpably negligent in not inquiring into the truth of the representations made by Mrs. Morgan’s agents. On this point it has been well said, ‘ However negligent the party may have been to whom the incorrect statement has been made, yet that is a matter affording no ground of defence to the other. No man can complain that another has relied too implicitly on the truth of what he himself stated: ’ Kerr on Fraud and Mistake, 81; Bower v. E'enn et ux., supra.</p> <p>“ The master in speaking of the syndicate matter says : ‘ That the source of his, Morgan’s, information, was mainly Mr. J. E. Glass, a real estate agent in Pittsburgh, who had undertaken to effect a sale of the property. That Mr. Glass had represented to Morgan he was about to effect a sale to a syndicate ; that for the purpose of effecting this sale Morgan had given Glass an option upon this property, and that Glass had stated to Morgan that the syndicate was about to close the sale and was only prevented from doing so by the absence of Senator Huff. The master is of opinion that Morgan believed the statements of Glass, and that there were reasonable grounds for his so believing.’ What were the reasonable grounds ? At the most, the statements of Glass, his wife’s reckless agent, whose option, as Morgan told Williams, he had refused to extend, and would not extend for even three or four hours. If he believed, or half believed, that Glass had formed, or was in a fair way of forming^ such a company as he, Morgan, told Williams of, would he have hesitated a moment to extend the option ? Why did he not inquire of Robert Pitcairn, or some other reputable man, said to belong'to the syndicate, whom he could have seen in ten minutes, before, repeating the falsehood he says Glass told him ? Had he any confidence in the story of the syndicate ? If he had, then we must believe that this shrewd man was willing to throw away a certainty of getting, in a day or two, from men of the highest financial standing, the same price that Williams and Sutton agreed to pay, with twenty-five thousand dollars, instead of fifteen thousand dollars thereof, practically payable in hand. The court finds it impossible to believe that Morgan had faith in the tale he told Williams with such positiveness. I need hardly comment on the seeming disinterestedness of Glass, who cheerfully told and did everything that would promote a sale to Williams and Sutton, out of which he was apparently to get nothing, thus destroying his own chances of making ten thousand dollars out of the deal with the syndicate. No one can deny that Glass was willfully and deliberately falsifying. But the master entirely ignores the fact, properly found by himself, that Glass was also Mrs. Morgan’s agent; and the further facts that he had for months been trying to sell the farm at different prices and in different ways, and that on May 4, 1891, after Williams had revealed the connection between himself and Sutton, Glass made representations to Williams directly. Indeed, as has been said before, Glass’s statements on this occasion were even more elaborate than Morgan’s. He explains just why he was sure of the removal of the shops, namely, because ‘ he had a friend on the inside of the Fort Wayne board, and that he expected any hour to have information that the shops had been officially removed — ordered to be removed to Conway.’ He also stated just how many shares Huff had agreed to take in the syndicate and their exact value. On the faith of the statements, made by both of Mrs. Morgan’s agents, on the date last mentioned, Williams sent the telegram which led Sutton to enter into the contracts and advance the first payment of purchase money on that day. I cannot agree with the learned master, that statements of this sort are mere matters of opinion or conjecture. They were not given as matters of. opinion or conjecture. Moreover, they were uttered falsely and for a fraudulent purpose, which they accomplished, and Mrs. Morgan should be held responsible for them in this proceeding.</p> <p>“ Apropos of Mr. Huff’s connection with the syndicate, well styled by the master as a ‘company in nubibus,’ Huff’s deposition shows that he never gave the matter any thought at all; did not even know where the farm was situate, and that he never had any communication or connection with Glass. Furthermore, he leaves it doubtful whether A. O. Tintsman, who shared Glass’s office and seems to have been aiding him in his speculations, ever mentioned the farm to him until after Williams and Sutton had purchased it. Huff farther contradicts Tintsman’s statement that he wrote him, Tintsman, about the property.</p> <p>“ It is hardly necessary to cite authorities to show that Mrs. Morgan cannot hold on to the fruits of a bargain brought about by her agents’ fraudulent representations. The law on this' subject is briefly and succinctly stated in Leake on Contracts, 818. It is also well established that, if any one material representation relied on was false, equity, will relieve, although such representation may not have been the sole inducing cause of the contract. As is said in Kerr on Fraud and Mistake, 74: ‘ It is not, however, necessary that the representations should have been the sole cause of the transaction. It is enough that it may have constituted a material inducement. If any one of several statements, all in their nature more or less capable of leading the party to whom they are addressed to adopt a particular line of conduct, be untrue, the whole transaction is considered as having been fraudulently obtained, for it is impossible to say that the untrue statement may not have been precisely that which turned the scale in the mind of the party to whom it is addressed. A man Avho has made a false representation in respect to a material matter must, in order to be able to rely on the defence that the transaction was not entered into on the faith of the representation, be able to prove to a demonstration that it was not relied on. It is not enough for him to say that there were other representations by which the transaction may have been induced. Nor can he be heard to say what the other party would have done had no misrepresentation been made.’</p> <p>“ Standing alone, perhaps the syndicate story would be insufficient to justify interference, but connected as it was with the representation as to the removal of the shops, it made the latter statement appear highly credible and thereby doubtless exercised an important influence.</p> <p>“ Thus far the discussion has been confined to the fraud alleged in the bill. Let us now assume that neither actual nor constructive fraud on the part of Mrs. Morgan’s agents has been sufficiently proved, and turn to the question of mistake. The following positions are undoubtedly sustained by the evidence : (1) That Williams and Sutton would never have bought the farm, for any purpose, had they not believed that the railroad shops were about to be removed to its vicinity, that is, that the removal was imminent. (2) That such removal would double the value of the farm, as the master suggests, if not finds, in his tenth finding of fact. (3) That the railway company did not even contemplate the removal.</p> <p>“ Taking the most favorable view, so far as the vendors are concerned, that the facts will fairly allow of, and conceding that all the parties to the transaction honestly believed that such removal was imminent, and for that reason alone looked on the property as a town site, estimated and determined the number of lots into which it could be subdivided, and by reason of these things valued the land at sixty-five thousand dollars instead of thirty thousand dollars, its true value, and that all their dealings were influenced and controlled by the paramount mistake as to such removal, it is not going too far to.say that equity should put the parties to the contract, whose eyes are now opened, back in their original situation. The vendors would not have had the hardihood to ask such a price for the farm, if they had not believed or pretended to believe that some unusual and extraordinary event was about to happen which would radically change the character and business of the neighborhood, and convert the farm into a place suitable and necessary for a town. Nor would the purchasers, in their sober senses, have bought at such a price, unless they were acting under a mistake.”</p> <p>As authority for rescission on the ground of mistake the court cited: Goettel v. Sage, 117 Pa. 299; Johnston’s Ap., 114 Pa. 132; Babcock v. Day, 104 Pa. 4; Reigel v. Am. Life Ins. Co., 140 Pa. 193; 153 Pa. 134.</p> <p>The court entered a decree rescinding the contract of sale and imposing all of the costs upon defendants, who thereupon appealed.</p> <p>Errors assigned were in sustaining exceptions to the master’s report, and in entering decree, quoting them.</p>

<p>Appeal, No. 242, Oct. T., 1893, by defendant, John Ferguson, from judgment of C. P. Beaver Co., June T., 1893, No. 315, in favor of plaintiff, George M. Spalding, on trial by court without jury.</p> <p>Assumpsit to recover purchase money of land.</p> <p>The case was tried without a jury. The opinion of the court below was as follows by Wickham, P. J.:</p> <p>“ 1st. John McDonald, Sr., died in the year 1815, having first made his last will and testament, bearing date April 12, 1814, and since his death duly probated. In and by said will he disposed of certain of his real estate, in words and manner following, viz.: ‘ Item. I will and leave unto my sons, James and Edward, all the plantations adjoining, together whereon I live at presen, called Highlands, Mount Pleasant, Gooseberry Thicket, Primrose Hill and a piece of land I bought from Col. George Stewart aud a small piece of land I bought from John Stewart, during their lives, to be equally divided between them according to quantity and quality. _ I allow son James the upper part and son Edward the lower part next to Frederick Johnson’s; or if they be both agreed, they may cast lots. If J ames or Edward dies without hairs begot in lawful marriage-bed, the deceased’s land is to fall to the living brother and his heirs. . . . My son James may make a will and leave his land to any of his sons that he thinks most worthy, and their hairs forever, with privilege that one hair may purchase of another hair. If son James makes no will, I do hereby will and leave said lands to be equally divided between his sons for the use of them and their hairs forever, with privilege that one hair may purchase of another, if no sons to his daughters, their hairs and assigns forever; but if James should die when his children is small, the whole profits of their land must go to support said children until the youngest comes of age. . . . Item. I will and leave to Andrew McDonald, my son, three-fourth part of that tract of land whereon he lives, called Cornfield, on the Ohio River, in the same method and way and under the same incumbrance that I have left my son James his lands etc. ... I have made no provision for my grand-daughters. My sons may make fortunes for their daughters, but as I have hereby given my sons privilege to make 'wills, they may leave or give part thereof to their daughters by their will or wills, but to be intealed,’ etc.</p> <p>“ 2d. The tract called Cornfield, in the will aforesaid, contained 337 acres. Andrew McDonald, above named, on his father’s death, took and held in severalty, by virtue of the above devise, 215 acres and 96 perches, with allowances of said tract, for which he received in his own name, in fee simple, a patent from the commonwealth of Pennsylvania, dated January 23, 1829. The said 215 acres and 96 perches he held and claimed as his share under his father’s will openly, exclusively and without interruption, or adverse claim, until his death in the year 1846.</p> <p>“ 3d. Andrew McDonald was unwilling to submit to certain of the limitations and restrictions placed on his estate, by his father’s will, and in and by his own last will and testament, dated September 22, 1819, and proved and registered on April 11, 1846, he provided as follows: ‘ As my father in his last will hath given me liberty, in some measure to make a will respecting the land he has willed to me and my heirs, I will that that part of the tract of land on which I now live, called Cornfield, be divided in the following manner, that is, into as many equal quantities as I have children, including those born and such as are not born. My wife is at present pregnant. The lines which run west from the Ohio river until they strike the west line of the tract and parallel with the division line between the land left to me and my heirs and my brother, William McDonald and his heirs, by my father, John McDonald. My daughter Ann is to have her division of land next to her uncle, William McDonald, off the • southern end of my part of the place called Cornfield. John McDonald, my son, is to have his equal division adjoining his sister Ann. James R. McDonald, my son, is to have his equal division of land adjoining his brother John. Andrew McDonald, Jr., my son, is to have his division of land adjoining his brother, James R. McDonald. Thus my eldest child first, and so of every child according to her or his age. In case any of my children dies without lawful begotten child or children, his or her share reverts back to my children as though he or she had not been born.’</p> <p>“ 4th. Andrew McDonald left to survive him six children, viz.: John R., Andrew, Abram, Ann, afterwards intermarried with Aaron M. Bryan, Martha intermarried with Thomas Christy, and Mary intermarried with Henry Bryan. One of the testator’s sons, James R., died in his lifetime, unmarried and without issue. All the others had legal issue.</p> <p>“ The six children above mentioned took, under their said father’s will, the land therein devised to them, the same being that part of the Cornfield tract taken by their father under the will of John McDonald, Si'., as set forth in the second finding of fact aforesaid.</p> <p>“ In the year 1846 or 1847 the six devisees employed a surveyor to divide the land, in accordance with their father’s last will and testament. He accomplished his work satisfactorily, subdividing the tract into six purparts and making a draft of the same. These purparts- the devisees allotted to each other by parol mutual agreement, each devisee taking one. Each purpart was farmed, improved and cultivated by its owner, and he or she and his or her successors in title have held and occupied such purpart, claiming it in fee simple since 1847, severally, openly, notoriously, actually, continuously, exclusively, adversely, uninterruptedly and without dispute until the present time. The validity and binding force of Andrew McDonald’s will, and of the said partition and the title in fee simple claimed thereunder, have always been fully recognized by all parties interested. Abram McDonald, one of said devisees, was only about twelve years of age when the said partition was made. His guardian acted for him. When the said Abram reached full age, he retained the purpart alloted to him (making no claim to the rest of the land), and when he was between twenty-seven and twenty-eight years old he conveyed his purpart to one David McDonald. In his deed to the latter he recites, as the foundation of his title, the devise in his father’s will and the partition aforesaid. Similar recitals aré found in the conveyances made by his codevisees, for their respective purparts, to purchasers thereof.</p> <p>“ 5th. It is conceded for the defence, and is found as a fact, that the lands, the agreement for sale of which has given rise to this action, are a part of the tráet partitioned and held as aforesaid by the said devisees of Andrew McDonald, deceased, and that the purparts he holds and claims to own in fee simple and has agreed to sell the defendant, have been acquired by him, by good and valid conveyances, from the said parties to the partition and their successors in title.</p> <p>“ The said devisees did not join in any of the conveyances made by them, but each conveyed his or her purpart separately.</p> <p>“ 6th. By a sufficient agreement in writing made by and between the plaintiff and defendant, and dated March 1, 1893, the said plaintiff covenanted and agreed to convey to said defendant, the said lands, held and claimed by him, the plaintiff, as aforesaid, for the price of $85,000, to be paid by the defendant on May 1, 1893. And the said plaintiff agreed that he would, at his own proper cost and charge, on the payment of said sum of money (which the defendant covenanted to pay as aforesaid), execute and deliver to the defendant 1 a good and sufficient deed for the proper conveying and assuring of said premises, in fee simple, from all incumbrance and dower or right of dower, such convej^ance to contain the usual covenant of general warranty.’ It is conceded and found that a proper conveyance was tendered by the plaintiff to the defendant on May 1, 1893, the time when the purchase money was payable. The whole amount of said purchase money remains unpaid. It is also conceded and found that the said lands agreed to be conveyed are free from dower, right of dower or incumbrance.</p> <p>“7th. At the trial the affidavit of defence was treated as the plea, and the defence was limited to the two matters therein alleged, viz.: 1st. That Andrew McDonald, deceased, did not, under the will of his father, John McDonald, Si¿, deceased, take all of the tract called ‘ Cornfield.’ 2d. That whatever land and estate he did obtain, under said will, passed to his three sons, by reason of his giving his daughters their shares in fee simple, instead of in fee tail, as required by his father’s will.</p> <p>“7¿. That Andrew McDonald had lived upon the tract of land containing 215 acres and 96 perches, willed to him by his father, from the year 1827, or earlier, up to the time of his death. That said tract was the severed three fourths, or thereabouts, of the original tract called ‘ Cornfield,’ and that the whole of said tract of 215 acres and 96 perches, and not merely the three fourths part thereof, passed to said Andrew McDonald by the will.</p> <p>“ 8th. In addition to the said ‘ Cornfield ’ tract, the said Andrew McDonald, deceased, in and by his last will and testament aforesaid, devised other real estate and also interests in personalty to said sons, all whereof were by them accepted.</p> <p>“ CONCLUSIONS OF LAW.</p> <p>“ 1. The said sons of Andrew McDonald, deceased, having fully assented to all the provisions of their father’s last will and testament, and accepted and received all the benefits conferred on them thereby, and having also united in the said amicable parol partition, they and all claiming through or under them were and are estopped from denying the titles of their said sisters to the purparts of said partitioned land allotted to their said sisters as aforesaid.</p> <p>“ 2. By virtue of the wills of John McDonald, Sr., deceased, and Andrew McDonald, deceased, together with the said estoppel and the statute of limitations, the said plaintiff has, and had, at the time the agreement was entered into between him and the defendant, a good and marketable title, in fee simple, to the portions of said ‘ Cornfield ’ tract agreed to be sold and conveyed to the defendant.</p> <p>“ 3. The plaintiff is entitled to recover, herein, from the defendant, the sum of eighty-five thousand dollars, purchase money aforesaid, with interest thereon from the first day of May, A. D. 1893.”</p> <p>Exceptions to the opinion were overruled, and judgment entered for plaintiff. Defendant appealed.</p> <p>Errors assigned were not printed in appellant’s paper-book.</p>

<p>Appeal, No. 238, Oct; T., 1893, by plaintiffs, Frank A. Bascom et al., from decree of C.*B. Meroer Co., June T., 1888, No. 8, dismissing bill in equity against defendant, Samuel Cannon.</p> <p>Bill to enjoin defendant from interfering with plaintiff in entering upon lands to search and mine for coal.</p> <p>The case was referred to J. C. Miller, Esq., as master, who recommended that the bill be dismissed, on the ground that plaintiff’s right was not sufficiently clear, citing: Coal Co. v. Snowden, 42 Pa. 488; Messimer’s Ap., 92 Pa. 168; Duncan v. Iron Works, 136 Pa. 478.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Exceptions to the master’s report were dismissed in the following opinion, by Mehard, P. J.:</p> <p>“ The plaintiffs claim to own what coal underlies a certain tract of land, whereof the surface belongs to the defendant. The injury of which they complain is, that defendant prevents them from entering upon his land and digging through the surface at such places as they see fit in searching for a vein or for ‘ pockets ’ of merchantable stone coal, and mining the same, in the event of finding it. The remedy prayed for is an injunction to restrain the defendant from preventing the plaintiffs, their agents, workmen or employees, from entering upon his said land for the purpose of searching for and mining and removing such coal.</p> <p>“ The learned master, after a careful examination of the whole case, concludes that plaintiffs’ right to enter upon defendant’s land and search for and mine coal was not so clear as to bring this case within the jurisdiction of a court of equity. The correctness of that conclusion is the first question for consideration.</p> <p>The plaintiffs claim to derive title to the undivided one half of the coal underlying defendant’s land through a deed from defendant, granting the same to one .Ralph Clapp, bearing date March8, 1842, and called ‘Exhibit A’ in plaintiffs’ bill. But the plaintiffs could not base the right contended for in this case on that instrument, for it is therein stipulated that the grantee shall not dig on the surface of any of the lands of the grantor, but shall enter and mine for coal from a certain twelve-acre tract not embraced in this controversy.</p> <p>“ The plaintiffs claim to derive title to the other one half of the coal underlying defendant’s land through certain articles of agreement executed on March 5, 1844, between the defendant of the one part and one Samuel Henderson of the other part, as set forth in ‘ Exhibit B ’ of plaintiffs’ bill. That is an agreement by defendant to convey to said Henderson in fee simple the undivided one half part of the mineral and stone coal on the land mentioned and described in plaintiffs’ bill. And therein the defendant agreed to give to said Henderson ‘ the privilege to enter the land and open for coal at any place he may see fit at fifty dollars per acre; not to interfere with any of the buildings, spring or garden of said Cannon.’</p> <p>“ It seems to be an undisputed fact that Henderson, under said agreement, entered upon said land and opened a mine for coal. It is contended, however, on the part of plaintiffs, that the true construction of that agreement is that Henderson and his assigns were to have the right to enter upon said land as often as they might see fit, without limit as to time, and to dig in as many places, and to make as many openings for coal as they might see fit, and that their obligation to pay fifty dollars an acre would arise only upon their locating an opening.</p> <p>“ The whole of that contention is involved in plaintiffs’ right to maintain this suit. But that such is the true construction of that instrument is by no means clear. Where the article reads that Henderson was to have the right to enter the land and open for coal at any place he might see fit, did it give him a right to open at as many places as he might see fit ? [While Henderson thereby acquired an option to take as much land as he might wish for the purpose of his entry and opening, did he acquire a right to exercise that option as often as he might choose to do so?] [2] [While he doubtless had a reasonable time in which to exercise his option, could he or his assigns neglect to do so for over forty years and then exercise it?] [3] While the article of agreement gave Henderson a right to enter on said land and open for coal at fifty dollars per acre, did it give him a right to dig over the surface without paying anything ? Unless these questions can be clearly answered in favor of the plaintiffs, equity should not assume jurisdiction of this case so far as it rests on the instrument marked ‘ Exhibit B.’ In our opinion that would be a very doubtful construction of those articles of agreement.</p> <p>“ But it app.ears that defendant brought an action of ejectment in this court in 1848, against said. Henderson and others, to recover possession of the coal so agreed to be conveyed by said articles of agreement, and on December 27,1849, obtained a verdict ‘ to be released on defendant paying to plaintiff the sum of sixteen hundred and fifty-seven dollars and seventeen cents, with interest and costs of suit, in nine months, plaintiff making to defendant a good title, agreeably to the articles of bargain and sale between the plaintiff and Samuel Henderson, for the undivided half part of the mineral and stone coal on the 193 acres of land, more or less, described in said agreement; also, for the twelve acres of land to be surveyed so as to include all the slopes, openings and sinks in the occupancy of the defendant ; and, also, for the undivided half of the twelve acres described in Mr. Gillespie’s draft marked “ twelve acres ” and letter “ A,” and depositing the same with the prothonotary before taking the money out of court.’ In the year A. D. 1850 the money was paid by defendants in that suit, and a deed was filed by Mr. Cannon.</p> <p>“ The parties to that suit, and those claiming under them, seem to have held possession and in all ways to have conducted themselves in accordance with the adjustment of the boundaries of their lands as set forth in that verdict, up until in 1887, when the plaintiffs entered upon lands of the defendant included within the boundaries of the 193 acres therein mentioned, but not included within the boundaries'of either of the twelve-acre parts which the defendant here was directed by that verdict to include within the conveyance to the defendants in that suit.</p> <p>“ That entry was resisted by the defendant and the plaintiffs were compelled to jdeld up their occupancy of that land. [There is certainly much force in the position that the rights of the parties and privies to the contract (Exhibit B) were determined by the action referred to. The conduct of the parties for thirtj7seven years seems to have been a recognition that their rights were limited by the terms of the verdict in that suit, and that the defendants therein had no right of possession or occupancy beyond the boundaries of the twelve-acre tracts.] [4] In view then of the verdict, of the subsequent ■ conduct of the parties, and of the lapse of time, it cannot be said that the plaintiffs have such a clear right to enter upon, or for any purpose to occupy, the surface of the 193 acres not included in either of the twelve-acre tracts as would give jurisdiction in this case to a court of equity.</p> <p>“ It was ably contended, at the argument of this case, that, inasmuch as the defendant granted the coal under the one hundred and ninety-three acres of land, he granted by implication, as a necessary incident or appurtenant thereto, the right to his grantee and his assigns to enter upon the surface of the land, and to drill or dig or in any other proper way to search for a vein or for pockets of coal under the surface, and likewise the right to make openings for mining the same. A forcible answer to this proposition is that the parties to the instruments under which plaintiffs claim (Exhibits A and B in the bill) did not leave that matter to rest upon a legal presumption, but in each instrument the rights of the parties in that respect were defined.</p> <p>“ It is argued that the proposition contended for is sustained by the principle which gives a right of way of necessity to the grantee of a piece of land surrounded by other lands of the grantor. The cases are materially different in at least two particulars : (1) The proposition contended for includes a right to drill through and dig over the surface of the land in order to ascertain whether there is an3>- merchantable coal under it; and (2) because it is not obviously necessary to the mining of a vein of coal, that it must be reached by an opening made on the land under which it lies. When it is borne in mind that the owner of the coal must so mine it as to do no injury to the surface beyond the privileges granted (Carlin & Co. v. Chappel, 101 Pa. 348), it is most improbable that the law would append to a grant of the underlying coal a right to dig over and in part to destroy the surface, in order to ascertain whether there be any coal under it. In Harris v. Ryding, 5 M. & W. 60, Lord Abinger, C. B., says, that, if the owner had granted the surface, reserving the mines merely, he would have had no access through the surface, but must have reached them through other adits. And when he reserved the right of access, he did not thereby reserve the right to dig, so as to destroy the surface, or to do anything in a manner unusual or improper, so as to prejudice the surface of the land: Washburn’s Easements &Serv. *476. It thus appears that the right on which plaintiffs’ prayer for relief rests is not clear, but, on the contrary, is clouded with grave doubts.</p> <p>“ It is unnecessary to add to the authorities cited by the learned master in support of the proposition that, where such right is doubtful, equity will not take jurisdiction. The case relied on by the learned counsel for plaintiffs to show thar equity has jurisdiction in this case (Westmoreland N. Gas Co. v. DeWitt et ah, 130 Pa. 235) is not in conflict with that proposition. Equity took jurisdiction in that case because the rights of the parties were clear.</p> <p>“ It is now considered, ordered, adjudged and decreed that plaintiffs’ bill be dismissed and that plaintiffs pay the costs of this suit.”</p> <p>Errors assigned were to portions of opinion in brackets ana to the decree quoting them.</p>

