Volume 16 — Pennsylvania Superior Court Reports

<p>Appeal, No. 217, Oct. T., 1900, by the Philadelphia and Baltimore Central Railroad Company, ! from order of Q. S. Delaware Co., dismissing a petition to'enjoin supervisors from opening a road, in the Matter of Bonsall' Avenue.</p> <p>Petition to enjoin supervisors from opening a public road.</p> <p>The averments of the petition are set forth in the opinion.of the Superior Court.</p> <p>The court of quarter sessions dismissed the petition.</p> <p>Error assigned was in dismissing the petition.</p>

<p>Affidavit of defense — Contract—Insufficient averments.</p> <p>In an action upon a contract in writing for the delivery of stone, an affidavit of defense is insufficient which avers that at the time the contract was made, the treasurer and manager of the plaintiff company “ undertook to furnish the said stone and make full delivery thereof by July 1, 1899,” when it appears that the contract called for the delivery of the stone without delay; and there is no allegation that the treasurer and manager as such executed the written agreement, or that he had power to bind the company either in writing or by the alleged parol agreement.</p> <p>Affidavit of defense — Delay in delivery — ■Insufficient averments.</p> <p>In an action upon a written contract for the delivery of stone in which the time in which the stone was to be furnished, and the penalty for failure are in blank, an affidavit of defense is insufficient which alleges that by reason of the delay in delivering the stone, the defendant was not able to comply with his contract with a third party and was subjected to damages to such party, where there is no averment that the provisions of such contract were ever communicated to the plaintiff, nor that the third party had enforced or attempted to enforce, or had even demanded any damages.</p>

<p>Dower — Partition—Charge on land — Sheriff's sale.</p> <p>Where an heir lakes land in partition proceedings charged with a dower, the principal of which was payable at the death of his mother to the heirs and legal representatives of the decedent, and subsequently the land is sold at sheriff’s sale as the land of the son, the latter’s interest in the land is divested, and he cannot, after the death o£ his mother, as against the purchaser at the sheriff’s sale, share in the principal of the dower charged on the land. In such a case parol evidence is inadmissible to prove that the son took the real estate in the partition on behalf of his mother, since the effect of such testimony would be to fasten a trust upon the plaintiff’s original title in favor of the widow, in the absence of a writing, and to the injury of an innocent third party acquiring title, without notice, through a sheriff’s sale.</p>

