Volume 159 — Pennsylvania State Reports

<p>Appeal, No. 146, Oct. T., 1893, by defendant, from judgment of C. P. Mercer Co., Sept. T., 1892, No. 58, on verdict for plaintiff, C. F. Arthurholt.</p> <p>Assumpsit on fife insurance policy. Before Mehakd, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ [The first question arising in the order in which we have stated the issue is as to the validity of the policy. First, was the payment made to W. J. McKean a sufficient payment to entitle the plaintiff to recover in this case. Whether it was or not, in the view we take of it, is a mixed question of law and of fact. The policy upon which this suit is brought contains the following provision: ‘ This entire policy, unless otherwise provided by agreement indorsed in writing, or added hereto, shall be void if the premiums of this policy or any renewal of the same shall not be paid to the secretary of the company, or to an agent of the company duly appointed as such in writing, ■within fifteen days from the date of issue.’</p> <p>“ There is no allegation on the part of the plaintiff that the .-premium on the policy was paid to the secretary of the company, • neither is there an allegation upon the part of the plaintiff that ■the premium was paid to an agent of the company authorized •fin writing. The plaintiff alleges that the payment was made •;to W. J. McKean; that W. J. McKean, while he represented -the plaintiff in applying for the policy to J. M. Downing, rep.resented J. M. Downing in delivering the policy and receiving ■the pay, and that J. M. Downing represented the defendant . company, and that the defendant company, by its secretary, .Mr. Huntziger, waived this provision of the policy requiring ■payment to be made to the secretary or to an agent of the company authorized in writing.</p> <p>“ Upon the part of the defendant it is contended that there is no evidence in this ease which the court should submit to you to find whether or not J. M. Downing was in any sense the agent of the company, whether there was a waiver of this provision of the company, or whether the payment by the plaintiff to W. J. McKean was a sufficient payment to render the policy valid.</p> <p>“We submit the question to you, however, gentlemen of the jury, in the belief that there is evidence sufficient to submit. In submitting that evidence you will not understand us to say to you that we submit it to you because the evidence requires you to so find. Whether you should find the facts as contended for by the plaintiff or as contended for by the defendant upon this branch of the case is for you to say. All we are called upon to do is to determine whether the evidence is sufficient to submit to you. If there was no evidence at all upon that .point, then the court should withhold the evidence and say to you as a matter of law that you should find for the defendant; but being of the opinion that there is evidence upon that point to go to the jury we therefore submit it to you, and you are to say whether the evidence that is in this case upon both sides ought to lead you to the conclusion that the defendant waived that provision or did npt. If there was a waiver of the provision, then that branch of the defence would fall and your inquiries would be confined to the other branches’ of the case. If there was not a waiver of that provision then your verdict would have to be for the defendant, whatever you might think about the merits of the case upon the other branches.] ” [1]</p> <p>Defendant’s request for binding instruction was refused. [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1 — 2) instructions, quoting them.</p>

<p>Tenants in common — Partnership—Presumption.</p> <p>Tenants in common engaged in the improvement or development of the common property will be presumed, in the absence of proof of a contract of partnership, to hold the same relation to each other during such improvement or development as before it began. As to third persons, they may subject themselves to liability as partners by a course of dealing or • by their acts and declarations, but as to each other their relation depends on their title until by their agreement with each other they change it.</p> <p>Tenants in common — Oil lease — Partnership.</p> <p>When tenants in common of an oil lease agree to carry on operations upon their land, each contributing towards the expenses in proportion to his respective interest in the land, they will be considered with respect both to themselves and third persons as the ordinary owners of land, working their respective shares of the wells, responsible only for their own acts, subject to no laws of partnership whatever, and possessing distinct rights in the property.</p> <p>Two tenants in common of an oil lease entered into an agreement with each other to drill wells on the leasehold property, each to pay one half of the costs of sinking the well and pumping the oil. The oil produced was to be run into pipe lines serving the district, and there credited one half to each of the tenants in common. Held, that no partnership existed between the tenants in common.</p>

<p>Oil lease — Covenants—Forfeiture.</p> <p>Where an oil lease contains a covenant on the part of the lessee “ to commence operations on the aforementioned premises, or forfeit this lease within sixty days, and to complete a well on this lease in five months,” the lessor may forfeit the lease after the expiration of five months if a well-has not been completed within that time.</p> <p>Waiver — Evidence—Oil lease.</p> <p>In the above case there was a delay in starting operations within sixty days. The lessee desiring to assign the lease had a conversation with the lessor as to the delay. The result of this conversation he stated to be as follows: “ The conclusion was that Mr. Phillips (the lessor) acquiesced in the delay and acknowledged the lease on the assurance that there would be a well put down.” Held, that there was no waiver of the right to have a well completed within five months.</p>

<p>Appeals, Nos. 13, 16, 17, 18, 19, 20, 21, Oct. T., 1893, by Mrs. Alexander Chambers, Mrs. Emma Y. Adams, W. L. Abbott, Mrs. L. V. Childs, John R. McGinley, J. M. Schoonmaker and E. M. Ferguson, from orders of C. P. No. 3, Allegheny Co., May T., 1892, No. 117, dismissing exceptions to report of street viewers.</p> <p>Exceptions to report of viewers appointed to assess damages and benefits for grading, paving and curbing Morewood avenue, formerly Barton street, between Fifth avenue and Forbes street, in the city of Pittsburgh.</p> <p>The viewers after reciting notice of meeting, etc., reported :</p> <p>“That they visited and personally inspected the improvement, and personally inspected the properties in the neighborhood supposed to be damaged or benefited. That at the time and place fixed they heard all parties appearing before them, and adjourned from time to time, and gave a full hearing to all parties interested upon all questions and claims before them, and proceeded to ascertain and determine the total damages, costs and expenses of the improvement, and to assess the same fairly and ratably upon the properties specially benefited thereby.</p> <p>“ That the improvement is the grading, paving and curbing of Barton street, (now Morewood avenue,) and was made from Fifth avenue to Forbes street, Twenty-second ward.”</p> <p>“ That, having completed their work, they gave notice, b3r advertisement, as required by law, copy of which is hereto attached and made part hereof, that their report was ready and that, upon the day in said notice or advertisement named, they would present the same to court for approval, and in the meantime their report would remain at the place in said notice or advertisement named for inspection and exception.</p> <p>“ That, exceptions having been in the meantime filed to said report, the said viewers gave a full hearing thereon to the ex-ceptants, and all parties claiming a right to be heard, and, after such hearing and upon due consideration, found no reason, in justice or equity, to modify the same.</p> <p>“ That said viewers thereupon fixed the 18th day of July, A. D. 1892, as the one upon which their report would be filed, and gave notice thereof to all parties in interest.</p> <p>“ The damages, costs and expenses of the improvement, the properties in the neighborhood peculiarly benefited by said improvement, and the name or names of the owner, or reputed owner of each parcel, the amount of damages allowed in each case, and the amount of benefits assessed against each property, and what amount of damages, costs and expenses are not assessed upon property peculiarly benefited thereby, we find and report as follows, namely :</p> <p>“We find the total amount of damages, costs and expenses of the improvement to be $34,456.22. '</p> <p>“ The damages .allowed by us are fully set forth as follows:</p> <p>Maiy A. Forse ... $ 800 00</p> <p>Olivia C. Warren . . . 2,000 00— 2,800 00</p> <p>“ Chief of Department of Public Works statement of cost:</p> <p>36,966 cubic yards grading, at 0.50 $18,483 00</p> <p>3,401 square “ paving, at 3.35 11,393 35</p> <p>2,025 lineal feet curbing, at 0.87 1,761 75</p> <p>Extra work as per voucher 18 12 — 134,456 22</p> <p>“ For the payment of all the damages, costs and expenses of the improvement, we have made and report the following assessment of benefits upon and against the properties we find peculiarly benefited by the same, to wit: $18,359.49.” Here follow the names of the owners of properties on Morewood avenue, and also the. names of certain property owners, including appellants, whose property abutted on Morewood avenue beyond Fifth avenue, and on Forbes street and Fifth avenue, which cross Morewood avenue at right angles.</p> <p>Exceptions were filed by E. C. Ferguson and J. R. McGrinley, alleging that their properties were not on.MQrew.ood avenue between Fifth avenue and Forbes street, but in the same neighborhood on Morewood avenue beyond Fifth avenue and on Fifth avenue and on Forbes street, which streets had been opened, graded and paved and assessments paid by exceptants. The exceptions also averred that [the assessments for benefits in this case were illegal.] [3]</p> <p>The court made the following order:</p> <p>“And now, to wit, October 22,1892, this cause having come on to be heard upon various exceptions filed to the report of the board of viewers, and, after argument thereon by counsel, and upon due consideration thereof, the court overrule and dismiss all the exceptions, and hereby confirm the report of the said board of viewers absolutely, and order and direct the prothonotary to certify a copy of the report and this order to the ti’easurer of the city of Pittsburgh, to be by him proceeded in according to law.”</p> <p>Errors assigned were (1) above order, quoting it; (2) in not sustaining exceptions and. setting aside report; and (3) in not sustaining exception in brackets, quoting it.</p>

Appeal, No. 178, Oct. T., 1893, by Walton Ferguson, a property owner, from order of C. P. No. 3, Allegheny Co., May T., 1892, No. 117, dismissing exceptions to report of street viewers. Exceptions to report of viewers to assess damages and benefits for grading, paving and curbing Morewood avenue, formerly Barton street, between Fifth avenue and Forbes street, in the city of Pittsburgh. The report of the viewers is given in the preceding case.

<p>Boroughs — Incorporation—Practice—Record.</p> <p>The statutes which confer upon the courts of quarter sessions the power to incorporate boroughs by and with the concurrence of the grand jury of the county must be strictly construed, and performance of all the conditions essential to the exercise of this power must appear affirmatively on the record.</p> <p>Signing petition for incorporation — Act of June 2, 1871.</p> <p>In order to sustain a judicial incorporation of a borough it must appear upon the record that the application for it was signed by the petitioners within the three months immediately preceding its presentation to court, and that they were a majority of the freeholders residing within the limits of the town or village proposed to be incorporated.</p> <p>Where the record does not show that the petition was signed within three months preceding its presentation, the court will not infer that it was so signed from a date upon the plot accompanying the petition.</p>

<p>Banks and banking — Ghecks—Forgery—Act of April 5, 1849.</p> <p>Under the act of April 5, 1849, P. L. 426, the mere acceptance or payment of forged paper is no longer of itself a bar to the recovery of the money by the party paying, even though it be a bank or other drawee, nor is such party absolutely bound as at common law to discover and give notice of the forgery on the very day of payment. All that he need do in any case is to give notice promptly according to the circumstances and usage of the business, and, unless the position of the party using the money has been altered for the worse in the meantime, it would seem that the date of notice is not material. But on the other hand the statute does not dispense with the necessity of care and diligence on the part of the payer nor exempt him from the consequences of his own negligence, if thereby loss would accrue to tho other party.</p> <p>Plaintiff, a bank, received a check on Dee. 19th, paid it, entered it on its books, and then dismissed it from further attention. Pive days after-wards plaintiff’s attention was called to the check, and an investigation was made which resulted in the discovery that the drawer’s name had been forged. In the meantime defendant, a bank, which had received the money, paid it out. Held, that plaintiff was guilty of want of due diligence, and was not entitled to recover back the money.</p>

<p>Appeal, No. 100, Oct. T., 1893, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1892, No. 268, on verdict for plaintiffs, John Bole and George M. Bole, assignees of Hugh M. Bole.</p> <p>Assumpsit on policy of fire insurance.</p> <p>There were ten cases tried together on similar policies of insurance against different fire insurance companies. All of the cases involved the same facts.</p> <p>The jury returned the following special verdict:</p> <p>“We find for the plaintiffs in each of the above cases in the sum of eight hundred dollars without interest, subject to the opinion of the court on the question of law reserved, to wit:</p> <p>“We find that the plaintiffs were the assignees of Hugh M. Bole under a deed of voluntary assignment for the benefit of creditors, dated April 14, 1891. That Hugh M. Bole, before the assignment, had policies of insurance on the property in each of the defendant companies, (except the Hamburg-Bremen Fire Insurance Co., of Hamburg, Germany, and The New Hampshire Fire Insurance Co., of Manchester, N. H.,) which were in force at the time of the assignment and expired on the 24th day of October, 1891, which had been placed through John Kirkpatrick, an insurance broker. That said Kirkpatrick, knowing that the policies were about to expire, visited the premises to see about a renewing of the insurance; that said Kirkpatrick and one of the plaintiffs at the buildings and premises determined the amount to be insured on different portions of the property; he received the premiums therefor and placed the insurance in the different defendant companies, and from them received out of the premiums paid by the plaintiffs his commissions; that on the day of the visit of said Kirkpatrick to the premises the machine shop in question was not in operation, and at the time of issuing the policies and for ten days or more prior thereto the said shop was not in operation ; that the plaintiffs as assignees had kept the shops in partial operation, finishing up unfinished engines and other machines, but had, from the 14th day of October, 1891, ceased to run the engines until the 13th day of November, 1891, and from that date until November 18, 1891, operated the shop, running the engine, etc., up to November 18, 1891, when work finalty ceased, except as follows : The foreman of the shops remained in charge, keeping the place cleaned up and selling stock and material on hand, such as a lathe, a steam engine, etc., which had previously been manufactured, scrap iron, etc., and when the said machinery was sold he put in order for removal from the shop by oiling, painting and adding to the steam engine the oil cups and parts already prepared but which, while the engine was Ira stock, were kept separate from it. He also attended to the delivery of the property sold, and when he needed help in this work or in delivery he was furnished with the necessary assistance. A steam engine was delivered on March 31, 1892, otherwise the shop had not been operated since November 18,1891. The fire causing the loss happened in the afternoon of April 1, 1892. But for greater certainty we make the policy sued on and in evidence in each case, with its description of property and terms, a part of this verdict. And especially the portions thereof stipulating that the policjr shall be void in case of a manufacturing establishment ceasing to be operated.</p> <p>“If, on this finding of facts, the court be of the opinion that the plaintiffs are entitled to recover, judgment to be entered on the several verdicts in favor of the plaintiffs. If the court be of the opinion that the law is with the defendants, or any of them, judgment to be entered in favor of such defendant non obstante veredicto.”</p> <p>The terms of the policy are quoted in the opinion of the .Supreme Court below.</p> <p>The court entered judgment for plaintiffs on the verdict, in an opinion by Ewing, P. J. Defendant appealed.</p> <p>Error assigned was entry of judgment.</p>

<p>Negligence— Gas — Explosion.</p> <p>Plaintiff’s house among others was supplied with natural gas by defendant, a gas company. Upon their line the gas company had placed a regulator, to reduce to a point of safety the pressure of the gas in the houses supplied. The action of the regulator was liable to be affected by cold, and to counteract this a small gas jet was allowed to burn just under the regulator. The theory of plaintiff was that this gas jet had caused the joints where the regulator was attached to the line to open so as to permit the escape of gas therefrom; and • that this gas taking fire had increased the heat,until the regulator was destroyed; and the gas, liberated from restraint, had rushed into the plaintiff’s house with more force than his plumbing could withstand, and taking fire had consumed the house. Held. that the question of defendant’s negligence was for the jury.</p> <p>Contributory negligence — Sudden peril — Question for jury.</p> <p>In the above case, plaintiff, becoming aware of the presence of an unusual quantity and pressure of gas, went down into his cellar to turn it off at his. furnace. The pressure was too strong to be controlled by the cut-off at the furnace, but as he stood by the furnace he was within three feet of the cut-off at the outer wall of the cellar, and only had to raise his arm and turn the valve in order to control the gas. This he did not do. Plaintiff sought to explain his failure to use the means of protection within his reach, by alleging that his situation was one of great danger, and that the excitement occasioned by it, and by the warning of his wife, led him to rush from the cellar without an instant’s delay. The neighboring houses were saved by the use of the cut-off. Held, that the question as to plaintiff’s contributory negligence was for the jury.</p>

<p>Boad law — View and review — Aet of Feb. 23, 1870.</p> <p>Under the general road laws of Pennsylvania a review is a matter of right, provided application for it is made at or before the next term of the court after the report of the viewers is filed.</p> <p>Exceptions were filed to the report of road viewers, and an application for a review was made on Sept. 5, 1892, in due time. Reviewers were appointed who reported at the next term on Dec. 10,1892. On April 14, 1893, the report of reviewers was set aside on the ground that one of them was a petitioner for the review. On the same day the exceptions to the report of the viewers were overruled, and their report was confirmed absolutely. On April 29th, leave was given to file amotion to set aside or reverse the order of April 14th, and in pursuance thereof on May 13th, a rule was granted to show cause why the order confirming the report of viewers should not be set aside and why other reviewers should not be appointed on the petition previously filed. This rule was discharged by the quarter sessions on the ground that the petitioners were tardy in moving for it. Held, to be error.</p> <p>The petitioners for review were not in default prior to April 14th, since they were not responsible for the mistake of the court in the appointment of reviewers, nor entitled to have other reviewers appointed until the exceptions to the review were disposed of. They were not in default after April 14th, by delay of fifteen days, because the court should have vacated the old and made a new appointment of reviewers on the petition then before it.</p> <p>The act of Feb. 23, 1870, P. L. 228, which authorizes the court in its discretion to “ award an alias review or re-reviews,” if a general act, is not applicable to such a case. That act, manifestly intended to apply to York county alone, only applies where there is a substantial or formal defect in the petition for a review or a re-review.</p> <p>Report of viewers — Draft—Improvements.</p> <p>If there is no reference to improvements in the report of viewers or in the draft, the presumption is that there are none. But this presumption is rebutted by the report of the viewers that they have noticed the improvements in the draft, and in such case the omission to note them is fatal.</p> <p>A report of viewers did not describe the improvements on the land, but it stated that they attached to their report a plot or draft “ showing course and distance of such road, and noticing briefly the improvements over which it passes.” The draft failed to show any improvements. Reid, that the defect was fatal.</p> <p>The fact that on such a draft there were the names of the owners of the land and lines indicating the boundaries of their properties, was not sufficient. Mere boundary lines are not improvements, but fences erected upon them, and buildings, clearings, etc., upon the lands inclosed by them, are.</p>

<p>Appeal, No. 165, Oct. T., 1893, by defendants, Robert Marshall and C. S. Vezie, from judgment of C. P. No. 3, Allegheny Co., May T., 1892, No. 576, on verdict for plaintiffs, Catherine Steigleder et al.</p> <p>Ejectment for six acres and one hundred and five perches of land. Before Kennedy, P. J.</p> <p>Defendants, Robert Marshall, and O. S. Yezie, Marshall’s lessee f >r oil and gas purposes, filed a disclaimer as to six acres and forty-one and one half perches, and filed their plea as to the remainder, consisting of sixty-three and one half perches.</p> <p>At the trial, it appeared that on April 1, 1865, Benjamin A. Mevey, by deed conveyed a farm to Thomas Mitchell and Charles H. Armstrong. The deed contained this clause: “ Reserving the six acre field, now occupied by Dr. William Sarver and David Welsh out of the above described tract of land.” Plaintiffs claimed title through Mevey and Sarver. Defendants claimed title through Mitchell and Armstrong.</p> <p>The court charged in part as follows :</p> <p>“ It is a pure question of fact as to whether, in 1865, these parties, Mr. Mevey and Mitchell and Armstrong, intended to in this reservation, and did in the reservation, reserve to Mr. Mevey the whole of that piece of land extending down to Robinson’s run.” [1] ....</p> <p>“Stress has been laid upon the fact that this man Welsh occupied a portion of the pasture field that was used by Dr. Sarver, and that that is what Mr. Mevey meant in his reservation, namely, ‘the six acre field now occupied by Dr. Sarver and David Welsh,’ and that Welsh did at that time and subsequently occupy even the pasture field as well as the garden; that he occupied the pasture field by using the spring and the spring house that was on it. It is for you to say from all these facts, circumstances and testimony, whether that is the occupancy that Mr. Mevey had in his mind when he made this reservation in the deed, or whether he intended to reserve, and did reserve, not only the pasture field that was occupied by Dr. Sarver, including the spring that was used by Welsh, but also the land embraced in the garden which was used and occupied by Welsh. It is admitted by both sides that Welsh did occupy the garden and the house, but the defendants claim that that wasn’t what Mr. Mevey meant; and it is for you to say whether simply the occupancy of this pasture field, by using the water and the spring house, was what was in Mr. Mevey’s mind, or whether he intended to and did reserve the whole tract of land extending down to the run, as claimed by the plaintiffs.” [2]</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned were (1, 2) instructions, quoting them.</p>

<p>Mortgage — Bond—Satisfaction—Intent.</p> <p>A bond and mortgage taken for the same debt, though distinct securities, possessing dissimilar attributes, and subject to remedies which areas unlike as personal actions and proceedings in rem, are, nevertheless, so far one that payment of either discharges both, and a release or extinguishment of either without actual payment is a discharge of the other, unless otherwise intended by the parties. Fleming v. Parry, 24 Pa. 47, applied.</p> <p>Satisfaction of mortgage — Intent—Question for jury.</p> <p>The entry of satisfaction of record on a mortgage destroys the mortgage and all remedies upon it, and it also extinguishes the debt upon the bond accompanying the mortgage if the parties so intend. The question whether the parties intend that the debt should be extinguished is a question of fact .to be determined by the jury under all the evidence.</p> <p>Decedent in her lifetime held a bond and mortgage against her son-in-law. Prior to her death her son-in-law was instrumental in saving her a large sum of money, and out of gratitude she quietly went to the recorder’s office and satisfied the mortgage, without informing him of her action. She retained the mortgage and bond, and continued to receive interest, but without giving receipts. When urged by a daughter to inform her son-in-law of her action she refused, saying that when he found it out it would be all the sweeter to him. She made other statements showing that she intended to extinguish the debt. After her death her executor brought suit on the bond. Held, that a verdict and judgment for defendant should be sustained.</p> <p>Evidence — Declarations—Satisfaction of mortgage.</p> <p>In the above case declarations of decedent made after the satisfaction of the mortgage, to the effect that she intended to make the mortgagor pay principal and interest of the mortgage, were incompetent, as they could not suffice to destroy the legal effect of the act of satisfaction.</p>

<p>Sale — Contract—Fraud—Insolvency—Title—Evidence.</p> <p>An intention of an insolvent buyer at the time of the purchase not to pay will not amount to a fraud, unless some false representation, trick or artifice, or conduct which involves a false representation, be added. Smith v. Smith, 21 Pa. 367, criticised but reaffirmed.</p> <p>The Supreme Court will not however extend this rule a step beyond what the authorities require. Any additional circumstance which tends to show trick, artifice, false representation, or conduct which reasonably involves a false representation, will take the case out of the rule.</p> <p>Insolvency and knowledge of it at the time of the sale are evidence to go to the jury with other facts to show intended fraud, though they are not sufiicient by themselves.</p> <p>If a purchaser about the time of the delivery of the goods confesses judgment and gives a bill of sale to a creditor of substantially all his assets, and disables himself from continuing business, he commits an act of legal if not actual fraud, and acquires no title to the goods.</p> <p>Bill of sale — Antecedent debt — Payment—Burden of proof.</p> <p>The taking of a bill of sale in payment and satisfaction of a prior debt is a taking for value that shuts out the equities of the original vendor of the goods passing by the bill of sale; but in such a case if the purchase was a fraudulent one by the vendee, the burden of proof is on the creditor taking the bill of sale to show that he took it in payment of the debt.</p>