<p>Appeal, No. 37, Oct. T., 1893, by defendant, from judgment of C. P. Washington Co., Feb. T., 1892, No. 479, on verdict for plaintiff, J. W. Ely.</p> <p>Trespass for personal injuries. Before McIlvaine, P. J.</p> <p>At the trial it appeared that, on Jan. 15, 1892, .at about 6 o’clock P. m., plaintiff, who was a physician, was injured at the grade crossing of defendant’s railroad, known as Morgan’s crossing about two miles north of Washington. Plaintiff was driving in a buggy, the top of which was up and the side curtains fastened down. Evidence for defendant tended to show that defendant’s track was visible from the road all the way from a point nine hundred and eighty feet from the track to a point seventy feet from the track. The view of the track then became obstructed by an embankment and a lumber pile, to a point about twenty feet from the track, when the track became visible for a distance of one thousand to fifteen hundred feet. The evidence of plaintiff as to where and how he stopped, looked and listened was contradictory. It is quoted in the opinion of the Supreme Court.</p> <p>Defendant’s points were among others as follows :</p> <p>“ 1. The undisputed evidence in this case shows that the plaintiff could not see the defendant’s tracks at a point thirty to forty feet distant from the said crossing, and that the plaintiff was fully aware of this fact, and that the plaintiff voluntarily chose this point as the one from which to take his observations, and stopped, looked and listened at no other point until he went upon the crossing; he was therefore guilty of contributory negligence and cannot recover in this action. Answer: If the facts in this case are as stated in this point, then its conclusion is correct; but as the counsel for the plaintiff deny that the facts are accurately stated, we will leave it to you to determine the facts.” [1]</p> <p>“ 2. The evidence introduced by both the plaintiff and defendant shows that at a point fifteen to twenty feet distant from the crossing’, on the side from which it was approached by the plaintiff, a clear and unobstructed view of the defendant’s tracks in the direction from which the train approached could be had, and that the plaintiff drove past this point without any attempt to stop, look or listen ; he was therefore guilty of contributory negligence and cannot recover in this action. Answer : This point is refused; we leave it to you to determine the facts of the case, and to determine, under the law we have given to you, whether or not the plaintiff was guilty of contributory negligence.” [2]</p> <p>“ 9. If the jury believe that had the plaintiff stopped, looked and listened when within twelve to twenty feet of the crossing, he would have seen or heard the approaching train, and that he did not so stop, look and listen, then their verdict must be for the defendant company. Answer: This point is refused ; we leave it to you as a question of fact to be determined under all the evidence in this case, and under our charge, whether the plaintiff stopped, looked and listened in a manner and at a place so as to comply with the requirements of the law as we have given it to you.” [3]</p> <p>11. Request for binding instructions. Refused. [4]</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Frrors assigned were (1-4) instructions, quoting them.</p>

<p>Appeal, No. 140, Oct. T., 1893, by-defendant, from judgment of O. P. Butler Co., June T., 1893, No. 290, on verdict for plaintiff.</p> <p>Scire facias sur mechanic’s lien. Before Hazen, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiff’s points were as follows :</p> <p>“ 1. If the materials specified in the lien were of such a character as were necessary for the construction of the salt works in question, and the plaintiff in good faith sold and parted with the materials for that purpose, relying on the credit of said salt works, then the plaintiff is entitled to recover the value of the materials so furnished.” Affirmed. [6]</p> <p>“ 2. James Meehan, the contractor, had the right to make the contract with the plaintiff for the purchase of sufficient steel of the kind and quality necessary to build the pans for the salt works in question, and to bind the said works for the payment of the same, and any defects that might exist by reason of the pans not having been sufficiently braced to stand a given required pressure of steam, is no defence to the lien, and it is immaterial whether such insufficient bracing is due either to the negligence of the contractor or of the owner.” Affirmed. [7]</p> <p>“ 3. If the jury find from the evidence that the plaintiff at the instance of Meehan, the contractor, furnished steel in statement filed for the construction of pans for the salt works in question, and furnished such steel, relying on the credit of said works, then under the mechanic’s lien laws the plaintiff is entitled to a lien for the value of such material, and any miscalculation made by either the owner or contractor as to the number of braces necessary to be placed in each pan is no defence to the claim of the material man.” Affirmed. [8]</p> <p>“ 4. It is not necessary that the book entries, bills, etc., show that the plaintiff intended to hold the buildings of the Rough Run Salt Works liable for the materials furnished. The fact that such'was the intention can be shown by parol evidence establishing facts and circumstances showing on what credit the materials were furnished.” Affirmed. [9]</p> <p>“ 5. To constitute a valid lien it is not necessary to prove a contract or understanding between the material man and the contractor that a lien would be entered for the value of the materials if they were not paid for by the contractor, nor is it necessary that the contractor know that the materialman intended to enter a lien; on the contrary the jury may find the intention of the material man from the facts and circumstances of purchase and delivery, in addition to the testimonj'- of Mr. Loyd, from whom the materials were purchased.” Affirmed. [10]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. That the plaintiff having alleged in its lien filed and upon which this scire facias was issued that the materials furnished to James Meehan were for the erection and construction of certain buildings therein described on the lands and premises of the Rough Run Manufacturing Company, and it appearing from the proofs and it being admitted by the plaintiff that the said material was used in salt pans, and separate from the other buildings, and not to the said buildings generally, and that said salt pans in which said materials were used by the said Meehan were destroyed when under test by said company prior to the date of the filing of the lien in this case, and before said pans were connected with the buildings and works of said company, the lien upon which this scire facias is based cannot be sustained and the plaintiff is not entitled to recover.” Refused. [1]</p> <p>“ 3. That it was the duty of the plaintiff to inquire into the terms and conditions of the contract between James Meehan and the Rough Run Manufacturing Company, that the plaintiff is bound by the terms and conditions of said contract in evidence, and the said contract not having been completed according to the terms and conditions thereof, and the said pans which were the subject of said contract having failed to stand the test before the same were accepted by said company, there is nothing due James Meehan under said contract, and was not at the date of the filing of this lien, and the plaintiff is not entitled to recover.” Refused. [2]</p> <p>“ 4. That the salt pans erected and constructed by James Meehan were an addition to the buildings and works already erected and constructed on the premises of the Rough Run Manufacturing Company, with which the said contractor had nothing to do, and no notice having been given to the said defendant company at the time said materials were furnished, as required by the act of May 18, 1887, the lien is defective and the plaintiff is not entitled to recover. Answer: This point is refused.” [3]</p> <p>“ 5. The plaintiff having failed to show that the salt pans in and to which said materials claimed for were furnished and used were in existence on the lands of the defendant company at the date of the filing of said lien, the plaintiff is not entitled to recover. Answer : This point is refused.” [4]</p> <p>“ 6. That under all of the evidence and pleadings in this case the plaintiff is not entitled to recover. Answer: This point is'refused.” [5]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-10) instructions, quoting them.</p>

Appeal, No. 72, Oct. T., 1893, by-defendants, John and Thomas B. Bryson, from judgment of O. P. Washington Co., No. 634, in equity, from decree on bill in equitjq by Theodore Myers and Margaret Bryson Myers, his wife. Bill in equity for an account.

Appeal, No. 168, Oct. T., 1893, by-defendant, from judgment of C. P. Butler Co., Sept. T., 1893, No. 26, on verdict for plaintiff, Martin Wahl. Ejectment. Before Hazen, P. J. The-facts appear by the opinion of the Supreme- Court. Defendant’s point was among others as follows: “15.

<p>Appeal, No. 99, Oct. T., 1893, by plaintiff, Elizabeth P. Neill, from decree of C. P. Forest Co., May T., 1893, No. 1, dismissing bill in equity against B. F. and H. W. Shamburg, administrators of G. Shamburg, deceased.</p> <p>Bill for reconveyance of oil lease. Before Noyes, P. J.</p> <p>The case was referred to J. H. Donly, Esq., as master, who reported as follows:</p> <p>“ 1. On June 11,1877, John Wilson and Jane Neill, owners of the fee, demised and let to G. Shamburg, defendants’ intestate, for oil mining purposes, and in consideration of reserved royalties, fifty acres of land ‘ more or less,’ being the western part of lots 10, 11 and 12, of the Manross farm in Harmony township, Forest county, Pa., the term being twenty years from date of the lease. On this lease said G. Shamburg drilled oil wells, numbered respectively 5, 6 and 7. The latter, No. 7, was a good producing oil well, which produced, at one time, fifty or sixty barrels per day.</p> <p>“2. On March 25, 1878, the said-owners of the fee demised and let to said G. Shamburg for the like term and purposes, and in consideration of reserved royalties, the remaining parts of said lots 10,11 and 12 (not covered by the lease referred to in the 1st finding), and the whole of lot No. 9, which lies immediately south of, and contiguous to, lot Nor 10. Also lot No. 8, which lies immediately east of, and contiguous to, said lots 9 and 10. The whole containing two hundred acres, more or less, of the Manross farm, aforesaid.</p> <p>“3. On April 18, 1878, said G. Shamburg assigned and conveyed to Elizabeth P. Neill, the plaintiff, the undivided one half of the leasehold of two hundred acres covered by the 2d finding.</p> <p>“4. On July 29, 1879, said Elizabeth P. Neill sold and conveyed back to G. Shamburg the undivided half referred to in 3d finding. The consideration being $550, paid to her by said Shamburg, ‘and one hundred dollars additional (to be paid) when a well is found on said lease producing six bbls. per day for any thirty days during the first six months after it is finished.’</p> <p>“ 5. During the plaintiff’s ownership of the undivided one half referred to in 3d finding, said G. Shamburg instructed his employees, or some of them, not to let anybody know anything about his business; so that it was impossible for J. A. Neill, plaintiff’s husband, who was acting for her, to obtain accurate information as to the production of the wells on the fifty acre lease referred to in 1st finding, except from said G. Shamburg in person. The oil from this lease was run into receiving tanks outside the Manross farm, and blended with other oil of G. Shamburg before being run into the public (or quasi public) pipe lines.</p> <p>“ 6. A leasehold of ‘ two hundred acres of the Manross farm, in the locality of well No. 7’ (referred to in 1st finding), subject to the royalties reserved in the leases referred to in 1st and 2d findings, was worth in July, 1879, about $20,000.</p> <p>“ 7. The value of the leasehold described in the second finding, or of plaintiff’s undivided one half thereof, referred to in the third finding, nowhere appears in the evidence. Said leasehold, so far as shown by the evidence, was, on July 29, 1879,-undeveloped. The value ascertained in the sixth finding was of ‘ two hundred acres in the locality of well No. 7,’ which was on the fifty acre piece, in which plaintiff had no interest. And the evidence of value was based-upon the actual production of well No. 7 and other wells.</p> <p>“CONCLUSIONS OF LAW..</p> <p>“ Plaintiff prays for a decree canceling her conveyance back to G. Shamburg, of July 29, 1879, referred to in the 4th finding, and directing defendants to reconvey the property to her, upon the alleged ground that her said conveyance to G. Sham-burg was obtained by the latter by misrepresentation and fraud, and for account of profits, etc.</p> <p>“ Fraud must be proved. But when facts are proved from which a legal presumption of fraud results, then fraud is proved.</p> <p>“ The plaintiff’s solicitor contends, (a) that the consideration referred to in the 4th finding, 1550, and one hundred additional when a well is found on said lease producing six bbls. per day for any thirty days during the first six months after it is finished,’ was a practical representation that no such well ‘ on said lease ’ had then been found. In this the master concurs. But there is no evidence that this ‘practical representation’ was not true. While a well of greater capacity did exist on the fifty acre lease described in 1st finding, there is no satisfactory evidence that any such well existed on the two hundred acre lease described in 2d finding.</p> <p>“ The plaintiff’s solicitor contends: (5) That defendants’ intestate stood in confidential relationship to plaintiff when he purchased her half of the two hundred acre leasehold. 1st. The relationship of a tenant in common with her. 2d. That of partner with her in developing the same. It does not appear that G. Shamburg and plaintiff ever sustained to each other the partnership relationship, inasmuch a.s no agreement to develop their common property is shown to have been made between them. By the second, third and fourth findings, it appears that from the 18th of April, 1878, until the 29th of July, 1879, one year, three months and eleven days, plaintiff and G. Sham-burg. were tenants in common of the two hundred acre lease referred to in the 2d finding. The relationship of tenancy in common is, in a limited degree, a confidential relationship. One tenant in common cannot purchase an incumbrance or outstanding title and. set it up to defeat the titles of his cotenants in common : Weaver v. Wible, 25 Pa. 270. It is, however, a less confidential relationship than that which exists between partners. Where one partner, familiar with the value of his partner’s interest, purchases the same at an inadequate price, the vending partner having less opportunity of knowing its value, the onus is on the vendee to show that the transaction ivas free from fraud or undue influence. But plaintiff cannot in the present case invoke the aid of this principle, because (e) she and G. Shamhurg are not shown to have been partners. For one year, three months and eleven days, they owned the two hundred acre leasehold as tenants in common, and if during that time they had joined in drilling oil wells thereon at their common expense they would, thereby, have become partners. But the evidence fails to show this.</p> <p>“ (d) It is not shown that the purchase by G. Shamburg of plaintiff’s interest was at an inadequate price. There being no evidence of the value of the two hundred acre leasehold (or of plaintiff’s interest in it), as distinct and separate from the fifty acre lease (in which plaintiff had no interest). All the evidence of value being predicated of a two hundred acre leasehold in the locality of well No. 7. The witnesses in their estimates appearing to base them upon the production of well No. 7 and other wells, on the fifty acre leasehold. So far as shown the two hundred acre leasehold, at the time of the sale of it by plaintiff to G. Shamburg, was undeveloped, and may have been of no greater value than the latter paid for it.</p> <p>“ The conveyance plaintiff prays to have canceled was made on the 29th day of July, 1879, and her bill was filed to No. 1, Sept. T., 1891, about twelve years afterward, and after the death of G. Shamburg. The defendants have pleaded the statute of limitations. To this the plaintiff’s solicitor makes two answers: 1st. That the statute only begins to run from discovery of the fraud. If any fraud had been practiced it seems to the master it might have been discovered in the summer of 1880, eleven years before the suit was brought. The only thing tending to show fraud is what appears in the 5th finding as to G. Shamburg’s instructions to his employees not to disclose the production of the wells. And although these wells were on ar adjoining leasehold, in which plaintiff had no interest, still she had a right to know their production, as it materially affected the value of the adjoining lease. Such attempt at keeping secret the production, in the master’s opinion, falls far short of establishing fraud. But, if it did, the discovery of the production, it seems to the master, might with reasonable diligence have been made at any time after the 1st of March, 1880, when Benjamin W. James left the employ of G. Shamburg. After leaving the employment, it does not appear that he was under any bann of silence, or that he would not, if inquired of, have fully informed plaintiff.</p> <p>“ To the statute plaintiff’s solicitor replies, 2d, that, during all the' time, plaintiff was covert, and the statute could not be invoked against her. However this may be, the master is of opinion, that, as plaintiff is seeking to annul an executed contract, this long delay ought to cause a chancellor to hesitate before recommending a decree in her favor.</p> <p>“Again, it does not appear in the bill, or elsewhere, that plaintiff ever offered to restore to G. Shamburg, or his estate, the $550 she received from him for her interest. It may be suggested that this may be done on an account of the production. But the evidence does not show that there ever was a production from the two hundred acre lease adequate for this purpose. It may be that if plaintiff had offered back the money, with interest, that defendants would have been only too glad to restore to her the property. The master recommends a decree that plaintiff’s bill be dismissed at her costs.”</p> <p>On exceptions the master reported an additional finding of fact, which was as follows :</p> <p>“ 8. On the 4th day of April, A. D. 1879, plaintiff and her husband assigned to G. Shamburg the two hundred acre leasehold (and another leasehold not connected with this contention), and on same day said Shamburg executed to them a separate defeasance, showing that this assignment to him was a mortgage to secure said Shamburg on account of his having guaranteed a security held by third persons against plaintiff and her husband for $5,000. On payment of which Shamburg was to re-convey to plaintiff.”</p> <p>Exceptions to the master’s report were overruled, and a decree entered dismissing the bill. ■ Plaintiff appealed.</p> <p>Errors assigned were dismissal of exceptions, and dismissing bill, quoting the substance only of the exceptions.</p>

<p>Appeal, No. 244, Oct. T., 1893, by' plaintiff, John M. Roth, from decree of C. P. Butler Co., dismissing bill in equity against John Marshall et al., school directors.</p> <p>Bill to restrain change of location of sehoolhouse.</p> <p>The bill averred in substance that the school directors of Muddy Creek school district are about to change the location of sehoolhouse No. 2 from its present site to a location about one half mile west of the present site, and very far west of the geographical and populated centre of said school district. That the school directors were making a change of school location without having complied with the requirements of the act of assembly in such cases made and provided. That the new location selected is in a bleak and exposed position, on top of a high hill where the roads are snow bound by drifts, inconvenient to get to and dangerous to the children’s health. That the school directors have unlawfully assessed and levied a tax of three mills, and placed the tax duplicate in the hands of the township collector for collection. The bill prayed for an injunction.</p> <p>The answer averred that the directors were about to remove said sehoolhouse and have begun work on the same, and denied that it was very far west of the centre of the district and population, or that it was inconvenient to reach by many of the district children, and that it was in a bleak and exposed position.</p> <p>The answer further alleged that the court had no jurisdiction to restrain the school directors from removing the schoolhouse, that being a matter wholly within their discretion, over which the court had no control.</p> <p>A cautionary injunction was granted which was afterwards dissolved by the court, Greer, J.</p> <p>JError assigned was dissolving injunction.</p>

Appeal, No. 23, Oct. T., 1893, by plaintiff, Ann Scanlon, from order of C. P. No. 2, Allegheny Co., Jan. T., 1893, No. 416, entering judgment of nonsuit in favor of defendants, Eli Suter and Suter Ferry Co. Trespass for death of plaintiff’s husband. Before White, J. At the trial it appeared that on July, 5,1888, Edward Scanlon, plaintiff’s husband, went on defendant’s ferryboat.