<p>Appeal, No. 36, Oct. T., 1899, by R. Frank Stine et al., from decree of O. C. Lehigh Co., June T., 1899, No. 48, dismissing exceptions to auditor’s report in the Estate of Henry Stine, deceased.</p> <p>Exceptions to report of W. L. Gillette, Esq., auditor.</p> <p>From the record it appeared that the auditor filed two reports. The first report was referred back to him for a fuller findings of facts. On exceptions to the second report, Al-bright, J., filed the following opinion:</p> <p>Henry Stine, the testator, died December 24, 1896, aged about seventy-three years. He left surviving him a widow, a second wife, John, a son of the latter, and four children by a former wife. In a codicil of date of October 26, 1892, testator provided that out of the first proceeds of his life insurance policies the sum of $3,000 should be paid to his son John; that this sum was given for the purpose of equalizing him as nearly as possible with testator’s other children to whom he had made “ advancements for their education,” etc.</p> <p>Testator then held a scholarship in Muhlenberg college at Allentown: Two of his older sons had graduated there. It was contemplated by the testator then that John, who was then about twenty years of age, should take a course at Muhlenberg, for he entered the preparatory school of the college in November, 1892, (he graduated there in 1897).</p> <p>Lewis S. Lenhart was a half brother of John, being the son of the latter’s mother by a former husband.</p> <p>On November 16, 1892, the testator assigned absolutely a paid up policy on his life in the New York Life Insurance Company upon which there was due at the insured’s decease about $2,565 to said Lenhart. Concerning said assignment Lenhart testified : “ He gave it to me to send John Stine to college; I was to pay out of the proceeds of the policy John’s expenses in getting an education. I paid Henry Stine no money at the time for the policy. After Mr. Stine’s death I drew the amount of the policy, about $2,750” (out of that he paid to the executors' $161.07, income accrued at the time of assignment). “I paid John’s expenses of going to college .... $1,442.20 .... that is all I paid to him or for him .... the balance of the proceeds of the policy I still have .... I agreed to pay all of John’s expenses through college .... the cash value of the policy at the time I took it was $1,469.26, the balance between the face value of the policy and what I paid out I claim as mine, that is the difference between $2,560 and $1,442.20. . . . Nothing was said to me by the decedent as to what should be done with the balance of the proceeds of the policy after John received his education.</p> <p>As remarked, John graduated at said college, Lenhart paid his expenses while attending there, amounting to $1,442.20; interest on the payments amounted to $126.58, a total of $1,568.78. Tbe learned auditor decided that said $3,000 legacy to John was adeemed to the extent of $1,568.78, and awarded to John the residue, $1,431.22. To this action John and the residuary legatees excepted.</p> <p>An ademption of a legacy takes place where a parent bequeaths a legacy to a child, and afterwards gives a portion to the same child which is ejusdem generis. If there be nothing on the face of the will and no circumstances in proof to indicate an intention to give a double portion, the advancement will be a satisfaction or ademption of the legacy: Swoope’s App., 27 Pa. 58.</p> <p>There may be an ademption pro tanto: Gill’s Est., 1 Pars. Eq. Cases, 139.</p> <p>A testator bequeathed $1,250 to trustees to be used as his nephew required to complete his studies at a particular college, with a proviso that if the latter wished to discontinue his studies at said college then said amount or what was left of it should go to said college; the nephew had entered the college before the date of the will; he graduated from the collegiate department, entered that of theology, but left without completing the course; the testator paid the nephew’s expenses while at college amounting to $1,295. It was held that the payment of the college expenses operated as an ademption of the legacy: App. of Ursinus College, 1 Monaghan, 196.</p> <p>While the education of John was considered by the testator, it did not entirely control. The expressed purpose of the legacy of $3,000 was to equalize him with the older children to whom he had made advancements for purposes including an education. The idea conveyed is that each of the older ones had received about $3,000; no doubt more had been expended for education of the two who passed through college, than for the other son and daughter.</p> <p>The testimony of Mr. Lenhart being relied on to explain the absolute transfer to him, must be accepted as a whole. It is the only evidence as to consideration for, or conditions of, the transfer of the policy. He says he agreed with the testator to pay all the expenses of John’s collegiate education. The testator was of the conviction that Mr. Lenhart could and would keep that promise as he actually afterwards did.</p> <p>Evidently it was not contemplated by either party that Mr. Lenhart should be a loser by the transaction ; he was to advance the money, which probably the testator did not then have available, and was to be made whole for the outlay so far as the proceeds of the policy would accomplish that purpose; it is a fact that the value of the policy then was $1,469.26.</p> <p>John ought not and does not seriously complain that Mr. Len-hart is made whole including interest on what lie expended. The residuary legatees are benefited by the decision that the legacy is adeemed to the amount of $1,568.78 instead of $1,469.26.</p> <p>The testator did not bestow the policy on John. The result of the transaction of transfer was to benefit John to the extent of $1,568.78 and no more. If anything beyond that is taken to have been given it was to a third person, that is, to Mr. Len-hart. If the latter is answerable either to John or to the executors for the excess, the court has not jurisdiction to decide as to such liability in this proceeding. In order that there might be a decision as to that, Mr. Lenhart must be summoned and accorded a day in court. There is no demand to surcharge the executors with such excess, no allegation that they ought to have realized it from Mr. Lenhart, and in violation of duty failed to do so.</p> <p>The case of John must be regarded to be the same as if the testator in his lifetime after making the testamentary provision of $8,000 had given to him or paid for his education the sum of $1,568.78.</p> <p>The argument, that what was realized on the policy must be deducted from the legacy, both having been payable at testator’s decease, would be sound if the assignment had made the policy the property of John. But as already stated he did not become the owner of the policy. It is not shown that Mr. Len-hart voluntarily gave John the $1,431.22.</p> <p>The action of the auditor is approved.</p> <p>July 5, 1899, the exceptions are dismissed and the reports confirmed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 200, Oct. T., 1900, by defendant, from judgment of G. P. Montgomery Co., Oct. T., 1899, No. 22, on verdict for plaintiff in case of George H. Shoemaker v. The Line Lexington Mutual Fire Insurance Company of Bucks and Montgomery Counties.</p> <p>Assumpsit on a policy of fire insurance. Before Swartz, P. J.</p> <p>At the trial a verdict of $295.05 was rendered in favor of plaintiff subject to the question of the law reserved, whether under all the evidence the plaintiff was entitled to recover. On a motion for judgment for defendant non obstante veredicto, Swartz, P. J., filed the following opinion:</p> <p>George Kremer had his mill buildings insured in the defendant company. The mill was destroyed December 20, 1898. At the time of the fire Mr. Kremer’s insurance was $4,000.</p> <p>The plaintiff, George H. Shoemaker, was the owner of some personal goods and insured them in the defendant company. At the time his policy was issued, the property was located in Upper Salford township. In 1887 the plaintiff became the tenant of the Kremer mill, -which was located in Perkiomen township. The plaintiff placed his personal property in the Kremer mill. He handed the policy to Abraham G. Schwenk, a director or manager of the defendant company, for the purpose of having the removal approved. Mr. Schwenk took the policy to the secretary of the company for its assent to the removal of the goods. The secretary indorsed on the policy as follows: “ Property removed to Perkiomen township, Montg. Co., Pa. Attest: William H. Price, Sec’y.” This approval was noted on the policy in 1887. The plaintiff’s insurance at the time of the fire in 1898 was $3,620. Of this sum $3,000 apparently covered the plaintiff’s contents of the mill, so that the mill building and the contents were insured in the defendant company for $7,000 at the time of the fire.</p> <p>The plaintiff paid his assessments for fire losses from 1887, the time the property was placed in the mill, to 1899. The assessments were computed on the full insurance of $3,620.</p> <p>The fire loss on the mill building was appraised at $3,600, and the same committee appraised the plaintiff’s loss on contents at $2,678.61. When the report was brought “ before the board it was passedbut afterwards the company refused to pay the plaintiff more than $2,400, because it claimed that the liability for building and contents could not exceed $6,000. Mr. Kremer was paid his $3,600 in full; and this, with the $2,400 paid the plaintiff, aggregates $6,000.</p> <p>The company relies on article 3 of the by-laws for refusing to pay the plaintiff’s claim — the full $2,678.61. This bylaw reads as follows: “Buildings and. other property located in Bucks and Montgomery counties, not excluded by the charter nor by this article of the by-laws, may be insured for their actual cash value. But this company shall not be liable for a greater amount on any one building and the contents thereof than 16,000, whether such contents were in such building at the time of the insurance or not.”</p> <p>We instructed the jury that if the defendant company had no knowledge, at the time the removal of the goods was approved, that the property was placed in the Kremer mill building, it was not liable beyond the $6,000; but if it had such notice, and accepted the plaintiff’s assessment for twelve years on $3,620, the policy was valid for that sum.</p> <p>Whether the company had such knowledge was the only question submitted to the jury. We so informed counsel before we began the charge, and he did not see fit to address the jury. In fact, there was no reason for any other action on his part. The evidence was explicit and uncontradicted that the company, through its authorized agent had such notice. It is true the notice was given to Mr. Schwenk, a manager, and ordinarily this would not be sufficient: Hook v. Mutual Insurance Co. of Berks County, 160 Pa. 229. Mr. Schwenk was more than a director — he was a general agent of the company. Mr. Price, the secretary, testified: “ Mr. Schwenk was an officer of the company from November 2, 1881. He looked after insurance in the towns of Upper Salford, Lower Salford, Perkiomen, or anywhere else in the district.” In this case the application for the original policy was in Mr. Schwenk’s handwriting, and he was intrusted with the policy for the purpose of having the removal approved. As the representative of the company he undertook the work, with the full knowledge that the property was located in the Kremer mill. He obtained the approval, and handed it back to the plaintiff. There was nothing to indicate to the plaintiff that his insurance was not as good and valid as it had been when his property was located in Upper Salford.</p> <p>Article 6 of the by-laws empowers the managers to take insurance. It provides as follows: “ Any member of the board of managers of the Line Lexington Mutual Fire Insurance Company of Bucks and Montgomery counties is authorized to effect insurance and give a receipt for the insurance fees. And all insurance so made shall be effectual, and the manager or managers effecting such insurance shall be indemnified in accordance with article 7 of the by-laws.”</p> <p>Under the charter and by-laws the powers of an individual manager are very extensive, and apparently they are the only persons who can effect insurance.</p> <p>Counsel for defendant contends that a contract to pay more than $6,000 is not binding, even if made by the full board of managers.</p> <p>Article 3 of the by-laws is evidently intended to limit insurance to $6,000 for a building and contents. True, it does not say that a policy shall not exceed $6,000; but it cannot mean that the company may insure for $10,000, collect the premium for years, and then upon a loss of $10,000 pay but $6,000. What is meant is that risks shall not exceed $6,000; and we were informed at the trial that this is the interpretation placed upon the hy-law by the company. . Policies are not issued on a single risk for more than $6,000.</p> <p>Shall the company with full knowledge take a risk for more than $6,000, accept the premiums on the larger sum for many years, and then when the day of reckoning comes be allowed to set up its own by-law to defeat the insured who paid his money in good faith ?</p> <p>The charter does not in any way limit the amount of a single risk. By article 8 the managers may change any by-law so long as their action is not repugnant to the charter of the company. If they can strike down a by-law altogether, why may they not waive its condition in a particular case if they see fit to do so, and deem it to the interest of the company ?</p> <p>The liability on the plaintiff’s policy after the removal of the property was knowingly assumed by the defendant company; it received the benefit of the contract for twelve years. The money so received was applied to the needs of the company. We must assume that the contract so made was deemed by the managers beneficial to the company, and it should not now be heard when it attempts to repudiate its undertaking; especially so when no individual policy holder appears to dispute the authority of the managers to make the agreement-: Manhattan Hardware Co. v. Phalen, 128 Pa. 110. We cannot distinguish this by-law from that considered in Cumberland Valley Mutual Protection Co. v. Schell, 29 Pa. 31, where a by-law prohibiting insurance in excess of two thirds of the estimated value was treated as a direction of the discretion of the company’s officers in making a contract. It was not a condition of the contract, it was not of the substance, was not essential but merely directory. Moore v. Susquehanna Mutual Fire Insurance Co., 196 Pa. 30, is to the same effect. The company, through its duly authorized agents, having made the contract and reaped its benefits, should be bound by its conditions.</p> <p>And now, September 3, 1900, the reasons for a new trial are dismissed, a new trial is refused, the motion for judgment non obstante veredicto is overruled, and judgment will now be entered on the verdict of the jury.</p> <p>Error assigned was in entering judgment on verdict.</p>

<p>Land law — Location of original surveys — Monuments—Calls—Courses and distances — Evidence.</p> <p>The controlling factors in the location of original surveys based upon warrants issued from the land office, in the order of their weight and efficiency as evidence, are (1) the monuments on the ground including corners, lines, etc; (2) calls for adjoiners; (3) courses and distances. When there are neither monuments applicable to the survey nor calls for adjoiners, the courses and distances must govern.</p> <p>In an action of ejectment for a strip of land one foot, three inches wide, where the starting point of the description is conceded, but there are no monuments referred to in plaintiff’s deed, nor any call for adjoining lots or division fences, and the lot is described by a particular nuniber, but there is no proper plan-of lots attached to the deed, and no reference to such a plan as having been recorded, the plaintiff is confined to the courses and distances mentioned in the deed.</p> <p>Ejectment — Title—Payment of taxes — Evidence. •</p> <p>Assessments and payment of taxes are not admissible in an action of ejectment as evidence of title, but merely of a claim of possession.</p>

<p>Building and loan associations — Payment of money to secretary — Affidavit of defense.</p> <p>Provisions in the by-laws of a building and loan association that stated monthly meetings of the board of directors shall be held on a day specified “ at such hour and such place as the board of directors may designate, for the purpose of receiving from the stockholders the money due the association,” and that “the secretary shall attend at all meetings of the board of directors .... and shall receive all moneys due the association and pay the same to the treasurer as soon as he has made a record of the same,” do not prevent the payment of money at any other time than at the time of the regular meetings, nor is the secretary limited to the receipt of money at such meetings in the office of the association. These provisions give general authority to the secretary to receive moneys, and his receipt of them at any time and place binds the association.</p>

Appeal, No. 229, Oct. T., 1900, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. T., 1900, No. 206, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Harry F. Louchheim v. Richmond Mutual Building & Loan Association. Rule for judgment for want of a sufficient affidavit of defense. The facts appear by the report of Louchhiem v. Richmond Mutual Building & Loan Association, ante, p. 33.