<p>Appeal, No. 183, Oct. T., 1893, by defendant, from judgment of C. P. No. 2, Allegheny Co., *Oct. T., 1892, No. 531, on verdict for plaintiff, James Michael.</p> <p>Appeal from assessment of land damages.</p> <p>On the trial, J. P. Auld, a witness for plaintiff, testified that he had lived within a mile of plaintiff’s land almost all his life. “ Q. Do you know of sales, Mr. Auld, in that neighborhood ? A. Yes, I have understood there was quite a number of sales. Q. You have some idea of what the property sold for? A. I have understood what the prices were. Q. I wish you would state from your knowledge of sales in that neighborhood, what this property is worth an acre, as near as you can. By Mr. Carpenter: Q. That is for farming purposes or suburban residences ? By the Court: Q. A year ago what would it have sold for in the market? A. Well, I presume it would have brought four hundred dollars an acre, this part of the farm. By Mr. Haymaker: Q. What damage, in your opinion, Mr. Auld, has Mr. Michael sustained by reason of the location of that line over his property ? Objected to unless the witness has actual knowledge of the loss; counsel for defence object to any speculative theory. By the Court: We think the witness ought to show a little more knowledge. Without any facts, we do not think his guess ought to be considered by the jury. You must get some facts to show that the witness has a knowledge of what he is talking about. Q. I wish you would state to the jury how this line affects the value of that property, and why it does it? A. Well, it affects it just in this way, I think there is a large portion of the farm that could not be sold at all in five or ten acre lots at this time with that pipe line where it is.” The witness stated, under objection and exception, that the total damage would be about three thousand dollars. [1]</p> <p>[John Aldebrand, a witness for plaintiff, having testified that he resided within one half mile of plaintiff’s land, that he knew something of the value of property in the neighborhood, knew of sales of land in the neighborhood, knew the location of the pipe line and the character of the land, was interrogated and made answer as follows : “ Q. I wish you would state, Mr. Aldebrand, in what way that pipe line affects Mr. Michael’s farm ? A. Well, it’s just as I say, it will affect the sale of this here* piece of ground. If a man wants to buy he would want may be eight or ten acres and would pay a big price for that knob, because it’s a beautiful knob, it would hurt the sale of that piece of ground. Q. Would it affect the sale of all the property lying south of the pike ? A. Well, I don’t know as it would very much, only this ground that this oil line runs through. Q. In speaking of the sales made out there, what size tracts have they been generally selling it? A. From three up to sixty acres. Q. That is the character of the sales during the last year? A. Yes, sir. Q. I wish you would state, Mr. Aldebrand, what damage, in your opinion, Mr. Michael has sustained by reason of the location of that line ? ” The witness, under objection and exception, answered two thousand dollars.] [2]</p> <p>Alexander Foster, a witness for plaintiff, testified that he lived at McKeesport and knew plaintiff’s farm. “ Q. Do you know of anjr sales of real estate in the neighborhood of Mr. Michael’s property? A. Well, I know by hearsay of several pieces. Q. Of a number of sales ? A. Yes, sir. Q. Do you know what the prices were for the various pieces of property ? A. Well, by hearsay, I do, I believe. Q. What sized tracts were these various pieces you speak of ? A. Well, from eight to fifteen acres, I believe.” The witness, under objection and exception, stated the damages at from $1,500 to $2,000. [3]</p> <p>[Andrew McClure, a witness for plaintiff, having stated that he lived in Versailles township, since 1863, within one and one half miles of plaintiff and that he knew the property and location of the pipe line, and the general value of the land in the neighborhood, was interrogated, and made answer as follows : “ Q. Mr. McClure, you know the effect that a pipe line through a farm has upon the market value of it — whether it affects it or not? By Mr. Carpenter: Q. From actual knowledge, now, not from theory? A. Yes, sir. By Mr. Haymaker: Q. I wish you would look at the plan, and state if you know, about where the line passes through Mr. Michael’s property. This is the pike here, Mr. McClure? A. Yes, sir. Q. Now, from your knowledge of the value of the property in that vicinity, from actual sales that you know of, what, in your judgment, is this property worth an acre, in that field, “ A,” or this property over which this line passes? A. Well, from my knowledge, it would be worth three or four hundred dollars an acre, for that piece of ground. Q. You mean without the pipe line on it? A. Without the pipe line. Q. I wish you would state, what, in your judgment, to what amount Mr. Michael is damaged by reason of the location of that line upon that part of his farm ?” The witness, under objection and exception, answered from $1,500 to $2,000.] [4]</p> <p>John Lang, a witness for plaintiff, testified that he had lived in North Versailles until about eleven year ago. “Q. Have you been back and forward to Versailles township since? A. Yes, sir, every year. Q. Have you any knowledge of sales in North Versailles township? A. I know of sales by report, Q. Do you know the prices paid? A. I have heard the prices.” The witness was asked what plaintiffs’ farm was worth and answered, under objection and exception. •“ A. From knowledge I have of other sales in that neighborhood, I would suppose it was worth three hundred dollars an acre. Q. I wish >you would state to what extent, in your judgment, it has damaged that property?” The witness answered, under objection and exception, from $1,200 to $1,500. [5]</p> <p>James McClintock, a witness for plaintiff, testified that he was a farmer and lived about two miles and a half from plaintiff’s farm. “ Q. You know the value of real estate in the neighborhood of Mr. Michael’s property? A. From what I hear. Q. Do you know of any sales in that neighborhood? A. I have heard of several sales and heard the prices. Q. And you know the properties sold? A. Yes, sir. Q. Now, from your knowledge of sales in that community, I wish you would state what you think Mr. Michael’s farm is worth an acre, say that part of the farm lying south of the pipe. A. Taking it all through? Q. Yes. A. Well, from the way it sells for other people, he ought to have four hundred dollars an acre.” This witness, under objection and exception, estimated the damages at from $1,500 to $2,000. [6]</p> <p>John Taylor, a witness for plaintiff, testified: “ Q. How near do you live to Mr. Michael’s farm ? A. There is only one small farm betwixt him and me. Q. I wish you would state whether you are acquainted with the value of real estate in that neighborhood ? A. Well, I have heard them speak of real estate that was sold, I don’t know just exactly that it was sold for those prices. Q. You know there have been sales? A. Of course, I know there have been sales. Q. And you have heard the prices? A. Yes, sir, conversation about them.” The witness, under objection and exception, placed the damages at $2,500. [7]</p> <p>Walter Foster, a witness for plaintiff, testified that he lived within three quarters of a mile of plaintiff’s land all his life. “ Q. Do you know the value of real estate in that vicinity ? A. As far as I can know, by hearing what other people do. Q. You mean by sales, and the prices obtained? A. Yes, sir.” The witness, under objection and exception, estimated the damages at $2,000. [8]</p> <p>Gilbert Myer, a witness for plaintiff, testified that he was a real estate agent in McKeesport. “ Q. Have you been in the neighborhood of plaintiff’s property, frequently or otherwise ? A. Quite frequently. Q. Do you know the value of real estate in the neighborhood of the Michael property? A. Yes, sir. Q. How have you acquired your knowledge, Mr. Myer ? A. Well, I have sold some property in that neighborhood, and by hearing of sales, and what it was sold at. Q. I wish you would state what, in your judgment, the Michael property is worth an acre? A. I think it is worth from three hundred to three hundred and fifty dollars. Q. Do you know about where the pipe is located, Mr. Mj^er ? A. Yes, sir. Q. I wish you would state what it is adapted for at the present time — the land at that place ? A. Well, it is coming into the market very fast, for surburban residences. Q. Do you know of sales in the neighborhood for that purpose? A. Yes, sir. Q. How many sales do you know of ? A. Well, I have heard of a considerable number. I have only made two sales myself. Q. Where were those sales, Mr. Myer? A. They were on part of the Overholt farm. Q. How near to the Michael property ? A. Well, I don’t think it would be over probably three quarters of a mile. Q. Are the residences going up there now? A. Yes, sir.” The witness, under objection and exception, estimated the damages at one third of the value. [9]</p> <p>Defendant offered in evidence the bond in the sum of $200 given by defendant to plaintiff, which was filed in Court of Common Pleas, No. 1, of Allegheny county, and confirmed absolutely, for the purpose of showing the limit of the amount of damage which the plaintiff can recover in this action. Plaintiff objected because the amount of money expressed in the bond does not limit the amount of damages which may be recovered in this action against the company. Objection sustained. Bill sealed. [10]</p> <p>Verdict and judgment for plaintiff for $800. Defendant appealed.</p> <p>Errors assigned were (1-10) rulings on evidence, quoting bills of exceptions and evidence as above.</p>

<p>Bailment — Insurance—Contract.</p> <p>Where a person engaged in the storage business makes it a part of such business to effect insurances in companies when requested by customers to do so and protects himself for his advances and charges by holding the goods, the agreement to insure is in the direct line of his business and not a contract of insurance requiring certain essential elements to constitute it. It is not a voluntary and gratuitous act, but an undertaking in connection with the bailment.</p> <p>Bailment — Storage—Negligence—Fire.</p> <p>A bailee for hire who receives goods for storage is bound to exercise ordinary diligence and care, but he is not liable for the loss of the goods by fire, where it does not appear that the fire was caused by his own negligence.</p> <p>Negligence — Evidence—Scintilla—Watchman.</p> <p>In an action against a warehouse company for damages for loss of goods stored in a storage warehouse, where the evidence fails to show the cause of the fire, it is error to submit the case to the jury. The failure to keep a watchman is not evidence of negligence in such case.</p>

<p>Appeal, No. 189, Oct. T., 1893, by plaintiffs, Charles B. McLean and Mrs. C. C. McLean, from decree of C. P. No. 2, Allegheny Co., April T., 1893, No. 226, dismissing bill in equity.</p> <p>Bill in equity to compel directors of defendant corporation to declare dividend on preferred stock.</p> <p>The case was heard on bill and answer. The facts disclosed by the bill and answer were as follows: Defendant company is a corporation, organized under the act of 1874 and its supplements, having its chief place of business in Allegheny county. On Oct. 18, 1883, when the issue of preferred stock was authorized, its entire capital stock was $600,000. It has since been increased to $2,750,000 by the increase of $2,150,000 of common stock.</p> <p>On Oct. 18,1883, a resolution of the stockholders authorized^ the issue of $150,000 of preferred stock (1500 shares), to bear an annual dividend of twelve per cent from the net earnings of that year, in preference to any dividend on the common , stock. The resolution provided that the “ directors shall from time to time declare dividends payable from the net earnings of the company for each year, first, to said preferred stock to the extent of twelve per cent per annum,” if the net earnings amounted to that much; if more, then a dividend on the common stock. The certificates to the preferred stockholders contained this provision: “ The holders of preferred stock of said company are entitled to dividends out of the net earnings of each year, when declared by the board of directors, to the extent of twelve per cent on the par value of said preferred stock before the payment of dividends to the holders of common stock, but the dividends on the preferred stock are not to be cumulative.”</p> <p>The bill was presented by plaintiffs in their own right, and on behalf of all other holders of preferred stock who might elect to become parties plaintiff.</p> <p>The investments of the company in its works, extensions and new buildings now amount to $5,041,000. Its liabilities, in bonds, notes and accounts payable, amount to $1,353,000, 'while its material, stock on hand and outstanding accounts, amount to $739,000.</p> <p>Dividends on the preferred stock had been regularly declared and paid down to and including 1891. The net earnings for 1892 were $282,000. The directors declared no dividends for that year, but all the earnings were appropriated to paying debts incurred, in and prior to 1892, in the extension and increase of the works and business of the company.</p> <p>The reasons given by the directors in their answer for so doing were the following: “No dividends have been declared for the said year 1892 upon the preferred or common stock of the said company, solely for the reason that in the judgment of the board of directors of said company it was and is expedient and necessary to apply all the earnings of the company upon the company’s indebtedness incurred in said enlargements, extension and increase of its works and business, and the said earnings'have been so applied .... and these defendants aver that the board of directors of said company in failing or omitting to declare and pay a dividend or dividends on said preferred stock for the year 1892, have acted pursuant to the powers vested in them by law in view of the present financial condition of the said company, and in the exercise of good faith and a reasonable discretion.”</p> <p>The court, in an opinion by White, J., after stating the facts as above, dismissed the bill.</p> <p>Error assigned was above decree, quoting it.</p>

<p>Appeal, No. 192, Oct. T., 1893, by plaintiffs, Samuel S. Brown and Harry Brown, from judgment of C. P. No. 1, Allegheny Co., March T., 1890, No. 798, on verdict for defendants, James M. Bailey et al., trustees.</p> <p>Ejectment. Before Collier, J.</p> <p>At the trial, there was evidence to the effect that, in 1874, William H. Brown, plaintiffs’ predecessor in title, had a claim against Graff, Bennett & Co. for $1,600 for iron sold to them. Graff, Bennett & Co., defendants’ predecessor in title, had a claim against Brown for the use of certain river lots owned by them. Both parties owned different properties, some of which were situated on the river front and others back from it. Under these circumstances it was concluded by the parties that they could adjust their differences by an exchange of land. They accordingly made a verbal agreement by which Brown was to convey to Graff, Bennett & Co. the upper or river ends of his five lots, extending from Carson street to high water mark on the river, and Graff, Bennett & Co. were to convey to him in fee simple the river ends of their five lots extending from high to low water mark. Both parties immediately took possession of the lands to which they were entitled under the agreement. The heirs of Brown treated the landing as their property, and, in a partition of the property, it was allotted to one of the heirs, through whom plaintiffs claim. Defendants claim title by conveyances from Graff, Bennett & Co.</p> <p>After plaintiffs gave evidence of their title through William H. Brown, defendants, under objection and exception, gave evidence of the exchange by Wm. H. Brown and Graff, Bennett & Co. [1]</p> <p>Plaintiff in rebuttal offered to show that defendants and their predecessors in title deposited cinder, slag, ashes, etc., upon the land, and committed waste upon the property bjr tearing down houses, etc. Rejected. [2, 4, 9-12]</p> <p>Plaintiffs asked defendants to state whether they defended on the ground that they were entitled to have specific performance of the alleged parol agreement or upon the ground of possession. The Court: We cannot compel defendants to comply with the request. [3]</p> <p>Defendant’s abstract of title, given in evidence, contained the following:</p> <p>“3. That William H. Brown was the owner of lots Nos. 1, 2, 3, 4 and 9, in the plan of lots laid out by the executors of Samuel Black of the subdivision of Coal Hill Manor lots, running'from Carson street to the low water mark of the Monongahela river; that Graff, Bennett & Co., a partnership composed of John Graff, James I. Bennett, Robert W. Marshall and William B. English, were the owners of lots Nos. 5, 6, 7, 8 and 10. That in and by an agreement entered into between the owners of these lots respectively, William H. Brown of the one part, and Graff, Bennett & Co. of the other part, the Carson street ends of the lots owned by William H. Brown, described in the prmcipe and writ, were transferred, set over, and delivered to Graff, Bennett & Co., and Graff, Bennett & Co. entered into possession of the ground described in the prsecipe and writ, and William H. Brown & Co. entered into possession of the river ends of the lots Nos. 5, 6, 7, 8 and 10. This agreement was made about seventeen years ago; some time in the year 1874 ; since which time the possession has been in Graff, Bennett & Co., their grantee and assigns.”</p> <p>Plaintiffs offered a deed by Graff, Bennett & Co., in 1878, to the Pittsburgh & Lake Erie Railroad for a right of way over the premises in dispute “ so far as the same may pass over our lands.” Rejected. [5-8]</p> <p>Plaintiffs also offered to prove that prior to the bringing of this suit, at least six mouthy before this suit was brought, plaintiffs vacated and gave up all possession which they might previously have had of the property which, according to defendants’ testimony; Wm. H. Brown was to have received from Graff, Bennett & Co., and notified the present defendants, who were then in possession of the land now sued for, after having vacated this possession, and told them that they might go and take possession, and made a demand upon them for the land now in controversy. The purpose is to show that we gave up possession before bringing suit, and notified defendants to give us possession of their land. Objected to.</p> <p>Objection sustained. By the Court: We think this evidence is incompetent and irrelevant because the plaintiffs could not rescind the contract alleged to be made in that way. [13] Plaintiff’s points were in part as follows:</p> <p>1. Request for binding instruction. Refused. [14]</p> <p>“ 2. That under the evidence the defendants have not shown such equities as would entitle them to enforce the specific performance of the alleged parol contract between Graff, Bennett & Co. and William H. Brown, and the verdict must be for the plaintiffs.” Refused. [15]</p> <p>“ 6. That so far as the defence goes to the enforcement, or seeks the specific performance by plaintiffs of the alleged parol contract between Wm. H. Brown, deceased, and Graff, Bennett & Co., for exchange of land, this court has no jurisdiction to sustain and enforce the same, and the verdict of the jury must be for the plaintiffs.” Refused. [18]</p> <p>“ 11. That inasmuch as by the testimony of defendants’ witness, Col. Schoonmaker, the understanding and agreement between the parties in making the alleged parol contract was that Graff, Bennett & Co. were to have the deeds prepared for execution and delivery, conveying to the respective parties, in fee simple, the lands which each party was to get by said contract, the said agreement for the preparation of deeds became a constituent part of the alleged parol contract; and said Graff, Bennett & Co. never having had such deeds prepared and having offered no reason for such default, the alleged contract became thereby inoperative and not binding upon either party, and, on these facts, the verdict of the jury should be for plaintiffs.” Refused. [16]</p> <p>“ 12. Defendants cannot set up the alleged parol contract and enforce the specific performance thereof by verdict and judgment thereon by the court as a chancellor, without having shown the tender on their part of a deed to W. H. Brown or his successor in title for the premises and the rights and privileges he was to obtain.” Refused. [17]</p> <p>Binding instructions were given for defendant. [19]</p> <p>Errors assigned were (1-13) rulings on evidence ; (14-19) instructions ; quoting bills of exceptions and instructions.</p>

<p>Appeal, No. 194, Oct. T., 1893, by defendant, David Hutchinson, from order of C. P. Allegheny Co., April T., 1893, No. 189, making absolute rule awarding writ to sequester income of defendant’s life estate.</p> <p>Rule for writ to sequester income of defendant’s life estate. From the record it appears that Margaret Hutchinson, defendant’s wife, died Nov. 28, 1890, leaving a will, the material portions of which are as follows:</p> <p>“ First. For the purpose of carrying out this my will, I give, devise and bequeath to my husband, David Hutchinson, my entire estate, real, personal or mixed, in trust, he to have the entire control, so long as he may desire, of the same, and use so much of the income thereof as he may desire, but I especially direct that the same shall not be subject to or liable for the payment of any individual debts that he may now owe or hereafter contract, excepting only those he may contract for improvements or repairs as trustee for the benefit of, or that he may deem to be for the benefit of the estate so held by him in trust, the said trust estate or any portion that may go to his individual support shall not be subject to his individual debts or any process issued for the collection of the same by execution, attachment, sequestration, or any other process, but the same is to be paid into his own hand, and cannot be anticipated, sold or pledged.</p> <p>“ He shall have unrestricted control of the entire trust estate, and shall not be at any time asked or required to furnish a statement or render an account, as I have full confidence in his honesty and ability to manage, and I hereby direct that he shall not be required to give bond for the faithful performance of his trust, and if required, I hereby make my estate his bail.</p> <p>. “ That in case any beneficiary or legatee under this will attempts to interfere with him in the discharge of his trust, or attempts to defeat this trust, compel an account or set aside this will, then he or she, by such act or acts, makes null and void all bequests herein contained for him or her, and takes nothing in any manner from my estate.</p> <p>“ It being my desire, and my intention being to increase and improve my estate. It is especially provided that my said trustee, without the consent, approval or knowledge of my children, may buy other property, execute deeds of conveyance as trustee, and encumber or sell any portion of my estate with the same effect as if he were the owner, but such deeds and encumbrances, mortgages, etc., must be executed by him as trustee under this my will. And it is further expressly provided that my estate shall vest in said trustee with full power in my said trustee to by his last will and testament, should he make one, to alter, vary, or change the amounts coming to my said children, and appoint executors to carry out the same; he also to have full power by will to designate the property and make a division of the same as he may deem best, and such division shall be binding and conclusive on all parties affected thereby, and for this purpose and for carrying out of the same vest the estate in my husband in trust for the use of my children in such portions as he may designate in any will by him hereafter made.</p> <p>“ Second. This clause is to be subject to all the provisions of the first clause, and is only made in case my husband should neglect or refuse to make a will, and is in conformity to the mutual desires of myself and husband, David Hutchinson, and in accord with our views at the present time, and in case at any time in the future it should not prove satisfactory, or in his opinion just and right, the same may be altered and changed as provided for in the last clause.</p> <p>“ To my daughter, Jeanette Moffit, after the decease of her father, I give, devise and bequeath the one half of my entire estate (after the payment of all debts), real, personal and mixed, not to be subject to the control or courtesy of any husband, but the same to be for her sole and separate use.</p> <p>“ And to Annie Margaret Hutchinson, I give (subject to the provisions of the first clause of this my will), devise and bequeath one half of my entire estate, and in partitioning the same she is to have first choice, provided she marry to the satisfaction of the family, up until her marriage I give to her a sum sufficient to maintain her, and for her sole use and support not exceeding three thousand dollars per annum to be paid to her quarterly, which annuity is to continue until her marriage, and not to be anticipated or subject to any process for the enforcement of the collection of debt, but to be paid to her in her own hand. In case she should marry contrary to the wishes of the family, then I direct that a sufficient fund be invested (by a trustee to be appointed under the first clause), to yield her not less than $500 per annum and not more than $1,000 per annum, subject to the same provisions as the $3,000 hereinbefore mentioned, upon the decease of my said daughter, I direct the fund shall go to her heirs, but not to be subject to any courtesy of any husband she may have then living. The whole of said trust fund to be divided among them equally whether the same be real estate or cash moneju”</p> <p>Plaintiff, claiming that David Hutchinson took a life estate under the will, made a levy upon the real estate which was of Margaret and then took a rule on David to sequester the rents, issues and profits thereof. An answer was filed setting up that David did not have an absolute estate, but that the estate was a trust estate. The court made the rule absolute in an opinion by White, J.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 202, Oct. T., 1893, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1893, No. 244, making absolute rule for judgment for want of sufficient affidavit of defence in favor of plaintiff, A. McMillan.</p> <p>Rule for judgment for want of sufficient affidavit of defence, in assumpsit on oil lease.</p> <p>From the record, it appeared that, on May 6, 1892, plaintiff executed an oil and gas lease to G. A. O’Hara, defendant’s assignor. Material portions of the lease were as follows :</p> <p>“ The said party of the first part in consideration of one dollar in hand paid, the receipt of which is hereby acknowledged, and the stipulations, rents and covenants hereinafter contained, to be paid, kept and performed by the party of the second part, the said first party has granted, demised and let unto the said party of the second part, his executors, administrators and assigns, for the sole and only purpose of drilling and operating for petroleum oil or gas, all that certain tract of land situated in Penn township, Allegheny county and state of Pennsylvania, bonnded and described as follows, to wit ....</p> <p>“ The said second party hereby agrees, in consideration of said lease of the above described premises, to give said first party one eighth of all the oil produced and saved from said premises. And further agrees to give five hundred dollars ($500) premium, payable within sixty days after completion, per annum for the gas, from each and every well drilled on the above described premises. The said second party to pay all damages to growing crops thereon or the fences.</p> <p>“ The said second party is to have and hold the said premises for the said purpose only for a term of three years next ensuing this day and year above written, and as long thereafter as oil or gas shall continue to be found in paying quantities.</p> <p>“ The party of the second part agrees to commence operations within sixty days, and complete one well on this farm within three months thereafter, unavoidable accidents excepted, and in case of failure to complete one well within such time, the party of the second part hereby agrees to thereafter pay as rental to the party of the first part for such delajq the sum of twenty-five dollars ($25.00) per month, payable at Masonic National Bank of Pittsburgh, Pa., and the party of the first part hereby agrees to accept such sum as full consideration, liquidation, and payment of all damage for any delays until one well shall be completed, and a failure to complete such well or comply with any of the foregoing conditions, or to make any of such payments within such time and at such place as above mentioned, renders this lease absolutely null and void, and no longer binding either party, and will revest the estate herein granted in the lessor and release the lessee from all his covenants herein contained, he having the option to drill said well or not, or pay said rental or not as he may elect.”</p> <p>No well was ever drilled on the farm. After the lease was assigned to defendant company it paid the monthly rentals to Jan. 5, 1898, when it notified plaintiff it would no longer .pay, and tendered back the lease, which plaintiff refused to accept. This suit was brought for the rent claimed to be due for the following four months. Defendant filed an affidavit of defence denying its liability.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence, in an opinion by White, J., relying upon Galey v. Kellerman, 128 Pa. 491; Fennell v. Guffey, 189 Pa. 341; Ogden v. Hatry, 145 Pa. 640; Jones v. West Penn. Nat. Gas Co., 146 Pa. 204; Leatherman v. Oliver, 151 Pa. 646.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 212, Oct. T., 1893, bj*plaintiff, Lillian W. Kennedy, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 685, in favor of defendants, William J. Baker, owner, and William Irwin, terre tenant, on special verdict.</p> <p>Ejectment. Before Porter, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the sheriff’s sale notice was given that the defendant in the execution was a minor without guardian and that the proceedings were void. The execution creditor was the purchaser, from whom defendants claim, but the special verdict does not show how title was derived.</p> <p>Judgment for defendants, on special verdict. Plaintiff appealed.</p> <p>Error assigned was entry of judgment, quoting it.</p>

Appeal, No. 225, Oct. T., 1893, by defendants, David P. Black, Milton I. Baird and J. Ledlie Gloninger, partners trading as Black & Baird, and Galen C. Hartman, from decree of G. P. No. 1, Allegheny Co., Sept. T., 1891, No. 407, in favor of plaintiff, Charles L. Powers. Bill in equity for account.