<p>Appeal, No. 7, Oct. T., 1893, by defendant, James B. Oliver, from judgment of C. P. No. 1, Allegheny Co., March T., 1892, No. 244, in favor of plaintiff, Jacob Gibson, for want of sufficient affidavit of defence.</p> <p>Assumpsit on oil lease.</p> <p>The material portions of the lease were as follows:</p> <p>“ Operations on the above described premises shall be commenced and one well completed within one year from the date hereof, and, in case of a failure to complete one well within such time, the party of the second part hereby agrees to pay to the party of the first part for such delay the sum of five hundred dollars per annum, payable at the Peoples Bank as aforesaid, and the party of the first part hereby agrees to accept such sum as consideration and payment for such delay until one well shall be completed, and a failure to complete one well or to make any of such payments within such time and at such place as above mentioned, renders this lease null and void, and to remain without effect between the parties hereto.</p> <p>“It is further agreed that party of the second part shall commence and complete a second well on said premises within two years from the date hereof, and in case of failure to do so he shall pay as aforesaid to party of the first part one thousand dollars, or forfeit this lease.”</p> <p>Plaintiff claimed to recover two years penalty for failure to complete the first well, and $1,000 for failure to complete the second well.</p> <p>Defendant filed an affidavit of defence which was as follows:</p> <p>“ After the making of the lease upon which this action is founded, it became apparent from drilling of wells in the vicinitj'- of plaintiff’s farm that there was neither gas nor oil to be found in paying quantities on said farm, and for that reason defendant did not put down a well within one year from the date of the lease, nor did he pay the sum of five hundred dollars, and therefore, under the terms of said lease, the same became ‘ null and void and to remain without effect between the parties ’ thereto, and therefore no money is due for either the first or the second well.</p> <p>“ And for a further defence, as regards the second well, affiant says that no action can be maintained therefor, because a failure to put it down forfeited the lease; and further, that in any event the sum of one thousand dollars to be paid on account of failure to put down said second well was a penalty and cannot be recovered, and that the failure to put down said well did not damage plaintiff, because from developments in the vicinity there was neither gas nor oil in paying quantities on said farm.”</p> <p>The court, Stowe, P. J., made absolute a rule for judgment for want of a sufficient affidavit of defence.</p> <p>Error assigned was order as above.</p>

<p>Appeal, No. 5, Oct, T., 1893, by defendants, E. Magee & Co., from judgment of C. P. No. 1, Allegheny Co., June T., 1890, No. 840, on verdict for plaintiff, Clarence Reisinger.</p> <p>Assumpsit for balance of purchase money due on sale of lease.</p> <p>Appellant’s paper book did not contain the statement or plaintiff’s points. It also omitted the charge of the court in the order required by Rule 17.</p> <p>From plaintiff’s statement as printed in appellee’s paper book it appeared that plaintiff claimed to recover a balance due on sale of lease. A note for $600 had been given for the amount by Howard, an accommodation maker, but the note had been lost.</p> <p>The court charged in part as follows by Collier, J.:</p> <p>“ The first money was paid and a note was given for the balance, which has been lost. They now sue upon the original contract as if the dealings were between these parties originally, and they have a right to do that; and it is totally immaterial whether the note was protested or not, as far as the defendants, Magee & Co., are concerned. If a verdict is given against them here, there is no likelihood of their having to pay that note in the hands of an innocent party who got it before maturity. The court will protect them by compelling the plaintiff in court to file a bond of indemnity to protect the defendants.”</p> <p>Defendant’s points, which were refused, were as follows:</p> <p>“ 1. The plaintiff is not entitled to judgment under the evidence, for the reason that he has not filed a copy of the note sued on in this case with his statement of claim.</p> <p>“ 2. That he is not entitled to judgment, nor can he recover in this action, because he has not produced the original note nor a copy of the same on the trial of this case.</p> <p>“ 3. That if the jury should find for the plaintiff it can only be for the principal without interest, as there is no evidence in the case to show that a bond of indemnity was ever tendered defendant before suit was brought.</p> <p>“ 4. James Howard, Jr., being the maker, and E. Magee & Co. the indorsers in this lost note, there can be no recovery as against the defendants in this case.</p> <p>“ 5. Under the evidence in this case, the verdict should be for the defendants.”</p> <p>Verdict and judgment for plaintiff for $749.40. Defendant appealed.</p> <p>Frror assigned was that “ the court erred in refusing to affirm defendant’s points, which were as follows,” quoting points, but not answers.</p>

<p>Equity — Jurisdiction—Trespass on lands in another county.</p> <p>Where a court of equity has jurisdiction of a person, it may issue an injunction to prevent trespass upon lands in another county.</p> <p>Equity jurisdiction — Question of title.</p> <p>Where, on a bill for an injunction to restrain a trespass upon real estate, the deed under which plaintiff claims is recited in the chain of title and is admitted by the pleadings, and the only question is. whether or not it confers a right to mine claimed by plaintiff, no such question of title arises as may deprive a court of equity of jurisdiction over the case.</p> <p>Injunction — Continuous trespass.</p> <p>Where a bill in equity alleges the exclusive right in plaintiffs to mine coal in certain lands, and avers that defendant is taking it out and shipping it by the carload in such quantities that he will soon exhaust the mines, the court may restrain by injunction the continuous trespass alleged</p> <p>Heed — Exclusive grant — Eight to mine coal.</p> <p>A deed of bargain and sale, with words of inheritance, granted “ all those five certain lots or pieces of ground,” etc., and “ all the right, title, interest and claim of the parties of the first part of, in, to and out of all the gas from a certain well, on all that certaiu lot,” etc., and “ also the perpetual right to mine, dig and carry away coal, in and from all the veins of coal in and under all the following described tracts of land.” A royalty was reserved to the grantor on all coal mined. Held, that the omission of the word “ all ” before coal, and the reservation of a royalty, showed that it was not the intention of the parties to convey the coal absolutely, or to exclude the grantor from mining.</p>

Appeal, No. 76, Oct. T., 1893, by R. J. Potter, from decree of O. C. Allegheny Co., Sept. T., 1890, No. 4, dismissing exceptions to auditor’s report in partition in estate of Henry Donaldson, deceased. Petition for partition.

<p>Married women — Contract signed by husband — Transcript in common pleas of judgment of justice of the peace — Striking off.</p> <p>A judgment against a married woman, entered in the common pleas on a transcript of a judgment recovered before a justice of the peace, will be stricken off where the transcript of the justice shows a judgment entered against husband and wife under the following condition of the transcript: “Plaintiff claims the sum of $175 due by the defendants as commission on the sale of certain property, sold by plaintiff for defendants per contract, to wit, five per centum on $3,500. Plaintiff sworn and produces in evidence above recited contract signed by Thos. Wasson,” the husband alone.</p>

<p>Divorce — Libel—Pleading—Surplusage—Amendment.</p> <p>Where a libel in divorce sets out a statutory cause of divorce in the e terms of the statute, but specifies particulars not within the statutory requirement, and tending to negative the general averment, the particulars may be stricken out as surplusage, provided the evidence in the cause sustains the cause of action as averred in the specific terms of the statute. In such case an amendment should be allowed, and a divorce thereupon decreed.</p> <p>Divorce — Gruel and barbarous treatment.</p> <p>A libel in divorce by a husband against a wife for cruel and barbarous treatment was sustained where the respondent admitted on cross-examination that she broke the glass door of her husband’s store and interfered with his customers, that she broke dishes and threw them down stairs, threw hot coffee on the servant girl, and, on two occasions, when her stepsons complained of the dinner, she brought in slop and threw it on the table.</p> <p>Alimony pendente lite — Decree—Practice, G. P.</p> <p>On an application for alimony pendente lite, the court has no authority in dismissing the libel, to require alimony to be paid “ until the further order of the court.” The order must be limited to the pendency of the suit, and should terminate with the decree dismissing the libel.</p> <p>Order for alimony pendente lite — Order for support.</p> <p>The existence of an order of the quarter sessions requiring a husband to pay for the support of his wife, does not prevent the court of common pleas from decreeing alimony pendente lite. Both orders may run concurrently during the pendency of the proceedings, but when the common pleas has awarded a divorce, with or without alimony, the jurisdiction of the quarter sessions will be at an end.</p>

Appeal, No. 122, Oct. T., 1893, by plaintiff, Isadore Bowers, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1892, No. 429, on verdict for defendant. Trespass for ejection of passenger. Before Me Clung, J. At the trial it appeared that, on June 20, 1892, plaintiff purchased at Pittsburgh a ticket substantially similar in appearance to that shown on pp. 303 and 304 below.

Appeal, No. 152, Oct. T., 1893, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1892, No 232, on verdict for plaintiff, William Kerr. Assumpsit for bank deposit.

<p>Streets — Road law — Boroughs—Appeals—Practice, Q. S.</p> <p>Under the act of May 26, 1891, providing for appeals in road cases from the quarter sessions to the common pleas, an appeal will be sustained if entered in the quarter sessions within thirty days from the confirmation of the report. The certificate or transcript of the appeal need not be entered in the common pleas within the thirty days.</p>

<p>Appeal, No. 224, Jan. T., 1893, by defendant, from judgment of C. P. No. 3, Phila. Co., Dee., T., 1892, No. 1001, on verdict for plaintiffs, James Grugan, James Grugan trustee, under will of John Grugan, deceased, and William H. Hinkle, appellees.</p> <p>. Appeal from assessment of land damages. Before Reed, J.</p> <p>At the trial, the court, under objection and exception, refused to admit in evidence the record of a road jury appointed in 1877, by the court of quarter sessions of February term, 1877, to determine the necessity of opening Twenty-eighth street from Park street to Reed street, and which jury, on September 29, 1877, reported in favor of opening said Twenty-eighth street, between the points named. [1]</p> <p>The court, under objection and exception, refused to admit the catalogue of the public sale at which plaintiff purchased the property. The catalogue contained this statement: “Twenty eighth street opened and damages paid.” [2]</p> <p>When Abner Gr. Murphy, a witness for defendant, was on the stand, he was asked : “ Q. The property was sold • as Twenty-eighth street being opened?” Objected to. Objection sustained and exception. [8]</p> <p>The court charged in part as follows :</p> <p>“ [The question in this case, put in a few words, is, whether the opening of this street, so far as its effect upon the value of property is concerned, was premature or not, and that is the problem which it is your duty to settle.] [4] There are men in. this city whose whole lives have been devoted to ascertaining that fact, and they often make great mistakes. It. is. not an easy thing to say when it is a wise and proper step to..open a street through property. A man of the best judgment and most knowledge may make mistakes as well as any one ' else; and [you are called upon here to say whether, in this particular case, the opening of this particular street was so far ahead :of the need of the property in that locality that, taking away the soil from an adjoining owner worked a greater injury to him than by having a communication with the rest of this city by means of this street.] [5] .... .</p> <p>“ In the first place we have the fact that so much of this land was taken. [You can see from the plan that this property is irregular in its outlines, and this street has cut it up, leaving a certain triangular piece or pieces of irregular shape on each side of Twenty-eighth street and on each side of Reed street.] [6] ....</p> <p>“Now the question here chiefly for your consideration is whether the time at which this street was opened — whether it was opened at such a time and in such a manner as to so enhance the value of plaintiff’s property that they gained as much or more by the opening of this street than they lost in amount of property taken. To a certain extent, of course, in all, cases the burden of proof is on the plaintiff. The plaintiff does at least this much: He starts his case by saying that he had the land before the street was opened, and after the street was opened the land was gone ; and the city says: ‘It is true your land is taken, and it is our duty to pay you whatever damage you have suffered; but we can show you that your property is worth more than it was before the land was taken,’ and' the whole case comes finally to this one question, what was' the effect on this property of the opening of the street? ’’ . .....</p> <p>After reviewing the testimony the court continued:</p> <p>“The defendant contends that the locality was ripe for improvement, and in support of that theory has produced witnesses -who have testified that a certain number of streets have been built up with houses; a row of houses on the west side of Twenty-eighth street, reaching almost to Reed street, or close to the northern boundary of the plaintiff’s property. It does not, of course, follow because the neighborhood generally would be benefited by the street that Mr. Grugan’s property was benefited in the same proportion, or, if it was benefited in the same proportion, it does not follow that that proportion would be so great as to do that with the value of the property which was absolutely taken, because'at the very time of the opening of this street and the subsequent building of houses there, if this property was in a ripe condition for improvement, then, of course, that would also add to the value of the other ground taken, and it may be argued that while the property in that neighborhood is valuable and ought to have streets — but if the neighborhood is valuable, then this particular piece of ground, it may be argued, would be more desirable, more valuable. The answer to that is that the value is increased by the opening of the street.</p> <p>“ You -went down in that neighborhood yesterday and you saw the way it looked, the condition it was in, the intermediate condition between brick fields and truck farms, and not closely built up. It is in that position to-day. It takes some nice judgment to decide just how far any given steps in the way of improvement will act as an improvement or, for the time being, as a loss. [If this street took away from the plaintiff a certain amount of property of value and the benefit is not present, but in the future, then, of course, it is a loss to him.] [7] On the other hand, the witnesses for the city say that not only is that ground of value at present, but that the value of the ground is comparatively slight compared with the question of benefit to it from the opening of this street. I do not see any way out of this matter and will have to leave it to your best judgment. You will, of course, ascertain the value of this property before the opening of the street, and after the opening of the street. The price at which it would sell is one test by which to ascertain the value. You have heard witnesses on both sides and you must decide the question. It is difficult to reconcile the statements of the witnesses for the two parties, for men of capacity and integrity differ in their view on that question. [In opening the street the city compelled the plaintiff to go to a certain expense in moving buildings. Of course, that is one element of damage in addition to the value of the land.”] [8]</p> <p>Verdict and judgment for plaintiff for $1,403.38. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence; (4-8) instructions, quoting instructions, and offers of evidence, but not bills of exceptions; (9) entry of judgment for plaintiffs.</p>

Appeal, No. 296, Jan. T., 1893, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1892, No. 692, dismissing bill in equity against A. Sheppard and Lawrence Charatte. Bill to compel removal of fruit stand. The facts appear by the opinion of the Supreme Court.

<p>■ Affidavit of (defence — Judgment for amount admitted to be due — Rules of court — Practice.</p> <p>Where there is no standing or general rule of court allowing plaintiff to take judgment and have execution for that part of his claim which was admitted, and to proceed in due legal course for the part which is contest! ed, the court has power to make a special order in the particular case to permit the plaintiff so to do.</p> <p>Defendants admitted a portion of plaintiff’s claim and filed an affidavit of defence to. the balance. Plaintiff moved for judgment for want of a sufficient affidavit of defence, and for leave to enter judgment and issue execution for the amount admitted to be due. The court allowed judgment for the amount admitted, and at the same time granted a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence.. Execution was entered on the judgment, and del fendant promptly paid the amount to the sheriff. Subsequently the court discharged the rule for judgment on the ground that the proceedings in reference to the admitted part of the claim operated as a satisfaction of the disputed part. Held, to be error.</p>

<p>Decedents' estates — Advancements—Promissory notes — Will—Evidence.</p> <p>Testator directed that notes which he held against his children should be deducted from their shares of his estate. He gave to his wife the use of a house and lot for life, and one third of his personal estate absolutely; also pecuniary legacies and the residue of the realty and personalty to his children. Testator had various accounts against his children which he entered in a book designated “ a charge boók against my children.” The notes were not entered in this book. One note which he held against a son he destroyed, and then entered the amount of principal and interest due upon it in the “ charge book.” The notes constituted the principal part of testator’s personal estate, and more than enough to pay the peeuniary legacies. If the notes were held to be advancements, there would be no personalty to pass under the residuary clause, and the widow’s share in the estate would be very small in comparison with what the children would receive. Meld, that an intention to convert the notes into advancements was not consistent with a, purpose to pass the balance of the personal estate under the residuary clause, and that no inf erence that testator intended to so convert them could be drawn from the direction to deduct the debts of his children from their shares of his estate.</p>

<p>Appeal, No. 338, Jan. T., 1893, by defendants, Henry Fuellhart, Carl Horn and Simeon Dunn, from judgment of C. P. Warren Co., Sept. T., 1890, No. 25, on verdict for plaintiff, Jesse J. Wheelock.</p> <p>Trespass for taking and converting bark and lumber.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ The plaintiff, it seems, entered into a contract with Mrs. Philopena Fuellhart, a year or two prior to the occurrence out of which this suit grows, by which she granted to him the right of way across her land, and the right of piling lumber for shipment along the railroad. Acting under the contract, and in pursuance of the right which he had acquired under it, the plaintiff repaired and partly constructed a platform along the railroad for the shipment of lumber and barb, and used it for that purpose during the time limited in the contract. This contract, which is in writing, provides that it shall terminate on the 1st day of June, 1890, without further notice. Some time after the ‘first day of June, as all the evidence agrees— though perhaps the precise date is not certain — the plaintiff had some lumber and bark on the platform. The defendants, Carl Horn and Simeon Dunn, took that bark and lumber, or some of it, from where it was on the platform, removed it to other places in the vicinity and left it there. [It is alleged by the plaintiff that this was done by the two defendants, by the direction and under supposed authority conferred by Henry Fuellhart, but this is a matter iu dispute. A witness, Mr. Morrison, testifies that Mr. Fuellhart at one time stated to him that he had authorized what was done by Dunn and Horn, and by Morrison, who also participated in it, although he is not sued, and that he would protect them in it, or defend them, or something of that sort. This Mr. Fuellhart himself denies, and he testifies lie not only never said so, but that he never had any authority from his mother, nor gave any directions to Dunn or Horn, or any other person, to interfere with the plaintiff’s property. From the evidence you will have to determine how the fact is. If he had nothing to do with it, and did not direct them in any way, of course he is not in any way responsible, but that is not perhaps of great importance, as it is conceded Dunn and Horn did take the property away.] [4]</p> <p>“ It is shown by record evidence that prior to the time when this property was removed from the platform, to wit, on the 26th day of May, the Western N. Y. & Penn’a R. R. Co., by petition to the court, filed a bond to indemnify Mrs. Fuellhart against any damages by reason of their appropriation of the land which lay between the railroad and the public road in a wedge shape ; and part of which is said to have been covered by this platform. . . . [If you find that the property was taken from the land appropriated by the railroad company, and where it had a right to be, by these defendants, then it was wrongfully taken, was a trespass, and plaintiff would be entitled to recover something.] [3]</p> <p>“ [In the absence of evidence that Mrs. Fuellhart consented, or gave notice that he might go upon her land to take the property, I think that removing the property to her land, where the plaintiff could not reach it without trespassing, would entitle him to recover its value. It would amount substantially to an appropriation, although not a conversion to her own use.] [1]</p> <p>“ [You must determine where 1 the property was, whether rightfully or wrongfully taken. If wrongfully or rightfully taken, then was it so placed that the plaintiff could get it on the highway, get it without trespassing? Were any means offered him by which he could retake his property rightfully ? If so, then his damages must be limited to what loss he has suffered by reason of the removal.] [2] There is no evidence that I am aware of showing how much that is, but, if it was so placed that he would be obliged to trespass upon other people’s property to get his property back, it was such an appropriation as would entitle him to recover its value.”</p> <p>Yerdiet and judgment for plaintiff for $63.00. Defendants appealed.</p> <p>Errors assigned were (1-4) instructions, quoting them.</p>

Appeal, No. 137, Jan. T., 1893, by-plaintiff, Anna M. Derr, suing for herself and child, from order of C. P. Northampton Co., April T., 1889, No. 30, entering compulsory nonsuit. Trespass for death of plaintiff’s husband.