<p>Decedents' estates — Orphans' court sale — Sale under power in will — Setting aside sale.</p> <p>The orphans’ court has jurisdiction to set aside a sale made by an executor under a power conferred by a will, in case of gross inadequacy of price. In ordering a resale the court will direct the executor to return any cash payment that may have been made to him.</p>

Appeal, No. 45, Oct. T., 1900, by Bloomfield Brower et al., from decree of O. O. Phila. County, April T., 1886, No. 176, dismissing petition for an order in the estate of Edwin Greble, deceased. Petition for an order to pay over money. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing petition.

<p>Suretyship — Surety primarily liable.</p> <p>A surety is primarily liable upon his covenant, and may be proceeded against without recourse to him for whom he has engaged to answer; and this also may duly follow, even though the principal be dead.</p> <p>Suretyship — Surety for lessee.</p> <p>A contract to be responsible to a lessor for the true and faithful performance of a lease on the part of the lessee, is a contract of suretyship.</p> <p>Suretyship — Lease for term of years — ■Death of lessee.</p> <p>The death of a lessee for a term of years does not ipso facto discharge from liability for after accruing rent one who has bound himself absolutely for the payment of the rent for the entire term ; and neither the liability of the surety nor the right of action against him is suspended during the period between the death of the lessee, and the appointment of an administrator. In such a case the surety is not released by the bare fact that the widow of the lessee was in possession of the premises after the death of her husband and during the time when the rent claimed from the surety had accrued, without any evidence that she occupied the premises by agreement with the landlord.</p> <p>Practice, G. P. — Trial—Question reserved — Appeals.</p> <p>The facts contained in a reserved question may be found by the jury specially, or may be agreed upon by the parties, or may be stated by the trial judge; in the latter case, if either party is dissatisfied he may object, and except to such statement, and thus preserve his right to have the correctness of the judge’s finding of facts reviewed by an appellate court. But if no exception be taken to the judge’s statement of facts, the parties will be presumed to have assented to them, and are concluded by them and their legal effect. Upon appeal the inquiry is as to the legal effect of the facts necessarily established by the verdict and those stated in the reserved point.</p> <p>In an action against a surety on a lease for rent which had accrued after the death of the lessee, and before any personal representative of his estate had been appointed, where a point of law reserved at the trial merely states that the rent claimed fell due after the death of the lessee, and that the person in possession of the premises since the death is the widow of the lessee, the appellate court cannot draw an inference from these facts that the widow occupied the premises by agreement with the landlord.</p>

<p>Appeal, No. 44, Oct. T., 1900, by plaintiffs, from order of O. P. No. 4., Pbila. Co., Dec. T.? 1899, No. 410, sustaining demurrer to statement in case of Commonwealth to use of George P. Barnes et al., trustees of Matilda C. Barnes, deceased, v. John C. Clipsham and Henry Brooks.</p> <p>Assumpsit on a constable’s bond.</p> <p>Demurrer to statement.</p> <p>From the record it appeared that the suit was brought on the bond given by John C. Clipsham (a constable) and Henry Brooks, his surety, the conditions of which, inter aha, were that the said Clipsham should “ pay to parties interested, all money to them belonging which would come into his hands,” and should “ from time to time, and at all times during his continuance in said office of constable, justly and faithfully execute the said office,” etc.</p> <p>Clipsham was elected a constable for a term of five years from the first Monday of April, 1895. Acting officially as constable he collected rent belonging to the use plaintiffs and appropriated the same to his own use.</p> <p>This suit was brought December 11, 1899, during the term for which Clipsham was elected, which did not expire until the first Monday of April, 1900.</p> <p>Thedefendantclaimedtoescape liability on the bond by virtue of the Act of March 29, 1824, P. L. 171, which provides “that suits against sureties mentioned' in the 3d section of said act shall not be sustained unless the same be instituted within three years after the date of such obligation.”</p> <p>The court sustained the demurrer.</p> <p>Error assigned was in sustaining the demurrer.</p>

Appeal, No. 64, Oct. T., 1900, by plaintiff, from judgment of O. P. No. 3, Phila. Co., Dec. T., 1893, No. 568, on verdict for defendant, in ease of City of Philadelphia v. Alexander Armstrong. Scire facias sur municipal lien for a sewer. Defendant filed the following affidavit of defense: 1.

<p>Appeals, Nos. 65, 66 and 67, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1893, Nos. 650, 651 and 652, on verdict for defendant in case of City of Philadelphia v. Alexander Armstrong.</p>

<p>Foreign attachment — Affidavit of cause of action.</p> <p>Upon a rule Lo show cause of action in foreign attachment, a positive affidavit must be filed such as would, if false, subject the affiant to indictment for perjury. The plaintiff’s unsworn statement of claim will not be looked to by the court to supply fatal omissions from the affidavit; nor will the court consider that physically attaching one paper to the other without more, will make the statement of claim a part of the affidavit of cause of action.</p> <p>The affidavit of cause of action ought to set forth the facts essential to the jurisdiction of the court to compel appearance by foreign attachment.</p> <p>Foreign attachment — Cause of action — Secoiid affidavit to supply defect of first — Discretion of court.</p> <p>Where the plaintiff in a foreign attachment files an affidavit of cause of action which is defective in not stating jurisdictional facts as to nonresidence of the defendant, and after the rule has been once on the argument list, and continued without a hearing, plaintiff files a second affidavit of cause of action identical with the first, with the exception of an additional averment as to nonresidence of defendant, the court is bound to consider the second affidavit, and it is not within its discretionary power to dissolve the attachment because of the insufficiency of the first affidavit.</p> <p>Appeals — Foreign attachment — Dissolution of attachment.</p> <p>The Superior Court may review the action of the court of common pleas in dissolving a foreign attachment upon a hearing of a rule to show cause of action.</p>

<p>Appeal, No. 62, Oct. T., 1900, by plaintiff, from order of O. P. No. 3, Phila. Co., March T., 1896, No. 34, making absolute rule to strike off lien in case of Philadelphia v. The Second Reformed Presbyterian Congregation.</p> <p>Rule to strike off amended municipal lien.</p> <p>The affidavit in support of the rule to strike off the lien was as follows:</p> <p>John Boyd, being duly affirmed according to law, deposeth and saith, that he is the treasurer of the board of trustees of the Second Reformed Presbyterian congregation, in the county of Philadelphia, district of Spring Garden.</p> <p>That on January 1, 1895, and for many years prior thereto and up to and including the. present time, the said Second Reformed Presbyterian congregation, in the county of Philadelphia, district of Spring Garden, was. the owner of all that certain lot or piece of ground, with the buildings thereon; situate on the west side of Twenty-second street (late Schuylkill front), in the late district of Spring Garden, now in the fifteenth ward of the city of Philadelphia, thirty-eight feet north of Wood street, containing in front on Twenty-second street seventy-six feet seven and one half inches, and extending in depth westward 100 feet.</p> <p>That on or about March 7, 1896, the plaintiff filed a lien for $99.92 for the building of a culvert along the north side of said premises, through what the plaintiff called Carlton street, ten feet wide.</p> <p>That the defendant filed an affidavit of defense to said claim and filed pleas, averring that said alleged Carlton street was not a highway of the city of Philadelphia, and that the defendant, the Second Reformed Presbyterian church, was not the owner of said premises, either at the time of doing of the work, filing of the lien or filing of the pleas.</p> <p>That the plaintiff and defendant went to trial on the issues thus raised, and on the trial- it was shown by record evidence that the Second Reformed Presbyterian church was a corporation duly formed under the laws of the state of Pennsylvania, and an entirely separate and distinct corporation from the Second Reformed Presbyterian congregation, in the county of Philadelphia, district of Spring Garden, and had, neither at the time of the filing of the lien nor at any time, the Second Reformed Presbyterian Congregation, in the county of Philadelphia, district of Spring Garden, any title to the said premises, or any interest therein.</p> <p>That after these facts have been shown upon trial, plaintiff moved to amend the record by substituting the Second Reformed Presbyterian congregation, in the county of Philadelphia, district of Spring Garden, as defendant in place of the Second Reformed Presbyterian church, the original defendant in said suit, to which amendment the defendant objected, which objection was overruled and to the amendment made upon trial, the defendant pleaded surprise, and a juror was withdrawn and thus the matter stands.</p> <p>This affidavit is made in support of the rule to strike off the lien, inasmuch as the amendment substitutes a new party defendant, and the amendment was made after the period for filing ‘ the lien had expired, thus giving to the plaintiff an additional time for filing the lien of more than a year and a half.</p> <p>Error assigned was the order making absolute the rule to strike off the lien.</p>

Appeal, No. 93, Oct. T., 1900, by Esther H. Cochran, administratrix of Thomas Cochran, deceased, from decree of O. C. Phila. Co., April T., 1883, No. 126, dismissing exceptions to adjudication in the estate of Robert Haly, deceased. Exceptions to adjudication. From the record it appeared that Robert Haly died on January 21, 1882, leaving a will by which he devised a large amount of real estate to his children, and appointed Thomas G. Wyatt as executor.