Appeal, No. 219, Oct. T., 1893, by defendants, William Clark et al., from judgment of C. P. No. 2, Allegheny Co., Oct. T., .1892, No. 495, on verdict for plaintiff, K. T. Meade. Ejectment. Before Ewing, P. J. At the trial it appeared that, on June 10, 1891, Mrs. Harriet E. Oates, a married woman, executed and delivered a deed for the land in question to Albert Davies. Her husband joined in the deed, and the purchase money, which was fair in amount, was paid to Mrs. Oates.

<p>Appeals, Nos. 204, 205, 206, 207, 208, 209 and 210, Oct. T., 1893, by defendants, Graham Scott, H. J. Murdoch, C. F. Klopfer, Edward House and Wilson S. Arbuthnot et al., executors of Chas. S. Arbuthnot and J. S. Wallace, executor of Archibald Wallace, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1891, No. 385, making absolute rule for judgment for want of sufficient affidavit of defence in favor of plaintiff, Samuel Robinson.</p> <p>Assumpsit for deposit in unincorporated bank.</p> <p>In this action, brought Sept. 18,1891, against William Floyd, Thomas Floyd, James W. Arrott, Charles Arbuthnot, C. L. Rose, James Bovard, Thomas M. Marshall, Graham Scott, H. J. Murdoch, Edward House, Joseph Walton, Archibald Wallace, Lewis Peterson, Jr., C. F. Klopfer, partners doing business under the name of the American Bank, plaintiff’s statement averred: That defendants were partners, doing a banking business as bankers in the city of Pittsburgh, county aforesaid, under the name of the American Bank, at and during the time of the making of the deposits hereinafter set forth; that defendants became indebted to him for the sum of $21,000 as a depositor in the regular course of business, and they were and are now individually liable for said deposits; that the said bank suspended payment and closed its doors on Nov. 26, 1887; that he had not, at any time before the bank closed its doors, knowledge or notice that any of the above named defendants had withdrawn from the partnership ; that a complete copy of the plaintiff’s bank book, truly and correctly copied from the entries made in it by the defendants at the time they purport to have been made, is hereto attached and made part of this statement; that the plaintiff received a payment of $6,892.73 On Aug. 12, 1889, leaving a balance of $16,369.74 remaining, justly due and wholly unpaid ; that the plaintiff now seeks to recover from the said defendants the said sum of $16,369.74 with interest from Aug. 12, 1889.</p> <p>To this statement was appended copy of bank book and of articles of association, the latter quoted in the opinion of the Supreme Court.</p> <p>The affidavit of defence filed by Graham Scott is stated substantially in the opinion of the Supreme Court. The affidavit ■of Murdoch was similar in substance to that of Scott. Arbuthnot, in addition, averred notice of withdrawal by publication in a newspaper, June 5, 7 and 8, 1875. Klopfer averred “publication” of “ due notice ” of withdrawal. House averred that “ affiant gave, as he verily believes, due and legal notice of the said sale and retirement.” Further averments of his affidavit are quoted in the dissenting opinion of Mr. Justice Thompson. Archibald Wallace averred personal notice to plaintiff of 'withdrawal.</p> <p>Plaintiff entered a rule to show cause why judgment should not be entered for want of sufficient affidavits of defence, assigning therefor the following reasons, viz.:</p> <p>(1) The defendants do not allege anywhere in their affidavits that the partnership was registered or incorporated, and all admit that they were partners during the time that the deposits sued for were made. (2) All the defendants admit that the deposits of money sued for were made with them as bankers, by the plaintiff in the regular course of business, on a continuing contract. (3) All defences set up by defendants have been disposed of and held insufficient to prevent judgment by the Supreme Court, at No. 38, Cot. T., 1892 [153 Pa. 84].</p> <p>Judgment for plaintiff, in opinion by White, J.</p> <p>Error assigned was entry of judgment, quoting record as above.</p>

Appeal, No. 286, Oct. T., 1893, by defendants, J. N. Pew and E. O. Emerson, from order of O. P. No. 1, Allegheny Co., June T., 1893, No. 725, making absolute rule for judgment for want of sufficient affidavit of defence, in favor of plaintiff, Cephas Cochran. Rule for judgment for want of sufficient affidavit of defence, in assumpsit on oil lease. From the record it appeared that plaintiffs claimed to recover $200 for rent, under the lease from Feb. 1, 1892, to May 1, 1893.

Appeal, No. 226, Oet. T., 1893, by defendants, R. B. Ivory, trustee, and George C. VanKirk, trading as G. C. VanKirk & Co., from decree of C. P. No. 1, Allegheny Co., Sept. T., 1893, No. 294, granting injunction against appellants and Wm. H. McCleary, sheriff, at suit of Henry C. Thompson et al., receivers of Northwestern.Hard ware Co. Bill to restrain execution on personal property.

Appeal, No. 229, Oet. T., 1893, by-defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1892, No. 555, awarding injunction on bill in equity. Bill in equity for injunction. The bill averred that plaintiffs were a public corporation, incorporated by act of Feb. 21,1873, P. L. 147, for the purpose of erecting and maintaining water works to supply with water the inhabitants of the borough of Sewickley and adjoining townships.

<p>Appeal, No. 233, Oct. T., 1893, by defendant, from judgment of C. P. No. 3, Allegheny Co., Not'. T., 1892, No. 568, on verdict for plaintiff, D. M. White.</p> <p>Assumpsit on building contract. Before Porter, J.</p> <p>At the trial it appeared that, on Juty 13; 1891, plaintiff entered into a written contract with the school district defendant, by the terms of which plaintiff contracted to build for defendant a brick and stone school building for the price of $26,425, the building to be completed “ on or before the 1st day of March, 1892.” Under the terms of the contract, plaintiff was liable to pay to defendant the sum of $25.00 per day for every day after March 1,1892, “ as and for liquidated damages.” On Nov. 3, 1892, this suit was brought by plaintiff, he alleging that his contract was duly performed, and that the contract price of $26,425 was due and payable, together with certain extra items, amounting to $270, and that, after the allowance of all credits for payments by defendant, a balance of $6,995 remained due to him. Defendant claimed that plaintiff was in default from March 1, 1892, to Aug. 7, 1892, one hundred and fifty-nine days. Plaintiff claimed that the delay was caused by the failure of defendant’s architect to furnish the lines and levels of the building on or before July 15,1891, as required by the contract.</p> <p>The court charged in part as follows:</p> <p>“ The important clause in the contract, or the clause which in this controversy has become important, relates to the time at which the building was to be finished. It is section 6 of the contract, which I will read: ‘ The contractor shall and will proceed with the said work and every part and parcel thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to the said drawings and specifications and this contract on or before the first day of March in the year one thousand eight hundred and ninety-two, Provided, that possession of the premises be given the contractor, and lines and levels of the building furnished him, on or before the 15th day of July in the year one thousand eight hundred and ninety-one; and in default thereof, the contractor shall pay to the owner twenty-five dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages.’ . . .</p> <p>[“Now, were these lines and levels furnished? That is a question for you.] [1] The architect has testified that holes had been drilled and iron pins put in; that the foundation was in solid rock; that the excavation was done at the time this contract was let, and that the plans were furnished at that time. Before, however, you can enforce this clause, you must find that the levels were furnished as required in this precedent condition. If they were not furnished before the 15th of July, or on that day, then when were they furnished ? Is there anything in this case to indicate that there was any delay because the levels were not furnished, and that, the levels being furnished, the work went on ? Is there any evidence that there were ever any levels furnished other than those that were furnished on or before the 15th day of July, 1891 ? One of the witnesses has testified that the levels were indicated, in a measure, by the plans. I believe the architect so testified, — at any rate, he testified that the foundation had been dug and that the pins had been put in. You will consider all the case, gentlemen, — all the evidence in the case, and all the circumstances surrounding it, and then find, as a fact, primarily, whether or not these levels were furnished; because, in view of the wording of this clause, we feel that it is our duty to say to you that that is a condition precedent to the enforcing of this claim for damages. The lines and levels must have been furnished some time; the building has been completed, and neither party to this controversy has offered one scintilla of evidence going to show that it was not upon the proper lines or that it was not constructed at the proper levels. Were any lines and levels, other than those marked and indicated upon the ground at the time this contract'was made, given? This was a printed contract, and was filled in upon a printed form. Of course, the wording of it has to be treated with the same consideration as if it were written, and every condition set forth in it has to be fulfilled; but, in such matters, it is sometimes an explanation of conditions which are injected that they were included in,and through inadvertence, or because the mere having them in there would not do any harm, they are permitted to stay.</p> <p>“ [Now, if you pass affirmatively upon the question of whether or not these lines and levels were furnished, — in other words, that means whether the data necessary to go on and construct the building were furnished on or before the 15th da3r of July, —in other words, whether or not the school board furnished their contractor with the information which would enable him to proceed to fulfill, his contract on or before the 15th day of July, (and you pass upon that question just as you pass upon any other question in this case, by the weight of the evidence,) then, certain other questions will arise, as to whether or not this penalty is to be enforced.] ” [2].</p> <p>. After considering various items in connection with the architect, the court continued: ■ ■</p> <p>“ [Now, gentlemen, if the lines and levels of this building were furnished, then you copie to, consider the . question of, whether or not there was- dela3r, and, if' so; then what is the amount of the damage to. be awarded ?] ” [3] , ;</p> <p>Plaintiff presented among others this point:</p> <p>• “ 7. If the jury, find, under all the evidence, that the plaintiff made every reasonable effort, in good faith, to perform his contract fully and within the period given him to perform it, and that the building was completed and taken possession of, and-used for its intended purpose, and adequately serves said, purpose, then the plaintiff is entitled to recover the balance, on the contract price, together with the amount admitted to, be. due for the additional work, less such deductions as will, coprpensate the defendant for any minor imperfections and omissions; and if the jury also find that such imperfections and omissions and the delay were chargeable to the action of the defendant’s architect, and not to the fault of the plaintiff, then, no deduction should be allowed on account of them. Answer: This point is affirmed. You must bear in mind, however, as to the element of delay, that it must be chargeable to the action of the architect, if he failed to furnish the lines and levels, or do any other aqt which he was required to do, under, the contract, or, if' he made such changes in the plans and specifications as to cause delay, the plaintiff would not be answerable for the delay, but if the delay resulted from the condemnation with reasonable promptness of material which the architect, under the contract, was required to pass upon, and the necessity of procuring other material, such delay would not be chargeable to the architect.” [4]</p> <p>Defendant’s point was among others as follows:</p> <p>“5. That there is no evidence in this case from which the jury can find that the defendant waived its right to demand the liquidated damages as provided in section 6 of said contract. Answer: If you find as a fact that the lines and levels were furnished on or before July 15, 1891, as required by the contract, then this point is affirmed.” [5]</p> <p>Verdict and judgment for plaintiff for $6,955.93. Defendant appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p>Married woman — Contracts—Purchase of real estate — Act 1887.</p> <p>Under the married persons’ property act of June 3, 1887, P. L. 332, a married woman may enter into a contract to purchase real estate for the purpose of a residence for herself and family, and she is personally liable for the money borrowed to pay for it.</p> <p>The word “ improvement” in the act does not contract or even color the meaning of the words “ use” and “ enjoyment.” These words were coupled with the word “ improvement” for the sake of convenience, but they were employed to express distinct and independent purposes in reference to the separate estate. The acquisition of land may be an advantageous use and enjoyment of her separate estate.</p> <p>With the exception of such disabilities as are particularly specified in or contemplated by the provisions of the act, married women are emancipated from their common law disabilities, and are authorized to incur contract liabilities as if they were femme sole.</p>

<p>Appeal, No. 239, Oct. T., 1893, by-Amos D. Ewing et al., from decree of O. C. Allegheny Go., Feb. T., 1893, No. 34, distributing estate of George Reimer, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Dr. George C. Reimer died on Nov. 26, 1891, leaving a will dated Jan. 16,1888, which provided as follows:</p> <p>“ I order that all my just debts and funeral expenses, also charges of probating this my will, be first fully paid and satisfied, and after the payment of the same, I direct that the whole of my estate remaining shall be divided as follows :</p> <p>“First. I give and bequeath to my brother, Andrew Reimer, any and all of my household goods, books, clothing, furniture, etc., that he may desire. The balance of the personal effects to be divided among the children of my sister, Mary Ewing.</p> <p>“ Second. I direct that m}!- executors hereinafter named shall collect the rents from my real estate and place the same in some good reliable bank until such times that said rents, together with any other monies I may have remaining after paying my debts, funeral expenses, etc., as aforesaid, shall amount to the sum of five thousand dollars, and I then direct that my said executors shall take said $5,000 and use the same in the erection of a family monument on our cemetery lot, near the town of Tarentum, in Allegheny County, Pa., after which I direct my real estate to be divided as follows:</p> <p>“ I give and bequeath to my brother, Andrew Reimer, all my real estate and improvements situate in the Nineteenth Ward, city of Pittsburgh, and in case of his death, said property to be divided among the daughters of my sister, Mary Ewing, share and share alike.</p> <p>“ Second. I give and bequeath to my brother, Andrew Reimer, all that triangular piece of ground situate on the east side of Park avenue, between Auburn street and the alley in the rear of Frankstown avenue, Twenty-first Ward, Pittsburgh, Pa.</p> <p>“ Third. I give and bequeath to my sister, Mary Ewing, the two lots and frame house on the corner of Meadow and Ashley streets, Twenty-first Ward, Pittsburgh; also all my real estate fronting on Frankstown avenue, between Park avenue and Lowell street, in said ward, and running one hundred feet to a twenty foot alley.</p> <p>“Fourth. I give and bequeath to the daughters of my sister, Mary Ewing, the house I now occupy, corner of Auburn street and Park avenue, and the lots on which it is erected, and the three double frame houses and lots fronting on Park avenue, Twenty-first Ward, Pittsburgh.</p> <p>“ Fifth. I give and bequeath to my nephew, Amos D. Ewing, the two double frame houses and lots situate on the north side of Auburn street, and west of Maria McFarland’s property in the Twenty-first W ard, Pittsburgh.</p> <p>“Sixth. I give and bequeath to my nephew, C. N. Reimer, the double frame house and lots situate on the south side of Auburn street, being Nos. 168 and 170 on said street, Twenty-first Ward, Pittsburgh.</p> <p>“And I hereby nominate, constitute and appoint Andrew Reimer and Amos D. Reimer, Executors, etc.”</p> <p>The sixth paragraph was erased by pen and ink scrawls.</p> <p>The validity of the will was attacked by the children of Aaron Reimer, a deceased brother, but was sustained by the verdict of a jury in an issue devisavit vel non.</p> <p>It was alleged and not contradicted that at the date of the will testator’s personal estate amounted to about $7,320.38. Between the execution of the will and testator’s death some of the real estate was sold. The inventory filed after the death of testator showed that the amount of the personal estate was $23,796.54, of which amount $258.50 was the appraised value of the household goods, books, clothing, furniture, etc. The remainder consisted of cash and securities.</p> <p>The opinion of the court below, after reciting the will, was as follows, by Oyer., J.:</p> <p>“ The fund for distribution is the mortgages held by the decedent and moneys deposited by him in the bank. And the question arises as to whether, under the first paragraph of the will, it goes to the children of Mary Ewing, or, there being no general residuary clause, to the next of kin.</p> <p>“ Whilst the words in this will, expressing the intention of the testator to dispose of his whole estate, are to be carried down to the bequeathing clauses to illustrate his intention, they will not of themselves carry an estate or property that is clearly omitted: Rupp v. Eberly, 79 Pa. 141; Howe’s Appeal, 126 Pa. 241. Unless then the testator intended to include his mortgages and money in bank in the ‘ balance of the personal effects given to the children of Mary Ewing,’ they do not take the fund for distribution as legatees. He first gives the privilege to his brother Andrew of taking any and all of his household goods, books, clothing, furniture, etc., he may desire. This is followed in the same paragraph by the gift of ‘the balance of the “ personal effects ” to the children of Mary Ewing.’ He specifies the personal effects given to his brother, and it is clear that they do not include money in bank or mortgages. The gift to the children of Mary Ewing is not generally of the balance of his personal property, but of the balance of the personal effects, — referring evidently to the effects remaining after Andrew had taken all he desired.</p> <p>“In the second paragraph he authorizes his executors to collect the rents of his real estate, until they, with any other moneys remaining after the payment of his debts, shall amount to $5,000, and to use this amount in erecting a monument. It is clear that the testator supposed that in this paragragh he had disposed of his money-; and it follows that he did not have his securities or money in his mind when the first paragraph was written, and could not therefore have intended to dispose of them in it. As the fund for distribution seems to have been omitted from all the bequeathing clauses, it must be distributed under the intestate laws.”</p> <p>The children of Mary Ewing took this appeal.</p> <p>Errors assigned were (1, 2) in distributing the personal property as above; (3) in declining to hear appellants in relation to and in not allowing claim of attorney’s fees for services in sustaining will against contestants.</p>

Appeal, No. 40, Oct. T, 1893, by defendant, Nathan D. Jones, from judgment of C. P. No. 2, Allegheny Co., April T., 1892, No. 46, on verdict for plaintiffs, Lorenz Heinouer, Jr., et al, heirs at law of Lorenz Heinouer, Sr., deceased. Assumpsit on oil lease.

<p>Collateral inheritance tax — Nonresident—Real estate — Act of 1887.</p> <p>Where a testator, without lineal relatives and domiciled in another directs that land situated in this state shall be sold, and that his exeeutois shall •“ convert the same into money, and apply the proceeds arising therefrom towards the payment ” of legacies to collaterals, the proceeds of sale of such lands are not subject to collateral inheritance tax.</p>

<p>Deeds — Grant of coal — Right of way — Mines and mining.</p> <p>Where a deed conveys “all the merchantable coal lying and being” within certain boundaries, with “ the free and uninterrupted right of way for the purpose of digging, mining and carrying away the said coal,” the grantee in the deed, or his successor in title, has no right to take through the pit, or over the surface of the tract, coal from an adjoining tract owned by him.</p> <p>In such a case where the mining privileges are expressly restricted to the coal conveyed, the fact, that both tracts were formerly owned by one person, who used a visible road or way over the surface of the coal conveyed to transport coal from the other tract, does not entitle the grantee in the deed to such right of way.</p> <p>Such a case is not governed by the rule that, where an easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, a purchaser of it at a private or judicial sale, without an express reservation, takes the property subject to the easement or servitude.</p>

<p>Contract — Entire and severable — Evidence—Question for jury.</p> <p>In an action upon a contract, plaintiff alleged that he was first employed by defendants as superintendent of their stone quarry at a certain salary per month; that afterwards and in addition thereto he was requested by them to secure supplies, provisions, etc., for boarding their men engaged in and about the quarry, and to transact other business for them, for which he was to be reimbursed. This suit was brought for expenses incurred for boarding the workmen. Defendants denied that such was the contract, and averred that plaintiff undertook to operate the quarry at his own expense for employees, for which he was to receive from defendants $4.25 per cubic yard of stone at the quarry. It appeared that plaintiff had previously recovered a judgment against defendants before a justice of the peace, the record of the justice showing that the claim was merely for salary. Eeld, that the second action was maintainableand that the question as to what was the contract between the parties was for the jury.</p>

Appeal, No. 245, Oct. T., 1893, by-plaintiff, John Duggan, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 517, on verdict for plaintiff. Trespass for arrest and removal from railroad train.