<p>Appeal, No. 92, Oct. T., 1893, by-plaintiff, John Nelson, executor of R. W. Stewart, deceased, from judgment of C. P. Beaver Co., March T., 1892, No. 257, on verdict for defendants, Charles Eachel and John D. Irons.</p> <p>Issue to determine validity of judgment. Before Wick-ham, P. J.</p> <p>The facts appear by the charge, as follows:</p> <p>“ This action is based on a judgment note dated April 25, 1889, the amount of the note being for three hundred dollars, and the time of payment fixed therein being one year. I speak now of the face of the note alone. On the back of the instrument is the following memorandum: ‘ This note to be paid within two months after the year expires on lease No. 1, on east part farm; provided the well on said lease should prove a good paying well. The well is to be completed within the year.’</p> <p>“ Now, gentlemen, the first question for us to consider is one partly of law and partly of fact, partly for the court to decide, and partly for you to pass upon. And I say to you, as a matter of law, that if this memorandum were on the back of the note at the time the instrument was delivered, it is as much a part of the note as if it were written upon the face thereof, and just as binding upon the parties. If it were not there at that time, if it were placed upon the note thereafter, then it would be entirety inoperative and no defence could be based thereon. The plaintiff in that event would be entitled to recover the full amount of the note, with interest and attorney’s commissions.</p> <p>“ Now, gentlemen, what is the evidence as to the memorandum as to the time when it was placed on that note ? [In the first place, gentlemen, it is shown here that this note came from the custody of R. W. Stewart just as it appears to-day. Mr. Nelson, the attorney for the plaintiff, testifies that when he received the note as attorney for Mr. Stewart, that is, in the latter’s lifetime, this indorsement appeared on the note as it is. Consequently, whenever it was put on that note, there is some reason to believe it was satisfactory to Mr. Stewart. At any rate he made no complaint about it, — he did not repudiate it, so far as the evidence shows. Moreover, gentlemen, when judgment was confessed on the note, when it was filed in the prothonotary’s office, this indorsement remained thereon, it was not erased, and there is nothing in the confession of judgment tending to show that it was not considered a part of the instrument at that time, although, perhaps, that was not necessary.] [8]</p> <p>“ In the second place, the presumption of law is, that the note was delivered on the day of its date, that is, at the time of signing, and there is nothing whatever in this case, in the way of evidence, to show the contrary, or to show that it ever passed out of Mr. Stewart’s possession until he sent it to his attorney. And, as I said before, the evidence shows that it came into the hands of the attorney in its present shape.</p> <p>“ [In the third place, gentlemen, the uncontradicted evidence is, that the memorandum is in the handwriting of John D. Irons, one of the defendants, and there is no evidence in the case tending to show that he had access to the note after its delivery.] [&] [Now, is it more reasonable to believe that the memorandum was on the instrument when it was delivered by Eachel and Irons to Stewart, or that Irons had aecess to it later and wrote the memorandum there ? Is there any evidence at all tending to show that he had any opportunity to put that memorandum on the note after its delivery ?] [10] As I said before, the evidence is not contradicted that the memorandum is in Irons’s own handwriting. [Had it been in the handwriting of Mr. Stewart, who, so far as we can see from the evidence, had possession of the note after its delivery, then a question would arise as to when it was put on, and that would be, perhaps, a question more serious, more difficult to answer.] [11] But as you have no evidence, gentlemen, that Mr. Irons ever saw this note, had any access to it, or had any opportunity to write anything on it after it was delivered, you might, if you see proper, infer from this evidence that the memorandum was there when the note was delivered. However, I leave it to you as a question of fact, calling your attention to the circumstances.</p> <p>“ Then, gentlemen, as to the meaning of the memorandum, supposing that you find the writing was on the back of the note at the time of the delivery of the instrument. As I said before, if it were" not there, there is no defence. As to the meaning of this, it seems from the memorandum that there was a lease, known as No. 1, on the east part of the farm. The memorandum does not tell on whose farm. And if there were no farther evidence than what is furnished by this writing itself it would be left, perhaps, in considerable doubt and darkness. But, according to the testimony of Mr. Harrington, if he is believed, there were two leases on this farm; and, indeed, they were offered in evidence just before the close of the evidence. It appears there were two leases granted by Mr. Stewart to the defendants in this Gase. Now, gentlemen, was lease No. 1 one of these leases, and the lease on the east part of Stewart’s own farm ? That I leave to you as a matter for your decision under the evidence. The memorandum goes on and says, ‘ That provided the well on said lease should prove a good paying well.’ Well, this means that if it did not prove a good paying well the note should not be paid, provided also, however, the well is to be completed within the year. Now, it was the duty of these men to complete a well on lease No. 1, on the east part of Stewart’s farm, if that is what is meant in this memorandum, and that lease was on his, Stewart’s farm; it was their duty to complete that well within one year. If they found a good paying well, then they were bound to pay this note, otherwise they were not. But it seems, gentlemen, that, according to the theory of the defence here, that there was a change made afterwards by the parties, by agreement of the parties, in regard to the lease on which this well should be put down. According to the theory of the defence, a good paying well, at least a well that encouraged Stewart and these defendants, was struck adjoining or near the west side of the farm. [And it is said the parties came together and had an understanding that the well referred to in this memorandum and in lease No. 1 should not be put on that lease, should not be drilled on that lease, but put down on lease No. 2, for the reasons I have already suggested. It is alleged they were more likety to find oil on the west side of the farm, on lease No. 2, than they were on lease No. 1. Gentlemen, are you satisfied from the evidence this change was made and that the agreement was changed? Because if you are, and the new agreement was carried out and the well was drilled on No. 2 lease within the year, that would be a sufficient compliance with this memorandum and there can be no recovery in this shit.] [12] You have heard the testimony of Mr. Harrington and the testimony of Mr. Duncan in regard to this change in the agreement. Unfortunately, gentlemen, the payee of the note, Mr. Stewart, is dead. By reason of his death the defendants cannot testify in their own behalf, and consequently we may not have as much light in this case as we would have if Mr. Stewart were living and here testifying, and the defendants testifying also. But there is evidence enough to take the case to you to consider, and on which to decide the case, and the court is required, under the law, to leave this matter for your decision. Was the change made, and was it, the changed agreement, carried out in good faith by the defendants ? [According to the testimony of Mr. Harrington and Mr. Duncan, the second well, on lease No. 2, was completed not later than the first week of February, 1890. The note was given on April 25,1889, and consequently that well would have been completed considerably within the year.] [13] And if it were completed, drilled on that lease No. 2, by agreement between Stewart and the defendants that it should take the place of the well to be drilled on lease No. 1, according to the memorandum, that would be sufficient. It seems, gentlemen, it was a dry hole, to use the language of the oil drillers; nothing was found in that well; it was not a good paying well, and that being the case the defendants should not be held liable, if they complied with all their agreements.</p> <p>“ Now, gentlemen, to recapitulate: You will first determine from the evidence whether this memorandum was on the note when it was delivered; if not, that is the end of the defence. If you find that the memorandum was there when it was delivered, jmu should next determine whether or not there was a change made in this written agreement by the parties at a later date. And was there a compliance with the agreement as changed? If there were, if the change was made by Stewart and the defendants, and if the defendants complied with their agreement to drill the well on No. 2, and found no oil there, did not find a good paying well, they are not liable.</p> <p>“But, gentlemen, if there were no change made in this writ* ten agreement, then, as it is conceded the well was not drilled on lease No. 1, of course the defendants would be liable for the face of the note with interest. You will decide all questions of fact by the weight or the preponderance of the evidence.”</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned, were (1) that the verdict and judgment were erroneous; (2, 3) admission in evidence of memorandum on back of note, quoting bills of exception; (4) admission of testimony of Harrington and Duncan as to modification of agreement, but not quoting bills of exceptions or evidence; (5) refusal to strike out the testimony of Harrington and Duncan; (6) refusal to take the case from the jury; (7) the charge as a whole, quoting it; (8-13) portions of charge as in brackets, quoting them separately; (14) that the whole charge was unduly favorable to defendants, argumentative, and calculated to mislead the jury as to the proper force and effect of the evidence.</p>

Appeal, No. 148, Oct. T., 1893, by defendant, John Hanna, from judgment of O. P. Somerset Co., May T., 1890, No. 117, on verdict for plaintiff, Harvey B. Tissue. Assumpsit on guaranty of judgment note. At tlie trial it appeared that on Jan. 7,1888, defendant, who was plaintiff’s guardian, made a settlement with his ward, by which he transferred to him among other securities a judgment note for $250, due May 26, 1887, made by Harrison Younkin, guaranteeing the payment of it.

<p>Appeal, No. 151, Oct. T., 1893, by defendant, Margaret Evans, from judgment of C. P. Mercer Co., Jan. T., 1893, No. 177, on verdict for plaintiff, A. Crawford, executor of H. D. Crawford, deceased.</p> <p>Appeal by defendant from judgment of justice of peace on bond to secure property on premises. Before Mehard, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points were among others as follows :</p> <p>“ 2. Defendant’s only undertaking was that the goods of J. M. Bell should not be removed prior to the first day of September, 1892. Answer: That is true if the goods were left there in good faith, so as to be beneficially answerable to the plaintiffs for their rent due ; then that is all that the bond required of the defendant. But if the goods were there, but the house was barred and the plaintiffs were prevented by James M. Bell and his family in conjunction with the defendant from taking a levy, then the true spirit and meaning of that bond was violated, and plaintiffs would be entitled to recover.” [1]</p> <p>“ 3. That unless the defendant prevented plaintiffs from taking possession of said goods she is not liable, and tbe verdict must be in favor of the defendant. Answer: If the defendant either by herself or in conjunction with the family of James M. Bell prevented the plaintiffs from entering and taking a levy she would be liable ; otherwise she would not.” [2]</p> <p>“4. That under the uncontradicted evidence in this case the said defendant had no power or control over the leased premises, and could not, against the will of her sister, wife of the lessee, have given said officer access thereto. Answer: It is probably true, gentlemen of the jury, that Miss Evans could not have compelled her sister, Mrs. Bell, to open the door. I mean that she would have no legal right to do so; and we are to bear in mind that Miss Evans was not on this bond undertaking to control the conduct of herself alone; but she was undertaking that James M. Bell and his wife would retain their property there so as to be beneficially answerable for the plaintiffs’ claim, and if they prevented plaintiffs from entering the house, and denied the plaintiffs any beneficial interest, or any benefit of the remaining of the goods there, then the defendant would be liable under her bond.” [3]</p> <p>“ 5. That if the jury believe that all the goods of J. M. Bell and wife were on the premises on September 1,1892, that were there on July 1,1892, then the terms of the bond were complied with, and the verdict must be in favor of the defendant. Answer : This would only be true acccording to the view we take of this bond; in case the goods were there open to access to the landlords, the plaintiffs in this case ; but if they were there in fact, but the landlords by their agent were in fact prevented from any benefit of the presence of the goods on the property, then the defendant would be liable.” [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4) instructions, quoting them.</p>

Appeal, No. 135, Oct. T., 1893, by defendants, from judgment of C. P. Washington Co., Feb. T., 1893, No. 380, on case stated for plaintiffs George Hazelbaker, John L. Riggs and Marcellus Riggs, executors of Mahlon Riggs, deceased. Trespass for mining coal.

Appeal, No. 274, Oct. T., 1893, by plaintiff, Josephine Barkley, from judgment of C. P. Washington Co., Nov. T., 1890, No. 139, in favor of defendant, William Adams, on case tried by the court without a jury. Ejectment. Before McIlvaine, P. J. The case was tried without a jury, under the act of 1874. The court found the facts as follows : “ a. Geo. Bentley died on Oct. 30, 1882, seized of eight tracts or parcels of land situated in Washington county, Pennsylvania.

<p>Oil lease — Sheriff's sale — Covenants and conditions.</p> <p>A purchaser of an oil lease at a sheriff’s sale acquires no greater interest or estate than that actually held by .the lessee, and he takes subject to all the covenants and conditions contained in the lease. He is therefore bound to inquire, and, failing to.do so, is fixed with notice of all that inquiry would have disclosed.</p> <p>Rent — Forfeiture—Surrender—Oil lease.</p> <p>Where an oil lease provides that the lessee shall complete a well within six months'from the date of the lease, or pay five hundred dollars a year thereafter, if he does not drill, the lessee cannot, after having failed to drill the well within six months, and after holding the lease until a year’s rent had accrued, relieve himself from the payment of such rent by surrendering the lease.</p>

<p>Negligence — Gontributory negligence — Highway—Known danger.</p> <p>A person who has knowledge of the dangerous condition of a public highway, and ventures to drive over it, assumes the risk of personal injuries resulting from the bad condition of the road.</p> <p>A married woman while riding in a carriage owned by her husband, and driven by her son, a man of full age, was injured by the overturning of the carriage in a public road which was in bad condition. Both mother and son knew of the dangerous character of the road, and were also aware that they could reach their destination by another road. When they approached the place where the accident occurred the son alighted, examined the road, and reported to his mother that he thought that he could pass the dangerous place by careful driving. In making the attempt the carriage was overturned, Ms mother was injured, and the carriage was broken. Held, that both mother and son were guilty of contributory negligence, and that no damages could be recovered from the township for the injuries to the mother, or for the breaking of the wagon.</p>

<p>Equitable assignment — Affidavit of defence — Act of May 10, 1881.</p> <p>An equitable assignment is an agreement in the nature of a declaration of trust, which, a chancellor never hesitates to execute when it has been made on a valuable, or even good consideration. The form of the assignment is immaterial, so that there be a clearly expressed intention of an immediate transfer of the right to the assignee.</p> <p>In an action against an agent to recover the amount of a legacy collected by him for plaintiff’s intestate Knuchel, defendant filed an affidavit of defence in which he averred that he had been employed by Knuchel to collect an inheritance for him; that Knuchel was indebted to Jampen; that in order to pay this indebtedness and secure Jampen for money which he was about to advance, Knuchel directed defendant to prepare an assignment of the inheritance to Jampen, and that this was done; that by this instrument Knuchel and wife acknowledged themselves indebted for board and lodging and money loaned, and bound themselves to pay the same with the money from the inheritance. The affidavit further averred that on the faith of this assignment the said Jampen loaned Knuchel the further sum of two hundred and fifty dollars, making a total indebtedness of four hundred and fifty-six dollars and fifty cents; that Knuchel signed and deposited this instrument with defendant and ordered him to pay Jampen; that he accepted said assignment as an order to pay and promised Jampen to pay the fund to him when received; that the amount of the inheritance so received was less than $156. Held, that an equitable assignment of the fund was sufficiently averred by taking the instrument in connection with the averments of the affidavit.</p> <p>The act of May 10, 1881, P. L. 17, requiring acceptances exceeding $20.00 to be in writing, does not apply to such a case. The objection that the acceptance is not in writing can only come from the acceptor. Ulrich v. Hower, 156 Pa. 419, applied.</p>

<p>Appeal, No. 87, Oct. T., 1893, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1891, No. 151, on verdict for plaintiffs, Matthew Wagner and wife, in right of wife.</p> <p>Trespass for personal injuries. Before McClttng-, J.</p> <p>At the trial it appeared that some time previous to the accident, the Chartiers & Robinson Turnpike Co. was engaged in the work of rebuilding and raising its bridge over Corks Run, and that this work rendered it necessary to lift the tracks of the street railway for a short distance on either side of the bridge to meet the change in the elevation of the bridge. Early in the morning of July 21,1891, plaintiff and her son were driving along the turnpike, and had reached a point near the Corks Run bridge, where the work was still in progress, when the front wheels of the wagon dropped down between the tracks into the excavation made by the removal of cobblestones, and plaintiff was thrown from the wagon and injured. Plaintiff claimed that the repairs were being made under the direction of defendant’s officers. William J. Burns, defendant’s superintendent, testified as follows: “ Q. Do you know who made those repairs ? A. The repairs were made by the Chartiers & Robinson Township Turnpike Company. Q. Was that the name of the Old Turnpike Company? A. Yes, sir. Q. The repairs were made under your direction, weren’t they? A. They were made under the direction of the Turnpike Company — all those repairs. Q. All those repairs were made under the direction of the Turnpike Company ? A. Yes, sir. Q. The Turnpike Company were laying the rails to run the cars ? A. They were building a bridge there and they raised it up probably eighteen inches higher than it was before, and they had to take up the roadway to get their new construction, or bridge, or superstructure in, and they were doing all the work connected with it. Q. Who superintended and controlled that work? A. Well, I directed part of it. Q. You directed part of it? A. Yes, sir. Q. You had control of it? A. By the order of the board, yes, sir. Q. Wasn’t the work done by men employed by the Pittsburgh & West End Railroad Company? A. Yes, sir. Q. Everything that was paid was paid by the Turnpike Company? A. Yes, sir. Q. But you had control of the work; superintended it? A. The engineer had the general supervision of it. Q. But it was done under your direction, as superintendent of this Passenger Railway Company ? A. Yes, sir; partially so. Q. And rails were laid for your cars to run on? A. Yes, sir. . . . Q. The men doing that work were under your control, weren’t they ? A. They were under the engineer’s and mine.” He also testified that during the progress of the repairs the track was-in use by defendant company.</p> <p>It did not appear that there was any light or barricade to warn or keep off travelers from the dangerous part of the road.</p> <p>Defendant’s points were among others as follows:</p> <p>“2. There is no evidence that the injuries complained of ■ were caused b3r the negligence of the defendant, the Pittsburgh & West End Passenger Railway Company, and the verdict must be for the defendant.” Refused. [1]</p> <p>3. Request for binding instruction. Refused. [2]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1, 2) instructions, quoting them.</p>

Appeal, No. 108, Oct. T., 1893, by-defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1891, No. 477, on verdict for plaintiff, Edmund Kestner. Trespass for personal injuries. Before Collier, J. At the trial it appeared that, on Oct. 26, 1891, plaintiff, who .was a driver of a meat wagon for Armour & Co., stopped his wagon in front of a shop on the south side of Carson street, two doors from the corner of Twenty-eighth street.

Appeal, No. 112, Oct. T., 1893, by-defendants, Charles Somers et al., from judgment of C. P. No. 2, Allegheny Co., July T., 1891, No. 177, on verdict for plaintiff, C. M. Herman. Appeal from justice of peace. Before Magee, J. At the trial, it appeared that plaintiff claimed to recover hand money paid defendants as agents of James and Ellen Leech on account of a contract to purchase real estate of James and Ellen Leech.