Appeal, No. 88, Oct. T., 1900, by Charles Harkinson et al., from decree of O. C. Phila. Co., Oct. T., 1898, No. 145, dismissing exceptions to adjudication in the estate of Hester Ann Tibben. Exceptions to adjudication. The facts appear by the adjudication of Ferguson, J., which was as follows: William Tibben died over eighteen years ago.

<p>Appeal, No. 94, Oct. T., 1900, by defendant, from judgment of O. P. No. 2, Phila. Co., June T., 1899, No. 308, on verdict for plaintiff in case of Timothy Cronin v. Benjamin H. Sharp.</p> <p>Assumpsit to recover damages for breach of contract to sell the license, stock and fixtures of a liquor saloon. Before Sulzberger, J.</p> <p>The contract, which was in writing, is quoted in the opinion of the Superior Court.</p> <p>Defendant presented the following points:</p> <p>1. That the measure of damages in this case' is not the profits which plaintiff expected to make if he succeeded in having defendant’s license transferred to him with the approval of the court of quarter sessions, because that is too remote, contingent and speculative, but the value of the plaintiff’s chance of obtaining the transfer. Answer: Refused. [1]</p> <p>2. In the absence of proof that plaintiff would have obtained the transfer of defendant’s license from the court of quarter sessions had defendant presented a petition therefor, there can only be a recovery for nominal damages. Answer: Refused. [2]</p> <p>3. That there can be no recovery beyond nominal damages, the plaintiff not having proved any actual damages, and the chance for the transfer of the license to him being contingent upon the approval of the court of quarter sessions. Answer: Refused. [3]</p> <p>4. That- if the jury find defendant Sharp did not petition the court of quarter sessions for leave to transfer his license to plaintiff, because plaintiff’s conduct and acts were such as to lead defendant to believe that plaintiff .was not a proper person to have a license, then your verdict must be for defendant. Answer: Refused. [4]</p> <p>Verdict and judgment for plaintiff for $500. Plaintiff appealed.</p> <p>JSrrors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeal, No. 22, Oct. T., 1900, by Savillion M. Reiff etal., from decree of O. C. Phila. Co., July T., 1898, No. 110, dismissing exceptions to adjudication in the estate of. Charles W. Reiff, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that the decedent, Charles W. . Reiff, in his lifetime was in the employ of the Pennsylvania Railroad Company, and desiring to become a depositor in the Employees’ Saving Fund, made application therefor in the following form</p> <p>December 30, 1887.</p> <p>“ I, Charles W. Reiff, of Philadelphia, County of Philadelphia, State of Pennsylvania, at present employed as traveling passenger agent of Passenger Department, Pennsylvania Railroad, hereby express my desire to avail myself of the Pennsylvania Railroad Employees’ Saving Fund, upon the terms and conditions set forth in its regulations, as printed in the regular deposit book of the Fund.</p> <p>“ I agree that, in the event of my death, all deposits standing to my credit in said Saving Fund, and all interest due thereon, shall be paid to Mrs. William K. Reiff, my mother, who'resides at No. 2636 Brown street, Philadelphia, or, if not living, to my legal representatives.</p> <p>Charles W. Reiee.</p> <p>“ Witness:</p> <p>“D. C. Walsh.”</p> <p>This designation to pay to his mother was changed by a paper, of which the following is a copy:</p> <p>“ Philadelphia, Pa., March 8, 1894.</p> <p>“ Mr. D. S. Newhall,</p> <p>“ Supt. P. R. R. Employees’ Saving Fund.</p> <p>“ Dear Sir : I hereby request and agree that, in the event of my death, all deposits standing to my credit in the Pennsylvania Railroad Employees’ Saving Fund, and all interest due thereon, shall be paid to my wife, Sarah Welch Reiff, of Philadelphia, Pa., or, if not living, to my legal representatives, instead of to my mother, Mrs. William K. Reiff, the person named in my application, S. F., Form 1, dated December 30, 1887.</p> <p>“ Chas. W. Reiee,</p> <p>“ Holder of Deposit Book No. 49.</p> <p>“ Witness:</p> <p>“ Geo. Ash, Agent.”</p> <p>By regulation No. 2, in said saving fund deposit book, it is provided:</p> <p>“. . . . Employees desire to become depositors can obtain ...." form of application in which shall be set forth .... and the name and occupation of the person to whom, in the event of his death, his deposits .... shall be paid.”</p> <p>By regulation No. 11, depositors desiring to withdraw money must give ten days’ notice to the superintendent of the fund.</p> <p>By regulation No. 13, the agent will cash the order on the treasurer, or deliver it to the owner, who can obtain the money from any other agent, or from a bank in which the company’s funds are deposited, on presentation of this book, indentifying himself and signing receipt on the order.</p> <p>And by regulation No. 18, upon the presentation to the superintendent of the fund of satisfactory proof of the death of a depositor, the money belonging to him shall be paid over only to the person designated in his application-to receive same; or, if the person so designated shall not be then living, said funds shall be paid either to the heirs or personal representatives of the deceased depositor, as the board may determine.</p> <p>Subsequently, on January 4,1896, the said decedent, Charles W. Reiff, made and published his last will and testament, inter alia, as follows:</p> <p>“ Philadelphia, January 4,1896.</p> <p>“I, Charles Wesley Reiff, being of sound mind and body, do make this, my last will and testament, superseding all previous instruments of prior date,” etc.</p> <p>And of said will appointed his wife, Sarah Welch Reiff, his brother, Emanuel K. Reiff, and his friend, William J. Burns, the executors.</p> <p>The testator died November 9, 1897.</p> <p>The testator’s widow, Mrs. Sarah Welch Reiff (who is also one of the executors), after the death of testator collected from said saving fund the sum of $3,902.82, which sum the appellants sought to surcharge her with before the auditing judge.</p> <p>The auditing judge refused to surcharge as requested, to which exceptions were filed and dismissed.</p> <p>jErrors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 75, Oct. T., 1900, by Jobn E. Rafferty, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 59, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Patrick Connor v. Charles Schildt, with notice to John E. Rafferty, terre-tenant.</p> <p>Assumpsit to recover a semiannual payment of a ground rent reserved in a deed.</p> <p>From the record it appeared that the rent was reserved in the deed by Patrick Connor and wife to Charles Schildt, dated September 25, 1896.</p> <p>John E. Rafferty, terre-tenant, filed an affidavit of defense which was as follows :</p> <p>On September 25, 1896, plaintiff being the owner of a certain ground rent or sum of 160.00 on lot of ground on the north side of Ontario street at the distance of 243 feet westward from the west'side of “H” street, agreed with Charles Schildt, the owner of said lot, and above named defendant, for the better securing of said ground rent to contribute the sum of $600 for the erection and construction of a dwelling on said lot (a copy of the said contract is hereto annexed). Charles Schildt erected said building according to the plans and specifications, and having fully complied with his contract in all respects on December 16, 1897, assigned said contract to deponent, of which assignment the plaintiff had notice. Of said sum of $600 plaintiff contributed $430, leaving a balance of $170 which plaintiff admitted was due on the said contract, and having refused to pay the same, deponent brought suit against plaintiff, C. P. No. 4, December term, 1898, No. 459, for the recovery of said sum of $170, which suit is still pending and undetermined. On July 11, 1899, deponent tendered plaintiff in gold coin the sum of $859.01, being $830 on account of the principal of said ground rent, and $29.01 interest, which said- sum plaintiff refused to accept, and which deponent now brings into court for plaintiff.</p> <p>The building contract referred to in the affidavit provided that payments should be made as follows:</p> <p>One hundred dollars when the first floor of joists is laid; $75.00 when the second floor of joists is laid; $75.00 when the roof is on; $75.00 when the house is plastered; $75.00 when the house is completed, and $100 when a full release of liens is signed by all the parties furnishing work or material for or about the erection of said house and delivered to said party of the second part by said party of the first, and the balance of $100 when the street improvements are made and receipts for the payment of the charges therefor are delivered to the party of the second part.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Insurance — Fire insurance — Delivery of policy — Possession of policy.</p> <p>No particular form is required to effect a delivery of a deed or other writing. It may be by acts merely, by words merely, or by both combined, but in all eases an intention that it shall be a delivery must exist.</p> <p>The fact that although a policy of fire insurance was executed by the company’s officers and countersigned by its local agent, it was not delivered to the insured by any one having authority from the company or its agent, but was obtained on the day after the insured premises were burned, by the insured, from the agent’s clerk in the agent’s absence, and without notice to either that a fire had occurred, rebuts the prima facies arising from plaintiff’s possession of the policy.</p> <p>The fact that a policy of fire insurance had not been manually delivered to the insured at the time of the loss will not bar recovery, if at that time it had become a binding contract.</p> <p>In an action upon a policy of fire insurance, it appeared that defendant’s local agent had in his possession policies signed by the president and secretary of the defendant which, as he effected insurance he had authority to fill, countersign and deliver. The local agent was also an insurance broker, and had a contract to keep the plaintiffs’ property insured for a certain amount at a certain rate per cent. A short time prior to the expiration of the policy in suit, it appeared that plaintiffs were informed that a clause as to the storage of certain lumber would be inserted in the policies. The plaintiffs objected to the clause, and this objection was communicated to the local agent. Thereupon the agent wrote to the plaintiffs that he would make out the policy according to their wishes. Nine days afterwards and on the day before the fire, plaintiff wrote to the agent that on account of the question having been raised about the lumber clause, they had placed their insurance in another company. With this letter the plaintiffs returned the agent’s bill which he had sent them in his previous letter. On the day following, which was the day of tho fire, the agent wrote to the plaintiffs complaining of the action of the latter, and stating that he had written the policy without the lumber clause, in 'accordance with plaintiffs’ request. On the day after the fire', the policy was obtained by the plaintiffs’ treasurer from the agent’s clerk, in the agent’s absence, and without notice to either that a fire had occurred. As soon as the agent learned of the transaction, which was the same day, he notified the plaintiff that the defendant would recognize no liability on the policy, and demanded a return of the same. Held, that the court committed no error in giving binding instructions for defendant.</p> <p>Insurance — Contract—Meeting of minds of parlies.</p> <p>As in case of any other contract to constitute a contract of insurance, the minds of the parties must meet and concur as to the terms.</p> <p>Insurance — Fire insurance — Acceptance of policg — Agent.</p> <p>Where a personal contract between a person claiming to be insured, and the local agent of the insurance company, who was also an insurance broker, does not take away from such person the right as against the insurance company to accept or reject a policy which the agent might induce the company to tender, such person, if he claims to be insured, under a policy tendered to him, must show that he accepted the policy, either by express evidence, or by circumstances from which acceptance may be reasonably inferred.</p>