<p>Appeal, No. 246, Oct. T., 1893, by-defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1892, No. 9, on verdict for plaintiff, Charles Gschwend.</p> <p>Trespass for personal injuries. Before Collier, J.</p> <p>At the trial, evidence in behalf of plaintiff tended to show that on the evening of Dec. 22, 1890, plaintiff, while passing along a cinder sidewalk on Bridge street, in Millvale, stepped into a hole some four inches deep, and sprained his ankle. The evidence also tended to show that the sidewalk had been in a dangerous condition for three or four weeks.</p> <p>The court submitted the whole case to the jury.</p> <p>Verdict and judgment for plaintiff for $800.</p> <p>Errors assigned were (1, 2). instructions quoted in opinion of Supreme Court, quoting them.</p>

<p>Beneficial associations — Assessments—Time—Contract—Forfeiture.</p> <p>Where the certificate o£ a beneficial association provides that a failure to pay any assessment within a certain specified time shall render the certificate null and void, time is of the essence of the contract, and a failure to pay within the designated time will render the certificate void.</p> <p>Application — Contract—Insurance—Act of May 11,1881' — Evidence.</p> <p>A certificate of membership of a beneficial association is not a contract of insurance within the meaning of the act of May 11, 1881, P. L. 20, which requires the application for insurance to be attached to the policy before it can be received in evidence.</p> <p>Evidence — Custom, to reinstate defaulted members.</p> <p>Evidence that it was customary to reinstate defaulting members of a beneficial association upon payment of their arrears is inadmissible.</p>

<p>Partition — Tenants in common — Will—Conversion.</p> <p>Testator died seized of an undivided half interest in certain land. By his will he directed that this land “ shall not be sold under any circumstances, unless it should become necessary to sell the same to pay debts, without the consent of my brother and sisters, and, if it should become necessary to sell the same, the proceeds of the same shall be applied to the support aud maintenance of the family so long as they may remain together, and whatever is left after the separation shall be divided share and share alike between my brother and sisters then living,” and also “ that my brother Thomas M. Sill shall collect the rents of my share of the real estate and apply the proceeds to the support and maintenance of the family.” At the time of the testator’s death the family referred to consisted of the mother and three sisters. The mother and one of the sisters subsequently died, leaving two sisters living together as the family. Testator left other sisters, and children of deceased sisters. The two sisters constituting the family, and the trustee to collect rents substituted in place of the brother who had died, filed a bill for partition, naming as defendants the other tenant in common, and testator’s other sisters and the children of his deceased sister. Held:</p> <p>1. That as there was no absolute direction to sell the land there was no equitable conversion of it.</p> <p>2. That the question of equitable conversion concerned all the devisees and not a stranger, and that the tenant in common could not raise this question to bar the right to partition: Chew v. Nicklin, 45 Pa. 84.</p> <p>3. The testator did not die intestate as to this land.</p> <p>4. That, as all parties having any interest in the land under the will had been joined in the action, there was no such uncertainty as to the title as would defeat partition.</p> <p>5. That the trustee appointed by the will to collect rents was a mere agent in whom no title was vested, and that, even if title were vested in him, it would not operate as a bar to partition.</p> <p>6. That in such case partition could be made, and one half the land, or the proceeds of the same in case of sale, could be decreed to be held aggregately by the devisees of testator: Phelps v. Green, 3 Johns. Oh. 302.</p>

<p>Statute of limitations — Eminent domain — Streets—Change of grade— Consequential damages.</p> <p>Where, in an equity suit by a railroad company against a city, it is decreed that a street shall be carried across the railroad tracks by bridges and viaducts, the right of action of a property owner on the street is complete not later than the time when the work has progressed to such an extent as to obstruct ingress and egress to and from his property to the street; and, if he permits six years to expire after that time before bringing suit, his claim will be barred by the statute of limitations.</p>

Appeal, No. 265, Oct. T., 1893, by defendant, Lewis H. Tanney, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1891, No. 754, on a case stated, for plaintiffs, William H. Tanney et al. Ejectment and case stated. The facts appear by the opinion of the Supreme Court. The court entered judgment for plaintiffs in an opinion by White, J. Errors assigned were (1) entry of judgment for plaintiffs; (2) refusal of judgment for defendant.

<p>Banks and banking — Checks drawn by one partner in violation of agreement — Attachment execution.</p> <p>A partnership composed of two persons opened an account at a bank with an understanding that checks should be signed by both parties. In the partnership articles was a stipulation that checks should be signed by both partners, and this stipulation was communicated to the bank. Cheeks were so drawn down to within about four months of the dissolution of the firm. During these months a large number of checks were signed by only one of the partners, and paid by the bank. On an attachment execution against the bank by a creditor of the firm, Held that if the checks signed by one partner only were not used for a legitimate partnership purpose, and were not applied to obligations legally binding upon the firm, the bank was liable to the extent of their amount to the attaching creditor.</p>

<p>Contract — Oil well — Evidence—Construction of agreement.</p> <p>Plaintiff offered to drill an oil well upon any one of defendant’s several leases near Ellwood that might be selected. He further proposed as follows : “If you decide to drill any more wells upon said leases or in the vicinity up to the number of ñve I am to have the contract of erecting the rigs and drilling the wells at the prices above named.” At the end of the proposition was written “Accepted, contract to be drawn in accordance with the above proposition or bid; ” and the following words were then added by the president of defendant company: “ This is about right and will be satisfactory to the Pittsburgh Company.” Without any contract being executed, plaintiff sunk the first well which proved a dry one, and defendant abandoned the enterprise of sinking any other wells on about one thousand acres of contiguous lands which they had under lease. They however subsequently sank wells about two miles distant from the territory thus abandoned. Held:</p> <p>1. That the proposition of plaintiff was not intended to be the actual agreement, but simply the basis of one to be subsequently perfected by a contract properly prepared.</p> <p>2. That the fact that the first well was sunk and paid for could not operate to turn the proposition to sink the others into a contract, since a future agreement for the sinking of them was clearly contemplated to be prepared.</p> <p>3. That the sinking of the well by defendants upon lands two miles distant from the leased territory covered by the proposition was not in its “ vicinity,” and was not therefore a breach of the proposition.</p> <p>4. The use of the word “vicinity” in the written instrument, being a relative term used differently according to its subject, cannot operate to change the duty of the court in the interpretation of it, and transfer that duty to the jury.</p>

<p>Appeal, No. 276, Oct. T., 1893, by plaintiff, Frank J. Guckert, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1891, No. 268, on verdict for defendants, Paul H. Hacke et al.</p> <p>Assumpsit against incorporators for debt of corporation.</p> <p>At the trial before Porter, J., it appeared that plaintiff entered into a contract to make some alterations and repairs in a building occupied by the Hughes & Gawthrop Co. In October, 1890, a certificate of incorporation in proper form was presented by the Hughes & Gawthrop Co. to the governor, asking for a charter. The certificate was approved and letters ^patent were duly issued. All of the details required by the act of /April 29, 1874, P. L. 77, were complied with, excepting only ¡the recording of the certificate in the recorder’s office of Allegheny county. The certificate was not recorded until June, 1891. In the meantime, plaintiff, without knowledge of the incorporation, made the contract with Gawthrop, upon which he sued. Subsequently he accepted a note for the debt, signed with the corporate name.</p> <p>Defendants’ points were as follows:</p> <p>“ 1. The provisions of section 3 of the act of April 29, 1874, which provides that ‘ original certificates with all indorsements thereon shall then be recorded in the office of the recorder of deeds in and for the county where the chief operations are to be carried on,’ are merely directory, and a failure to so record does not render the charter void or render the subscribers thereto individually liable for debts contracted by the corporation. Answer: The failure to record as stated will not of itself render the stockholders individually liable.” [1]</p> <p>“ 2. That from the moment the letters patent were issued by the governor of the commonwealth of Pennsylvania to the Hughes & Gawthrop Co., the subscribers to the articles of association became a corporation for every practical purpose, and any one dealing with them as a corporation is estopped from impeaching the charter in a collateral proceeding, by showing that a condition precedent to the existence of the corporation has not been complied with.” Affirmed. [2]</p> <p>“ 3. If the jury find from the evidence that letters patent were issued to the defendants by the governor of this commonwealth, to act as a corporation under the name of the Hughes & Gawthrop Co., and that they were actually engaged in carrying on business under such letters-patent or charter, and that the contract sued on was made by E. B. Gawthrop, general manager of the Hughes & Gawthrop Co., and that the plaintiff received the promissory note of Hughes & Gawthrop Co., as a corporation, in payment of the amount due on said contract, he cannot now recover from Paul H. Hacke and J. B. George, two of the defendants, as individuals.” Affirmed. [3]</p> <p>Verdict and judgment against defendant, E. B. Gawthrop, and in favor of Paul H. Hacke et al., the other defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-3) instructions, quoting them.</p>

<p>Statutes — Repeal by implication.</p> <p>A subsequent statute revising the whole subject-matter of a former statute, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former.</p> <p>Corporations — Charter—Name—Amendment.</p> <p>A general power to alter or amend a charter of a corporation implies a power to alter or amend any part of the charter, and necessarily includes the power to alter the name which is part of the charter.</p> <p>Change of name of corporation — Acts of April 20, 1869 ; June 13, 1883.</p> <p>The act of June 13, 1883, P. L. 122, which authorizes corporations desiring to amend or alter their charters to apply to the governor therefor, repeals the act of April 20, 1869, P. L. 83, which authorized the courts of common pleas to change the name, style and title of corporations.</p> <p>Equity — Injunction—Name of corporation — Dismissal of bill — Final decree — Practice, Supreme Court.</p> <p>A court of equity has jurisdiction to entertain a bill by a corporation to restrain by injunction another corporation from wrongfully using plaintiff’s name. When such a bill has been dismissed by the lower court on demurrer, the Supreme Court, in reversing the decree, may enter a decree finally disposing of the whole matter, as plaintiff’s right rests not in parol, but in the record before the court.</p>

Appeal, No. 283, Oct. T., 1893, by plaintiff, Levi Bird Duff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1891, No. 687, on verdict for A. C. Patterson and Georgia Patterson. Ejectment. Before Collier, J. At the trial, it appeared that both parties claimed title under William M. Abrams.

<p>Appeal, No. 284, Oct. T., 1893, by plaintiff, Susannah Dawson, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 196, on verdict for defendant.</p> <p>Appeal from viewers assessing damages and benefits for change of grade of Westminster street in the city of Pittsburgh. Before McClung, J.</p> <p>At the trial it appeared that plaintiff was assessed by the viewers with the sum of $1,479.74 as benefits. Various witnesses testified as to damages.</p> <p>When William A. Dawson, a witness for plaintiff, was on the stand, he was asked:</p> <p>“ Q. What is there in the change of grade and other improvements there that affects the value of your property? A. Well we will have to fill up the lot and raise our house and place, our walks and drives, to place them on an equal with the street. Q. What effect, do you know, would that have on your shrubbery and trees, etc. ? A. I understand we would lose them all. Q. Are they valuable? A. Yes, sir. Q. Are the shrubbery and trees and things of that sort on your place valuable ? A. Yes, sir. Q. It would practically destroy them by filling, would it ? A. So I understand from florists and men that know about trees; we would lose them all. Q. What estimate have you of their value?” Objected to as incompetent and irrelevant. Objection sustained and bill sealed. [1]</p> <p>“ Q. Leaving out of the question, Mr. Dawson, any benefits by reason of the paving of Westminster street and taking into consideration the injury to your mother’s lot by the change in the grade, what, in your judgment, and so far as you have been able to ascertain, as you say you made inquiries into the subject, would be the amount of your mother’s damage there ? ” Objected to as incompetent and irrelevant. Objection sustained and bill sealed. [2]</p> <p>“Q. State to what extent your mother’s property was injured by reason of the change in the grade on Westminster street, Mr. Dawson ? ” Objected to by counsel for defendant as incompetent and irrelevant. By the Court: It is evident that the question is not understood by the witness as involving the true measure of damages indicated by the court, and the objection is therefore sustained. The objection is sustained with a view of confining the estimated damage to the difference in the market value before and after improvement. We will allow that to be shown. [3]</p> <p>“ Q. Have you inquired into and obtained data upon which to base an estimate of what expense your mother would be put to to put the lot and the property in relatively the same condition and position with reference to the present grade of the street as it was before? A. Yes, sir. Q. Now, Mr. Dawson, will you state what that is ? ” Objected to. Objection sustained and bill sealed. [4]</p> <p>“ Q. Mr. Dawson, what in your judgment is the difference between the value of that-property of your mother’s where you live, improved as it is now, on the old grade instead of the present grade, from what the property would be worth with the improvements at the present grade ? ” Objected to. Objection sustained and hill sealed. [5]</p> <p>“ By Mr., Woodward: I propose to prove' that by the change of grade this property is injured, without regard to any benefits the property received from the paving. I assume that it don’t matter if the property was paved on the original grade. Of course, there wouldn’t be any damage from the paving. If the property has been damaged by the grade, then the damage done by the grading, whatever it is, we have a right to recover, irrespective of whether the property is benefited by the paving or not. By the Court: Q. Did the viewers assess you for paving? A. Yesj sir. Q. Is the assessment unappealed from for paving? By Mr. Woodward: A. The question as to the benefits for paving have been disposed of; they have been confirmed by your honors; so that that has nothing to do with and is not involved in this case. By the Court: Q. If this party was allowed what she would otherwise be assessed for paving as damages for change of grade, then she has got it once. Has this party been assessed for benefits ? A. Yes, sir; and it has been settled by your Honor’s decree. By the Court: The appeal so far as I have the papers here seems to be confined to the question of damages. It don’t make á particle of difference as to whether they got credit for the benefits, assuming that she was assessed for the paving the same as others. It is understood that this appeal is confined to damages simply. Then we think the question is the difference in market value before and after the improvement. That I understand to be the rule in cases of this sort. Q. Mr. Dawson, have you made any estimate of your damage there? A. Yes, sir. Q. By changing the grade of that street? Objected to by counsel for defendant on the ground that it is not a proper question to ask. The proper question is, what is the difference in the market value of this property before and after the improvements ; not as to a particular estimate of what the damage is. By the Court: We will allow the plaintiff to show the amount of damage shown by the difference in the market value of the property before and after the improvements. Q. Go on and state, Mr. Dawson. A. I made an estimate of what it would cost to raise the house ”— Objected to. Objection sustained and bill sealed. [7]</p> <p>Mathew Mawhinney, a witness for plaintiff, was asked: “ Q. Mr. Mawhinney, where do you live ? A. I live in Belle-field, on Dithridge street. Q. Are you acquainted with the property of Mrs. Dawson? A. I have seen the property. Q. Were you acquainted with it before the improvements were made? A. I saw it before the improvements were made. Q. Do you know about what the market value of the property was on that street ? A. No, sir; I don’t. Q. Do you know what the people generally held their property at? A. No, sir. Q. Didn’t know that ? A. No, sir; didn’t know that. [Q. Do you know whether this property was injured by the change in the grade on that street ? ” Objected to as incompetent and irrelevant. Objection sustained, and bill sealed.] [6] When D. H. Bochman, a witness for defendant, was on the stand he was asked: “ Q. Prior to the improvement of Westminster street, grading, paving and curbing, in 1891, were you fairly familiar with the values of property in that neighborhood ? A. I can’t say I was familiar with the values of it; no, sir. Q. Did you have sufficient knowledge of the values'of properties along there to express an opinion of the values along there ? A. Yes, sir. Q. Prior to the improvement? A. Yes, sir. Q. Prior to the improvement what would you say was the value of the Dawson property prior to the improvement per foot front ? Objected to by counsel for plaintiff for the reason that the witness has said he was not familiar with values. By the Court: The question is whether you have, from your knowledge of the value of property in the vicinity, had sufficient acquaintance with the market value of property to be able to express an opinion as to the market value of this particular property ? A. I think so.” Objection overruled, and bill sealed. [11]</p> <p>The witness then stated his estimate by the acre.</p> <p>Plaintiff offered in evidence in contradiction and rebuttal of the testimony of Joseph B. Woodwell, who testified for defendant in effect that the value of the property was enhanced several thousand dollars by the improvement, that portion of the viewers’ report signed by himself and the other viewers, in which they find the damages to the property of Susannah Dawson to be $720. Objected to. Objection sustained, and bill sealed. [2]</p> <p>The court charged in part as follows :</p> <p>“ [The Supreme Court has laid down the rule by which this damage is to be determined, and it is this: You are to take the market value of the property immediately prior to the improvement and unaffected by the improvement, and compare that with the market value immediately after the improvement as affected by that improvement, and, if it has been lowered by the improvement, then the party is damaged, and his damage is the amount of the difference. If the difference is the other way; if the value has been increased, then there is no damage. In that case, you simply find for the defendant.] [8]</p> <p>“ [This is a simple rule which is perhaps slightly complicated in this case by another matter which is contained in this report: It is conceded that in this report this plaintiff, Mrs. Dawson, is assessed with the sum of $1,479.74, as benefits. The counsel for plaintiff concedes here that this part of the report is not appealed from. That as a result the plaintiff will be compelled to pay the sum of $1,479.74 for benefits. So that, if the market value was not enhanced as much as $1,479.74, then the plaintiff should have damages ,• and she should have as much damages as the enhancement is less than that amount.] [10]</p> <p>“ For instance, if you find that the property was only enhanced a thousand dollars, she having to pay $1,479.74, her damage would be $479.74. The simplest way would be for you to add this $1,479.74 to the market value of the property as you find it immediately before the improvement and as unaffected by it, and then compare that with the market value of the property as you find it afterwards. If you find that notwithstanding that the market value is as great after as before with this addition, then this lady has suffered no damage. If you find with this examination that the value of the property has increased, then you find that she has suffered no damage. But you can certify no damage in favor of the city. If you find it is less, then jmu take this difference.</p> <p>“ [It is not a question of how much it would take to raise this propert3' to the level of the street or to raise the improvements upon it to that level. There are many cases in which the property is entirely destroyed for the purposes for which it was used at the time the improvement was made, but in the general market it is increased. In that case the law allows no damage. And so here, even if it is destroyed and the improvement of the property increased the value of the land to such an extent as to raise the market value, there would be no damages.] ” [9]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-7, 11, 12), rulings on evidence; (8-10) instructions," quoting bills of exception and evidence and instructions.</p>

<p>Will — Life estate — Widow.</p> <p>Testator bequeathed to his wife all of his property “to have and to hold the same absolutely in her own right for and during her lifetime with power to dispose of the same at her own pleasure, but, in the event of her remarrying, then one half of all the aforesaid property shall revert to my children, share and share alike, and at the death of my wife, then all the property that she may have inherited from me by this my will, shall be divided among my children, share and share alike.” Held, that the wife took a life estate only. Forsythe v. Forsythe, 108 Fa. 129, distinguished.</p>

Appeal, No. 288, Oct. T., 1893, by defendant, from decree of C. P. No. 1, Allegheny Co., June T., 1892, No. 835, on bill in equity in favor of plaintiff. Bill in equity to restrain defendant from interfering with plaintiff’s location of a branch railroad.

<p>Appeal,. No. 299, Oct. T., 1893, by Olive J. Smith, a legatee, from decree of O. C. Allegheny Co., March T., 1893, No. 54, sustaining exceptions to adjudication of account of Thomas Penney, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Thomas Penney died on June 18,1891, leaving a will by which he directed as follows:</p> <p>“ Sixth. I will that all other real estate or property I may have at the time of my death shall be converted into cash, and that the balance that shall remain of my estate after paying the above named legacies and funeral expenses, and for a tombstone or a monument, shall be distributed share and share alike to the following persons, if they are living at the time of my death, namely: To my sister, Martha J. Houghton, one share, and to my step-daughter, Olive J. Smith, one share, and to each of my nephews and nieces then living one share.”</p> <p>The auditing judge divided the residue of the estate into three parts, and distributed one third to Martha J. Houghton, one third to Olive J. Smith, and one third to the nephews and nieces. Exceptions to the adjudication were sustained, and a decree entered distributing the estate amongst Martha J. Houghton, Olive J. Smith, and the nephews and nieces per capita, in an opinion by Oyer, J.</p> <p>Error assigned was above decree, quoting it.</p>

<p>Oil lease — Forfeiture—Rentals.</p> <p>An oil lease provided that a failure to commence a test well within a specified time should render the lease null and void. “But if said party of the second part shall pay the party of the first part a monthly rental of one hundred dollars upon the said premises from and after the time above specified for the completion of said well, such payment shall operate to extend the time for completion of said well during the period for which said rental shall be paid.” Held that the lessor was the only person who could assert a forfeiture, as the provision of the lease was for his protection and not that of the defaulting lessee.</p> <p>Equity — Written instrument — Mistake—Parol evidence.</p> <p>On a bill in equity plaintiff alleged that he entered into an agreement to operate the land of defendant for oil under a lease attached to his bill known as “ Exhibit B; ” that this lease had been to some extent defaced by erasures and interlineations, and the form of lease marked “ Exhibit A ” was filled out by his attorney to take its place, and was signed by the parties, with the understanding on the part of defendant and himself that it was in legal effect the same as the form “ Exhibit B,” and that he was so advised by his counsel. He further alleged that under “ Exhibit B ” he had a right to surrender the lease, which right was not given to him by “ Exhibit A.” Ho fraud was alleged, nor was it averred that the stipulation was omitted by mistake. One witness testified that the two leases were compared, and that the clauses providing for forfeiture were fully considered, and that all parties were agreed that under both leases the lessee had a right to surrender the lease at any time.. Held, that proof of mutual mistake was not so clear and precise as to justify a decree reforming the lease.</p>

<p>Appeal, No. 297, Oct. T., 1893, by-plaintiff, Annie Bernhardt, from judgment of O. P. No. 3, Allegheny Co., May T., 1892, No. 482, granting nonsuit.</p> <p>Trespass for personal injuries. Before Porter, J.</p> <p>At the trial it appeared that on Oct. 5,1891, plaintiff, a widow, about fifty-one years of age, was a passenger on defendant’s train, and while alighting from the train at the station in Allegheny city she stepped upon the wooden bung of a beer barrel, and sprained her ankle. The evidence showed that the platform where the bung was lying was in proper-repair. The court entered a compulsory nonsuit, and subsequently refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 120, Oct. T., 1893, by-defendants, George Loeffert and John Loeffert, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1891, No. 365, on verdict for plaintiff, Albertina Beihofer. Trespass for malicious prosecution on charge of perjury. At the trial, it appeared that plaintiff’s husband obtained a judgment against defendants for $90 for work in excavating a cellar.

<p>Malicious prosecution — Probable cause — Discharge by magistrate.</p> <p>In an action for malicious prosecution the burden oí proof lies on plaintiff to show malice and want of probable cause, and a jury may infer the former from the latter. A discharge by the examining magistrate easts upon defendant the burden of establishing probable cause, unless it appears in plaintiff’s testimony. If probable cause is shown it matters not whether the motive of the prosecutor was praiseworthy or malicious.</p> <p>Malicious prosecution — Advice of counsel.</p> <p>Ii the defendant in an action for malicious prosecution in good faith sought, obtained, and honestly followed the advice oí competent counsel on a full and fair statement of all facts within his knowledge, or which he had reasonable cause to believe he was able to prove, the advice so received and acted upon will constitute a defence to the action.</p> <p>Malice — Damages—Advice of justice of the peace — Evidence.</p> <p>It is not competent for the defendant in an action for malicious prosecution for the purpose of negativing malice, and in mitigation of damages, to prove that in instituting the prosecution he acted upon the advice of a justice of the peace: Brobst v. Ruff, 100 Pa. 91.</p>

Appeal, No. 55, Oct. T., 1893, by defendant, S. Fritz, guardian of Thomas Johnstone, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1891, No. 588, on verdict for plaintiff, A. A. Johnstone. Assumpsit for maintenance furnished defendant’s ward. At the trial, before Magee, J., it appeared that plaintiff was the elder brother of Thomas Johnstone, defendant’s ward.