<p>Appeal, No. 181, Oct. T., 1893, by-Thomas G. Sample et al., from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1891, No. 519, on verdict for plaintiffs, James Pain & Sons v. Thomas G. Sample et al., partners, trading as Lieutenant James M. Lysle Post, No. 128.</p> <p>Assumpsit for contract price for performances of spectacular entertainment.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ points were as follows:</p> <p>1. Request for binding instructions. Refused. [1]</p> <p>“ 2. That if the jury believe that the defendants entered into this contract as a committee on the part of James M. Lysle Post, No. 128, Grand Army of the Republic, and not as individuals, and the contract was afterwards ratified aud affirmed at a general meeting of the post without protest on the part of any member of the post, that then the liability incurred was that of the post, and not of the individual members thereof, and these defendants cannot therefore be held individually liable. Answer: Gentlemen of the jury, this being an undertaking outside of the proper scope and business of a beneficiary association, the committee and those who acted with them did not bind the other members of the post, and those who volun-’ tarily joined the committee in this action are individually liable. For this reason the point is refused.” [2]</p> <p>Verdict'and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned were (1, 2) instructions, quoting them.</p>

<p>Appeal, No. 188, Oct. T., 1893, by-defendant, from decree of C. P. No. 1, Allegheny Co., March T., 1893, No. 393, for plaintiff, on bill in equity.</p> <p>Bill in equity for conveyance of land.</p> <p>From the bill and answer it appeared that John H. Shoenberger died on Nov. 12, 1889, leaving a will which contained among others the following clauses:</p> <p>“ Thirteenth: I give, devise and bequeath to my trustee and executors hereinafter named, in trust, all that certain piece or parcel of land, situate, lying and being in the Seventeenth ward of the city of Pittsburgh, in the state of Pennsylvania, and which is bounded and described as follows: Beginning at the northwesterly corner of Forty-sixth street and Davidson street, running thence northwardly along a line of Davidson street towards the Allegheny cemetery, a distance of three hundred feet more or less to Forty-seventh street, thence westwardly at right angles with Davidson street towards Butler street three hundred and fifty feet, thence southwardly to Forty-sixth street in parallel line with Davidson street three hundred feet more or less, thence along Forty-sixth street three hundred and fifty feet to Davidson street, the place of beginning, being the easterly and upper end of an eight acre lot purchased by me from the Allegheny cemetery corporation, to hold and convey the same as hereinafter directed for the erection and maintenance thereon of the necessary buildings for a protestant episcopal church hospital as a memorial to my deceased wife, which hospital shall forever be called and known as the ‘ St. Margaret Memorial Hospital.’ ”</p> <p>“ Twenty -first. I do hereby constitute and appoint the ‘ Pennsylvania Company for the Insurance on Lives and the Granting Annuities of the city of Philadelphia,’ Pennsylvania, my trustee and executor, and my friends Andrew Long, Esq., now cashier of the Exchange National Bank of Pittsburgh, Pennsylvania, J.. M. Brownson, Esq., now in the employment of Messrs. Shoenberger, Speir & Co., of Pittsburgh, Pennsylvania, and Anthony J. Antelo, Esq., of Philadelphia, Pennsylvania, as eoexecutors of this my last will and testament for all that portion of my estate, real and personal, and effects and interests in the states of Pennsylvania, Ohio, Kentucky and Illinois and of any property that may be transferred to them upon the close of the administration of my estate in the state of New York by my Executors hereinbefore appointed by me for that state.”</p> <p>Defendants tendered to plaintiff, the devisee named in the will, a deed for the land, describing it as follows:</p> <p>“ All that certain lot or piece of land situate in the Seventeenth ward of the city of Pittsburgh, county of Allegheny and state of Pennsylvania, bounded and described as follows, to-wit: Beginning at the northeast corner of Forty-sixth and Davidson streets, and thence northeastwardly al&ng said Davidson street three hundred feet to a point; thence northwestwardly by a line at right angles with Davidson street towards Butler street three hundred and fifty feet; thence southeastwardly by a line parallel with Davidson street three hundred feet to Forty-sixth street and thence along Forty-sixth street three hundred and fifty feet to the place of beginning.”</p> <p>The bill averred that from the time of the execution of the will to the present time Forty-seventh street had been opened only so far as Butler street, and had not been located or opened over the eight acre lot belonging to testator; that the distance along Davidson street from Forty-sixth street to Forty-seventh street projected to Davidson street, over the eight acre lot, is 407.88 feet. Plaintiffs claimed that they were entitled to all of the land between Forty-sixth street and Forty-seventh street projected over the lot. An amended bill was filed from which it appeared that Davidson street had not been opened north of Forty-sixth street, and that said Davidson street projected over said eight acre lot will include a strip of said lot 28.50 feet wide along the east side of said lot.</p> <p>Defendants’ answer denied the jurisdiction of the court, and averred that plaintiff was entitled only to the land as described in the deed which had been tendered.</p> <p>The case was heard on bill and answer, the court below filing the following opinion:</p> <p>“ It seems to me that the common pleas courts have concurrent jurisdiction with the orphans’ court in the case presented by plaintiff’s bill, and that, therefore, the objection to the jurisdiction taken by defendant is not well founded. The trust is given to the executors and trustees ‘ nominatim,’ and not ‘ virtute officii.’ The expression ‘ trustee and executors, hereinafter named,’ is the same as saying ‘ my trustee and executor, The Pennsylvania Company for Insurance, and Andrew Long and Anthony J. Antello my executors,’ and brings this case within the line of Brown’s Appeal, 12 Pa. 333, and others cited by defendant’s counsel.</p> <p>“ Upon the merits of the case, I think the will is to be interpreted as if Davidson street and Forty-seventh street had been laid out along the land specified in the thirteenth section of the will of Mr. Shoenberger, and that the line of the lot devised should be held to extend to where Forty-seventh street would run, if projected across Butler street and along this property. We think plaintiffs are entitled to the decree prayed for.”</p> <p>Decree entered accordingly. Defendants appealed.</p> <p>Errors assigned were (1) decree, quoting it; (2) in not dismissing bill for want of jurisdiction.</p>

Appeal, No. 193, Oct. T., 1893, by defendant, from judgment of G. P. No. 2, Allegheny Co., Jan. T., 1893, No. 463, on verdict for plaintiffs, Charles K. Dallas et al. Assumpsit for services. Before Ewing, P. J. The facts appear by the charge of the court which was as follows: “ It seems that in 1891, the Columbia Iron & Steel Company had become unable to continue its business, had made an assignment, and then there was a receiver appointed by the United States court.

<p>Appeal, No. 66, Oct. T., 1893, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1891, No. 399, on verdict for plaintiff.</p> <p>Assumpsit for cost of paving street. Before Ewing, P. J.</p> <p>At the trial, it appeared that, on Sept. 22, 1886, defendant obtained the right to construct a passenger railway on Fifth avenue in the borough of McKeesport. This street was the principal street of the borough, and had been macadamized at the expense of the property owners.</p> <p>The ordinance contained the following clauses :</p> <p>“ 2. The said company to keep in good repair that portion of the streets and avenues over and along which said railway may run, between tbe tracks and the space of one foot on each side thereof.”</p> <p>“ 4. And that said road be constructed in accordance with the established grades of the streets or avenues traversed, and in case of change of grade or improvement of any of the streets or avenues traversed, that said railway be changed to conform to said grade or improvement, as per notice from the borough engineer, at the expense of said company.”</p> <p>The ordinance was accepted by the company, and a single track railway with switches was laid in 1887 or 1888. Evidence on behalf of plaintiff tended to show that defendant did not keep in repair the street between the rails and one foot outside of the rails.</p> <p>On July 10, 1890, the borough notified defendant that the street was to be paved with Belgian blocks, and directed defendant to pave the street with such blocks between its tracks and for one foot outside of the track. Defendant refused to pave, and merely sunk the rails to the level of the new grade. The repairs were made by the borough in July, 1890. On Sept. 4, 1890, the company received the right to change from a horse railway to an electric railway. The ordinance giving this right contained the following clause:</p> <p>“ On all streets hereafter contracted to be improved within the borough limits, said company shall pay an assessment equal to the cost of the improvement between its tracks and lines of tracks, and on all streets traversed shall keep the space between its tracks and lines of track in complete repair.”</p> <p>When E. J. Taylor, a witness for defendant, was on the stand, defendant proposed to prove that at the time this ordinance was passed, on Sept. 4, 1890, the contract had been let for the improvement of Fifth avenue from what is known as the “ iron bridge ” to the city line. And also for the improvement of Third avenue from Market street to the Youghiogheny bridge. This for the purpose of showing that the contract was let for these streets at' the time of the passage of the ordinance of Sept. 4, 1890, and the McKeesport Passenger Railwaj^ Company had the right to locate their tracks on those streets, and afterwards did locate their .tracks thereon, without paying any portion of the improvement, for the purpose of showing the intention of councils as late as Sept. 4, 1890; that the McKeesport Passenger Railway Company should not be liable for the improvements of any streets under their ordinances except those that would be improved upon contracts that were entered into subsequent to the passage of that ordinance. Objected to, objection sustained and exception. [2]</p> <p>The court charged in part as follows :</p> <p>“ [According to uncontradicted testimony, Fifth avenue had, before that time (just the j^ear is not testified to, but about 1876 or 1878), been improved by macadamizing and curbing it, and the cost was assessed - on the property holders, so that we have, when this ordinance was passed, an improved street, a paved or macadamized street, and I don’t think it is material whether it was macadamized with limestone, paved with cobblestone or with asphalt. It was an improved street at the expense of the property holders, and it is to be presumed that both parties knew that, and contracted in accordance therewith.] [3] ....</p> <p>“ [It became the duty o£ the railway company, when the borough authorities determined to make a change in the grade, to make its tracks correspond. Now the evidence of the defendants themselves, and there is no contradiction as to that, is that they undertook to do that merely by sinking their rails some six or eight inches, leaving the balance between their rails in the same position. Well, I will say to you that they did not conform to, and comply with, the conditions of their contract, that when ‘ a change of grade or improvement was to be made, the railway should be changed to conform to said grade or improvement.’ The borough authorities gave notice to the defendant that they «were about to pave this street with block stone, and required them to put their tracks in repair, to correspond with said proposed improvement. The time given, seven days, was short. So far as the testimony shows, the company did not make any objection to that. They did not ask for any more time; they didn’t undertake to do it], [4] and then the city or the borough authorities did it and claimed to collect the cost of lowering the street at this place and making the tracks correspond with the new grade or improvement, and for the repair of the road. They asked the company to pay for it. If it was a reasonable repair of the road between the tracks, and for a foot on each side, that it should be paved with Belgian block stone, then it is conceded that the amount claimed by the borough is right, namely: the sum of $9,471.32. The defendant claims, though, that it was not bound to pay any part of this expense. We think they were clearly bound, having neglected to made their track correspond with the improvement or change of grade, (simply having lowered the rail, without anything more,) to pay for the expense of lowering their whole track. We are not prepared to say, on the contrary we instruct you that it does not follow, that they were bound to pave with Belgian block stone. [We leave that to you as a question of fact to determine. The borough councils had a right to pave with Belgian block or asphalt, or anything else, the portion of the street on each side of their track, going within a foot of it, and require that the railway company keep its share of the street in good repair, in reasonable correspondence with the balance of the street, having proper regard to the-travel on the street.] [5] ....</p> <p>“ Mr. Taylor, the engineer, says that experience has shown you cannot keep a street car track or road in good repair simply b3r macadamizing it, unless you put block stone, or something of that kind on each side of the rail. For a short distance the company had done this. He says that is necessary to put a track in repair, or to keep it in repair, and gives you the reasons. He also told you, even if you put nine inches of broken stone on each side of the rail, and then fill the balance with broken stone, what is the difficulty of keeping that in good order. Now, if this track was out of repair, and it was necessary to repair it, and the company, on notice, neglected to repair it, then the borough was entitled to do so at the cost of the company, and to do it in a reasonable manner. If it were necessary to do it by putting in block stone on each side of each of the rails, then that cost would be the necessary and reasonable expense, and then if it were necessary to have something filled in, in the balance of the ground between the tracks, also the cost of that. [If you find that the reasonable way of repairing, and the cheap way in the end for the railway company, was to pave it with the block stone clear through, the cost of that would be the reasonable and proper expense. Now those are questions of fact for you to determine, and as you find the facts you will find the verdict.] ” [6]</p> <p>Defendant’s request for binding instruction was refused. [1]</p> <p>Verdict and judgment for plaintiff for $10,513.13. Defendant appealed.</p> <p>Errors assigned were (1, 3-6) instructions; (2) ruling on evidence; quoting instructions and bill of exception.</p>

Appeal, No. 195, Oct. T., 1893, by defendants, Charles P. Lockhart and Mary G. Lockhart, from order of C. P. No. 2, Allegheny Co., April T., 1893, No. 781, making absolute rule for judgment for want of sufficient affidavit of defence in favor of plaintiff, William Hamilton, trustee of Mary Mcl. Lockhart. Assumpsit on bond. Rule for judgment for want of sufficient affidavit of defence.

Appeal, No. 197, Oct. T., 1893, by plaintiff, John Schroedel, for use of himself and Bertha Scbroedel, his wife, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1893, No. 309, on verdict for defendant. Assumpsit on policy of fire insurance. Before Slagle, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 200, Oct. T., 1893, by defendants, Harry C. Myers and Thomas Tate, trading as Myers & Tate, from judgment of C. P. No. 1, Allegheny Co., June T., 1892, No. 120, on verdict for plaintiffs, Joseph A. Hoeveller and Eugene S. Day, partners. Assumpsit on warehouse receipt. Before Stowe, P. J. At the trial it appeared that, on Jan. 11, 1888, plaintiffs deposited with defendants for storage a number of tierces of hams, taking a warehouse receipt for them.

<p>Streets — Sewers—Assessing benefits— Value — Cost — Exceptions —Evidence — Practice—Record—Viewers—Certiorari—Act of May 16, 1891.</p> <p>The cost of a sewer improvement is some evidence upon the subject of its value, but it is not conclusive. The viewers should ascertain the value, upon the basis of a quantum valebant, of the materials and labor for which the lot owners are called upon to contribute. Their l-eport should state the value, not the cost of the improvement.</p> <p>The proper }:>ractice under the act of May 16, 1891, P. L. 65, is for the lot owner to appear before the viewers and aid them, if he can, in determining what the materials and labor employed in the improvement are really worth. If they refuse to hear him or disregard the proofs, be should except to the report when filed. If instead of appearing before the viewers, and the court below, he waits until after final confirmation' and then brings up the record on certiorari, he cannot be heard on any question of fact. In the absence of exceptions the presumption is that the viewers discharged their duty.</p>

<p>Appeal, No. 201, Oct. T., 1893, by defendant, Joseph Faloon, from judgment of C. P. No. 2, Allegheny Co., July T., 1893, No. 288, on case stated fop plaintiff, Mary Dillon.</p> <p>Case stated to determine whether deed offered by plaintiff to defendant conveyed marketable title. Before White, J.</p> <p>From the case stated it appeared that James Farley died on June 17, 1883, seized of the premises in question. By his will he deyised the property as follows:</p> <p>“ I give and devise unto my beloved wife Catharine Pritchard Farley all that my messuage or tenements and lot of ground situate on Webster avenue, between Granville and Devillier streets, fronting 44 feet on Webster and extending to Enoch street, having a front of 22 feet on Enoch street, city of Pittsburgh, Allegheny county, Pennsylvania, together with the appurtenances, to hold to her my said beloved wife, Catharine Pritchard Farley, and her assigns for and during her natural life, she paying the taxes thereof and keeping the buildings in tenantable repair; the aforesaid tenement and lot to be disposed of at the pleasure of my beloved wife at her death.”</p> <p>Mrs. Farley died on May 20, 1891, leaving a will by which she devised the property to plaintiff absolutely, “ to be held and enjoyed by her, her heirs and assigns forever.” Plaintiff agreed to sell the fee to defendant.</p> <p>Judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was entry of judgment.</p>

Appeals, Nos. 33 and 34, Jan. T., 1894, by defendants, Frank G. Patterson and G. T. Bell et al., from judgments of O. P. Blair Co., March T., 1893, Nos. 78 and 79, on verdicts for plaintiffs, Samuel… Held: and it was then ordered that public notice of this stockholders’ meeting be given by advertisement, as required by the by-laws, and it seems from the evidence that this was done.

<p>Appeal, No. 304, Oct. T., 1893, by plaintiff, William Bigley, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1892, No. 107, on verdict for defendant.</p> <p>Assumpsit for services. Before McClung, J.</p> <p>■ Plaintiff claimed to recover $240 for services rendered to defendant as constable, lamplighter and patrolman for the months of April, May, June and July, 1892, at two dollars per day. At the trial, it appeared that on April 1, 1890, the town council of the borough passed the following resolution: “ Resolved, that William Bigley, high constable of the borough, be and is hereby appointed borough policeman and lamplighter for the year commencing March 4,1890, and that his compensation be fixed at two dollars per day.” Appellant performed the duties of borough policeman and lamplighter in 1890, 1891 and up until April 18, 1892, and received the compensation of two dollars per dajr provided for such services, up to and including March, 1892. For the services rendered by appellant in April, 1892, he was tendered compensation at the rate of two dollars per day, but refused to accept it. On March 7, 1892, plaintiff qualified as high constable for a new term. On April 15,1892, the town council passed a new ordinance repealing the prior ordinance, and all conflicting ordinances, and on April 18,1892, the burgess notified appellant that he was discharged as policeman and lamplighter, and that Charles P. Carson was appointed in his place.</p> <p>Binding instructions were given for defendant. Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was instruction, quoting it.</p>

<p>Appeal, No. 300, Oct. T., 1893, by James A. Murphy et al., partners, mechanic’s lien creditors, from order of C. P. Allegheny Co., Aug. T., 1892, No. 23, distributing fund raised by sheriff’s sale of real estate in De Wald, Wuesthoff & Co. v. P. X. Woog.</p> <p>Distribution of proceeds of sheriff’s sale of real estate.</p> <p>The case was referred to J. A. Evans, Esq., as auditor, who reported as follows:</p> <p>“ In 1890, tbe premises at Nos. 504 and 506 Smithfield street, Pittsburgh, Pa., now known as the Hotel Eiffel, were two four story buildings, each having a front on Smithfield street of about 20 feet, extending back about 50 feet. They were divided on the first story by a 13-inch brick wall, and above that by a hallway and lath and plaster partition. The wall nearest Sixth avenue and the wall nearest Fifth avenue were party walls. The front wall was iron and glass for the first story, with iron columns supporting the brick wall above. The rear wall was brick. The first floor was occupied as two storerooms with a door opening- from the street into each, and show windows on either side. Between the two buildings a stairway led from the ground to the top story, and a door opened from the street at the foot of these stairs. The upper floors were ■divided into rooms of different sizes by lath and plaster partitions on either side of the stairway and halls. .</p> <p>“ Under their contract Murphy & Hamilton took out all the interior of the building; put in new material and arranged the interior on an entirely different plan from that of the old building, and threw the two buildings into one. They took out all the old material in the front wall of the first story, except four iron columns which supported the brick wall above. They put in new windows and doors and changed the arrangement of the first story front, and two new iron columns were put in on new foundations. Above the first story the front wall was not changed. New windows were put in where the old ones had ■ been, with larger glass, decreasing the number of lights to the window from twelve to two. In the rear wall the first and second stories were taken down and iron columns put in to support the brick wall above, and the building was extended back ten feet for two stories high. A skylight was built in the roof, and a light shaft brought down to light the second, third and fourth floors.</p> <p>“ The work was finished Dec. 29, 1891, the lien filed June 7, 1892. Woog had a lease of the premises when the contract was let, and the work was done on the credit of the leasehold. Daring the remodeling of the building and prior thereto', Woog occupied the premises with a restaurant and bar. At the sheriff’s sale the leasehold sold for $10,700.</p> <p>“ A single question arises on the evidence in this case, viz.: Was the work done at Nos. 504 and 506 Smithfield street, the construction of a new building or the alteration and repairing of an old one? This is a difficult question to decide. The general rule, that ‘ when the structure of a building is so completely changed, that in common parlance it may be properly called a new building or a rebuilding,’ does not afford much of a guide in close cases like this.</p> <p>“ A more specific rule is laid down in Miller v. Hershey, 59 Pa. 64: ‘ The idea which runs throughout all cases is newness of structure in the main mass of the building — that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new structure some of the old parts may have entered. This newness of structure must be in the exterior, the main plan of the building, and not in its interior arrangements. There ap•pears to be a good reason for this not only in the fact that the external walls of a building constitute the strongest marks of its identity and are its main part, but also in the notice that the external change furnishes to purchasers and lien creditors.’</p> <p>“ From this it would appear that there must be such a change in the external appearance of the building that persons, seeing the improvement, would recognize that a new building was being erected.</p> <p>“ In Landis’s Appeal, 10 Pa. 379 : ‘ The old structure was an old-fashioned two-story house, with pent roof, formed by joists of the second stoiy projecting. The roof was propped up, and the front wall taken out, and rebuilt on a new foundation, outside and adjoining the old foundation. The old rafters were spliced, and a new roof put on, with new dormer windows. All the partitions in the house but three were altered. The whole of the inside work but the floors were taken out; and the chimneys below the garret floor were taken down. New doorways and windows were cut, and new work put in the old doors and windows. The back and side walls and the foundations remained. Adjoining the house a new two-storied back building was erected without a cellar.’ I have quoted thus largely from this case, because if there is any difference in the ‘ character and extent ’ of the changes made between the building in Landis’ Appeal and the one in this case, the difference is in favor of the former, and yet the court held in that ease that the work amounted only to alterations and repairs.</p> <p>“ The case of Hershey v. Shenk, 58 Pa. 382, has been urged as ruling this case in favor of the mechanic’s lien; and the language of the charge to the jury would seem to go so far as holding work like that done in this case to be a construction of a new building. But the facts in the case do not justify them. In that case there was an entirely new building put up a few feet from the old one, to be used as one tenement with it, and the Supreme Court sustain the right of lien on the ground that there was an undoubted right to lien the new building, and, the, old building occupying ground appurtenant to the new, the lien would attach to it also.</p> <p>“ In the Woog building it is true that parts of the front and back walls were changed, but in the front wall the second, third and fourth stories remained without change, except putting in new windows where the old ones had been with larger glass. In Landis’ Appeal, supra, the entire front wall was new; a new connection with the roof was made and a new roof was put on. Another reason why the remodeling of the Woog building should not be considered a reconstruction, is the fact that W oog lived in the building and carried on his business all the time the work was being done. This may seem far-fetched; but if one of the reasons for not sustaining a mechanics’ lien be that not sufficient change has been made in the appearance of the old building to give notice to purchasers and lien creditors that a new building was being constructed, would not the fact that the building was occupied all the time the work was being done, lead a passer-by to the conclusion that they were repairing an old building and not building a new one ?</p> <p>“ The work done on the building at Nos. 504 and 506 Smith-field street, on which the mechanics’ liens have been filed in this case, was not in and about the construction of a new building within the meaning of mechanic’s lien law.”</p> <p>The auditor accordingly disallowed claim of Murphy & Hamilton.</p> <p>Exceptions filed by them were dismissed, whereupon they appealed.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