<p>Appeal, No. 95, Oct. T., 1900, by the City of Philadelphia, from order of C. P. No. 1, Philadelphia Co., Sept. T., 1897, No. 461, confirming report of jury of view in In re Construction of Sewer on Chatham Street.</p> <p>Exceptions to report of viewers.</p> <p>This was a proceeding under the Act of May 16, 1891, P. L. 75, to assess damages for injuries to property resulting from the construction of a sewer on Chatham street.</p> <p>The material portions of the report of the jury of view are as follows:</p> <p>There can be no doubt but that a considerable loss has been suffered by most of the tenants and owners of premises fronting upon Chatham street, between the termini named in the caption of this case. The city of Philadelphia constructed a sewer on Chatham street, between said termini, at such level that for a part of the distance the surface of the street was broken slightly by an emergence of the filling of earth over the crown of the sewer. Moreover, towers or circular walls were erected by one of the manholes of the said sewer, and this being built according to a plan for a future elevated street surface, raised it one or more feet above the actual present level. Moreover, the city authorities have not relaid the cartway pavement since the work of constructing the sewer was done, and the surface of the street, consequently, has been in such a condition as is inconsistent with comfortable or even tolerable use thereof by vehicles.</p> <p>In addition to these circumstances, the trench upon said street was defective by reason of the work done by the city, as compared with the condition of things before the said sewer was laid, because the gutters were, for a considerable period, obstructed by the earth and stones thrown out when the trench was dug. There was evidence from which the jury is led to believe that water found its way into the cellars of some of the houses by reason of this obstruction.</p> <p>At a period of more than six months prior to when the report of the jury was filed, the city authorities or some other individuals, removed that portion of the circular towers projecting over the sewer above the surface of the street, and the iron manholes were' lowered to the surface of the street.</p> <p>The jury find, as is stated above, that many of the properties abutting upon said street, between said termini, are injured by the conditions which have been detailed. The importance of those conditions as causes of the said injuries is indicated by the following order of statement: The present defective highway surface, owing to a failure to repave, insufficiently prepared surface and slopes of the cartway to dispose of water falling thereon, and the slight emergence of the sewer embankment above the level of the street. The discharge, owing to obstruction of the gutters, is substantially removed prior to the date at which this report was filed, as is also the eyesore and obstruction which was produced by the presence of the circular manhole towers.</p> <p>Exceptions to the report of the jury of view were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to report of the jury of view.</p>

<p>Appeal, No. 107, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Oct. T., 1900, No. 107, on case stated in suit of Kate McNally v. The Metropolitan Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance.</p> <p>The facts as agreed upon in the case stated appeared by the opinion of the Superior Court.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Appeal, No. 12, Oct. T., 1900, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1898, No. 895, on verdict for plaintiff in ease of Peter Ballingall to use of James W. Davis v. Samuel D. Hunsberger.</p> <p>Assumpsit for money had and received. Before McCarthy, J.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>The court directed a verdict for plaintiff.</p> <p>Verdict for plaintiff for $128.17. Defendant appealed.</p> <p>Error assigned was directing verdict for plaintiff.</p>