Appeal, No. 306, Oct. T., 1893, by The Allegheny National Bank, from decree of O. C. Allegheny Co., Jan. T., 1893, No. 142, on petition for citation. Petition for citation. The record showed that on Feb. 13, 1893, a petition by the Allegheny Nat. Bank was presented and citation awarded against Lydia C. McCutcheon, Margaret McCandless and Mary Eva Hays, children of Wm.

<p>Appeal, No. 291, Oct. T., 1893, by Jarecki Mfg. Co., Ltd., from order of C. P. No. 1, Allegheny Co., Sept. T., 1891, No. 278, fi. fa., dismissing exceptions to auditor’s report, distributing proceeds of sheriff’s sale, G. C. Orth, Trustee, v. West View Oil Co.</p> <p>Exceptions to auditor’s report, distributing fund raised by sheriff’s sale of leasehold estate.</p> <p>Appellant’s lien filed, claimed a lien “on those certain improvements known as four oil wells, together with four rigs, three boilers, four engines and the machinery and fixtures appurtenant to said wells, constructed, erected and put up by said West View Oil Company, tenant thereof, upon the leasehold estate hereinafter described. . . .”</p> <p>The amount claimed to be due is f782.65 for oil well supplies, oil, gas, water and steam fittings and pipe furnished to said West View Oil Company for said oil wells, rigs, etc.</p> <p>The lien also averred that the materials were furnished to the contractor and were “ used in and formed part of said oil wells, rigs, boilers, engines, machinery and fixtures, . . . . were essential to their completion, and when in place in each well are so connected and appurtenant as to form an indivisible structure .... called a complete oil well,” and the claim was apportioned among the several wells, 1195.65 against each.</p> <p>The bill of particulars was a general bill for the items of supplies, but there was nothing to show in which of the wells the articles were used.</p> <p>A. C. Johnston, Esq., was appointed auditor to distribute the fund. He disallowed appellant’s claim.</p> <p>Exceptions to the auditor’s report were dismissed, in an opinion by Stowe, P. J.</p> <p>Errors assigned were (1) in dismissing exceptions, quoting them; (2) in confirming the report; and (3) in not awarding claim to appellant.</p>

<p>Appeal, No. 217, Oct. T., 1893, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1892, No. 881, on verdict for plaintiff, Daniel P. Haney.</p> <p>Trespass for personal injuries. Before Collier, J.</p> <p>Tbe facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ The plaintiff asks damages for injuries received, as he alleges, by the negligence of the defendant company. [W ere it not for the testimony in the case on the part of the plaintiff that a watchman of the defendant company signalled him to come across the track, the plaintiff would have no case whatever ; and this for the simple reason that he and- his witnesses admit that he saw the car coming up Federal street, that he stopped in a perfectly safe place for a large two-horse wagon filled with ashes and cinders, and then attempted to cross. Without that evidence as to the signal he would have no case whatever, because your common sense would teach you, without any law, that when a man drawing a heavy wagon stops and sees a car coming, he goes at his peril if he undertakes to cross; he must wait until the car goes by. So I say, were it not for this evidence the plaintiff would not have any case. But he alleges that while he was there, and while he saw the car coming rapidly, the watchman signalled to him that all was clear, to come across; and presuming on that, that he understood his business, he undertook to drive across, and as soon as he got far enough over his front wheel was struck by the car, and he was thrown off and injured. It all depends upon that.] [1] They say that he -was signalled, that this man here, who says he is the inspector, waved to him to come across, and relying upon that he went across and got hurt.</p> <p>“Now, there is the first disputed fact. The man himself says he was not a watchman and did not give any signal that day; that he was not an employee as a watchman, that was not his business, he was not there to signal people at all. He also says even if he had given him a signal he could not have seen it in that position. That is the first question to be determined. If this witness was not the officer of the company, and did not give the signal, then the plaintiff cannot recover because he went across on his own responsibility. In the second place, [if it is as they say, and he was the watchman of the company and did give the signal, then you have to determine whether, the man being in a perfectly safe position, and even though he got a signal, acted as a prudent man under such circumstances in attempting to cross, when, in a second or two, the car would have been past. If he was not acting as a reasonably prudent man would do under the circumstances, he could not recover, because he would be guilty of contributory negligence.] [2] Those are the questions for you to determine.”</p> <p>Defendant’s point was as follows:</p> <p>“That under all the evidence in the case-the verdict must be for the defendant.” Refused. [3]</p> <p>Verdict and judgment for plaintiff for $500.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

Appeal, No. 216, Oct. T., 1893, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1892, No. 585, on verdict for plaintiff, R. T. Jackson. Trespass for personal injuries. Before Collier, J. At the trial there was evidence to the effect that defendant company operated two tracks of an electric railway upon Federal street in Allegheny city.

<p>Negligence — Mines and mining — Master and servant.</p> <p>In an action against a mine owner to recover damages for personal injuries caused by the fall of a large piece of coal and slate from the roof of a gangway, it is proper to submit the ease to the jury on the question of defendant’s negligence where there is evidence that defendant was constructing a tunnel or gangway into his mine; that ordinary care required testing for loose and fractured pieces of coal, and that these should be knocked down; that this work of “making safe” was done under the immediate supervision of defendant’s-superintendent; that some of the loose and fractured pieces of coal had not been removed from the part of the gangway in which plaintiff was directed to work, and that one of these pieces fell upon him and injured him.</p> <p>In such a case it was for the jury to say, not whether the employer had adopted the very best method of constructing a gangway, but whether he had exercised care, according to the circumstances, in providing a gangway which was reasonably safe for his own workmen to work in or pass and re-pass to their work.</p> <p>Contributory negligence — Duty of inspection by employee.</p> <p>A workman, who sees an apparently safe gangway in a mine, with new timbers just put in place, and knows that under the eye of his employer, an experienced miner, a gang of workmen have just finished “ making it safe ” for him and his fellows, and then is commanded by his employer to work in a particular place in it, is not required to enter upon an inspection of the space between the timbers to determine whether those who had but a short time before tested it had performed their duty with care.</p>

<p>Street railways — Consent of municipality — Constitution, art 17, sec. 9 — ■ Act of May 14, 1889.</p> <p>Under article 17, § 9, of the constitution of 1874, which provides that “ no street passenger railway shall be constructed within the limits of any city, borough or township without the consent of its local authorities,” neither the legislature nor the courts can trespass upon the discretion given absolutely by the constitution to the local bodies.</p> <p>The act of May 14, 1889, § 15, P. L. 217, which repeats § 9, art. 17, of the constitution, neither enlarges nor diminishes the constitutional powers of the local authorities.</p> <p> Condition of municipal consent. </p> <p>A municipality, in granting to a street railway company the privilege of using streets, may impose conditions under which the right may be enjoyed by the company. Pittsburgh’s Appeal, 115 Pa. 4, distinguished.</p> <p>Regulation of fares — Tax on dividends.</p> <p>A municipality may require, as a condition of its consent to the use of streets by a street railway company, that a certain designated rate of fare shall be charged, and that a certain per cent of the dividends shall be paid to the municipality.</p> <p>Consent of municipality — Ordinance—Condition precedent.</p> <p>Where an ordinance provides that this ordinance shall not go into effect until the company shall accept the same by its proper officials,” the conditions of the ordinance are conditions precedent, and the ordinance cannot become effective until they are performed in their entirety. No amount of hardship or impossibility or illegality will avoid the bar of a condition precedent unperformed.</p>

Appeal, No. 213, Oct. T., 1893, by-defendant, Hugh Murphy et al., from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1893, No. 175, on verdict for plaintiff, George M. Cote. Trespass to recover damages for loss occasioned by alleged conspiracy of defendants. Before Ewing, P. J. On the trial, the evidence showed that on May 1,1891, there was a strike in Pittsburgh in the building trades for an advance of wages.

<p>Conspiracy — Combination of employers — Wages.</p> <p>In a civil action for conspiracy where it appears that workmen engaged in building trades entered into a lawful combination to advance wages by reducing the hours of "labor, and that defendants were members of an association of employers which by combination agreed among themselves that they would not sell material to contractors who conceded the advance, and induced other dealers not to furnish such material, defendants are not liable in damages to a person in the same business who aided the strike by selling materials to the strikers and contractors, and who by reason of the combination was not able to procure all of the material which he desired.</p> <p>If one of the parties to such an agreement is guilty of a bi’each of contract in refusing to furnish material, an action will lie against him for damages; but such breach of contract does not render the other parties liable for conspiracy, if such breach of contract formed no part of the agreement or combination to resist a combination to advance the price of labor.</p>

<p>Appeals from tax assessments — Penalty—Act of April 19, 1889.</p> <p>Under the act of April 19, 1889, P. L. 37, relating to appeals from tax assessments, and providing that appeals “ shall not prevent the collection of the taxes,” if the city does not attempt to collect the taxes pending the appeal, it will be assumed that it voluntarily decided to await the event of judgment on appeal, before treating the taxpayer as delinquent, and if, as soon as the appeal is determined, the appellant promptly tenders the amount properly owing by him, the penalty for nonpayment of the tax at the time it was due cannot be exacted from him by the city.</p> <p>Statutes — Repeal—Collector of delinquent taxes of Pittsburgh — Acts of March 15, 1878, and March 22, 1877.</p> <p>The office of collector of delinquent taxes of the city of Pittsburgh was not abolished by the act of March 15, 1878, P. L. 7. The act of March 22, 1877, P. L. 17, which established the office, was repealed only as to those particular’s wherein it is inconsistent with the act of 1878.</p>

<p>Appeal, No. 290, Oct. T., 1893, by-plaintiffs, Marianne Hartman et al., from judgment of C. P. No. 1, Allegheny Co., March T., 1891, No. 743, entering compulsory nonsuit.</p> <p>Trespass for injuries to dwelling house, caused by construction of defendant’s incline plane. Before Collier, J.</p> <p>At the trial, it appeared that defendant constructed an incline plane across Frederick street in Pittsburgh. Defendant purchased all the ground in fee upon which its tracks were located, and, among others, two lots fronting on Frederick street, 40 feet on the south side of the street and 40 feet on the north side of the street, adjoining plaintiff’s property. Defendant’s road was built wholly on its own property, and neither overhangs nor takes that of any other owner. It was built at right angles with the street and reached from one lot owned by the company to the other. Its structure was eight feet above the sidewalk on the extreme north side, and 13.45 feet on the extreme south side of the street. The manner in which plaintiff’s property was directly injured by water from defendant’s structure is described in the opinion of the Supreme Court.</p> <p>The court, under objection and exception, refused to permit plaintiff to show that defendant’s structure interfered with access to plaintiff’s property. [1-3]</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>¡Errors assigned were (1-3) rulings on evidence, quoting bills of exception; (4) refusal to take off nonsuit.</p>

<p>Appeal, No. 262, Oot. T., 1893, by. defendants, J. B. Hammer et al., from order of C. P. No. 1, Allegheny Co., Dec. T., 1891, No. 236, in favor of plaintiff, Lawrence Woelfel, discharging rule to open judgment.</p> <p>Rule to open judgment.</p> <p>Prom the record it appeared that judgment was entered upon a bond, the condition of which was as follows:</p> <p>“ Now the condition of this obligation is such that if the said J. B. Hammer shall pay said Woelfel any and all sums of money found due said Woelfel from and by said Hammer under said proceedings in arbitration, within ninety days after final determination thereof, without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue.”</p> <p>On January 27,1893, the court granted a rule to show cause why the judgment should not be opened. Defendants averred in their petition for the rule that the bond was .the consideration for stifling and settling prosecutions for larceny, larceny as bailee, etc. Plaintiff in his answer averred that the prosecutions were made in heat, and upon information received, and upon further investigation, found unsustainable, and that he was advised and believed that the prosecuting of said charges in the criminal court would be considered as an attempt simply to prosecute a civil debt, and make the criminal court a vehicle by which to secure a statement of accounts between himself and partner and employee. That the. bond was not given as the consideration for the settling of said charges; that he, L. Woelfel, never settled or consented to the settlement of said charges; that he did not pay or authorize the payment of the costs; that said bond was given only and solely as appears by the terms thereof, to secure the payment of any award that might be made in favor of said Woelfel, and against said Hammer; that said bond created no immediate liability, but was contingent upon the result of the arbitration agreed upon between the parties; that said Hammer iterated and reiterated his entire innocence of any crime or misdemeanor; that said Woelfel, while not agreeing so to do, was yet willing to wait until said Hammer could have an opportunity to explain the entries in said book ; that no misdemeanor or felony was compounded, and none had been committed within the knowledge of said Woelfel; that said Hammer denies his guilt; that the arbitrators on March 24, 1892, did award in favor of said Woelfel and against said Hammer in the sum of $1,717.60 and costs.</p> <p>Depositions were taken, and after argument the court filed the following opinion:</p> <p>“ The defendants have shown no case for relief. It does not appear that there was any felony committed, but the contrary; nor have the defendants shown there was any actual agreement not to prosecute: Swope v. Fire Insurance Co., 93 Pa. 251. The evidence shows that the judgment bond was given to secure any indebtedness that might be found against Hammer after a legal trial before arbitrators mutually chosen, each party giving bond for the same purpose. There was nothing illegal in this. Under all the evidence we think there was a good legal consideration for the bond, and the rule to open judgment is discharged.”</p> <p>Error assigned was order as above.</p>

<p>Appeal, No. 240, Oct. T., 1893, by defendant, J. B. Hammer, from order of C. P. No. 1, Allegheny Co., Sept. T., 1892, No. 141, refusing to set aside award of arbitrators in favor of plaintiff, Lawrence Woelfel.</p> <p>Rule to set aside award of arbitrators.</p> <p>From the record it appeared that the parties entered into an agreement to arbitrate, the material portions of which were as follows :</p> <p>Now this agreement witnesses that we, the said Lawrence Woelfel and J. B. Hammer, under the provisions of the act of assembly in such cases made and provided, do hereby agree to submit all matters in controversj^ between us, including all matters connected with the firm and business and accounts of Ladley & Co., of J. B. Hammer & Co., all claims of Lawrence Woelfel against J. B. Hammer individually, or against J. B. Hammer and wife, or against J. B. Hammer and any other person, or claims or demands otherwise, howsoever, which either party may have against the other, to the following arbitrators mutually chosen by us, namely: S. U. Trent, Chas. E. Cornelius and A. Y. Smith, and furthermore respectively bind ourselves to submit to and be finally concluded by the award or umpirage of said referees or arbitrators, or a majority of them.</p> <p>“ We further agree to file bonds as follows, viz.: A bond in the sum of $2,000 from said Hammer, with approved sureties to said Woelfel, and a bond in the sum of $100 from said-Woelfel with approved sureties to said Hammer; said bonds to be filed respectively with the parties in whose favor they may be drawn, and to be conditioned for the payment within 90 days of any award or umpirage made by said arbitrators, or a majority thereof. Said bonds to contain judgment clause, with warrant to confess, waiver, etc.</p> <p>“We further agree that our submission to such award or umpirage be made a rule of and in the court of common pleas of Allegheny county.”</p> <p>Judgment was entered upon the bond by warrant of attorney against J. B. Hammer and Anna M. Taylor and J. B. Sheriff as sureties.</p> <p>The arbitrators made an award against Hammer for $1,717.66. The award was filed and judgment was entered thereon the same day. An execution was issued, but the writ was stayed. No further attempt was made to collect the award by means of the judgment thereon, but the money was collected under the judgment entered on the bond.</p> <p>On July 2, 1892, J. B. Hammer filed a petition to have the award set aside, because it could not be sustained as a common law award, because the agreement said it was under provision of the act of assembly in such cases made and provided; neither could it be sustained as an award under the act of assembly, because the parties did not select either Common Pleas Court, No. 1, of Allegheny county, or any other court of record in the commonwealth of Pennsylvania, and agree in writing that their submission should be made a rule of said selected court. That as an affidavit of an attesting witness was not produced in the court selected, setting forth that the parties had agreed their submission should be a rule of that court, it was not proper to file the agreement to submit, and the court haS no authority to make the said submission a rule, nor to confirm the award. Defence on the merits was also averred, with statements of items. The above rule was then granted.</p> <p>Plaintiff answered that the award and subsequent proceedings were good under the common law and the agreement of submission, and the defect, if any, as to affidavit, had been cured by the subsequent filing of an affidavit.</p> <p>Rule to set aside award discharged. Defendant appealed.</p> <p>Error assigned was discharge of rule.</p>

<p>Appeal, No. 68, Jan. T., 1894, by defendants, H. A. Taylor et al., from decree of C. P. Clearfield Co., May T., 1892, No. 179, entering judgment of ouster ou quo warranto, at the relation of W.- J. Smathers et al.</p> <p>Quo warranto. Before Krebs, P. J. •</p> <p>From the record it appeared that, on March 7, 1892, W. J. Smathers with some fifty other citizens, presented a petition alleging that defendants were acting as school directors of Du Bois borough; that the board consisted of nine members instead of six; that they were elected by a ward vote instead of a concurrent vote of all the wards, as required by act of May 10, 1878, P. L. 51, and praying due process of law to compel defendants to answer by what authority they were acting as such school board. No answer, plea, demurrer or proceedings of any kind were had until August 2, 1893, when the court entered a formal judgment of ouster.</p> <p>On June 22, 1893, T. G. Gormley et al., alleging that they were elected school directors Feb. 21,1893, filed a bill in equity (No. 3, Sept. T., 1893) against G. B. Campbell et al., defendants, who claimed to act as school directors, for surrender of books, papers, etc., and to prevent their collection of taxes, etc. The court granted a preliminary injunction, and, after answer filed and hearing, continued it Aug. 3, 1893, until further order.</p> <p>The opinion of the court below in the equity proceedings, so far as adopted by the Supreme Court, on the question of the constitutionality of the act of 1878, was as follows:</p> <p>“ But it is vigorously contended that the act of 1878 is unconstitutional for two reasons, viz.: that the title to the act is insufficient and in violation of the 3d section, article 3, constitution of 1874, and also because the act is in effect an amendatory one and in violation of the 6th section, article 3, constitution 1874. The first reason is not well founded and it has been clearly ruled by the Supreme Court in a number of cases, of which State Line & Juniata Railroad Company’s Appeal, 77 Pa. 429; Pottstown Boro., 117 Pa. 538, and Millvale Boro. v. Evergreen Railway Company, 131 Pa. 1, are examples. In each and all these cases the rule of construction, adopted is, that, where the subject of the original act is sufficiently expressed in its title, and where the provisions of the supplement are germane to the subject of the original, the true rule is that the subject of the supplement is covered by the title which contains a specific reference to the original by its title, and declares it to be a supplement thereto. This 3d section, article 3, constitution 1874, is an exact rescript of the 3d section, article 3, constitution 1838, and all the authorities are to the same point, both before and since the constitution of 1874.</p> <p>“ This brings us to the second point of the contention, which necessarily implies that a supplement to an act of assembly is no more than an amendment of the act. What is the legal acceptation of the two words, amendment and supplement? Do they mean one and the same thing, either in their ordinary and common acceptation or in the law? Ordinarily, when we speak of amendment, we refer to the correction or change in some particular of something fully existing or intended to have force, but rendered uncertain because of want of clearness of expression, or error in statement, or omission of something intended to be embraced therein. When we speak of a supplemental act, we intend something added to, something new, and in legislation we mean, by a supplement to an act already in force, to add to it something not contained in the original, but which new and added legislation is nevertheless germane to the subject of that already in force.</p> <p>“ An examination of the three hundred and seventeen statutes passed at the session of the legislature of 1891, shows that there were thirty-five reciting that they were amendments in the title; five that recited they were supplements to amend, and in the body of the act are found to be strictly amendatory acts within the definition given, and eight which are recited tó be supplements to acts in force. In each act which recites that it is an amendment, the change in legislation, accomplished by its passage, is to change the phraseology of the act or altei it in some minor particular by omitting something contained in the act amended. The acts reciting that they were ‘ supplements to amend ’ are exactly of the same force, and no doubt this recital grew out of an excess of caution on the part of the draughtsmen of the act. But in the eight acts styled supplements, contained among the statutes of 1891, is enacted some of the most important legislation now on our statute books, and in each instance the supplement enlarged or added new legislation, germane, however, to the subject upon which the former act to which it purported to be a supplement had already legislated.</p> <p>“ The purpose of the 6th section of art. 8, constitution 1874, was to remedy the evil of enacting important new and vicious matter under the cloak of an amendment of some existing or repealed statute. Judge Cooley in commenting upon a precisely similar provision in the constitution of the state of Michigan says this: ‘ The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the comparison, failed to become apprised of the changes made in the law. An amendatory act which purported only to insert certain words, or substitute one phrase for another in an act or section, which was only referred to, but not published, was well calculated to mislead the careless as to its effect, — was perhaps sometimes drawn in that form for the express purpose.’ See People v. Mahaney, 13 Mich. 481.</p> <p>“ But the objection does not apply to an act purporting in its title to be enacted for the purpose of adding to former legislation on the same subject-matter. If an act which purports to be a ‘supplement’ is to be treated as an amendment, it is a remarkable fact that it has not been discovered before this time, especially in view of the twelve sessions of the legislature, and the large amount of important legislation placed upon the statute books since the adoption of the constitution of 1874 by supplemental acts. We cannot adopt this view now, and decline to declare the act of 1878 unconstitutional. The acts of 1874 and 1878, supra, have recently been before Simonton, P. J., of the common pleas of Dauphin county, upon other points, and the constitutionality of the act of 1878 does not seem to have been questioned, and yet the point before the learned judge was vitally involved in the act of 1878: Com. ex rel. Fox v. Pattison, Governor, 2 Dist. Repts. 128.”</p> <p>Error assigned was decree.</p>

<p>Appeal, No. 434, Jan. T., 1893, by defendant, Robert D. Pinkerton, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1891, No. 197, on verdict for plaintiff, Henry G. Ormsby.</p> <p>Trespass for breaking down gate in line fence between plaintiff’s and defendant’s properties. Before Finletter, P. J.</p> <p>At the trial, it appeared that plaintiff owned a house fronting on Wheat street, and that defendant owned a house fronting on Lancaster street. The lots of the two houses adjoined on the rear, and were separated by a partition fence. Both parties claimed title from J. S. C. Klinger.</p> <p>Defendant claimed that whilst the title to the two properties was in Klingler’s name, and for many years before he parted with his title thereto, he placed a hydrant on the lot occupied by the Wheat street house, for the joint use of that and the Lancaster street property; that the occupants had access to the hydrant by an open gateway in the fence between the two properties, and that, in November, 1868, when he conveyed the Lancaster street property to defendant, the hydrant was still on the Wheat street lot, and that the occupants of the Lancaster street property had access to and used said hydrant, having access thereto through the gateway in the partition fence up to the present time, except for a period of a few years, when the appellee caused the gate to be closed.</p> <p>Defendant’s counsel made the following offer: “ I have eight or ten witnesses who were tenants of Mr. Pinkerton’s house, who had occasion to use that gate, and who had occasion to use that alleyway before and after for a period of twenty-one years. I propose to prove that when Mr. Pinkerton bought the property, the gate in the fence between his property and that of the plaintiff was open and used for years before and years afterwards by the tenants of Mr. Pinkerton’s property; that the hydrant was in the plaintiff’s yard, and that the defendant used it.” Offer overruled and bill sealed. [1]</p> <p>The court gave binding instructions for plaintiff. [2]</p> <p>Verdict and judgment for plaintiff for $7.00.</p> <p>Errors assigned were (1) ruling on evidence, (2) instructions ; quoting bill of exceptions and instructions.</p>

Appeal, No. 369, Jan. T., 1894, by plaintiff, Bonaparte Shoe, surviving partner of the firm of Shoe & Chard, from decree of C. P. No. 1, Phila., March T., 1890, dismissing bill in equity against Eugene Ziegler, executor of William Chard, Sr., deceased. Bill for account of rents and profits of real estate.