<p>Appeal, No. 188, July T., 1893, by defend^it, Charles Salyards, from judgment of O. & T. Cumberland Co., on verdict of guilty of murder of the first degree.</p> <p>Indictment for murder. Before Sadler, P. J.</p> <p>At the trial, it appeared that at about ten o’clock in the evening of April 8, 1893, George H. Martin, a policeman, was shot by a pistol in a narrow alley known as Grave Yard lane in the borough of Carlisle. Several witnesses testified that they saw Martin following the prisoner into the lane, and a few minutes afterwards heard a pistol shot. One witness testified that immediately after the shooting he saw a man jump over the bars into a field opposite from where the shot was fired, and run in the direction of a spring in the field. Tracks were made in • the ground corresponding to the shoes worn by defendant on that evening. The prisoner was seen on the following day hiding in the South mountain. He was subsequently seen on a railroad train going south, and at Hagerstown he had his hair cut and whiskers removed. He then" went to Winchester, Virginia, where he was subsequently arrested. A 38 calibre revolver was found in his pocket, and a number of 38 calibre cartridges were in bis possession. These cartridges corresponded with the one removed from the body of the deceased. It. appeared that early in April preceding the tragedy Salyards exhibited a 38 calibre revolver in the presence of Mr. and Mrs.. Filer and Edward Lytle, stating that if the police did not stop following him he would give them what they did not want. To Lytle he said that if Martin did not stop following him he “ would give him lots of cold lead.”</p> <p>The court sent the jury to view the ground where the killing was done, but the prisoner and his counsel did not attend the jury in their examination.</p> <p>When John B. Drawbaugh, a witness for the commonwealth, was on the stand, the commonwealth proposed to prove by him that in the fall of 1891 he had a conversation with Salyards; that Salyards said to the witness that Jesse Cart, who was then chief of police of the borough of Carlisle, was a very nice man, but if any other of the police officers wo'uld interfere with him he would give them something they did not want, or words to that effect, and that at the time George Martin was on the police force. Offer objected to by defendant for the reason that it is entirely too remote to have any legitimate bearing on the question at issue. Objection overruled, offer admitted, and bill sealed. [6]</p> <p>The witness testified substantially as in the offer.</p> <p>When W. E. Miller, a witness for commonwealth, was on the stand, the commonwealth offered to prove that he took the revolver produced and offered in evidence as having been taken from Charles Salyards, in Winchester, and fifed out of it one of the balls that was in it at the time it was produced in evidence, fired it into a barrel of water, that then he put into the same revolver one of the cartridges found in the coat pocket of Charles Salyards, as testified to by Sheriff Graham, and fired that ball out of the same revolver into a bag of sawdust; and that he now has the balls that were thus fired in his possession, and we offer the balls in evidence, for the purpose of showing that the pistol barrel marks are similar to the pistol barrel marks on the ball found in the body of George Martin, deceased, and also for the purpose of showing that a ball, after being fired through the pistol barrel, cannot be pushed through the barrel, and for the purpose of illustrating to the jury, and using it as a comparison with the one taken from the body of Martin.</p> <p>Objected to: This may have been the testimony in chief, but it is not testimony in rebuttal; and in addition to that, the comparison is for the jurors and not for the witness; and further, that the tests made as suggested in the offer, firing a ball through water, or through a bag of sawdust, would not. necessarily produce on the bullet the same effects that would be produced upon it by its having been fired through a human body; the test is not similar to the case in question; and therefore the testimony is irrelevant and incompetent, and the purpose for which it is offered is illegitimate.</p> <p>By the court: We think the balls fired by Mr. Miller, the witness, may be put in evidence for the purpose of comparison by the jury with the ball found in the body of Martin, and for the purpose of illustration. Exception. [7]</p> <p>Defendant’s counsel asked the court to withdraw from the consideration of the jury the testimony of John Drawbaugh as to a conversation alleged to have been had by him with the defendant fifteen or seventeen mouths ago. (1) Because Martin was not named by the defendant in the conversation alleged to have been had with Drawbaugh. (2) Because Salyards testified that he did not know Martin, and there is no contradiction of his testimony as to that. (3) The alleged conversation is too remote in point of time to be permitted in the trial for a man’s life. Answer: This prayer is refused. Martin was a member of the police force at the time named and continued as such until the time he was killed. The threat was against the police force. The time was not too remote when taken in connection with the testimony of threats made to and in the presence of Filer, Lytle and others before and of declarations subsequent to the homicide. [9]</p> <p>■Defendant’s counsel asked the court to withdraw from the consideration of the jury the testimony of the Funks, of Shippensburg, that they had clothing stolen Sunday night, which it is alleged was found upon the prisoner, for the reason that it is irrelevant, incompetent and as proving a distinct substantive offence, and cannot be considered by them in passing on the guilt or innocence of the defendant of the crimes charged against him in this indictment. Refused. [10]</p> <p>Defendant’s counsel asked the court to withdraw from the consideration of the jury the testimony of the railroad men oil the Cumberland Valley railroad and on the Western Maryland railroad as to whether or not they saw this man or one answering his description on the train that night, Saturday, the 8th of April, for the reason that it is not pertinent to the issue trying in this case. Answer: This point is also refused. The conductor of the Cumberland Valley railroad train was a competent witness to show the kind of baggage car that was on the midnight train of April 8th, and to testify whether Salyards was on the train or not. What weight shall be given to his testimony is for the jury. [11]</p> <p>Defendant’s points were as follows:</p> <p>“ 2. No motive for the killing of Martin by the defendant having been shown, and there being no evidence of the manner of the killing or the circumstances immediately attending it, the presumption is that the killing would not rise higher than murder in the second degree, and it devolves on the commonwealth to prove beyond any reasonable doubt that the defendant at the time of the killing had formed a clear and deliberate intention to take the life of Martin, otherwise they should not convict of murder in the first degree. Answer: We cannot instruct you that, as a fact, no motive for the killing of Martin has been shown. The facts we leave you to find. If you find the facts to be as stated in this point then the legal proposition therein contained is correct — that is if you fail to find a motive.” [12]</p> <p>“ 3. It not having been shown that Martin had a warrant of arrest for the defendant, and it not having been alleged or proven that the defendant was at the time of the killing in the act of committing or perpetrating any felony, or that there was to him any known cause for his arrest, if the jury believe from the evidence in the case that the killing was done in resisting arrest, then in the absence of all other evidence of the circumstances attending the killing they would not be justified in finding a higher grade of crime than voluntary manslaughter. Ansioer: If you'find the facts to be as stated in this point then it is affirmed. But we sajr to you that while your province is to find what the facts are, yet that in our opinion a conclusion by you that the killing of Martin was done in resisting arrest would be unwarranted. We have no recollection of any testimony that would justify such a determination by you.” [13]</p> <p>“ 8. If the evidence of Julius and 'Mrs. Schraudenbaugh to the effect that on the night of April 8th, the night of the homicide, the defendant did not leave their house until ten minutes after ten o’clock, prior to which time the evidence of the commonwealth shows that Martin was shot and at which time shows he was dead, raises in the mind of the jury a reasonable doubt as to whether the defendant was the slayer of Martin, they should acquit the defendant. Answer: If there is a reasonable doubt that prisoner shot he should not be convicted, and this point is affirmed, if you find the fact to be that Salyards did not leave the house of Schraudenbaugh until after Martin was shot. At what time he was shot and at what time he left the dwelling of Schraudenbaugh we leave for you to determine.” [14]</p> <p>“ 11. There is not proven in this case any lying in wait. All the evidence that shows that the person whom Martin was following and who is alleged to be Salyards was making efforts to escape, and there being no evidence showing any previous preparation for the commission of the crime on part of the defendant, or that the defendant expected to meet Martin on that night, then in the absence of all testimony as to the manner of the killing, the jury would be justified, if they find that the defendant is the person who shot Martin, in finding that the grade of crime does not rise higher than voluntary manslaughter or murder in the second degree. Answer : We cannot instruct you that it has not been proven in this case that there was anjr lying in wait, nor that all the evidence tends to show that the-person whom Martin was following was making efforts to escape, or that there was no preparation on the part of the defendant for the commission of the crime, or that he expected to meet Martin that night, or that there is an absence of all testimony as to the manner of killing ; but we instruct you that, if you should so find the facts, then the point is affirmed. In our opinion the facts would warrant a conviction of murder in the first degree, and that you would be justified in finding that the evidence made out a case of willful, premeditated, deliberate killing.” [15]</p> <p>Verdict of murder in the first degree.</p> <p>After the verdict the prisoner moved for a new trial on the ground that the jury had used intoxicating liquors during the trial. Affidavits in support of the motion showed that wine, whisky and beer had been furnished to the jurors during the trial, but it did not appear that any misconduct or separation resulted from the use of the liquors. The court refused a new trial, and passed judgment of sentence. Defendant appealed.</p> <p>Errors assigned, among others, were (4) in sending jury to view the ground in absence of prisoner and his counsel: (6, 7, 9-1-1) rulings on evidence, quoting bills of exceptions and evidence as above; (12-15) instructions, quoting them; (20) refusal of new trial.</p>

<p>Married women — Purchase of realty — Act of June 3, 1887.</p> <p>Under the married persons property act of June 3, 1887, P. L. 332, a married woman may purchase land on credit, and give any kind of lawful lien upon it as security for the payment of the purchase money, or any part of it.</p> <p>Ejectment — Married women — Evidence—Weight of.</p> <p>In an action of ejectment to recover real estate claimed by a wife as her property, but sold under execution as the property of the husband, if there is evidence that the property was bought with the wife’s money, the case should be submitted to the jury, without regard to the weight of the testimony.</p> <p>In such a case it is proper to admit evidence of the cost of the building, as the jury should consider the question whether the wife furnished all the money; but evidence of the husband’s insolvency, or of his indebtedness at the time of the pui’chase of the property, is irrelevant.</p>

Appeal, No. 253, Oct. T., 1893, by defendants, Charles Porzel and W. R. Succop, executors of John Kaiser, deceased, from judgment of C. P. No. 1, Allegheny Co., June T., 1892, No. 696, on verdict for plaintiffs, Mark W. Watson et al., trading as William McCully & Co. Assumpsit for goods sold and delivered.

<p>Appeal, No. 199, Oct. T., 1893, by defendants, George A. Todd et al., from judgment of O. P. No. 2, Allegheny Co., July T., 1892, No. 465, on verdict for plaintiff, Annie Steele.</p> <p>Assumpsit on bond of indemnity. Before White, J.</p> <p>At the trial it appeared that defendant leased a lot of ground in South Fayette township, fifty by two hundred feet, and drilled an oil well thereon. Plaintiff was the owner of a lot on each side of and contiguous to defendants’ lot, and on each of plaintiff’s lots was a water well. Plaintiff filed a bill in equity alleging that her property and water wells would be exposed to danger by drilling oil or gas wells on defendants’ lot. The court granted a preliminary injunction, which was afterwards dissolved on defendants giving plaintiff a-bond, conditioned that they “ shall well and truly indemnify and save harmless the said Annie Steele from all damage which may be sustained by her, by reason of the drilling and operating of said well, then this obligation to be void, otherwise to be and remain in full force and virtue.”</p> <p>Plaintiff introduced evidence which tended to show that the drilling of the oil well drained off all the water from the water wells, and caused injury to trees, garden, etc.</p> <p>The court charged in part as follows :</p> <p>“ Subterranean streams, or percolations of water underneath the surface, ordinarily are not known, it cannot be told where they are, and in the digging of a coal mine, or the sinking of a well for oil or gas, these subterranean streams may be injured. Very frequently in mining out coal, a spring of water is destroyed, so sometimes in the sinking of oil wells they may strike a subterranean stream of water a considerable distance from a man’s property, and in that way a well may be destroyed. Ordinarily, in those cases, there is no legal damage done, and the party injured has no remedy. It is on this principle that a man has a right, in a lawful manner, to improve his own property, to do what is necessary on his own property, to enjoy it, or to enjoy anything lying under the surface, and while engaged in the lawful enjoyment or improvement of his own property, if an injury is done unavoidably to a neighbor’s property, he is not liable for any damage. But he is bound to exercise care. He is bound to proceed with proper caution, and if he has reason to believe he is going to injure another man’s property, if he is going to injure a well on an adjoining lot, he is bound to exercise such care and prudence as will avoid that injury, if it can be avoided. Now we have cases where an oil well or a gas well has been sunk 1500 or 2000 feet deep, and the salt water coming up has mingled with the fresh water above, and in that way destroyed water wells. If a man boring a gas or an oil well knows it is in a locality where salt water may come up, and mix with the fresh water, he is bound to take such precautions as not to injure this fresh water by the salt water. If he can, by reasonable expenditure, care and caution, avoid that, and does not do it, he is liable for neglecting to do what he ought to have done to protect his neighbor. So he would be liable equally for draining off a stream that fed a well, if he could have guarded against it by reasonable care and prudence, and a reasonable expenditure.</p> <p>“ The question, therefore, in this case is : Did the defendants exercise the care they should have to have saved them ? They knew the plaintiff had two wells, and presumably knew that they were what we call shallow wells. One was only eight or ten feet deep, and the other fifteen feet deep. At the bottom of these wells the streams of water came in. In sinking the well in this case the defendants put down a wooden casing or conductor, as it is called ; they put one sixteen or eighteen feet long, and on the top of that another one about half as long. That would make it from twenty-four to twenty-seven feet from the surface down to the bottom of this wooden casing. That was large enough for them to put inside of it and sink down below it iron tubing eight and a quarter inches in diameter. [This wooden casing was below these wells a considerable distance, and in all probability the streams feeding these wells, if the wells were injured in this way, were cut before they got to the bottom of that wooden tubing. Now, did the defendants do anything to prevent the water from these wells percolating down through the ground and wasting away, either down inside of this wooden easing, or down inside of the iron tubing below that, or down so as to be carried off somewhere else ?] [1] The defendant, [Mr. Todd, said that they put down this well in the most skillful manner, and to shut off outside water from the surface. That was necessary, he said, in order to bore the well. Was it done so as to prevent the water from these wells or the streams being carried away ? That is the question really in this case. Were the defendants guilty of negligence in not doing something that would have prevented the streams feeding these wells from going down in the well along the side of this pipe, or being carried off after being taken some distance below the bottom of these wells ? There I think is really the point in this case. Was there negligence in that respect ? I cannot see that it matters much what was done one hundred or five hundred or a thousand feet below the surface. If there was negligence in this respect, then the plaintiff is entitled to recover damages for the loss of these wells.”] [2]</p> <p>Verdict and judgment for plaintiff for $800. Defendants appealed.</p> <p>¡Errors assigned were (1, 2) instructions, quoting them.</p>

<p>Appeal, No. 280, Oct. T., 1893, by plaintiff, Celia McMullen, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 17, entering nonsuit in favor of defendant, Carnegie Brothers & Co., Ltd.</p> <p>Trespass for death of plaintiff’s husband.</p> <p>At the trial, before McClung, J., it appeared that plaintiff’s husband was a brakeman in the employ of defendant company. Defendant owned and operated an extensive plant at Braddock for the manufacture of steel rails and other products from iron. It owned a number of miles of railroad tracks and switches, connecting its mills with neighboring railroads. It also owned and operated a large number of locomotives used in receiving and delivering freight cars. The company employed a large number of men, in the capacity of engineers, firemen, brakemen and yard masters, in receiving and delivering cars. At the time of his death, deceased was employed as head brakeman. On the night of Nov. 11,1891, at about nine o’clock, deceased was employed in making up an out-going train, and went upon a car owned by the Pennsylvania Railroad Company to set the rear brake. While he was so engaged, the brake wheel which he was required to use in setting the brake, being unfastened, flew off, and he fell to the ground and was run over. It was subsequently discovered that the nut and thread upon which the wheel was screwed was broken off even with the top of the shoulder where the wheel rested upon the staff rod. The condition of the brake indicated that it had been out of repair for several weeks before the accident. It appeared that the car had been upon defendant’s tracks for twenty-four hours before the accident occurred.</p> <p>The court entered a compulsory nonsuit and subsequently refused to.take it off, in the following opinion by McClung, J :</p> <p>“There is no direct evidence in this case of actual notice to the defendants of the defective condition of the brake staff which probably caused the death of the plaintiff’s .husband. ,Nor does it appear that the car was in their possession for such length of time that a jury could be permitted to find that in the ordinary course of affairs they should have noticed it.</p> <p>“ Plaintiff’s case then depends upon the existence of a duty on the part of defendants to ascertain by inspection that cars delivered, to them by the railroad company for the purpose of being unloaded, or loaded, or both, are in good and safe condition before permitting its employees to handle them for the purposes for which they are so delivered.</p> <p>“ The cars used by a railroad company for the purpose of transporting freight are appliances, as to the condition of which the company owes a duty to its employees working upon them which cannot be filled without proper inspection. This, doubtless, applies as to cars borrowed or hired by the railroad company from another company. It does not, however, apply to companies or persons on whose sidings loaded cars are delivered for the purpose of permitting the owner of the siding to unload the freight.</p> <p>“ It follows that the nonsuit it this case was properly granted and the motion to take it off must be refused.”</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 287, Oct. T., 1893, by The Union Trust Company of Pittsburgh, guardian of Benjamin M. and Thomas R. Gracie, minor children of Emma Gracie, deceased, from decree of O. C. Allegheny Co., May T., 1893, No. 68, dismissing exceptions to adjudication. Adjudication of administrator’s account.