<p>Appeal, No. 24, Oct. T., 1900, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1899, No. 585, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Alfred A. Sparks, Receiver of The Fidelity Mutual Fire Insurance Company, v. C. L. Flaccus Glass Company.</p> <p>Assumpsit to recover the amount of an assessment of a mutual fire insurance company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that suit was brought for three annual assessments on an assessable policy of fire insurance. On the face of the policy these words were stamped, “Limited assessment policy. In consideration of the assured hereby waiving all right to participate in the profits or return dividends of this company, the liability to assessment on this policy is limited to one dollar. Signed: Alfred A. Sparks.”</p> <p>The affidavit of defense was as follows:</p> <p>Deponent is advised, believes, and suggests to the court that. the statement filed in the above case is not sufficient in law to entitle-the plaintiff to judgment, for the following reasons:</p> <p>1. That the said statement does not set forth a copy of the resolution, motion or action of the board of directors, asking the assessment referred to in said statement.</p> <p>2. That said statement does not set forth the losses and expenses of the plaintiff company during the time defendant’s policy was in force, which necessitated an assessment in the sum of three annual premiums amounting to 1131.25, as is averred in said statement.</p> <p>That the original policy, upon a renewal of which this suit is brought, was a “ limited assessment policy,” containing the following stipulation: “In consideration of the assured hereby waiving all right to participate in the profits or return dividends of this company, the liability to assessment on this policy is limited to one dollar,” signed by the then secretary but present receiver of the plaintiff company.</p> <p>That this deponent on January 12, 1898, withdrew from membership in the plaintiff company, and that the plaintiff company knew on that date of the financial condition as to losses and expenses; nevertheless despite this knowledge the plaintiff company did on that date cancel the policy of the deponent in accordance with by-law fifteen, which provides that policies will not be canceled unless all charges standing on the books of the company against the policy holder shall have been paid.</p> <p>This deponent further says that an agent of the plaintiff company solicited of the defendant the placing of fire insurance upon defendant’s property located in the borough of Tarentum, and Harrison township, Allegheny county, Pennsylvania, but it was expressly stated by defendant to said plaintiff’s agent that he would not place or accept any fire insurance in any assessment company or companies where the stockholders could be assessed for losses upon their policies.</p> <p>That the plaintiff’s agent agreed with this deponent that the policy issued to him -should be a regular nonassessable fire insurance policy, and charged deponent with a full regular non-assessable rate, such as then was and now is charged by the fire insurance underwriters’ association.</p> <p>That this deponent was charged for his policy by the plaintiff’s agent the sum of money named in the copy of the policy attached to the statement of claim filed, which sum was the same amount of money which deponent would have been obliged to pay — no more and no less — had the insurance been effected with an insurance company upon a stock plan.</p> <p>That the policy delivered to the defendant was the standard full stock policy in use by the stock companies, with the exception of the words “ Mutual ” and “ In consideration of the stipulations herein named and of Forty-three and dollars premium,” etc., ending with “ annual premium paid,” which stipulation is waived by a clause imprinted upon the face of the original policy as follows: “ Limited assessment policy. In consideration of the assured hereby waiving all right to participate in the profits or return dividends of this company, the liability to assessment on this policy is limited to one dollar; ” the same being signed by the company’s then secretary and present receiver.</p> <p>.Deponent further says that if the actual policy upon which this suit is brought, does not contain the stipulation entitled “limited assessment policy” above mentioned, it is because of a fraud, accident or mistake on the part of the plaintiff company, and was neither known to deponent at any time, nor would the omission have been permitted, or a renewal policy accepted by defendant if it were exactly as is averred by the plaintiff in the alleged copy attached to the statement filed.</p> <p>That the placing of said insurance by the plaintiff upon the mutual assessment plan was a fraud, accident or mistake practiced by said plaintiff company upon the defendant, because as deponent is informed, believes and expects to be able to prove, the plaintiff promised and agreed to issue said renewal policy as a “nonassessable policy” and have the word “nonassessable” stamped on the face of the policy, which fraud, accident or mistake practiced upon defendant by plaintiff was not discovered by the deponent at the time said policy was accepted by deponent, and that the plaintiff had not complied with its promise and agreement to issue a nonassessable renewal policy to deponent, and have the same stamped in a manner precisely similar to the original policy which contained the nonassessable clause.</p> <p>That the defendant is not indebted to the plaintiff as will appear by a reference to article 14, section 1 of the by-laws of the plaintiff’s company, which is as follows: “ Or unless the liability to assessment is limited to a fixed sum, then the assessment shall in no case exceed the amount so limited.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 166, Oct. T., 1900, by G. Ell wood Wagner, from order of Q. S. Phila. Co., May T., 1899, Docket 46, p. 560, dismissing exceptions to report of viewers in In re opening of Thirteenth Street from Oak Lane to Sixty-sixth Avenue, North, in the City of Philadelphia. Exceptions to report of viewers. The principal exceptions to the report of viewers were as follows: 3.

Appeal, No. 184, Oct. T., 1900, by Clifford Pemberton, Jr., from order of Q. S. Phila. Co., dismissing exceptions to report of jury of view in In re Opening of Fifty-fiftlr Street from Wyalusing Avenue to Master Street. Exceptions to report of viewers.

Appeal, No. 103, Oct. T., 1900, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1900, No. 332, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Samuel H. Johnson v. James Judge, Jr., Robert B. Judge and Agnew MacBride, trustees of James Judge, deceased, and William B. Judge, executor and trustee of Robert B. Judge, deceased, late trading as William Judge & Brother. Assumpsit on a contract of employment.

Appeal, No. 228, Oct. T., 1899, by plaintiff, from order of O. P. Blair Co., June T., 1899, No. 23, dismissing exceptions to auditor’s report in In re Estate of Albert McFarland. Exceptions to auditor’s report.

Appeal, No. 229, Oct. T., 1899, by Isett & Wary, from order of C. P. Blair Co., June T., 1899, No. 23, dismissing exceptions to auditor’s report in the Estate of Albert McFarland. Exceptions to auditor’s report. From the record it appeared that on June 27, 1895, T. P. Gehr assigned all his property, real, personal and mixed to W. A. Ambrose, Esq., in trust for the benefit of the former’s creditors.

<p>Fixtures — Trade fixtures — Intention—Landlord and tenant.</p> <p>The true criterion in determining what are trade fixtures, is the intention on the part of the tenant to remove the fixtures during his term at the time he placed them upon the property. The intention which, thus becomes controlling is not the undisclosed purpose of the actor, but the intention implied and manifested by his acts. The question is always a mixed question of law and fact.</p> <p>Fixtures— Trade fixtures — Drug store.</p> <p>The court cannot say as a matter of law that counters, prescription cases and shelving in a drug store are trade fixtures. It is not so universally the custom to equip a drug store by physically annexing such articles to the real estate as to justify the court in holding that they were fixtures, without evidence of the intention and manner which determined their construction and use. They might readily be articles used in the profession without being trade fixtures. A jury should determine the fact.</p>

Appeal, No. 37, Oct. T., 1900, by-defendant, from judgment of O. P. Northumberland Co., May T., 1898, No. 102, on verdict for plaintiff in case of Annie L. Got-shall v. J. Langdon & Company, incorporated. Trespass for the alleged mining of coal. Before Savidge, P. J. The defendant pleaded not guilty, and subsequently at the trial the statute of limitations.

Appeal, No. 106, Oct. T;, 1900, by plaintiff, from judgment of O. P. McKean Co., June T., 1899, No. 294, on case stated in suit of A. Scboenfeld v. City of Bradford. Case stated in'an action to recover back money alleged to have been paid under duress. The material portions of the case stated were as follows: 1.

Appeal, No. 222, Oct. T., 1900, by P. F. Devine, from order of Q. S. Schuylkill Co., Nov. T., 1899, No. 1230, refusing to strike off verdict imposing costs on prosecutor in case of Commonwealth v. Patrick W. Doyle. Petition for a rule to show cause why a verdict imposing costs upon prosecutor should not be set aside.

Appeal, No. 213, Oct. T., 1900, by-defendant, from order of O. P. Schuylkill Co., May T., 1884, No. 91, discharging rule to open judgment in case of J. F. Rehm, administrator d. b. n. of George Rehm, deceased, v. John Frank. Before Rice, P. J., Rule to open judgment. The facts are fully stated in the opinion of the Superior Court. Error assigned was order discharging rule to opén judgment.

Appeal, No. 123, Oct. T., 1900, by defendant, from judgment of O. P. Schuylkill Co., May T., 1900, No. 380, for plaintiff on case stated in case of D. M. Graham v. Schuylkill County. Case stated to determine liability of county for expenses of .advertising election proclamation.

<p>Practice, C. P. — Trial—Charge of court — Comment on testimony.</p> <p>It is not error for a trial judge to comment on the testimony of a witness, and to call attention to its inherent probability or improbability, provided he does it fairly, and leaves the question of his credibility to the jury.</p> <p>In an action of assumpsit for board and lodging, where the defendant alleges that he loaned money to the husband of plaintiff to buy the farm upon which plaintiff lived with her husband, and that a part of the transaction was that he should receive board and lodging free when in the neighborhood, the court may in its charge call the jury’s attention to the fact that when the loan was made the husband agreed to pay interest upon it.</p> <p>Husband and wife — Boarding house — Mortgage—Interest.</p> <p>That fact that a husband permits his wife to keep boarders and to receive the pay therefor, does not impose on her an obligation to pay the interest on a mortgage on the premises given for a loan to her husband; nor is such an arrangement a fraud on the mortgagor which he can set up as a defense to an action by the wife against him for board and lodging.</p> <p>Practice, C. P. — Trial—Sending out paper with jury — Appeals—Assignments of error.</p> <p>The Superior Court will not consider an assignment of error based on certain instructions of the trial judge as to a paper sent out with the jury, where the paper does not appear in the record.</p> <p>Appeals — Assignments of errors — Bule 16 of the Superior Court.</p> <p>An assignment of error which omits a part of a sentence in the charge, which explains the part assigned for error, violates Rule 16 of the Superior Court, and will not be considered.</p>

<p>Appeal, No. 224, Oct. T., 1900, by defendant, from judgment of O. P. Northampton Co., Sept. T., 1899, No. 55, on verdict for plaintiff in case of William D. Brands v. Reuben L. Wise and Joseph Wise, trading as Wise Brothers.</p> <p>Appeal from justice of the peace. Before Scott, J.</p> <p>From the record it appeared that the justice gave judgment in favor of the plaintiff for $300.</p> <p>At the trial no question was raised as to the jurisdiction of the justice of the peace.</p> <p>Frr.ors assigned were (1) the amount in controversy exceeded $300, and the justice of the peace had no jurisdiction. (2) The amount in controversy exceeded $300 and the court of common pleas had no jurisdiction on appeal.</p>

Appeal, No. 192, Oct. T., 1900, by defendants, from judgment of Q. S. Phila. County, June T., 1900, No. 479, sentencing defendant to imprisonment in case of Commonwealth v. Frank J. Fink and Joseph Fayer. Indictment for an illegal sale of oleomargarine. Before McCarthy, J. The facts are fully stated in the opinion of the Superior Court. Error assigned was in sentencing the defendants to imprisonment.