<p>Foreign attachment — Bond—Judgment—Aot of June 13, 1836, §62, and March 20, 1845, § 2.</p> <p>Suit on a bond in foreign attachment cannot be sustained where the judgment against the defendant was merely a judgment by default in the attachment proceedings, entered prior to the execution of the bond. Such a judgment, with the attachment, and all other proceedings under the attachment, is dissolved by the defendant’s appearing and giving bail to the action.</p>

<p>Appeal, No. 422, Jan. T., 1893, by defendant, from judgment of C. P. No. 1, Phila., Dec. T., 1889, No. 254, on verdict for plaintiff, Jamison Lott, Jr.</p> <p>Trespass for injuries to horses and wagon.</p> <p>At the trial, before Biddle, J., it appeared that early in the morning of April 18, 1889, plaintiff’s employees were driving a team of horses and a wagon on Kensington avenue on their way to Philadelphia. Defendant company operated, on Kensington avenue, a double track street railway by means of ears and small locomotives, popularly known as “ dummy ” engines. Evidence on behalf of plaintiff tended to show plaintiff’s wagon was being driven along one of the tracks in a train of other wagons, and as it approached a dummy engine on the other track it was turned off towards the curb. The engineer then sounded an unusual and extraordinary whistle, and plaintiff’s horses became frightened and ran in front of the engine and were injured.</p> <p>Plaintiff’s evidence was to the effect that his horses were quiet and used to the ordinary running of the cars.</p> <p>The court charged in part as follows:</p> <p>“ Now the allegation here is that these noises, or this noise, was not necessarily incident to the running of this road; that while it may be that it was their duty to give notice by sounding a whistle if danger was apparent to the engineer who was running the train, yet it is contended here that the whistle blown on this occasion was of such an unusual and extraordinary character as to frighten horses which otherwise were perfectly accustomed to the use of dummies, and the usual and necessary noises which they create. The plaintiff called a number of gentlemen who were in the habit of using this road. It seems to be a road to market from Frankford, a favorite route, or at least a route very much used by farmers coming to market. , These gentlemen say that they have been using the road, some of them for twenty or twenty-five years, and they say that they never heard such a whistle as this was before. One of them said that once before he had heard such a whistle, but the others said that they had never lieard such a whistle. One of them said that it was of such a character as to induce him to look out of his wagon to see what was going on. Therefore the question for you to determine is, was this an unnecessary thing for them to do for the purpose of warning persons whom they feared were coming on the track? Now the engineer, whose testimony 1 think was perfectly frank [said that he did not see anybody on the track; that the persons who were alleged to have been on the track on Orleans street did not influence him to blow this whistle at all; that it was not that anybody was on the track, but his allegation is that he thought one of the wagons in this train of wagons approaching him was about to get on the track.] [5] The question will be for you to say whether a single blow of the whistle would not have been enough to warn this man, if he was or did intend to get right in front of the engine, to keep back. The question of course, the main question here, if you believe this was an undue and unnecessary use of this whistle and that the plaintiff is entitled to damages, is to decide what you consider a fair compensation for the injury he has sustained. . . .</p> <p>“ [Gentlemen, I don’t know whether you recall the testimony of the engineer. What I thought he said, and what I told you he said, was that he thought one of these wagons was coming on the track. The recollection of the counsel for the defendant is that he said he saw it coming or turning on the track. I will have to leave it to your recollection for you to decide. It don’t make, perhaps, a great deal of difference, in view of what occurred, whether he saw this man coming, or thought he was coming on this track.” ] [6]</p> <p>Defendants’ points were among others as follows :</p> <p>“ 2. Under all the evidence, it appearing that there was no unnecessary or wanton sounding of the whistle, but that it was done to warn the driver of the vehicle that preceded it, the verdict should be for the defendant.” Refused. [1]</p> <p>“ 3. Under all the facts of this case, it was the duty of the engineer to sound the whistle as he did, and therefore your verdict should be for the defendant.” Refused. [2]</p> <p>“ 4. It appearing, from the evidence, that the plaintiff’s horse was high spirited and easily frightened, he was guilty of contributory negligence in driving it along Kensington avenue, and therefore your verdict should be for the said defendant.” Refused. [3]</p> <p>6. Request for binding instructions. Refused. [4]</p> <p>Verdict and judgment for plaintiff for $455.50.</p> <p>Errors assigned were (1-6) instructions, quoting them.</p>

<p>Appeal, No. 31, July T., 1893, by defendants, J. J. Cassidy et al., from judgment of C. P. No. 3, Phila. Co., March T., 1892, No. 54, M. L. D., making absolute rule for judgment for want of sufficient affidavit of defence, in favor of plaintiff, Adam A. Catanach.</p> <p>Rule for judgment for want of sufficient affidavit of defence in scire facias sur mechanics’ lien.</p> <p>Defendant, J. J. Cassidy, filed an affidavit of defence, averring : ></p> <p>“ That being about to erect a number of houses in the First ward of the city of Philadelphia, including the twenty-six houses on McKean street and two houses on Second street described in the lien filed in this case, and acting as his own contractor for the erection of said houses, he entered into an agreement in writing on July 29, 1891, with the other defendant, John J. Connor, in said lien called the contractor, by which the said Connor contracted to do the plastering work on said houses, including the furnishing of the necessary materials therefor, for which the said Connor was to be paid a stipulated price per house, payable partly in cash and partly in the conveyance of a ground rent and of a certain house. A copy of said agreement being hereto annexed.</p> <p>“ That the said Connor entered upon the performance of said contract, purchasing his materials, such as lime, etc., as deponent is informed and believes, from the said plaintiff, and when said Connor had partly finished the work on fourteen of said houses he became embarrassed and failed to complete his contract, or to do any more work upon the houses mentioned in said .agreement; said work being completed by another plasterer, who was employed for the purpose and paid therefor; the said Con-nor being indebted to deponent at the time for cash money overpaid him and for the value of the house mentioned in said agreement which had been conveyed to him in advance of doing the work.</p> <p>“ That the said Connor was not at any time the contractor for the erection or construction of said houses; his position being merely that of a subcontractor for the plastering work only, and the materials for which this lien was filed being sold by plaintiff to said Connor on the individual credit of said Connor and not on the credit of said houses, and were not furnished towards the erection and construction of said houses in such manner as to entitle the plaintiff to a li.en .therefor.</p> <p>“ That deponent did not enter into any contract or agreement with the said plaintiff for the purchase or furnishing of said materials or in anywise pledge the credit of said houses therefor; nor did he authorize the said Connor or any other person to contract with the said plaintiff for said materials on his behalf or on the credit of said houses.”</p> <p>Rule for judgment absolute. Defendant appealed. o</p> <p>Error assigned was order as above.</p>

<p>Mortgage — Notice, of assignment to mortgagor — Payment.</p> <p>Actual notice of the assignment of a mortgage is essential to the completion of the contract relation between the assignee and the mortgagor, and until such notice has been given the mortgagor does no wrong in making payment to the mortgagee.</p> <p> Record of assignment on margin of mortgage booh. </p> <p>An assignment of a mortgage on the margin of the mortgage record is not such legal notice to the mortgagor as precludes him from setting up payments made by him to the mortgagee before he had any actual notice of the assignment.</p>

<p>Appeal, No. 237, Oct. T., 1893, by-defendants, John B. Sohlosser and G. O. Dellenbach, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1892, No. 453, on verdict for plaintiff, Mary McHugh.</p> <p>Trespass for damages for death of plaintiff’s husband, alleged to have been caused by exposure while being wrongfully and improperly removed from defendants’ hotel. Before McClung, J.</p> <p>At the trial, it appeared that on Jan. 31,1891, A. B. McHugh went to defendants’ hotel, registered, and was assigned a room, paying for it at the time. There was evidence that for several days prior to his coming to defendants’ house he had been drinking heavily. The manner in which deceased was removed from the hotel is described in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ Now, having eliminated from the case the question as to whether this man went of his own motion, simply after a request, or whether he was thrust out, and assuming that you have decided that he was thrust out (because, under my instructions, unless you do find that you cannot go any further), [then the question here is, was this man thrust out as a drunken man who was persisting in disorderly conduct in that hotel, or was he a sick man whose annoyance, if his conduct was annoying, came from his sickness. And for that purpose it doesn’t make any difference whether his sickness, if lie was actually sick, came from the abuse of liquor or from any other cause. Simply because a man has made himself sick by liquor, if he is a sick man, a hotel-keeper cannot treat him as a willful wrongdoer ; he must treat him as a sick man and regulate his conduct accordingly.] ” [3] ....</p> <p>“This plaintiff sues for compensation for her husband’s death. It is not necessary, I take it, that she should prove how much money he was making, one year and the other. His age was proven and the condition of his health was proven, as also his habits, and it is for you to say how much his life was worth to her; how much better off financially she would be with him than without him; how much would he earn, and how much of those earnings would go to her and her children. This is for you to say, gentlemen; and while you have no very exact rule to go by, yet it is a question upon which your judgment is as good as that of the court, and the laws leave it to you, and can safely leave it to you. It is a matter of cold dollars and cents when it comes to this question, and it is perfectly proper for you to take into account the proof that is here as to this man’s condition, the condition of his health, and as to his habits. They will affect both the probabilities as to the length of his life and the amount of money that he will earn. A man that has a disease that is likely to carry him off at 39 years of age, his life might not be so valuable as an older man in better health. Take all these things into consideration and render such a verdict as under the evidence and instructions of the court your conscience will warrant.”</p> <p>Defendant’s points were among others as follows:</p> <p>“ 1. This is an action to recover the monetary value of the life of A. D. McHugh to his widow and children. As plaintiffs have not shown, nor attempted to show,'the earning power of the deceased, or that he contributed anything to their support, nothing more than nominal damages can be recovered in this action.” Refused. [1]</p> <p>“ 3. If the deceased remained in defendants’ house after the evening of January 31, 1891, and so acted as to annoy the other guests of the house, and abused and soiled the room and furniture of defendants, it was their duty to their other guests and their right to remove him, provided they used no unnecessary force or violence. Answer: Refused as put. If the annoying acts were willful, defendants could remove decedent in the manner stated in the point. If, however, they were the result of sickness, although they might under certain circumstances remove him, such removal must be in a manner suited to his condition.” [2]</p> <p>4. Stated in opinion of Supreme Court. Refused. [4]</p> <p>Verdict for plaintiff for $6,175. A remittitur was subsequently filed for twenty-five per cent of the verdict. J udgment was then entered for $4,955.43. Defendants appealed.</p> <p>Errors assigned were (1-4) instructions, quoting them.</p>

<p>Negligence — Contributory negligence — Streets—Municipalities.</p> <p>In an action against a city to recover damages for personal injuries, it is proper to submit the case to the jury where the evidence for plaintiff tends to show that plaintiff was thrown from a wagon in which he was riding, by reason of the wheels of the wagon sinking into a deep rut in the street, and that the rut had been allowed to continue in the street for over a year.</p> <p>That plaintiff knew of the condition of the street before he undertook to ride over it is not such contributory negligence as will prevent his recovery, where no other street was open for him to take.</p>

<p>Appeal, No. 335, Jan. T., 1893, by-defendant, John A. McLaughlin, from order of C. P. No. 1, Phila. Co., Dec. T., 1892, No. 174, making absolute rule for judgment for want of sufficient affidavit of defence in favor of plaintiffs, Edward McLaughlin et al.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit for support and maintenance of infant.</p> <p>Plaintiffs’ statement was as follows :</p> <p>“ The plaintiffs seek to recover the sum of six hundred and sixty-four dollars with interest from Oct. 28, 1892, said sum being due and owing plaintiffs by the defendant for the support and maintenance of George B. McLaughlin, infant son of the defendant aforesaid.</p> <p>“ The said infant, at the request and instance of the defendant, was received into the home of the plaintiffs on March 10, 1889, and there nursed, boarded and maintained by the said plaintiffs, to wit, from March 10, 1889, until Oct. 28, 1892, when, at the request and demand of the defendant, said child was delivered to him. The said six hundred and sixty-four dollars is estimated by charging the price and sum of three and one half dollars per week for a period of one hundred and eighty-nine weeks and five days, being the time said infant was in charge of the said plaintiffs.</p> <p>“ The plaintiffs further say, that no part of said sum has ever been paid them for or on account of said claim, but that the whole of the same is now due and owing them by the defendant.”</p> <p>The affidavit of defence averred: “ that the plaintiffs therein are Edward McLaughlin and Mary McLaughlin, that said Mary is the wife of Edward McLaughlin and the sister of deponent’s wife, who died some four years ago, that the claim in this case is for the board of deponent’s minor child, now about five years of age, that when deponent’s wife died, said Mary McLaughlin offered to take said child and care for it, and deponent allowed her to have it until about the twenty-eighth day of October, 1892, when, upon a writ of habeas corpus being issued by deponent, she was compelled to surrender the said child to him, that deponent never contracted or agreed to pay any board for said child, neither did plaintiffs ever demand any board for said child, but, on the contrary, refused to receive or charge any board; in consequence thereof, deponent, considering that he was indebted to plaintiffs for their kindness, made Mary McLaughlin presents, etc., far exceeding, as deponent believes, the value of the board of said child as charged in the statement filed. Deponent further says that during the time the child was with plaintiffs he furnished and paid for all of its clothes and other necessaries.”</p> <p>“ That the charges made, if proper claims against him, are ■ excessive and entirely out of proportion. That plaintiffs are not entitled to a judgment for want of an affidavit of defence, as the claim entirely is upon a quantum meruit, and not upon a contract or promise to pay a certain amount, all of which deponent believes and expects to be able to prove upon the trial of the cause.”</p> <p>Rule for judgment absolute. Defendants appealed.</p> <p>Error assigned was above order.</p>

<p>Beneficial associations — Defect in application — Waiver—Notice.</p> <p>Beneficial associations are bound by the rule to which insurance companies are subject, which requires that the assured shall be promptly notified of any defect in the proof of loss, so that he may have an opportunity of correcting it.</p> <p>If the insured, in good faith, and within the stipulated timo, does what he plainly intends as a compliance with the requirements of his policy, good faith equally requires that the company should promptly notify him of their objections, so as to give him the opportunity to obviate them; and mere silence may so mislead him, to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver: Gould v. Ins. Co., 134 Pa. 588.</p> <p>If the jurat to the physician’s certificate attached to an application for sick benefits is omitted, the member must be promptly notified by the beneficial association of the omission. Otherwise it will be presumed that the association' has waived the defect.</p>

Appeal, No. 115, July T., 1898, by J. McGregor Gibb, from order of C. P. No. 2, Phila. Co., June T., 1891, No. 704, dismissing exceptions to report of auditor, distributing- assigned estate of The Trevose Model Brick Mfg. Co. Adjudication of account of George H. Becker, assignee for benefit of creditors of Trevose Model Brick Mfg. Co. The Trevose Model Brick Mfg. Co. was a Pa. corporation, incorporated in June, 1890, with capital stock of $20,000.

<p>Religious use — Definition of religion — Act of April 26, 1855.</p> <p>Religion iu its broadest sense comprehends all systems of belief in the existence of beings superior to, and capable of exercising an influence for good or evil upon the human race; and all forms of worship or service intended to influence or give honor to such superior powers. A bequest in aid of any such system or to antagonize it would therefore be a bequest for a religious use within the meaning of the aot of April 26, 1855, see.ll, P. L. 332.</p> <p>A corporation was organized under the act of April 29, 1874, P. L. 73, “ for the purpose of uniting the persons so to be incorporated socially, for the improvement of their intellectual and moral condition, by the dissemination of scientific truths by means of literature, music, lecture and debate.” It appeared that the corporation had no capital stock, and transacted no secular business. Its meetings were held on Sunday, and it was wholly dependent upon voluntary contributions of its members. One member testified that the league was opposed to all isms, and that its object was the investigation of truth. A witness testified that he had heard, on a Sunday evening, a lecture against the Christian religion, and that a discussion followed the lecture in the same spirit. Held, that a devise or bequest to such an organization was given for a religious use within the meaning of the act of 1855.</p>

Appeal, No. 153, July T., 1893, by defendant, John Hart Weeks, from judgment of C. P. No. 1, Phila. Co., March T., 1890, No. 280, on verdict for plaintiff, A. Penrose Benner. Assumpsit for money in hands of defendant alleged to have been appropriated by owner to payment of plaintiff’s debt.

<p>Appeal, No. 62, Jan. T., 1894, by plaintiff, James Talcott, from judgment of C. P. No. 3, Phila. Co., March T., 1880, No. 613, discharging rules to strike off marking judgment to use and satisfaction of judgment, and dismissing petition for issue.</p> <p>Rules .to strike off decrees marking judgment to use and entering satisfaction of judgment; and petition for issue.</p> <p>From the record it appeared that on Feb. 10, 1891, W. W. Ledyard, attorney for plaintiff, marked the judgment to the use of Jacob Singer. On Oct. 1, 1892, plaintiff, alleging that his attorney had no authority to take such action, obtained a rule to strike off the marking of the judgment to use. On March 6, 1893, the court, after hearing on depositions, discharged this rule. On April 3, 1893, Jacob Singer satisfied the judgment of record. On April 25,1893, plaintiff obtained a rule to strike off satisfaction. This rule the court subsequently discharged. Plaintiff then filed a petition for an issue, but the petition was dismissed by the court. Defendant then appealed to the Supreme Court. Appellant did not print in his paper-book the record relating to the rule to strike off the marking of the judgment to use.</p> <p>Errors assigned were the action of the court: (1) in discharging plaintiff’s rule to strike off the marking of the judgment to use of Singer; (2) in not striking off the marking of the judgment to use of Singer, and making plaintiff’s rule absolute; (3) in discharging plaintiff’s rule to strike off satisfaction of judgment entered of record by Singer; (4) in not ordering satisfaction of the judgment entered of record by Singer stricken off, and making plaintiff’s rule absolute; (5) in not striking off satisfaction of judgment' because plaintiff had prior thereto issued a scire facias to revive the judgment; (6) in discharging plaintiff’s rule for an issue; (7) in not awarding an issue to determine whether the judgment was marked to the use of Singer by order and authority of plaintiff, or whether such marking to use was without his authority and consent, as prayed for by plaintiff in his petition.</p>

<p>Collateral inheritance tax — Decedent's estate — Compromise of will contest —Act of May 6, 1887.</p> <p>The collateral inheritance tax is not payable oil a sum of money which the legatees, who are all collaterals, authorized the executor to pay to a disinherited son of the testator, in pursuance of a compromise, whereby the son’s caveat is withdrawn, and the wiíl admitted to probate.</p>

<p>Appeal, No. 10, Jan. T., 1894, by the Commonwealth, from decree of O. C. Phila. Co., April T., 1890, No. 101, on appeal from assessment of collateral inheritance tax, in estate of Mary J. Kerr, deceased.</p> <p>Appeal from assessment of collateral inheritance tax.</p> <p>From the record it appeared that Elizabeth S. Palmer died Sept. 25, 1886, leaving a will, which was duly admitted to probate, by which she left all her property to Mary Jane Kerr, a friend. The heirs at law and next of kin of Mrs. Palmer thereupon began proceedings to contest her will. Mrs. Kerr died in the meantime, and the contest was afterwards compromised, by her heirs at law and next of kin entering into an agreement by which they withdrew all claim to Mrs. Palmer’s personalty and to one half of her realty. In assessing the collateral inheritance tax upon Mrs. Kerr’s estate the register of wills declined to make any deduction by reason of the property surrendered under this agreement. From this decision E. R. Hallman, her administrator d. b. n., appealed.</p> <p>The opinion of the court below was as follows, by Penbose, J.:</p> <p>“ Collateral inheritance tax can only be imposed in the cases specified by the statute, viz., upon real or personal estate passing at the death of the owner, ‘ either by will or under the intestate laws of this state, or ... . transferred by deed, grant, bargain, or sale, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainer,’ to the persons, etc., made subject to such tax.</p> <p>“No liberality of construction can extend the language .of the statute so as to make it include either moneys paid to extinguish the title of persons claiming adversely to the decedent whose estate is liable to taxation, or property surrendered by way of compromise to the persons so claiming, and thus never forming part of the decedent’s estate at all. Such persons are neither legatees nor devisees, heirs or next of kin, nor are they grantees, etc., under assignments or transfers made or intended to take effect after the death of the bargainer. The allowance or compromise of their claims simply reduces the estate after-wards passing to volunteers, with the same effect as if the' reduction had been caused by the payment of debts, or as if the payment or surrender had been the result of a suit terminating in favor of the claimant.</p> <p>“ It was conceded at the argument that the tax was paid upon the entire estate of Elizabeth S. Palmer, the original testatrix ; and the question now presented only affects the tax chargeable against the estate of Mary J. Kerr, her residuary legatee and devisee. The validity of the will was impeached, and only so much of Elizabeth S. Palmer’s estate as remained after the recognition of the rights of those who claimed under the intestate laws became the estate of her beneficiary. N> more than this is taxable as the estate of the latter.</p> <p>“ The appeal is sustained, and the appraisement for taxation corrected in accordance with this opinion.”</p> <p>JError assigned was decree as above.</p>

<p>Appeal, No. 44, July T., 1893, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., March T., 1889, No. 574, entering nonsuit in favor of defendant, Charles K. Merklee. -</p> <p>Assumpsit for municipal assessment for paving.</p> <p>At the trial, before Reed, J., plaintiff proved that the paving had been done in front of defendant’s property on Winchester street under a contract between the city and Michael O’Rourke, and that the paving had been duly authorized by ordinance. Plaintiff then rested. The court entered a compulsory nonsuit, and subsequently refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 45, July T., 1893, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1891, No. 591, sustaining demurrer to statement, in favor of defendant, Mary Bradfield. Argued with preceding case. Assumpsit for municipal assessment for construction of sewer. Defendant demurred to the statement on the ground that no personal claim existed for the debt, and that the only remedy was by a proceeding in rem. The court sustained the demurrer.