<p>Appeals, Nos. 292, 293, 294 and 295, Oct. T. 1893, by James T. McIntosh, Robert G. McIntosh, John S. Mclntosb, trustee for the family of Alexander G. McIntosh deceased, and John S. McIntosh, trustee of the minor children of Lauehlan J. S. McIntosh, deceased, from decree of O. C. Allegheny Co., Sept. T., 1892, No. 205, dismissing exceptions to adjudication of account of Lucretia M. McIntosh and John S. McIntosh, executors of Lauehlan McIntosh, deceased.</p> <p>Adjudication of executors’ account.</p> <p>The will of Lauehlan McIntosh deceased was as follows :</p> <p>“ I give and devise to my beloved wife Margaret, for and during the term of her natural life, the house we are now living in, the carriage house, stable, ice house and all other buildings and improvements that are or shall be on the two acres of land whereon the above named buildings are situated, all furniture in house, all live stock and wheeled vehicles, and all steps, walks and roads to and from the above named premises; and at my wife’s decease, the above named property shall go to our daughter Lucretia Mott Martin, and her children.</p> <p>“ I also give and bequeath to my said wife, the one-third part of all my personal property, and at my wife’s decease, it is my will that all the above devise and bequest shall go to our daughter Lucretia Mott Martin, the above is intended to be, and to be taken in lieu and bar of all shares or thirds or dower of my said wife in my estate, real, personal or mixed.</p> <p>“ Item: I give and bequeath to our daughter Lucretia Mott Martin, five houses and lots in the first ward, Allegheny city, valued by me at Forty-six thousand dollars, $46,000, known as ‘ Colonade.Row.’ To the $46,000 real estate, shall be added enough personal property to make her share equal to that of any one of the other three heirs, viz.: Alexander G., James T. and the heirs of Elspatious G.</p> <p>“Item: I give, devise and bequeath to the family of my son Alexander G. McIntosh, [realty specified, and valued at $85,900.] Also: Enough personal property to equal the shares of either Lucretia M., James T. or Elspatious heirs.</p> <p>“ Mary S. wife of Alexander G. McIntosh, shall have and hold in trust but not sell, the real estate or any part thereof belonging to this share, she may collect and use the income from said real estate for the benefit of the family.</p> <p>“ The personal property belonging to this share shall be held in trust for the children of Alexander Gr. McIntosh by my daughter Lucretia Mott Martin and my grandson John S. McIntosh, and after the age of twenty-one years, each one who can establish a character for sobriety, morality and industry shall receive four thousand dollars $4,000 and this $4,000 shall be in lieu and bar of all claims to the income from the real estate and shall be charged (without interest) to those who have received said $4,000, at the final distribution of the real estate to Which they shall share after the decease of my son Alexander Gr. McIntosh.</p> <p>“ Item : I give, devise and bequeath to my son James Tulloch McIntosh, [realty and stock in store specified, and valued at $52,056.42.] Also: Enough personal property to make his share equal to any one of the other three heirs, viz.: Lucretia Mott, Alexander Gr., and' the heirs of my son Elspatious Gr.</p> <p>“ Item : I give, devise and bequeath to the heirs of my son Elspatious Gregory McIntosh, the ‘ Klingensmith ’ property [and other realty, specified and appraised at $35,535]. Also : As much personal property as shall be necessary to make the share equal to that of either Lucretia M. Alexander G. or James T. McIntosh. Further it is my will that the said devises and bequests of this share, both real and personal shall be held in trust by Lucretia Mott Martin and John S. McIntosh for the use of the heirs as follows:</p> <p>“ To Robert, the surviving son of Elspatious G. McIntosh shall be given one-half the rents from the houses and court on Anderson street, Allegheny, after taxes and necessary repairs are paid*. And should he at any time establish a character for sobriety, morality and industry, by pursuing some lawful calling for five years continuously, he shall receive ten thousand dollars $10,000 from the personal property, and if he continue sober and industrious, the rents shall be given him as before, but if he be not sober and industrious, said rents shall not be given him but shall remain and accumulate in the hands of the above named trustees. And^hould the said Robert die without children born in wedlock, his entire share shall revert to the original heirs of my estate and be divided according to law.</p> <p>“ For the support of the children of Lauchlan J., deceased, son of my son Elspatious G., shall be given the one-half of the rents of the houses and court on Anderson St., 4th ward, Allegheny city, after taxes and necessary repairs are paid.</p> <p>'‘Should these children be .separated, the above means for their support shall be divided equally per capita, and in case of necessity from sickness of any of the above named heirs, or, should any of the children above referred to, be desirous of a collegiate or classical education, said trustees are hereby empowered to use the income of this share for defraying such expense.</p> <p>“ When the youngest of these children has reached the age of twenty-one years, a general distribution shall be made as follows:</p> <p>“ To Robert one-half of the remainder if living, if dead without heirs as described above, his share shall revert to my original heirs, viz.: Lucretia M., Alexander G., and James T. McIntosh.</p> <p>“ To the surviving children of Lauchlan J., a sum equal to that of Robert, which shall be'divided equally to each, if none survive, it shall revert to my original heirs, the same as the share assigned to Robert.</p> <p>“ My daughter Lucretia Mott Martin, and my grandson John S. McIntosh are appointed executors of this my last will and testament. If either of the executors fails to qualify together they shall appoint a successor.”</p> <p>The opinion of the court below was as follows:</p> <p>“Mr. McIntosh died July 24,1891, testate, leaving a widow, Margaret, and one child by her, Lucretia M. Martin, and three children by a former marriage, Alex. G., James T. and Elspatious G. His estate, which was large, was accumulated after his second marriage.</p> <p>After reciting the provisions of the will the opinion continues:</p> <p>“After the execution of this will, Mr. McIntosh made valuable improvements on the Klingensmith property, devoted to the heirs of E. G. McIntosh, and thereupon executed a codicil by which he directed that the improvement so made should ‘ be valued or appraised ’ at his decease, and ‘ deducted from the money due the heir or heirs of such share.’ The evidence adduced here shows them to have been worth $2,400 as of July 24, 1891. Mrs. McIntosh refused to take under the will.</p> <p>“ The questions submitted for decision are, whether or not (1) the first gift to Mrs. Martin was conditioned upon the widow’s acceptance under the will; and if not (2) to what extent, if any, that gift is a trust fund to secure compensation to those whom the widow’s election disappointed; (8) the first gift to Mrs. Martin is independent of the second; and (4) a ( valid, active trust was created in the share given to the heirs of Elspatious Gr. McIntosh, deceased; (5) part of the real estate devised to Alex. G-. McIntosh, being in Iowa where the widow takes one-half absolutely, it is insisted that the valuation placed by the testator on that real estate should be reduced to that extent for the purpose of equalization; and, (6) in the gift to 4 James Tulloch and his children,’ the word ‘ children ’ shall be construed as of purchase or limitation.</p> <p>“ (1) The two gifts made to Mrs. Martin were manifestly intended to be independent of each other and cumulative. The testator divided his estates into two parts and made independent dispositions of them. The gifts to Mrs. Martin thereout differ in their quality : the first is in remainder and the second in prassenti. The second is directed to be equalized with the shares given to her brothers out of presently available assets, whereas the first was made payable after the death of the widow. ‘ I give and bequeath to our said daughter, Lucretia Mott Martin,’ said testator, 4 certain real estate at a valuation of $46,000, and to this shall be added enough personal property to make her share equal to that of any one of the other three heirs.’ It is plain that equalization was intended to be made, not by aid of the personal property bequeathed to Mrs. McIntosh and Mrs. Martin, for Mrs. Martin’s interest in that was only in remainder and would not be available until Mrs. McIntosh’s death, but out of the other part of the personal estate which would be presently available.</p> <p>44 (2) It will readily be conceded that the application of the expression 4 the above,’ upon which the argument for conditional gift in remainder to Mrs. Martin rests, must be ascertained by reference to what follows it in the paragraph in which it is used; for without that the expression would be insensible. To what then does the expression refer ? In the first place it refers to one object, whereas there are two 4 above ’ — an estate for life and an estate in remainder. ‘The above is intended, to be, and is to be taken in lieu or bar of ’ which of these ? Dower. Taken by whom ? No other than the widow is mentioned. It is what is given to her — a life estate, not what was given to Mrs. Martin — a remainder — that was intended to be barred. It is precisely the same as though the testator had said, if the widow accepts ‘ the above ’ it shall be in lieu of dower. She had no interest in the remainder; there had been an absolute and independent gift of that to Mrs. Martin. Had Mrs. McIntosh died before her husband there can be no doubt but that Mrs. Martin would have taken the one third of the personal estate absolutely. Having survived, if she had accepted under the will, Mrs. Martin would have taken the whole on her death, or by agreement between them they could have divided it on the basis of the cash value of their respective estates — the widow taking the one third and Mrs. Martin the other two thirds absolutely. In any event, Mrs. Martin would have received exactly what testator intended she should have.</p> <p>“The suggestion that the relationship of Mrs. Martin, as the only child of the widow, can affect the question of construction has no merit. That fact might explain the expression of, but cannot create, a condition. Here there was neither an express nor implied condition attached to the gift; it was independent and absolute on its face, and extrinsic evidence is incompetent to show an intention to create such condition. It is clear that Mrs. Martin was intended to be a favored object of testator’s bounty. Nothing short of express words or necessary implication would justify the inference that testator intended to coerce his widow into acceptance under his will through her affection for her daughter, for such purpose would hav-e been not only inconsistent with the spirit of the statute which gave her a right of election, but with that fair and humane dealing which he owed her as husband. But neither the language used nor the value of the gift justify such inference. The advantages of refusal were so great that there could have been no temptation even'to acceptance. The bequest here is totally unlike that in Carr’s Estate, 13 i Pa. 354, which was expressly conditioned upon the widow’s acceptance under the will.</p> <p>“ If, then, the gift to Mrs. Martin was absolute, it was accelerated by the' widow’s refusal to take under the will; and she thereby became entitled to some present estate, but to what ? Certainly, as between her and the widow, the latter could no more take the whole of her third out of that portion of the personal property set apart to her by the will than out of the homestead. She must take, as though no will had been made, out of the bulk of the estate, and the other beneficiaries take the residue as constituting the whole estate, and as though the widow were dead, in the interests contemplated by testator. If the legacies be of equal grade they must abate proportionately.</p> <p>“ As between Mrs. Martin and her brothers, the refusal of the widow to take under the will presents a question which turns upon the application of the principle that ‘ where a widow elects not to take under a will her substituted devises and bequests are a trust in her for the benefit of the disappointed claimants to the amount of their interest therein. A court of equity will sequester the benefit intended for the widow to secure compensation to those whom her election disappoints.’ Gallagher’s Appeal, 87 Pa. 200; Ferguson’s Appeal, 138 Pa. 208. Are there substituted devises and bequests here out of which compensation can be made? It is clear that so far as the personal estate is concerned there are not. By her election the widow became entitled to a share in her husband’s estate as though he had died intestate, and the will operates on the rest as though she were dead: Vance’s Estate, 141 Pa. 201. Assuming then that her share has been taken out, what remains constitutes the whole personal estate for distribution amongst testator’s children and grandchildren as provided by the will; and of this Mrs. Martin is entitled to one third and the four children of testator, including Mrs. Martin, are entitled to the other two thirds in the proportions specified in the will. The result, so far as the bequest to Mrs. McIntosh for life, and Mrs. Martin in remainder is concerned, is that Mrs. McIntosh will get the exact equivalent in cash of her life estate, and Mrs. Martin of her remainder. To illustrate: Suppose this bequest to amount to $30,000; on the principle recognized in Dates-man’s Appeal, 127 Pa. 348, the cash value of the widow’s life estate would be one third, or $10,000; and that of Mrs. Martin, remainder two thirds, or $20,000.</p> <p>“ There are then no benefits intended for the widow in suspense ; both she and Mrs. Martin get exactly what the testator intended they should have, and there can consequently be no fund available for compensation and no disappointed legatees.</p> <p>“ But the situation in respect to the real estate is different. The effect of the widow’s election was to increase the share of Mrs. Martin in the homestead by two thirds of the rental value, and to decrease that of the devisees in the other real estate by one third, during the widow’s life, and thereby to change the proportion in which testator intended they should take. The gain to Mrs. Martin represented the ‘ benefits intended for the widow,’ ‘ her substituted devise,’ and therefore a trust fund to secure compensation to those whom the widow’s election disappointed.</p> <p>“ It is conceded that there are disappointed claimants, but are they entitled to compensation out of this fund ? It would seem clear that they are. ‘ The principle is well settled that equity will depart from the literal provisions of a will in order to carry out a superior or preferred intent of the testator which would otherwise fail. But the object is not to produce a distribution which the court may think more equal or equitable, but to approximate as closely as possible to the scheme of the testator, which has failed by reason of intervening rights or circumstances.’ It will be conceded that a ‘ superior or preferred intent ’ of the testator was that his beneficiaries should take in the proportions prescribed in his will, and that these proportions have been changed by the widow’s election. Mrs. Martin has gained what from the face of the will she was not intended to have, and the other devisees have lost; testator’s scheme has to this extent failed. Mrs. Martin’s gain is the widow’s ‘ substituted devise,’ and therefore a trust fund which should be used'to secure compensation to those whom the widow’s election disappointed, and thus ‘ approximate as closely as possible to the scheme of the testator.’</p> <p>“ With a view to save the expense of a regular proceeding in sequestration, the court suggested that the parties agree upon the cash value of this ‘ substituted devise,’ and this having been done, the amount is deducted from Mrs. Martin’s share in the personal estate.</p> <p>“ (3) It was conceded that the legal title to the share of Elspatious G. McIntosh’s heirs was vested by the will in trustees; but it is insisted that in respect of all this share, with possibly the exception of the AndersoD property, the trust was dry, and therefore executed.</p> <p>“ It is very clear that testator created a valid active trust in the Anderson street property. The gift to the trustees necessarily implied the collection of rents, and therefore the custody of the property and some discretion in respect to the payment of the net income.</p> <p>“ In respect to the rest of this share (less $10,000 cash given Robert McIntosh), the creation of an active trust is not so plainly, but is sufficiently expressed. It is conceded that the will vested in the trustees the legal title. The scheme of the trust declared gave these trustees a large discretion, and necessarily imposed on them active duties. They were ‘ empowered,’ ‘ in case of necessity from sickness of any of the heirs ’ of E. G. McIntosh, deceased, or, ‘should any of the children of’ L. J. McIntosh, deceased, ‘be desirous of a collegiate or classical education,’ ‘ to use the income of this share.’ Out of what are these expenses to be paid ? The expression, ‘ this share,’ is the same as that used in the gift to the trustees, and, standing by itself, would of course include the whole ‘ share ’ of the heirs of E. G. McIntosh, deceased. But its use here was evidently in a limited sense, for the testator had already specifically set apart the net rents of the Anderson street property— one half to Robert McIntosh, and the other half ‘ for the support of the children’ of L. J. McIntosh, deceased. The provision for defrayal of expenses of sickness and education immediately follows this, and was evidently intended as additional and extraordinary, and to be paid out of the income of the share given to these ‘ heirs ’ of E. G. McIntosh, deceased. On no other theory of construction can the disposition of ‘ this share ’ be made effectual. It will thus be seen that the income of the whole of ‘ this share ’ is pledged for the defrayal of expenses which may become necessary in case of sickness of any one of the heirs of E. G. McIntosh, deceased, or the education of either of the children of L. J. McIntosh, deceased, until the youngest attains majority. An adequate reason for the creation of this trust is found in the minority of two of the heirs of the cestui que trust, either of whom may become entitled to the benefits; and an additional reason is suggested by the evident belief of the testator, whether justified by facts or not is immaterial, that the industry and sobriety of the other needed to be tested by time. The nature of the trust is such that it must continue in respect of the whole of ‘ this share.’ Who will receive the benefit, and how much will be required of the income to meet the necessary expenses of sickness or education, it is impossible to foretell. From the nature of the case there will be inequality. One may receive nothing or the whole. It will thus be seen that each cestui que trust is interested in the continuance of the trust in ‘ this share ’ as a whole: Hinkle’s Appeal, 116 Pa. 490. If the trust be valid as to one, it must necessarily be valid as to all. The accumulations, if any, will be simply temporary, and in the interest of judicious management: Hibbs’ Est., 143 Pa. 217.</p> <p>“That this was a valid, active trust, then, seems clear. There are sufficient words used, a definite object, and ascertained subjects, and it is not inconsistent with public policy: Marshall’s Est., 147 Pa. 77.</p> <p>“ (4) It was conceded in argument that the gift to ‘ James T. McIntosh and his children ’ would, standing alone, give the latter equal rights in distribution with their father. This is the leading and operative clause, and the word ‘ children ’ being of purchase must be so construed, unless a contrary intention can be gathered from the whole will. That it was used in its primary sense here is strengthened by the fact that in every other instance in which it appears it is undoubtedly used as a word of purchase, while the word ‘ heirs ’ is used as a word of limitation. But counsel insist that because ‘ this share ’ is elsewhere referred to as James T. McIntosh’s, the word ‘children’ must be treated as a word of limitation or succession. The implication is not necessary. The leading and operative clause is, as already seen, that to ‘ James T. McIntosh and his children,’ and the natural inference is that James T. McIntosh’s name was simply used by way of convenient reference. Similar use was made of the name of Alexander G. McIntosh, and yet no one intimates that he can justly claim a share. Being fathers, their selection as representatives was but natural, and could not be construed to take away benefits which had been expressly given their children.”</p> <p>Distribution was decreed in accordance with the opinion. Exceptions by appellants were dismissed.</p> <p>Errors assigned were dismissal of exceptions, and decree, quoting them.</p>

Appeal, No. 300, Jan. T., 1893, by-defendant, Charles W. Tammany, from judgment of C. P. Luzerne Co., Dec. T., 1890, No. 406, on verdict for plaintiff, Lucinda C. Barhight. Trespass for malicious prosecution. Before Woodward, J. At the trial it appeared that, on Dec. 30,1889, defendant had plaintiff arrested on the charge of the larceny of a cupboard and twenty-five yards of carpet.

Appeal, No. 24, Oct. T., 1893, by plaintiff, B. F. Brundred, from judgment of C. P. Venango Co., Aug. T., 1890, No. 5, on verdict for defendants, A. G. Egbert et al. Ejectment for sixteen and one half acres of land. The facts appear by the opinion of the Supreme Court. The court, Taylor, P. J., charged in part as follows: “ From about 1869, the 150 acres was regularly assessed upon the seated list through each year until 1880.

Appeal, No. 70, Oct. T., 1893, by defendant, from order of C. P. Westmoreland Co., Aug. T., 1892, No. 692, making absolute rule for judgment for want of sufficient affidavit of defence. ' Assumpsit for natural gas furnished to defendant’s paper mill.

Appeal, No. 68, Oct. T., 1893, by defendant, Mary Smith, executrix of D. S. Smith, deceased, surviving partner of D. S. Smith & Co., from order of C. P. Venango Co., Aug. T., 1891, No. 62, making absolute a rule for judgment for want of a sufficient affidavit of defence in favor of S. W. Johnson et al., trading as Johnson & Co. Assumpsit for rent for water power. Before Taylor, P. J. The facts appear by the opinion of the Supreme Court.

<p>Judgment — Lien—Scire facias — Execution—Sheriff's sale — Act of 1834.</p> <p>Where land subject to the lien of a judgment is conveyed to another, and after the conveyance the judgment is revived against the original owner, but not against his alienee, a sheriff’s sale on an execution under the judgment thus revived, occurring more than five years after the conveyance, passes no title to the land.</p> <p>In such a case the fact that the alienee died while the judgment by virtue of a scire facias was still a lien upon her land, did not indefinitely continue the lien as to her devisees, under § 25 of the act of Feb. 24,1834, P. L. 77. That act is applicable only to a judgment against a decedent which is a lien on his land at the time of his death. It does not regulate the lien of a judgment on land aliened.</p> <p>Conditional conveyance — Husband and wife — Declarations—Parol evidence — Reformation of written instrument.</p> <p>A husband conveyed land by deed to his wife. The. land was subsequently sold as the property of the husband. In an action by the devisees of the wife to recover the land, witnesses for defendant testified to the declarations of the wife to the effect that she “ assumed all the debts of her husband on condition that he would make her a deed for the land; ” also that her husband “had made her a deed and she was to pay the land out.” Held, that (1) there was nothing in the declarations which could be fairly construed into an acknowledgment by the wife that the deed was made upon a parol condition, and (2) that the evidence was not such as is required to annul or reform a written instrument.</p>

Appeals, Nos. 141 and 259, Oct. T., 1893, by defendant, B. F. Brundred, and by plaintiff, John A. Wiley, trustee, from decree of C. P. Venango Co., April T., 1889, No. 4, on bill in equity. Bill in equity for account.