Appeal, No. 205, Oct. T., 1900, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1899, No. 71, dismissing exceptions to master’s report in divorce in case of Minnie A. Howe v. Everett T. Howe. Libel for divorce. The case was referred to Webster Melcher, Esq., as master, who toot testimony and filed a report in which he recommended that the libel should be dismissed. Error assigned was decree dismissing exceptions to master’s report.

<p>Husband and wife — Proceedings for desertion and nonsupport — Act of April 13, 1867, P. L. 78.</p> <p>A husband cannot, by giving to his wife his personal bond to pay to her a certain amount per week “ so long as they shall live separate and apart,” without there being any agreement of separation between them, relieve himself from prosecution under the act of April 13, 1867, for desertion and nonsupport</p>

Appeal, No. 194, Oct. T., 1900, by defendant, from judgment of Q. S. Phila. Co., June T., 1900, No. 390, sentencing defendant to jail in case of Commonwealth v. John L. Neill. Indictment for illegal sale of oleomargarine. Before McCarthy, J. The facts are stated in the opinion of the Superior Court. Error assigned was in sentencing the defendant to jail.

Appeal, No. 201, Oct. T., 1900, by Walter P. Jackson, from decree of O. C. Chester Co., overruling exceptions to auditor’s report in the Estate of William H. Crouse, deceased. Exceptions to report of William S. Windle, Esq., auditor. From the auditor’s report it appeared that when the decedent died in 1896, he held a judgment against William McQuigan, amounting with interest to 11,343.32.

<p>Appeal, No. 7, April T., 1901, by Lyman E. Davis, from order of Q. S. Allegheny Co., March T., 1900, No. 5, granting a brewer’s license, in the application of the Pittsburg Brewing Company.</p> <p>Petition for a brewer’s license.</p> <p>From the record it appeared that at the March sessions, 1899, the court granted to the Pittsburg Brewing Company twelve brewer’s licenses. Against each application Lyman E. Davis filed a remonstrance. At the March sessions in 1900, the Pitts-burg Brewing Company again applied for twelve brewer’s licenses, and Lyman E. Davis renewed his remonstrance. The question involved was whether the court of quarter sessions had authority to grant several brewer’s licenses to one company.</p> <p>The court in an opinion by McClttng, J., granted the licenses.</p> <p>Error assigned was the order of the court.</p>

<p>Poor Laws — Insane criminals — Townships—Acts of May 14, 1874, P. L. 160 and June 25, 1895, P. L. 270.</p> <p>Where a jury in a criminal prosecution finds a verdict of not guilty by reason of insanity, and specifies a township as the place of settlement of the defendant, and a rule is taken upon the overseers of the poor of the township to show cause why they should not pay the expenses of the defendant at the hospital for the insane, and at the hearing the record of the criminal proceedings is given in .evidence without objection by the overseers, the court may make an order directing the overseers to pay the expenses. In such a case evidence as to the prisoner’s sanity and as to his property is immaterial.</p>

<p>Appeal, No. 64, April T., 1900, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1898, No. 533, on bill in equity in case of Josephine Beso and Anthony Beso v. The Eastern Building & Loan Association of Syracuse, New York.</p> <p>Bill in equity to restrain a suit on a mortgage and for cancelation of notes secured by the mortgage. Before White, P. J.</p> <p>From the record it appeared that plaintiff, Josephine Beso, was a member of the Eastern Building & Loan Association of Syracuse, New York. On August 8, 1891, plaintiff made an application for a loan for $2,500. This application was duly accepted, and plaintiff gave seventy-three promissory notes payable at the office of the association at Syracuse, secured by a mortgage of her land in Wilkinsburg, Pa. By the terms of the mortgage she had a right to anticipate the payment of the notes. After paying sixtj^-two of the notes, on August 30, 1897, she tendered to the association $450, which was more than enough to pay the six notes then due, with interest, and the other five not due, and demanded a surrender of the notes. The association refused, to accept the money and surrender the notes, claiming that the mortgage covered not only plaintiff’s liability as a borrower, but also her liability as a shareholder. The covenants of the mortgage and the provisions of the by-laws of the association are stated in the opinion of the Superior Court.</p> <p>The court below entered a decree in accordance with the prayers of the bill.</p> <p>Error assigned among others was the decree of the court.</p>

Appeal, No. 61, April T., 1900, by defendant, from decree of Mercer Co., Oct. T., 1898, No. 2, on bill in equity in case of Sandy Lake Borough y. The Sandy Lake and Stoneboro Gas Company. Bill in equity to require the defendants by a mandatory injunction to restore the gas pipes and connections of the defendant company with the street lamps of the plaintiff, so that the borough of Sandy Lake can turn on and use gas for street lighting purposes.

<p>Appeal, No. 153, Oct. T., 1900, by plaintiffs, from judgment of C. P. No. 4, Pbila. Co., Sept. T., 1899, No. 309, on verdict for defendants in case of Joseph Weis and John P.P. Weis, trading as Joseph Weis & Brother, v. Marshall W. DeLong and Prank K. Stahl, trading as DeLong & Stahl.</p> <p>Assumpsit to recover a balance of $600 alleged to be due by defendants to plaintiffs for work and labor done and materials furnished in a building operation. Before Audenreid, J.</p> <p>At the trial it appeared that on April 12, 1898, DeLong & Stahl entered into a written contract with Weis & Brothers by which the latter agreed to furnish certain material for and do certain work and labor on thirty-four houses then being erected by DeLong & Stahl. The consideration money was $1,624, to be paid as follows :</p> <p>(1) Ten hundred and twenty-four dollars of the said amount shall be paid to them in cash, as the work proceeds, of which they shall receive’ the sum of $30.00 as they set up in accordance with this agreement the wardrobes, mantels and tiling in each house, and the balance of said $1,024 shall be paid them when they complete their work herein undertaken by them; (2) the balance of the said sum of $1,624, to wit: the sum of $600, shall be' paid by an interest of $300 in and to each of two separate first mortgages of the sum of $1,600 each upon two separate lots of ground situate on Dunham street and marked Nos. 1 and 2 respectively on the plan of said operation, which is annexed to the specifications aforesaid, on each of which said two first mortgages the parties of the first part have negotiated a loan with the Germantown Real Estate Deposit and Trust Company. The said mortgages are to be assigned to the said company to secure the payment of said loan, and are to be held by them. Upon the completion of the buildings, the parties of the second part will be entitled forthwith to sell and dispose of the said mortgages, and to retain the proceeds of said sale or sales over and above the amountof $1,300 as to each of said mortgages respectively.</p> <p>From the evidence it appeared that defendants duly assigned the mortgages to the trust company, and that subsequently having defaulted in payment of their loan and interest, the trust company sold the mortgages for a sum insufficient to leave any surplus for the plaintiffs. The court gave binding instructions for defendant on the ground that the plaintiffs had taken the equity in the mortgages in full payment of their debt.</p> <p>Errors assigned were in giving binding instructions for defendants.</p>

Appeal, No. 137, Oct. T., 1900, by plaintiffs, from order of C. P. No. 4, Phila. Co., March T., 1900, No. 79, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in case of Alfred P. Shannon and Edwin H. Shannon, trading as J. B. Shannon & Sons, v. Philadelphia German Protestant Home for the Aged, owner or reputed owner, and J. Y. Bennett and S. W. Rothrock, trading as Bennett & Rothrock, Contractors. Scire facias sur mechanics’ liens.