Appeals, Nos. 172 and 178, by Anna B. Scott and Deborah W. Mellor, from decree of O. C. Phila. Co., Oct. T., 1892, No. 393, dismissing exceptions to adjudication in estate of Sarah W. Barker, deceased. Exceptions to adjudication of executor’s account.

Appeal, No. 87, Jan. T., 1894, by-plaintiffs, Sarah R. Clapp et al., as executors of Nathan Clapp, deceased, and individually, et al., from decree of C. P. No. 4, Philadelphia Co., Sept. T., 1892, No. 762, dismissing bill in equffy against defendant, Phoebe W. Hoffman. Bill in equity to set aside contract of sale.

<p>Appeal, No. 88, Jan. T., 1894, by-plaintiff, John Lucas, trading as John Lucas & Co., from judgment of C. P. No. 4, Phila. Co., March T., 1891, No. 205, non obstante veredicto, for defendant, Francis O’Brien, owner, and Thomas A. Ash, contractor.</p> <p>Scire facias sur mechanic’s lien.</p> <p>At the trial’it appeared that the- contract between the owner and contractor contained the following clause :</p> <p>“ And it is further agreed that the party of the first part will not at any time suffer or permit any lien, attachment or other incumbrance, under any law of this state or otherwise, by any person or persons whatsoever, to be put or remain upon the building or premises into or upon which any work is done or materials are furnished under this contract for such work and materials, or by reason of any other claim or demand against the party of the first part, and that any such lien, attachment Or other incumbrance until it is removed shall preclude any and all claim and demand for any payment whatsoever under or by virtue of this contract.”</p> <p>Verdict for plaintiff subject to the question reserved whether under the contract plaintiff was entitled to recover. The court subsequently entered judgment for defendants non obstante veredicto.</p> <p>¡Error assigned was entry of judgment as above.</p>

Appeal, No. 114, Jan. T., 1894, by Lydia A. Leisenring, from order of C. P. No. 2, Phila Co.,Sept. T., 1893, No. 822, Kelly et ux. v. Northrop, making abso- , lute rule on sheriff to execute writ of habere possessionem. Buie on sheriff to execute writ of habere possessionem.

<p>Appeal, No. 129, Jan. T., 1894, by defendants, Susan S. Brown and Elizabeth H. Brown, from order of C. P. No. 4, Phila. Co., June T., 1893, No. 691, making absolute rule for judgment for want of sufficient affidavit of defence, in favor of plaintiff, Peter C. Hollis.</p> <p>Assumpsit for rent and damages.</p> <p>Plaintiff’s statement is not printed in appellants’ paper-book, but it is stated in the history of the case that the action is for three months’ rent and for damages for repairs made necessary by defendants’ negligence.</p> <p>The lease, made part of the plaintiff’s statement, contained a covenant by the lessee to keep and “ deliver up the premises in good order and repair.” Also the following: “ The lessor grants to lessee’s family and social visitors, but not to their servants, the right to walk or drive through his premises and make use of his entry on Olney road, otherwise the entrance over the North Pennsylvania Railroad to be used.”</p> <p>The rent was $700 a year.</p> <p>Defendants’ affidavit of defence was as follows:</p> <p>“ They admit that the lease was signed by the defendants on Aug. 81, 1891, and that subsequently thereto the defendants entered and occupied the said premises, and continued in occupancy until February 28, 1893.</p> <p>“ In the winter of 1893, the defendants discovered that the premises were in a wholly unfit and uninhabitable condition, owing to the defective drainage,- and they were informed by their physician, and verily believe, it was dangerous to their lives to remain; and that they removed from the said premises as soon as the critical condition of the health of one of the defendants permitted her to be removed; and that had they not vacated the said premises, the board of health of the city of Philadelphia would have required them to do so ; and that subsequently to that time, and until the first day of June, 1893, the date on which the plaintiff admits the lease of the said premises to have terminated, the said premises were not in a suitable sanitary condition for habitation.</p> <p>“ Your deponent is informed that the uninhabitable condition of the premises, owing to the defective drainage, terminated the lease, if it ever had any force and effect, and that on and after the 28th day of February, 1893, the date on which the defendants left the premises, no more liability on the part of the defendants occurred under the terms of the lease; and that all obligations under the lease, if any there were, due by the defendants to the plaintiffs up to and including the 28th day of February, 1893, have been discharged by the defendants, and this deponent denies that it was through any fault of the defendants that any injury occurred to the plumbing on -the said premises, but that the uninhabitable condition of the said premises was due to the defective construction of said plumbing ; and this deponent further denies that there were any repairs necessary in the stable or house, owing to any act or acts of the defendants while occupying the said premises.”</p> <p>Rule for judgment for want of a sufficient affidavit of defence absolute. Damages assessed at $313.74.</p> <p>Error assigned was above order.</p>

Appeal, No. 137, Jan. T., 1894, by plaintiff, Edward Foreman, from judgment of C. P. No. 2, Phila. Co., March T., 1889, No. 410, entering nonsuit. Trespass for personal injuries. The facts appear by the following opinion of the court below refusing to take off compulsory nonsuit: “ This action was brought .to recover for personal injuries. The plaintiff lived at Paoli, and it was his custom to take the 5.55 A. M. train from that place to his business in Philadelphia.

<p>Wills — Bequest to “ children and heirs ” — Distribution.</p> <p>The word “heirs,” ex vi termini, implies representation, and in this respect its meaning is not changed by being coupled with the word “ children.”</p> <p>Testator bequeathed his estate to his “ daughters Harriet and Maria, and the children and heirs of my sons Benjamin and Charles, to be equally divided between them." At the date of testator’s will, his two sons were dead. Held, that distribution should be made per stirpes.</p> <p>When a devise or legacy is given to heirs or their representatives, distribution will be made in accordance with the general principles governing the descent of estates, unless a contrary intention appears.</p>

<p>iffidavit of defence — Promissory note — Fraud—Misrepresentations.</p> <p>In an action on a promissory note, an affidavit of defence is sufficient to prevent judgment which avers that the note was given in payment- of a. medical practice and drug store; that plaintiff showed to defendant false and fraudulent statements and accounts as to the receipts of the business; that the store was almost destitute of drugs and medicine; that the bottles were filled with colored waters; that in numbering the prescriptions plaintiff skipped many numbers, so as to increase the total number, in order to deceive proposed purchasers; that plaintiff’s clerk had been instructed by plaintiff to show the accumulated receipts of many days to defendant so as to induce him to believe that they were the receipts of a single day; and that just before the possession of the store was given to defendant, plaintiff removed all the costly and useful drugs.</p>

<p>Contract — Sale of land — Mortgage—Accruing interest.</p> <p>In April, 1893, plaintiff agreed to purchase from defendant a lot for eight thousand dollars, payable five thousand dollars in cash on delivery of deed, and the residue by plaintiff’s assumption of a mortgage for three thousand dollars then on the lot, plaintiff “ to pay also the accruing interest on said mortgage not exceeding six months.” The six months’ interest from date of mortgage to Feb. 26, 1893, was past due and unpaid, and to avoid foreclosure proceedings, plaintiff was compelled to pay the same. He then brought suit to recover the amount thus paid. Eeld, that he could recover.</p> <p>“ Accruing interest” means running or accumulating interest as distinguished from accrued or matured interest. The words “accruing interest ” in the agreement did not refer to nor in any manner embrace any part of the six months’ interest which at the date of the contract was then overdue and unpaid. That interest was an incumbrance on the lot which defendant was bound to remove.</p>

<p>Warrant of arrest — Appeal to Supreme Court.</p> <p>An appeal lies from an order of the court of common pleas discharging from custody a person arrested under a warrant of arrest.</p> <p>Warrant of arrest — Jurisdiction—Judge—Act of July 12, 1842.</p> <p>Under the act of July 12, 1842, P. L. 839, a person arrested under a warrant of arrest must be brought before the judge who issues the warrant ; no other judge has jurisdiction to hear and dispose of the ease.</p> <p>Warrant of arrest — Criminal proceeding — Former acquittal.</p> <p>The proceeding by warrant of arrest is not a criminal proceeding, but is merely collateral to the action for the breach of contract, and in aid of it and dependent on it. Defendant’s acquittal of a criminal charge based on the same transaction cannot, in the nature of a plea of former acquittal, be interposed as a bar to the civil proceeding by warrant of arrest.</p>

<p>Appeal, No. 44, Oct. T., 1893, by Alexander H. Miller, an heir, from decree of O. C. Allegheny Co., June T., 1893, No. 202, dismissing petition for leave to appeal from decision of register in admitting will of Alexander H. Miller, deceased, to probate.</p> <p>Petition for leave to appeal from register.</p> <p>The facts appear by the following opinion of the court below, by Over, J.:</p> <p>“ Alexander H. Miller died September 4, 1887, leaving to survive him six children, viz.: Z. McD. Miller, Hampton J. Miller, Alex; H. Miller, Mrs. Y. B. Winston, T. H. Miller and F. O. Miller. On Sept. 10, 1887, the register admitted to probate a writing purporting to be his last will, wherein the principal part of his estate was given to F. C. Miller. On Oct. 13, 1888, the executors filed their account which came up for audit July 7th, and a decree was made July 12,1890. Personal notice was given to A. H. Miller of the time fixed for the audit. On Aug. 31, 1889, Hampton J. Miller presented his petition sur appeal from the register, alleging that the paper admitted to probate by him was not the will of Alex. H. Miller; that he had not testamentary capacity, and that fraud and undue influence were used by F. C. Miller to procure it being made. No bond having been filed as required by the act of June 6, 1887, P. L. 859, tins petition and appeal were dismissed on Jan. 4, 1890. On Jan. 18, 1890, Hampton J. Miller presented another petition, alleging that on the 17th of that month he filed an appeal duly perfected, from the decree of the register probating the alleged will, alleging testamentary incapacity and the exercise of undue influence and fraud, and praying that an issue be awarded to try these issues. A citation was granted on this petition directed to the executors. Florence C. Miller as executor and residuary devisee filed his answer, denying the averments in the petition. A. H. Miller, the present appellant, was present at the hearing on this appeal and was sworn and examined as a witness by the appellant. After hearing, this appeal was dismissed on April 29, 1890. In April, 1892, H. J. Miller filed a petition for a rehearing on said appeal and presented the affidavit of A. H. Miller in support of the petition, which was dismissed on April 19, 1892. F. C. Miller, on Sept. 20, 1890, presented his petition, averring that he was the residuary devisee under the will of A. H. Miller, deceased; that the devise was subject to the payment of annuities to Hampton J. Miller of $500 per annum, Alexander H. Miller of $500 per annum, and George W: Miller of $200 per annum, and praying that a decree might be made restricting the lien of the annuities to a part of the residuary devise. A. citation was is-' sued and served on all the annuitants, an auditor appointed and notice of the time and place of meeting before him and of the filing of his report was also served on them, and on Dec. 13, 1890, a decree was made as prayed for. On June 27, 1892, Alex. H. Miller presented his petition, averring that on June 17, 1892, he appealed from the probate of the alleged will of A. H. Miller, deceased, alleging testamentary incapacity, and that undue influence had been used by F. C. Miller to procure it, and praying for an issue to try these questions. Alex. H. Miller has received from the executors the amount of his annuity which has accrued to the date of this hearing. Florence O. Miller in his answer to this petition denied these allegations, alleged that the issue raised had been adjudicated on the petition and appeal of H. J. Miller at No. 90, Jan. T., 1890, and that Alex. H. Miller is estopped by reason of having accepted his annuity under the will from asserting that it is invalid, and for these reasons filed a motion to dismiss the appeal, upon which motion the cause is now heard.</p> <p>“ The first question which arises in considering the motion to dismiss this appeal is whether more than one appeal can be taken to this court from the decision of the register admitting an alleged will to probate. Under the 13th section of the act of March 15, 1832, Purd. Dig. 508, pi. 8, P. L. 138, when objections are made to the probate of a writing, the register has the power to award a precept for an issue to the common pleas court; but if, instead of awarding a precept, he admits or refuses to admit the writing to probate under the 31st section of the act, an appeal lies to the register’s court to be convened by him as directed in the 25th section. The precept issued under the 13th section commands the common pleas court to cause all persons who may be interested as heirs, relatives or next of kin, devisees, legatees or executors to be warned so that they may become party to the action if they shall see cause. And the 25th section, Rhone’s O. C., 2d vol., page 437, pi. 18, provides that notice shall be given of the time and'place of holding the register’s court by citation or otherwise to all concerned. The register’s court having been abolished and its jurisdiction vested in the orphans’ court, the appeal provided by the 31st section of the act of 1832 now lies to it. To comply with the provisions of the 25th section requiring notice to all concerned, this court has by its first rule provided that, on petition sur appeal from the register, citations shall be granted to all persons interested to show cause why the action of the register should not be set aside. The purpose of giving notice to all interested persons, as required by the 13th section of the act as expressed in it, is that they may become parties to the action if they see cause; and it is obvious that is the purpose also in requiring notice of the time and place of holding the register’s court to be given to all concerned by the 25th section, so that all persons interested might intervene if they saw fit, a2id that there should be but one issue or one appeal. If there ea2i be as many issues devisavit vel non or appeals to this court as there are interested parties, it would lead to very absurd results. Hampton J. Miller, on Aug. 31, 1889, filed in our court a petition sur appeal, but as it appeared that he had not perfected the appeal by filing a bond before the register as required by the act of June 6, 1887, P. L. 359, the petition and appeal were dismissed, there being in point of fact under that act no appeal. On Jai2. 18, 1890, he filed another petition sur appeal, upon which a citation was issued directed to the executors, an answer was filed by them and F. C. Miller residuary legate's and devisee, and, after hearing had, this appeal was dismissed and the decision of the register admitting the writing to probate thereby affirmed. No appeal has been taken from the decree dismissing his appeal, and, unless it be reversed, he is undoubtedly bou2id by it, and as to him there is a will. But if Alex. H. Miller has the right to a separate appeal on it the result might be that the will would be set aside.</p> <p>“ There would then be a will as to Hampton J. Miller, but none as to Alexander H. Miller. It is true that in. the appeal of Hampton J. Miller the act of assembly and rule of court requiring notice to be given to all persons interested were not complied with ; that, however, was only an error in the procedure; the appeal itself was perfect and regular, and if this appellant A. H. Miller has any cause of complaint, his remedy is by applicator there to intervene to have the decree vacated and be allowed- a hearing.</p> <p>“ ‘ Courts of probate will recall their own senteirces for reexamination at the instance of parties interested who have neither in fact nor in legal contemplation been privy to the proceedings upon which the sentences were based: ’ Redmond v. Collins, 27 Am. Dee. 208. That he has no right to a separate appeal seems clear both on reason and authority: Fraser v. Jennison, 106 U. S. 191; Frazier v. Wayne, Circuit Judge, 89 Mich. 198. But even if this conclusion be not correct we think that he is bound by the decree on the appeal of Hampton J. Miller.</p> <p>“ In Wells, Res Adjudieata, section 576, it is said that ‘ The proof of a will has been held to be a proceeding in rem because it determined the status of the subject-matter; and the judgment binds all persons whether parties to the record or not, and is conclusive and effectual for all purposes.’ This proposition is sustained by abundant authority : Ottinger v. Ottinger, 17 S. & R. 142; Cochran v. Young, 104 Pa. 833; Warfield v. Fox, 53 Pa. 382; Crippen v. Dexter, 13 Gray, 330; Patton Exs. v. Allison, 7 Humphrey, 320. The original proceedings before the register being in rem, all subsequent proceedings are necessarily to some extent at least of the same character.</p> <p>“ They are to be distinguished therefore from mere personal actions, where parties are not bound by the judgment or decree unless they voluntarily appear or are served with summons as required by law.</p> <p>“ The 25th section of the act of 1832 does not designate any particular form of notice, nor how or when it shall be served. It directs only that notice of the time and place of holding the register’s court shall be given by citation or otherwise. No citation was issued nor notice directed to be given to A. H. Miller on the petition sur appeal of Hampton J. Miller. But he had actual notice of the time and place of hearing the appeal in some way, as he appeared in court, and was sworn and examined as a witness on the part of the appellant. This was certainly equivalent to the notice required by the act and answered the purpose. He aided the appellant by his testimony to support the appeal, was mutually interested with him in prosecuting it, and for all practical purposes was a party to it, and if it had been sustained he would have been benefited by it. Had he desired to become a formal party to the record it was his duty then to have asked to intervene: Johnston’s Ap., 4 W. N. 80. He also had actual notice of the application for a rehearing' on the appeal of Hampton J. Miller, as his affidavit was presented to the court in support of the motion. In the proceedings instituted by F. C. Miller, the residuary devisee, to have the lien of the annuities restricted to certain real estate, A. H. Miller was made a party. He then raised no question as to the validity of the will, but has accepted and been paid his annuity accruing under it to the present time. In view of all these facts this appellant is surely bound by the decree in the appeal of -Hampton J. Miller, especially as the grounds of contest there were the same as alleged here, and that appeal was heard and decided upon its merits. To hold otherwise would be to permit him to trifle with judicial proceedings.”</p> <p>Error assigned was dismissal of petition.</p>

Appeal, No. 65, Oct. T., 1893, by Hampton J. Miller, from decree of O. C., Allegheny Co., Jan. T., 1890, No. 90, dismissing petition for leave to appeal from decision of register in admitting will of A. H. Miller, deceased, to probate, and for rehearing of said decision. Petition for leave to appeal from register, and for rehearing.

<p>Master and servant — Disobedience of orders by servant — Discharge of -servant — Language—Construction for court.</p> <p>It is the duty of an employee to obey the directions of his employer as to the manner in which his work should be done, and the materials he should use; and a neglect or refusal to obey such directions is a breach of the contract, which will justify the employer in discharging him from his service.</p> <p>Where an employee discharged for disobeying orders testifies, in an action against his employer, that the superintendent of the mill in which he was employed forbade him to use sand upon rollers, and directed him to use fire-clay, it is improper for the court to submit to the jury the question whether the superintendent’s language was merely ordinary conversation or a positive order. In such a case, the language being clear, its meaning is a question for the court, and not for the jury.</p>

<p>Taxation — Mercantile license tax — Manufacturing corporations — Acts of May 4, 1841. and June 8, 1891.</p> <p>A manufacturing coi-poration may sell its own products at its factory, or send them to a commission merchant to sell, without liability for the mercantile license tax; but if the company keeps a store or warehouse where it sells goods manufactured by others, as well as those made by itself, it is liable to assessment as a dealer, under the act of May 4,1841,. P. L. 310. The laws exempting manufacturing corporations from taxation do not relieve a company thus selling goods from the mercantile taxes.</p> <p> Penalty for delay in payment. </p> <p>On an appeal from the appraisement, no penalty is incurred for delay until after the appeal is disposed of.</p>

Appeal, No. 442, Jan. T., 1893, by defendant, William Simon, from judgment of C. P. No. 3, Phila. Co., March T., 1892, No. 55, on verdict for plaintiff, Susan Crawford. Trespass for refusal to satisfy mortgage, under act of May 28, 1715,1 Sm. L. 95. At the trial, before Gordon, J., it appeared that defendant, William Simon, and his mother Sarah Simon, as executors of John Simon, deceased, held a bond and mortgage against plaintiff for $1,750.

<p>Decedents' estates — Evidence—Declarations—Res gestea.</p> <p>Claims against a dead man’s estate which might have been made against himself while living are always subject to just suspicion.</p> <p>Testimony of a person claiming to recover money alleged to have been loaned to decedent to the effect that, after the purchase of a house by decedent, claimant took part of the purchase money to the title company which was examining the title, and asserted to the officer to whom he handed it that he was advancing the money as a loan, is not admissible in the absence of evidence that decedent was present and assented to the statement.</p> <p>Such a declaration is also inadmissible as part of the res gestse. It is rather in the nature of a self-serving declaration, and therefore not entitled to any consideration as evidence in support of appellant’s claim against the estate.</p>