<p>Appeal, No. 243, Oct. T., 1893, by plaintiff, from order of O. P. Venango Co., Aug. T., 1892, No. 109, discharging rule for judgment for want of sufficient affidavit of defence in favor of defendant, A. L. Confer.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit for moneys paid on insurance policy. Before Taylor, P. J.</p> <p>From the record it appeared that defendant insured his oil refinery in five companies, among which was plaintiff, to the amount of $3,140 in each. While the insurance was in force, the refinery was burned by sparks from a.locomotive of the New York, Lake Erie & Western Railroad. Plaintiff made proof of loss, and on July 81, 1889, received from plaintiff $1,868.58, in full of plaintiff’s share of the loss. The other companies paid a like sum. Subsequently defendant sued the railroad company, and obtained a verdict for some $25,000, and, on Feb. 20, 1892, received the sum of $27,069.83, in full of judgment, interest and costs. [See 146 Pa. 33.] The present action was then brought by plaintiff to recover the amount which had been paid to defendant.</p> <p>Defendant filed an affidavit of defence, which averred:</p> <p>“When the fire occurred, of which plaintiff speaks in his declaration, plaintiff was promptly notified of the same, and on or about the 31st of July, 1889, was furnished with proofs of the loss of defendant. That the defendant, at the time of the adjustment of the loss, and before any money was paid thereon by plaintiff, explained fully and in detail to the plaintiff all the facts and circumstances of the fire; how it occurred; that it was his information and belief that the said railroad company was responsible for the said loss; that defendant then and there requested, solicited, and urged plaintiff to either bring suit against the railroad company, or join him in such suit to recover the damage sustained by plaintiff and defendant by reason of the fire and the negligent acts of the said railroad company, so that plaintiff could be thereby reimbursed for the amount paid defendant on the said policy of insurance, and also make defendant whole for the damages he had sustained in the destruction of his property. The plaintiff not only neglected and refused to be subrogated to the extent of its payment-to defendant under the policy, and have assigned to it such interest on making payment to defendant as is provided for in the policy, but stated to defendant at the date of the adjustment, and at divers others times before and when the loss was paid, that it was not in the law business; was not seeking litigation ; had no claim against said railroad company; would have nothing to do with such a suit, and that defendant was welcome to all he could get or collect from said railroad company. Upon such refusal and withdrawal of plaintiff, deponent brought suit in his own name, and for his own benefit, for the amount of damage he himself had sustained, and not for anything plaintiff could then or at any time afterwards claim in whole or in part. That plaintiff well knew that said suit was brought, and well knew that they had assigned and released to deponent all and every their right and claim of, in, and to any sum, judgment or verdict deponent might recover therein, and did not ask or claim to intervene therein, or be subrogated to the extent of any claim it might have had therein ; if plaintiff had any right at any time to call on deponent for any money so by him recovered, they have slept upon such rights, have been guilty of laches for over three years from the date of the loss, and more than six months after the payment of the judgment by the railroad company to the defendant, before taking any step looking to the recovery of what it now claims is its light, but which deponent avers it at the time and in the manner above stated gave and released to deponent, and deponent alleges that plaintiff is estopped from claiming or demanding or receiving anything as stated in its claim herein.</p> <p>“For a further defence deponent says, that being placed in the position of being left to bring suit in his own name, for his own benefit, and plaintiff having released him from any claim it may have had against him should he recover anything from the railroad company for his damage, and released to him any right to recover from the said company which it had by reason of his loss and the payment to him of the insurance money as claimed by it herein, he paid out and expended large sums of money in and about said suit and trial, and the following of the same to the Supreme Court; that if plaintiff is entitled to recover at all, and the court should hold such recovery was for the benefit or use of the plaintiff, then he avers he is entitled to his expenses in that behalf necessarily paid out and expended by him, amounting in the whole to the sum of $5,388.88, the amounts and purposes being fully set forth in the schedule hereto attached and made a part hereof. Deponent alleging that he is not indebted to plaintiff in any amount, and that he will be able to prove the above and foregoing upon trial, asks judgment against plaintiff for his costs in this behalf.”</p> <p>The schedule of expenses were for procuring witnesses, attorney’s fees, fees and expenses in the court below, paper books, attorney’s fees and expenses in the Supreme Court.</p> <p>An additional affidavit of defence was filed, but afterwards withdrawn, and another one filed, averring that:</p> <p>“Affiant wishes to further explain what he stated in his ‘ additional affidavit ’ where he says ‘ the said plaintiff voluntarily paid to affiant the said sum of 11,868.58, after full understanding of his loss’ etc., by saying that plaintiff fully understood that defendant’s actual loss was much greater than the amount paid in insurance by all the companies. And further says that the amounts paid him, both by the insurance companies and the railroad company, did not make up the total loss sustained by defendant, after deducting the costs and expenses of the collection, and if plaintiff can recover at all, he must be limited by any surplus there may be in defendant’s hands.”</p> <p>The affidavit appended to this amended statement averred “ that the statements made by affiant in the foregoing affidavit are true and correct as he is informed and believes.”</p> <p>Plaintiff moved for judgment for plaintiff and against defendant in default, for want of a sufficient affidavit of defence, for the amount of plaintiff’s claim except the one fifth part thereof, the said one fifth being plaintiff’s proportion of the amount claimed by defendant for attorney fees and expenses, with leave to plaintiff to proceed to trial for the amount excluded by this motion.</p> <p>Rule for judgment discharged. Plaintiff appealed.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 28, Oct. T., 1893, by defendants, Thomas Brown and J. L. Hunter, from judgment of C. P. Clarion Co., Aug. T., 1892, No. 235, on verdict for plaintiff, E. A. Timlin.</p> <p>Assumpsit for royalties alleged to be due on coal lease, and for damages for not surrendering coal mine in good workmanlike condition.</p> <p>At the trial, before Clark, P. J., it appeared that the agreement in writing upon which suit was brought was as follows:</p> <p>“ This agreement made and concluded this first day of April, A. D. 1882, between E. A. Timlin, of Beaver township,'county of Clarion, state of Pennsylvania, party of the first part, and Thomas Brown and J. L. Hunter, of the same residence, of the second part.</p> <p>“ Witnesseth, That the said Timlin for and in consideration of one dollar lawful money, to him in hand paid by the said Brown and Hunter, the receipt whereof is hereby acknowledged, has leased to them for the term of ten years from this date, for the purpose of mining, digging and excavating the coal contained thereon, all that certain piece or parcel of land situated in Beaver township, county and state aforesaid, all that piece of land lying on the north side of the state road belonging to said Timlin, containing fifteen acres more or less ; said Timlin reserves two or three acres where buildings stand. Said Brown and Hunter agreed to pay as royalty for coal the sum of one half cent per bushel for all coal taken from said lease; the said .royalty to be paid monthly, each and every month. And it is further agreed that said Timlin is to have all the coal he may use at his own house for the cost of digging the same ; but said Brown and Hunter are to pay no royalty on same. And the said Brown and Hunter agrees to give said Timlin two hundred bushels of slack each and every year, free of charge; said Timlin agrees to charge no royalty on the slack if legally screened. And the said Brown and Hunter agrees to take out at least ten thousand bushels of coal each and every year, and as much more as they choose. In case the said Brown and Hunter fails to get out the amount before stated, they agree to pay a royalty on ten thousand bushels each and every year. The said Brown and Hunter agree that they will not use said lease or land for any purpose than that of mining and drawing the coal taken from said lease ; and the said Timlin is to have full control of the land for any other purpose he may want to use it for. And the said Brown and Hunter agrees to keep and give up the mine or bank in a good workmanlike condition. In case the said Brown and Hunter do not fulfill and comply with the conditions of this lease, this agreement is null and void and of no effect, and said Timlin is to enter upon and take possession of the same.”</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ [Then as to the derrick that was there: We think whatever the cost of the derrick itself is, and the putting of that shaft in repair by taking the débris out, is about all the plaintiff should be entitled to — whatever the evidence shows that to be. So far as the ropes and the cars or the cables are concerned, he is not entitled to recover for them; the defendants were not bound to leave them there, they had a right to take them away; they had the same right to take them away that they had (to take) their boiler and engine ; and as far as we can go in that case is, to say that whatever the damages would be to place a derrick there sufficient for the purpose of drawing up the coal out of that shaft, and the putting of that shaft in repair, is all the plaintiff ought to recover in this ease.] [1] ....</p> <p>“ [Under their covenant in this agreement the defendants agree to pay as royalty for coal the sum of one half cent per bushel for all coal taken from said lease. That royalty was to be paid monthly. They further agree to take out at least ten thousand bushels of coal each and every year and as much more as they choose. Then comes this further covenant: ‘In case said Brown and Hunter fails to get out the amount before stated ’ (that refers to the ten thousand bushels per year) ‘ thejr agree to pay royalty on ten thousand bushels each and every year.’ We think, gentlemen, that under the wording of this contract, taking into consideration the evidence that has been adduced before you, the defendants are obliged to pay royalty to the amount of ten thousand bushels per year, according to the terms of their contract.] ” [2]</p> <p>The court, citing Wharton v. Stoutenburgh, 46 N. J. L. 151, continued:</p> <p>“ [So we think the covenant contained in this agreement was just as absolute as the one in the case we have just cited, and that is this: ‘ In case said Brown and Hunter fails to get out the amount before stated, they agree to pay royalty on ten thousand bushels each and every year.’] ” [3]</p> <p>Defendants’ points were among others as follows :</p> <p>“ 1. That the contract of lease between the plaintiff and defendants must be construed as relating to the coal known to exist on the premises leased at the time said contract was executed, and the defendants were not bound to experiment in searching for coal in other veins, or at other points of the same vein, where there was not a reasonable prospect of obtaining coal in paying quantities. Answer: We refuse this point, if we are correct in our construction of this contract.” [4]</p> <p>“ 4. If the defendants used reasonable diligence and prosecuted mining coal from the vein known to exist at the time of making contract of lease until the same was exhausted or reduced to a thickness rendering the mining of the same of greater value than the coal when mined and removed to the pit’s mouth, the plaintiff cannot recover from the defendants for the non-prosecution of mining in said vein.” Refused. [5]</p> <p>Verdict and judgment for plaintiff for 1126.40. Defendants appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p>Appeal, No. 290, Oct. T., 1892, by defendants, W. D. Clarke et al, from order of C. P. Beaver Co. June T., 1891, No. 409, making absolute rule for judgment for want of sufficient affidavit of defence by W. D. Clark et al., directors of Workingmen’s Cooperative Assn.</p> <p>Rule for judgment, for want of sufficient affidavit of defence, in assumpsit against directors of corporation to hold them personally liable for debts of company. Before Wickham, P. J.</p> <p>Plaintiffs’ statement claimed to recover for a bill of goods sold in March and April, 1890, to the corporation. It further averred: “ The directors of said association in 1888 filed a statement in writing in the recorder’s office, purporting to show the condition of its affairs on Dee. 31, 1887, so it became the duty of all subsequent boards to file a statement showing the condition of its affairs on Dec. 31st, in each year thereafter, including Dec. 31, 1889. No such statement was filed on or near the last named date; and none thereafter until May 26,1890, when said association was insolvent, and only two days before a receiver was appointed, a statement was filed pretending to show the condition of its affairs on Feb. 28, 1890, which statement is as follows, to wit:</p> <p>No. of shares authorized capital, at $5.00, . . $20 000</p> <p>No. of shares issued 1740, and paid for at $5.00, 8 950</p> <p>No. of stockholders at this date, . . . 175</p> <p>Greatest No. of certificates issued to any one person, 50</p> <p>ASSETS.</p> <p>Inventory of stock on hand, . . . $11,103 65</p> <p>Amount on books due and in bank, . . 3,786 49</p> <p>Furniture and fixtures, .... 1,027 08</p> <p>Stock in New Brighton branch store, . . 3,407 37</p> <p>Cash on hand, ...... 45 43</p> <p>Total, .... $19,672 29</p> <p>LIABILITIES.</p> <p>Amount capital stock paid up, . $8,950 00</p> <p>Bills payable, not due, . 2,868 40</p> <p>Sundry accounts due and not due, 7,767 81</p> <p>Unpaid dividends last year, 86 08</p> <p>Loss for year, .... 302 27</p> <p>Total, $19,672 29</p> <p>“ Which, statement is defective and false and not a compliance of the act of April 14, 1868, P. L. 100, under which they were incorporated and pretending to be acting.”</p> <p>The material portions of the act of April 14,1868, P. L. 100, are as follows :</p> <p>“ Section 5. The board of directors shall annually make a statement in wilting of the condition of the association, setting forth the amount of capital stock, the number of shares issued and the par value thereof, the number of stockholders, together with the greatest number of shares held by any one stockholder, the amount and character of the property of the corporation, and of its debts and liabilities; and said statement shall be signed and sworn to by a majority of the directors, including the treasurer, and the same shall be recorded in the office of the recorder of the proper county, and immediately afterwards filed in the office of the auditor general.”</p> <p>“ Section 8. If the board of directors fail to make the annual statement required by this act, or if they make a false statement, they shall be liable for all debts of the corporation.”</p> <p>Defendants filed an affidavit of defence which averred: “ Said suit was brought against all of the directors, but in the declaration filed in the case the name of S. G. Clifton is omitted as one of the defendants. That although the said Clifton is deceased, yet, this action being a joint one, an administrator should have been raised up and joined with the others of said defendants, and, because this was not done, this action must fail. That for a further defence, the defendants aver -that a statement, such as was required by the act of assembly in such case, was filed during the year for which the board of directors as aforesaid were elected, and it is distinctly averred that the statement filed was neither false nor defective, but was made with ordinary care and prudence. That defendants believed, at the time of the making of the said statement, that said association was solvent and was as so represented therein, and said statement so made was in accordance with the requirements of the act of assembly in such case made and provided, and was filed without unreasonable delay. They further aver that they discharged the duties of their office with fidelity, care and prudence. All of which they expect to prove on the trial of the case.”</p> <p>The directors, defendants, were elected in February, 1890.</p> <p>Rule for judgment made absolute. Defendants appealed.</p> <p>Error assigned was order as above.</p>

<p>Appeal, No. 82, Oct. T., 1893, by defendants, Isaiah Wolf and George Crissman, from judgment of C. P. Armstrong Co., Sept. T., 1891, No. 186, on verdict for plaintiff, Jacob Wolf.</p> <p>Trespass q. e. f. for cutting timber. Before Rayburn, P. J.</p> <p>At the trial, it appeared that, on April 18, 1860, John Gil-pin and William F. Johnson conveyed by deed to plaintiff a tract of land, of which the land upon which the alleged trespass was committed was a part.</p> <p>Evidence on behalf of defendants tended to show that prior to 1860 Daniel Wolf, defendant’s father, and Jacob Wolf, plaintiff, both lived upon the land, cultivated it and cut timber from it, and that Daniel Wolf continued to live upon it until his death. Defendants also offered evidence that in August, 1871, Jacob Wolf and Daniel Wolf employed a surveyor, S. P. Briney, to run a dividing line between them; that after this line was run Daniel and Jacob took possession of their respective portions and continued in possession of them. Plaintiff denied that he had employed Briney, and averred that he had nothing to do with running the line, and did not consent to it. Plaintiff also averred that he had paid the whole of the purchase money, and that the land was his.</p> <p>The record showed that suit was begun Aug. 28,1891. On Sept. 5, 1892, an amendment to the statement was allowed. In the amendment, the land described was entirely different from that described in the original statement.</p> <p>When R. S. Slaymaker, a witness for plaintiff, was on the stand, he was asked: “ Q. Mr. Slaymaker, will you state if you are a surveyor ? A- I am. Q. Will you look at that draft and state if that is your work? A. Yes, sir. Q. I wish you would take the deed of John Gilpin and Wm. F. Johnston to Jacob Wolf, and state if that draft is of the property contained in that deed? A. Yes, sir. Cross-examination by Mr. Patton : Q. What was this draft made off — was it made on the ground, or was it copied off the deed ? A. Made off the deed. Q. Then it was not made on the ground at all? A. No, sir. Q. I show the witness the prsecipe in this case. Mr. McCain: No, you won’t. The Court: Let the witness see it. Q. I ask him to look at that praecipe and. look at that draft, and state where on the draft is the land described in the praecipe and declaration? Mr. Leason: It is not cross-examination. The Court: No, we don’t think that would be cross-examination; we will sustain the objection and grant you an exception and bill sealed.” [1]</p> <p>When J. H. Painter, a witness for plaintiff, was on the stand he was asked: “Q. Mr. Painter, do you understand surveying? A. Yes, sir. Q. Do some of it occasionally? A. Yes, sir. Q. (Draft shown witness.) Will you state if you did that work representing that survey there ? A. I did. Q. Did you do it on the ground? A. Yes, sir. Q. Did you run this line representing there north and south — did you run that line ? A. I did not. Mr. McCain: We offer the draft just proved and identified by witness for the purpose of comparison and exhibition to the jury, showing the locus in quo of the trespass committed. Mr. Patton: Objected to because not sufficiently proven, and the witness on the stand having himself stated that he did not go around it, but made it in part from other papers. The Court: Objection overruled and evidence admitted. Bill sealed.” [3]</p> <p>Plaintiff proposed to ask his witness, A. G. Wolf, if he saw Lee McIntosh and Frank Carauahan and Alexander Schrecongost cutting timber on this piece of land wherein this trespass was committed, for the purpose of showing ownership, possession and control in Jacob Wolf, the plaintiff in this case. Objected to because no connection is shown between the parties named to the plaintiff or defendant. Now there has been nothing to show it was done with the knowledge of the defendant. Objection overruled and exception. [6]</p> <p>The parties named were afterwards called, and testified that they were working under plaintiff.</p> <p>When B. Nulton, Esq., was on the stand, defendants offered to prove by him that there was a settlement between Jacob Wolf and Daniel Wolf about 1884, in which both parties agreed to quitclaim to each other up to the Briney line. That part of the contract was reduced to writing; that part of the contract was not reduced to writing, namely, that the parties were to go home, draw up quitclaim deeds, have their wives sign them, and deliver them to each other. Plaintiff objected to the offer for the reason that the contract and settlement was reduced to writing and signed by the parties, that defendant liad shown no title to the locus in quo, and that it was a separate piece of land from that described or referred to in the settlement, that if any such a contract was agreed upon it would be void until consummated or reduced to writing and signed by the parties under the statute of frauds and perjuries; that it was incompetent and irrelevant. Objection sustained and exception. [7] The court charged in part as follows:</p> <p>“ [Now, the offering in evidence of the deed of Jacob Wolf, showing that he has the title from Gilpin and Johnston to this land, and the place wherein this trespass or alleged trespass was committed is within the limits of that land conveyed to him, would entitle Jacob Wolf to recover were there no showing on the part of the defendant that the land was not the land of Jacob Wolf.] [8] . . . .</p> <p>“ [We have been requested to call your attention to some evidence. There was called a man by the name of McIntosh, also Sehrecongost, and I believe one or two others, who testified that upon this land in dispute several years ago, ten I believe it was, Jacob Wolf had a frolic upon this land and he was chopping the wood or timber off it. That will be for you to consider along with the other testimony as to who had the ownership and occupancy of this land.] ” [9]</p> <p>Plaintiff’s points were among others as follows :</p> <p>“3. The court is requested to say to the jury that, in the absence of any writing between Daniel Wolf and Jacob W olf as to the title of Daniel Wolf to any part of this land, signed either by Jacob Wolf or bis authorized agent, then a parol partition of the lands will vest no title to the land in dispute either in Daniel Wolf or his heirs or legal representatives, and that the testimony given in this case as to a parol partition cannot be submitted for their consideration under the statute of frauds and perjuries. Answer: That point we affirm ; and we say to you that you will take the evidence as given. If you find there was a trespass committed by these defendants you will take the evidence as given to find what the damage was for the carrying away of this timber. Jacob Wolf, the plaintiff, put it at $300. The defendants say they took away something over one hundred ties, and the evidence is that they were worth on the ground from eight to ten cents a tie.” [10] ■</p> <p>“ 2. The defendants only set up exclusive title to the locus in quo since 1871, and they had therefore not acquired title by virtue of the running of the statute of limitations.” Affirmed. [11]</p> <p>Defendants’ point was among others as follows:</p> <p>“ 8. The Briney survey haying been made Aug. 30, 1871, and the declaration which describes the land from which the timber was taken not having been filed until Sept. 5, 1892, if the jury believe that Daniel Wolf and his heirs held the quiet, peaceable, notorious, open, hostile and uninterrupted possession of the land between the above dates, the verdict of the jury should be for the defendant.” Refused. [12]</p> <p>Verdict and judgment for plaintiff for $10.00. Defendants appealed.</p> <p>Errors assigned were (1-7) rulings mentioned above and in opinion of Supreme Court; (8-12) instructions; quoting instructions, bills of exceptions and evidence.</p>

Appeal, No. 218, Oct. T., 1893, by-John C. Hammer et ah, executors of Solomon N. Hammer, deceased, from decree of O. C. Somerset Co., dismissing exceptions to auditor’s report distributing decedent’s estate. Distribution of decedent’s estate. Before Longenecker, P. J. The case was referred to John G. Ogle, Esq., as auditor, who found that the real estate mentioned in the will was sold at public sale to R. F. Hammer for $1,835.

<p>Life estate — Execution—Mortgage—Judgment—Conversion—Act of 1849.</p> <p>Where land is devised to life tenants with direction that after the death of the life tenants it shall be sold and the proceeds distributed among their children, a sale of the laud on a fieri facias under a judgment on a bond accompanying a mortgage, executed by the life tenants and their children, will pass no title where, the sale has been without notice and leave of court as required by the act of Jan. 24, 1849, P. L. 676.</p> <p>In such a case the direction of the testator to sell the land and divide the proceeds worked a conversion of it from realty to personalty as to the children, and a sale of the land on a writ of fieri facias against the children did not give a title to the purchaser, for the children had no interest or estate that was subject to lien.</p> <p>Equitable assignment — Mortgage.</p> <p>In the above case the mortgage was an equitable assignment of the interest of those of the children who signed it, and when the mortgage was subsequently paid and satisfied of record, the interests became re-vested in the children.</p>

<p>Executors and administrators — Acceptance or renunciation.</p> <p>The time when it becomes imperative for an executor named to accept or renounce is when he is cited to do so, and mere inaction or delay, unaccompanied by any acts of intermeddling with the estate, cannot amount to an acceptance against his consent.</p> <p>The payment of the funeral expenses of decedent, their father, by sons, named as executors, will not charge them as executors where the payment was not made with funds of the estate, and they renounce when cited to qualify.</p> <p>Decedent's estate — Res judicata.</p> <p>Where a judgment is attacked in the common pleas by a judgment creditor it cannot be subsequently attacked on distribution in the orphans’ court by the same party.</p>

<p>Will — Life estate — Widow—Power of sale.</p> <p>Testator disposed of the residue of his estate as follows: “ To my beloved wife I allow the use as she may deem best the residue of my estate for her own advantage and at her deatli if any of it remain to be equally divided between my three children, Alexander, John and Alice. If it be necessary to pay my debts and the amount devised to my mother that my real estate will need be sold, that that is devised to Alice shall be reserved for her.” Held, that the wife took a life estate in the realty, and not a foe.</p>