<p>Appeal, No. 464, Jan. T., 1893, by Charles R. Sheeler et al., claiming as holders of matured certificates, from order of C. P. No. 1, Philadelphia Co., Sept. T., 1892, No. 331, dismissing exceptions to auditor’s report distributing assigned estate of the Fraternal Guardians.</p> <p>Exceptions to adjudication of assignee’s account.</p> <p>From the report of the auditor, J. F. Hartman, Esq., it appeared that the order of Fraternal Guardians was chartered Dec. 2,1888, under the act of 1874, for “ the maintenance of a society for beneficial or protective purposes to its members from funds collected therein.” It organized by the enactment of a constitution and by-laws, which provided for the erection of a supreme lodge and of subordinate lodges. It issued certificates of membership, stipulating that any member who should comply with all the requirements of the order should, at the end of three and one half years from the date of his certificate, receive a sum not exceeding one eighth of the amount mentioned in such certificate, and that thereafter he should receive the same amount at the end of each three and one half years he continued in good standing in the order, until the certificate should mature. On Sept. 80,1892, the order was the owner of a benefit fund aggregating about #800,000. At that time certificates had matured to the amount of nearly #600,000. On that date it made a deed of assignment of all its effects to Joseph L. Tull, Esq. On Nov. 19, 1892, the assignee filed his first account of the trust estate, charging himself with upwards of #250,000 of cash, realized out of the benefit fund. At the audit of his account, the holders of matured certificates demanded to be paid in preference to members holding unmatured certificates.</p> <p>By the general laws of the lodge, “ the benefit fund shall be-invested by the Supreme Trustees in such convertible securities as the Supreme Executive Committee shall approve. These investments shall be made in the name of ‘ The Order of Fraternal Guardians,’ and shall be used only for the payment of matured or death benefits upon resolution of the Supreme Executive Committee, signed by seven members thereof.”</p> <p>The auditor reported in part as follows :</p> <p>“The claim as presented by the certificate holders may be conveniently divided into two classes, as follows: (1) Those who hold certificates upon which all dues and assessments have been paid for a period of three and one half years or longer. This class will be designated matured certificate holders. (2) Those who hold certificates upon which all dues and assessments have been paid, but which have not run a period of three and one half years. These will be designated unmatured certificate holders.</p> <p>“ As these two classes will be frequently referred to hereafter, the auditor thought it would avoid confusion to give each class a name by which it could be identified. In calling class No. 1 matured, it will be understood throughout that this means nothing more than that the first payment was due thereon.</p> <p>“Every person joining the order received a certificate, of which the following is a form:</p> <p>“ ‘ Whereas, has applied for and been admitted to membership in Lodge, No. , Order of Fraternal Guardians, and has obligated himself to obey all lawful commands of this order, whether emanating from the subordinate lodge of which he is or may be a member, or from the Supreme Lodge, or from any other duly constituted authority;</p> <p>“ ‘ And whereas, He has paid the sum of dollars to said subordinate lodge, as an assessment on account of the benefit fund of this order, and agrees to pay further assessments of like amount whenever fully called for, and agrees to comply with all the laws, rules, and usages of this order, and especially with the conditions herein set forth.</p> <p>“ ‘ Therefore, The Supreme Lodge of The Order of Fraternal Guardians does hereby issue unto said this certificate, and declare him to be entitled to all the rights and privileges properly belonging to members of his rank and standing, including a benefit of a sum not exceeding Thousand Dollars, from the Benefit Fund of this order, which sum shall be paid in the manner and upon the conditions hereinafter mentioned, to wit:</p> <p>“ ‘ 1. If the said member shall comply with all the requirements of the order, he shall at the end of three and one half years from the date of this certificate receive a sum not exceeding one eighth of the amount mentioned in this certificate; and thereafter shall receive the same amount at the end of each three and one half years he continues in good standing in the order until this certificate matures.</p> <p>“ ‘ 2. If said member shall be in good standing at his decease before tbe maturity of this certificate, a sum not exceeding one eighth of the amount mentioned in this certificate shall be paid to , bearing relationship to him of , and whose receipt for said sum shall cancel-in full all obligations existing under this certificate.</p> <p>“ ‘ This certificate shall be in force from the date of its attestation by the signatures of the Supreme Guardian and Supreme Secretary, and, if continued in force, the last payment shall mature in twenty-eight years from that date.</p> <p>“ ‘ This certificate shall be accepted by the aforementioned member in accordance with the form printed hereon.’</p> <p>“ Those holding matured certificates claimed that, from the fact of their certificates having run for a period of three and one half years from the date thereof, and that all dues and assessments having been fully paid for that period of time, the first installment was due thereon, and as to that installment they were creditors of the order, and were entitled to receive the full sum of one eighth of their certificates. That at the time of the assignment, and also at the date of the maturity of the first installment of their respective certificates, there were sufficient moneys in the benefit fund to pay a full one eighth on all certificates three and one half years old.</p> <p>“ The unmatured certificate holders claimed that, inasmuch as an assignment had been made, the order stood upon the basis of an insolvent corporation, and the assets were to be divided among the members in the proportion to the amounts paid in by them, regardless of the fact that by the terms of the certificates the matured certificate holders had complied with the terms of their certificates, and were apparently entitled to a sum not exceeding one eighth of their certificates.</p> <p>“ Upon joining the order each member entered into a contract to comply with all the rules and regulations of the order, and pay any assessments, unlimited in number, during the continuance of his certificate. His certificate was a contract for twenty-eight years, and there was an obligation upon every member to continue his certificate in force for this period of time. This obligation was wisely imposed by the originators of the order, inasmuch as it created a mutuality between the members whose certificates matured first and those succeeding them. And in this respect this order differs materially from other orders of a somewhat similar character, and popularly known as ‘get-rich-quick-orders.’ In the latter, when the period of membership had been spent and a certificate matured, the member, as such, terminated his relationship to the organization, except that of creditor, in the event of his claim not being paid. Upon the maturity of his certificate his payments . were finished, and those that were behind him had to pay their money to cancel his certificate, without any obligation on his part to contribute towards maturing any subsequent member’s certificate. In the Order of Fraternal Guardians an entirely different method was adopted. The certificate was made to cover a long period of years, and it was to be paid in eighths. The member receiving his first eighth could not immediately sever his connection with the order, because the members following him had the right to be matured likewise, and from a fund which it was his duty for a period of twenty-eight years to maintain by assessments to be paid by him on his certificate, and by virtue of his membership.</p> <p>“In this respect [the duty of maturing one another was mutual, and the unmatured certificate holder had as much right to expect and depend upon the matured certificate holder to mature his certificate, as the matured certificate holder had the right to take from the benefit fund the amount of his payment.] [1]</p> <p>“ The benefit fund of this order might well be likened unto the reserve fund of a life insurance company. Surely, every member had an equitable interest in a portion of the assessments paid by him into the benefit fund. His entire assessments could not be swept away by any payment of matured certificates. A court of equity would restrain such an action on the part of the officers, and compel them to levy sufficient assessments to avoid an entire depletion of the benefit fund.</p> <p>“ The certificate stipulates that if the member shall comply with all the requirements of the order, he shall, at the end of three and one half years from the date of his certificate, receive a sum not exceeding one eighth of the amount mentioned in his certificate. What is meant by a sum not exceeding one eighth? Is not this merely a maximum limit of the amount to be paid to the certificate holder? [Can it be argued that a contract to pay any amount not exceeding a certain sum is a contract to pay that sum ? The mere interrogation suggests its absurdity. It was intimated at the argument that a sum not exceeding $625 might mean five cents. True enough, it might. But in an uncertain matter like this the law in its wisdom would say this meant a sum which could be reasonably paid with a due regard to all the circumstances of the case.] [2] Now, what would have been a reasonable sum to have paid the matured certificates in this instance ? It appears by the appraisement that the entire assets of the order amounted to $810,000. On the day the assignment was made there were nearly $600,000 due to matured certificate holders. In two months more enough certificates would have matured to wipe out the entire benefit fund that it had taken nearly four years to accumulate. The payment of the maximum sum mentioned in the certificates would have plunged the, order into bankruptcy. [Is it at all in doubt whether, under such circumstances, a court of law or equity would compel the payment of the maximum sum on the certificates ? It may be said that the supreme executive committee had power to call an unlimited number of assessments; but the exercise of it would have been disastrous to the order.] [3] [Under these circumstances, the auditor cannot see how it would be possible to award the matured certificate holders the maximum limit of their certificates.] [4]</p> <p>“ The matured certificate holders claim to be creditors of the order for the amount of the first payments on their certificates, and in support of this position relied upon two cases: Vanatta v. New Jersey Mutual Life Insurance Co.. 31 N. J. Eq. 15, and Mayer v. Attorney General, 32 N. J. Eq. 820. While the above appear to be two cases, they are really one, as the same case came twice before the court in settlement of the one insurance company, and they may, therefore, be considered together.</p> <p>“In the settlement of the affairs of the New Jersey Mutual Life Insurance Co., which had become insolvent, there appeared to be three classes of claimants: (1) Endowment policies that had matured by lapse of time previous to insolvency. (2) Policies upon which, before insolvency, all payments had been made that were ever to be made; but the time of maturing the policies did not expire until after insolvency. (3) Unmatured policies. In marshaling the assets the court treated the first-named endowment policy holder as a creditor, and awarded him payment in full out of the assets, on the ground that he had terminated his membership and become a creditor: the other two policy holders came in afterwards pro rata.</p> <p>“ In Mayer v. Attorney General the court said: ‘ The termi nation of the risk and of membership effected the change in the status of the policy, from which its right to be a preferred claim is derived. Prior to such change it was entitled, as between it and the other policies, to share in the company’s reinsurance or reserve fund. By such change it became a debt owing by the company to a third party, not bound to make further payments of premiums, and not entitled to act in the management of the business.’</p> <p>“ In the last named case the question arose between the policy holder and an insurance company.</p> <p>“ The auditor does not think that the case of the Fraternal Guardians can be governed by the strict rules applied to insurance companies. The Fraternal Guardians was not a corporation carrying on life insurance for profit, nor were the certificates issued to members in any sense policies. The paper a person received upon joining the order was not an incontestable and unalterable contract between the member and the order. It was subject to change and modification by the Supreme Lodge whenever an amendment to the laws of the order was deemed necessary.</p> <p>“ The case of Mayer v. Attorney General also takes the ground that when a policy matures the holder severs his connection with the company and becomes a creditor for the amount due him. In this the case of the Fraternal Guardians also differs. The certificate holder here was a member for twenty-eight years. He was still a member after his first installment became due, and he was bound to pay further assessments and continue to take part in the management of the order. [The auditor cannot bring this case within the ruling of Mayer v. Attorney General. Other conditions exist here which did not arise in that case.] [5]</p> <p>“ Apart from all that has been said, the question in this case, in the opinion of the auditor, can be decided upon other grounds than those heretofore touched upon. [Regarding this order, and the certificates issued by it, in the light of a contract between the parties, the auditor thinks that there is such a premature termination of it that the rights of the parties require an equitable adjustment.] [6] [The matured certificate holders place themselves in the anomalous position of seeking the fruits of a contract, and at the same time refusing to perform its stipulations.] [7] [They, with the unmatured certificate holders, by their representatives in the Supreme Executive Committee, have made it impossible to carry out the contract entered into by the certificate holders by reason of the assignment.] [8] [There was a mutual duty existing between the two classes to mature each other, yet these matured certificate holders now claim that they are entitled to receive from the unmatured certificate holders three dollars for every one paid- in by them, and, at the same time, by their acquiescence in the assignment, relieve themselves from all future assessments to mature those that follow.] [9] It is not the custom of courts to construe the law of contracts in this one-sided manner.</p> <p>“ There is still another and a final reason why matured certificate holders should not receive the amount of their matured benefits. This order embarked in a business, and every member contributed equally, according to his interest, towards consummating its purposes. The funds have been well preserved, and the amount now in the hands of the assignee, if there has been no shrinkage in the order’s assets, is sufficient to refund every member in good standing every dollar that he paid into the benefit fund. The organization has been honestly conducted, but, through lack of confidence of the community in enterprises of this character, it has been forced to close up its business and distribute its assets. The officers of the order are to be complimented upon their action in deferring payment of matured certificates. The first certificates to mature were those held by the officers of the concern and those instrumental in starting the organization. It would have been to their pecuniary advantage to have paid the certificates as they became due, but they refrained from doing so, as such action might have been followed by the appointment of a receiver, as a doubt existed whether or not such a course would not have been in excess of their charter rights. As the matter now stands, however, the organization has not been guilty of committing any ultra vires acts, and there is the greatest moral certainty that it never will be in a position to exceed its charter rights.</p> <p>“ [The distribution of its funds pro rata among its members will prejudice no one. To prefer the matured certificate holders would enrich a few at the expense of many.] [10] Equity does not commend, nor law warrant, any other than a pro rata distribution among its members of the assets of the order, and the distribution will, therefore, be made accordingly.”</p> <p>Charles R. Sheeler and others holding matured certificates. excepted to the portions of the auditor’s report inclosed in brackets.</p> <p>Exceptions overruled and report confirmed. Exceptants thereupon appealed.</p> <p>Errors assigned were in overruling exceptions, quoting them.</p>

Appeal, No. 465, Jan. T., 1893, by Joseph L. Tull, receiver, from order of C. P. No. 1, Phila. Co., Sept. T., 1892, No. 331, dismissing exceptions to auditor’s report distributing assigned estate of the Order of Fraternal Guardians. Exceptions to auditor’s report. From the record it appeared that the Order of Fraternal Guardians was chartered Dec. 1, 1888, by Court of Common Pleas No. 3, of Philadelphia county.

<p>Appeal, No. 71, Jan. T., 1894, by defendant, Patrick K. Daly, from order of C. P. No. 1, Phila. Co., March T., 1893, No. 275, making absolute rule for judgment for want of sufficient affidavit of defence in favor of Mary G. Reilly et al., to use of Thomas D. McGlathery.</p> <p>Rule for judgment for want of sufficient affidavit of defence.</p> <p>Plaintiff in his statement claimed to recover $440 under an agreement in writing entered into by defendant. He averred that defendant, as executor of Thomas Costigan, deceased, had charged excessive commissions in his account, and when his account was called for audit had agreed, in consideration of the distributees not asking for a surcharge, to pay his own counsel fees. The writing was as follows, signed by T. D. McGlathery and P. K. Daly: “Daly will pay Boyd (his counsel) whatever fee the court allows him out of his amount of commissions allowed in the account, and the estate will not be charged with any amount as fee to Boyd.”</p> <p>Plaintiff also averred that defendant had agreed to pay to the distributees $116.50, excess of lawful commissions, if they would not ask a surcharge.</p> <p>Plaintiff also claimed to recover $173 on the following order, signed by Henry M. Boyd, which plaintiff claimed defendant had accepted:</p> <p>“ Philadelphia, May 3, 1892, I hereby authorize and direct Patrick K. Daly, trustee of estate of Thomas Costigan, deceased, to pay Thomas D. McGlathery, attorney for heirs, $173, and charge and deduct this amount from fees allowed in the adjudication filed April 13, 1892.”</p> <p>Plaintiff further averred in his statement that the distributees of the estate of Thomas Gostigan, deceased, had made an assignment to him for a valuable consideration of all their claims against defendant.</p> <p>Defendant averred in his affidavit of defence:</p> <p>“ That it is true he was the executor and trustee under the will of Thomas.Costigan, deceased, and filed his account in the orphans’ court, which was audited, and the adjudication now remains of record in said court as plaintiffs aver, a copy of which they have failed to attach to their statement of claim.</p> <p>“ That it is untrue that defendant admitted that his commissions were excessive, and the questions of commissions and counsel fee were submitted to and passed upon by the orphans’ court, defendant being represented by counsel.</p> <p>“ That any agreement made on his behalf by his counsel, Henry M. Boyd, Esq., (now deceased) to refund to the distributees of the estate of Thomas Costigan, deceased, as executor, was without consideration and beyond the scope of counsel’s authority.</p> <p>“ That the agreement signed by defendant to pay Boyd’s fee out of his commissions, while being without consideration, has been settled by the settlement and releases with the distributees hereinafter mentioned.</p> <p>“ That the adjudication of the orphans’ court in the matter has -been confirmed absolutely and all the awards paid, excepting a balance with accrued interest amounting to $994.04, and a mortgage of $500 and one year’s interest thereon, which was held by defendant, pending litigation between the distributees over matters arising immediately after the awards were made.</p> <p>“ That the defendant has paid and settled with all the plaintiffs, and has been released from all demands, except the above mentioned sum of $994.04 and the said mortgage of $500.</p> <p>“ That the litigation among the distributees has been settled, and the orphans’ court, upon the petition of the use plaintiff, issued its writ of fieri facias against the defendant for the sum of $1,650, which, on June 24,1893, upon the application of defendant’s counsel, joined therein by tbe use plaintiff as counsel for all the distributees of the said estate, was amended so that the same should issue for the said sum of $994.04, above mentioned, and on the same day that amount was paid to the sheriff of Philadelphia and so returned by him.</p> <p>“ That the above mentioned mortgage of $500 was assigned oy defendant to Catharine Gallagher, one of the distributees, pursuant to an arrangement made between all the parties to this suit.</p> <p>“ That the order of Henry M. Boyd upon defendant, dated May 3, 1892, for $173, was never accepted by the defendant; on the contrary, the said Boyd being largely indebted to him, he refused to accept and honor the same.</p> <p>“That the whole estate has been audited and settled by the orphans’ court, and all awards paid and releases given to the defendant by all the plaintiffs, long prior to their assignment to the use plaintiff, except the balance paid to the sheriff upon the execution above mentioned.</p> <p>Defendant, in a supplemental affidavit of defence, averred :</p> <p>“ That he did not agree to pay to the distributees whatever fee was allowed his counsel by the orphans’ court, as alleged in the statement filed; on the contrary, he was at the bar of the court and had no conversation with the distributees, but did to their counsel assent to the payment of so much of his counsel’s fee as the orphans’ court should deem excessive. That the memorandum signed by him was presented to him in the haste and excitement of the court room, and does not contain the agreement as he made it, nor was there any consideration for the same, except a threat to object to his commissions, which were not excessive, to wit: 2^ per centum upon $31,539.69, the proceeds of real estate. That the orphans’ court did reduce defendant’s counsel’s fee from $500 to $440; to wit, $60.00, which the defendant is ready to pay.</p> <p>“ That he has had and made a full settlement with all the distributees prior to their assignments to the plaintiff, and received from them releases of all demands due by him, except the sum of $2,800 (clerical error, should be $994.04), which was retained by him upon their express directions to pay orders given upon him by them, which sum has since been disbursed and paid, and full acquittance been given.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence, assessing the damages at $846.71.</p> <p>Error assigned was order as above.</p>

<p>Contracts — Acceptance of offer.</p> <p>Defendants wrote plaintiffs: We have a few jars that we can offer you at this time for immediate acceptance, stating the prices. Plaintiffs immediately wired: “ Enter order for five hundred gross.” This order was not formally accepted. Subsequently in reply to request for information defendants wrote plaintiffs that they had only two hundred and fifty gross and they would forward these. Plaintiffs insisted upon the delivery of five hundred gross. Held, in an action for breach of contract to deliver five hundred gross, that there was no contract between the parties for the delivery of that number of jars and that plaintiffs were not entitled to recover.</p>

<p>Building contract — Extra work — Changes required by building inspectors.</p> <p>A contractor under a building contract may recover from the owner for extra work not agreed to in writing but required by changes in the original plans, ordered by the building inspectors, although the contract provided that uo extra work should be paid for unless agreed to in writing and signed by the parties.</p>

Appeals, Nos. 65, 66, 67 and 68, July T., 1893, by defendant, Harry Groswith, from orders of C. P. No. 1, Phila. Co., Dec. T., 1892, Nos. 796, 797, 798 and 799, discharging rules to set aside fi. fas. in favor of plaintiff, Clarence Busch. Rules to set aside writs of fi. fa.

Appeal, No. 406, Jan. T., 1898, by defendant, from judgment of C. P. No. 1,. Phila. Co., Sept. T., 1891, No. 682, on verdict for plaintiff, Mary A. Silk. Assumpsit on life insurance policy. Before Biddi/e, J. At the trial, it appeared that defendant association issued to Georgianna B. Gleason a policy of life insurance on her life for $2,000 for the benefit of plaintiff. In the application for the policy was the following question: “ 13.

Appeal, No. 155, Jan. T., 1892, by plaintiff, Ernst Winther, from judgment of C. P. No. 2, Phila. Co., June T., 1889, No. 150, on verdict for defendant. Trespass for personal injuries. Before Fell, J. At the trial, it appeared that, on Feb. 13, 1889, plaintiff was ejected from a car on defendant’s Allegheny line. Plaintiff by mistake had taken an Allegheny avenue car instead of a car to Frankford where he lived.

Appeal, No. 359, Jan. T., 1894, by Mary Johnson and Florence E. Haley, children and heirs, from decree of O. C. Montgomery Co., Sept. T., 1892, No. 26, refusing issue devisavit vel non, in estate of Jesse K. Johnson, deceased. Petition .for issue devisavit vel non, on appeal from probate.

Appeal, No. 409, Jan. T., 1893, by plaintiffs, Lewis M. Nonnemacher et al., from judgment of C. P. Lehigh Co., Jan. T., 1893, No. 13, on verdict for defendants, Pauline Nonnemacher, alleged widow of Molton Nonnemacher, deceased, et al. Issue to determine decedent’s mental capacity at the time of an alleged marriage between himself and Pauline Weibert or Nonnemacher.

<p>Appeal, No. 134, July T., 1893, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1892, No. 153, on verdict for plaintiffs, Williams G. Armstrong et al.</p> <p>Trespass for loss of horse by common carrier.</p> <p>At the trial, before Weand, J., evidence for plaintiff tended to show that the partition of the stall in the car in which the horse was being transported was insecurely fastened, so that when the horse pressed against the side of the stall the partition gave way, causing the injury.</p> <p>Defendants offered in evidence a release of liability of defendant company, showing erasures on its face. The company’s agent explained these erasures as follows: “ A. It was the understanding that it would release the express company as well as the railroad company from all liabilities. I showed him this paper — it was laid right before him when he signed it. I didn’t say anything to him. I told him this was the release to be signed. He signed it. I told him then that I was busy, and he was in a hurry to get out. He then even gave me his check, and said: ‘Fill this out afterwards.’ He signed it, and said: ‘ Fill this out afterwards, I am in a hurry to get out.’ And the same way with the release. He said: ‘ I will sign it, and you can ñx it up afterwards.’ And that is how the erasures came about. If Mr. Armstrong had remained there at the time long enough for me to fix up that release, the erasures would have been made right there in his presence, but inasmuch as he was in a hurry to get out, he simply signed the release and did not even give me a chance to fill anything in, much less make any erasures, saying I should fix up the release afterwards; that all that was required of him was his signature, and I should fix up the release afterwards, which I did.” Offer overruled and bill sealed. [1]</p> <p>The court charged in part as follows:</p> <p>“ [It is claimed by the plaintiffs that the horse for some reason or other pressed against the side of the partition, which partition gave way because of the insecure manner in which it was arranged. It is claimed that the side of the partition being too small to fit in, a piece had been nailed against its end which fitted in the groove so as to conceal it from casual observation, and that when the horse pressed against the side of the stall this piece gave way, causing the horse to fall on the lower piece and by his weight breaking his legs.] [7] This is denied by the defendant, which contends that this car was not so constructed, or that, in other words, the side of the stall was not pieced out, and that will be the first question for you to decide. . . .</p> <p>“ [This board fitted into the groove. How could that board have been forced out without breaking down the post if the board was intact and not spliced? Is there any evidence before you to show that the post was broken at all? For if the post was not broken the question arises, how co.uld this board get out of its place?] [8] If, therefore, you find that this car was arranged in the manner testified to by plaintiffs’ witnesses, then your next question is, was that proper under the circumstances, keeping in view the purpose for which this car was intended ?</p> <p>“ It is claimed by the plaintiffs that the defendant company knew the character of the stock to be transported, that it was blooded stock used for racing purposes, and from the very character of the animals greater care should have been taken than if they had been ordinary work horses. If that is a fact then what should the defendant have done ? The law, as I have read it to you, required the defendant to provide against every ordinary case of this kind; it was bound to take into consideration the fact that horses will be restless on the ears, that passing trains will frighten them and that they will move from side to side; and, therefore, knowing that as it was their duty to know it, it was their duty to provide a car which would ordinarily protect horses under those circumstances. Did they do it ? If they did not then the law would hold them liable for any negligence resulting therefrom. . . .</p> <p>“ It is claimed by the defendant in this case that this accident was caused by the rearing and plunging of the animals. Now this company would not be liable for any damage resulting from any unusual conduct on the part of this horse which could not have been foreseen by them, and, therefore if the accident was caused because the horse plunged and reared in an unusual manner, in a manner that the express company had no reason to expect by ordinary foresight and prudence, then they would not be responsible, because they were only required to use ordinary diligence and prudence.</p> <p>“ [What is the testimony in this respect? You have the testimony of Schlimme and of Service, the two gentlemen who were in the car and who actually saw the accident happen. Schlimme testifies to you that a passing train caused this horse to swing to one side, and from part of his testimony.you might infer that the horse plunged and reared.] [6] But was it in an unusual manner? Was it in any but the ordinary manner in which horses do move back when they hear an approaching train ? If it was, then the express company were bound to provide against it.</p> <p>“ You have also heard the testimony of Service, who stood right at the rear of the horse, who says there was no rearing or plunging, but that there was a mere shoving on one side by the horse. If you believe his testimony then you will inquire whether the action of the horse was not simply of that character which is usual with horses of that kind, and which the express company was bound to provide against.”</p> <p>Yerdict and judgment for plaintiff for $850.</p> <p>Errors assigned were, among others, (1) rulings; (6-8) in structions, quoting instructions and bill of exceptions.</p>

Appeal, No. 79, July T. 1893, by plaintiff, Amelia Edelman et al., from decree of C. P. Montgomery Co., Dec. T., 1891, No. 2, dismissing… Held: that an action on the case did not lie for this false and deceitful representation by the bidder of the seller’s probabilities of getting a better price for his property, for it was either a mere false representation or at most a gratis dictum of the bidder upon a matter which he was not under any legal obligation to the seller to…