Appeal, No. 73, Oct. T., 1900, by Catherine G. Hauer, from decree of O. C. Lebanon Co., Jan. T., 1900, No. 4, dismissing exceptions to auditor’s report in the estate of Susan L. Hauer, deceased. Exceptions to report of John S. Louser, Esq., auditor.

Appeal, No. 108, Oct. T., 1900, by Jacob Fleming et al., from order of Q. S. Northumberland Co., Feb. T., 1900, No. 70, approving contract as to roads in matter of the petition, bond and proof of notice and order of court in matter of contract of Township of Coal, under act of June 12, 1893, with the Philadelphia & Reading Coal & Iron Company.

Appeal, No. 16, Jan. T., 1901, by Township of Plains, from order of Q. S. Luzerne Co., Jan. T., 1900, No. 341, approving order in the matter of the petition of G. W. Mitchell and Michael Galvin to make roads, etc. Petition to approve contract to make roads. Error assigned was order approving contract.

<p>Decedent's estates — Widow's exemption — Charge on land.</p> <p>The statutory allowance to a widow commonly spoken of as widow’s exemption, elected by her to be taken in real estate, becomes, after the confirmation of the report of the appraisers that the land cannot be divided without injury, a charge upon it, and the orphans’ court has power to enforce payment of the charge by a decree that it be made out of the lands by sale.</p> <p>Widow's exemption — Non residence of widow — Jurisdiction.</p> <p>If it appears on the face of proceedings awarding a widow’s exemption that the decedent neither died within this commonwealth nor liad a domicil therein, the decree confirming the appraisement is void for want of jurisdiction, and this objection may be raised on the hearing of the application for the order of sale of the land charged with the exemption; but where the decree of confirmation is made by the orphans’ court of the county in which the letters of administration were issued, want pf juris? diction is not to be presumed from the mere omission to set forth in the claim or in the appraisement that the decedent died, or was domiciled af the time of his death within the commonwealth.</p> <p>Widow's exemption — Appraisement—Charge on land — Order of sals — USS judicata.</p> <p>If it appears upon the hearing of a petition for an order of sale to enforce a decree charging a widow’s exemption on land that the prior proceedings are regular on their face, an heir may not attack the decree and demand a reinvestigation of the domicil of the decedent at the time of his death. Such a decree is res judicata. The remedy of the heir was to except to the allowance and confirmation of the appraisement.</p>

<p>Appeal, No. 160, Oct. T., 1900, by-defendants, from judgment of O. P. Centre Co., Nov. T., 1897, No. 239, on verdict for plaintiff in case of Mary S. Thomas v. Thomas Butler and Burdine Butler.</p> <p>Sheriff’s interpleader to determine the ownership of personal property levied upon as the property of D. R. Thomas, and claimed by Mary S. Thomas, his wife.</p> <p>At the trial when D. R. Thomas was on the stand, the following offer was made:</p> <p>Counsel for the defendants proposed to prove by the witness on the stand declarations of his at or about the time of the alleged assignment of the personal property to his wife, which would tend to contradict the story of the same witness upon the stand, as to the indebtedness which he now alleges he owed his wife at that time; and for the purpose of contradicting the said witness, we propose to aslc the witness on the stand whether he did- not say, at or about the time of the assignment in suit, that outside of his liability in the Rishel matter and his indebtedness to McCalmont & Company, he had no indebtedness whatever, that he didn’t owe a dollar, that the personal property was his, and was ample to protect the said McCalmont & Company for further credits, if the same were extended to him, D. R. Thomas.</p> <p>Counsel for the plaintiff objects to the question proposed to be asked, for the reason that the defendant in this issue did not become interested in D. R. Thomas in any manner whatever until February 8, 1897, while the bill of sale and the evidence already adduced show that the property was sold and transferred to the plaintiff in the issue on August 1, 1895.</p> <p>The evidence is further objected to because it is irrelevant and immaterial in this issue in so much that it does not show that the execution creditor was induced to extend to the witness any credit whatever upon any declaration he may have made; so it is objected to because it is irrelevant and immaterial to the issue.</p> <p>The Court: We understand that the declarations proposed to be proved were made to third parties in the absence of the plaintiff and we do not believe they are competent. We therefore sustain the objection, exclude the offer and seal a bill for the defendant. [1]</p> <p>Burdine Butler was asked this question:</p> <p>“ Q. At the time that this drill was ordered, August 28, 1895, state what if any representations D. R. Thomas made to you as to the ownership of his personal property? A. He offered an apology for his indebtedness to McCalmont & Company and said that because of his lawsuit and money tied up with Rishel he was unable to pay his obligations, and he didn’t owe a dollar to any one but Rishel, and it was on that statement that he was granted further credit. Q. What did he say as to the ownership of his personal property? A. That he owned it.”</p> <p>Mr. Reeder: “Q. Was Mrs. Thomas present? A. No, sir.”</p> <p>Objected to.</p> <p>Mr. Orvis: We proposed to show about the time declarations that he still owned that property, and that he owed no debts except a certain specified one.</p> <p>Objected to as irrelevant and immaterial.</p> <p>The Court: The objection is sustained and a bill sealed for the defendant. [2]</p> <p>The court charged in part as follows :</p> <p>[The plaintiff, Mary S. Thomas, claims this property by virtue of a transfer to her on August 1, 1895. As evidence of that claim, she shows here a bill of sale, setting forth most of the items. There were some items alleged to have been there at the time, that were not embraced in the bill of sale. They consist of some odds and ends which were presented to her by her husband at the time for a balance over and above the consideration named in the bill of sale, which was $1,107.50, and the amount of the alleged indebtedness of her husband to her was $1,150.50.] [3]</p> <p>[If a person loans money to another or becomes security for a debtor, knowing at the time he does so that the personal property of the person to whom he loans money or becomes security for, has been transferred bona fide, he is not in a position to take the property so transferred as the property of the person to whom he loaned the money, to pay the debt created thereby, as against such bona fide holder. You heard the testimony of Burdine Butler as to what occurred in relation to this bill of sale, that he took no account of it at the time the money was secured from his father.</p> <p>The rule of law is then, in relation to subsequent creditors, that if you are satisfied it was a bona fide transaction, that there was a legal indebtedness existing at the time, and that this property was transferred bona fide in payment thereof, then a subsequent creditor cannot take it. You must be satisfied that it was not transferred with the intention to defraud such subsequent creditors. If it was made with the view of defrauding subsequent creditors, of course the verdict will have to be for the defendants ; but you will remember that this money was not loaned till nearly a year and a half after this transaction occurred.</p> <p>In relation to the transfer of personal property, there is the same rule as in relation to the transfer of real estate. The Supreme Court has stated it in the case of Buckley v. Duff & Sons, 114 Pa. 596; and in Ditman v. Raule, 23 W. N. C. 302, this language is used: “ A transfer of personal property void as to existing creditors, is not necessarily void as to subsequent creditors. It was fraudulent only as to those it was intended to defraud.” That is, that, as to existing creditors, there may be a transfer of property which may be fraudulent as to them, but as against subsequent creditors it is good, unless the evidence satisfies the jury that it was made to defraud such subsequent creditors.] [4]</p> <p>[There seems to be no evidence here to show that the price or value fixed upon the property transferred was necessarily under its value; and if it was bona fide, then we say to you it would invest her with the title to that property.</p> <p>If there is a dispute about any other items that were embraced in the bill of sale, you must determine whether or not she purchased them afterwards, or to what extent she purchased them afterwards.</p> <p>You remember the testimony as to the organ; and we say to you that, so far as the wagons were concerned, and any other little pieces of property that were conveyed at the same time on this indebtedness over and above the amount named in the bill of sale, it also invested her with title to them. You find the transaction bona fide.] [5]</p> <p>If you believe that there was a bona fide indebtedness existing — and there is no evidence that materially contradicts the facts as testified to by Mr. and Mrs. Thomas and Jonas Stine — ■ it would invest this plaintiff with the title to the property, so that any subsequent creditor could not levy upon it and take it for her husband’s debts.] [6]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2)' rulings on evidence, quoting the bill of exceptions. (3-6) Portions of charge as above, quoting them.</p>

<p>Slander — Charging a parly with crime — Actionable words.</p> <p>In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude or subjecting him to an infamous punishment, the words will be in themselves actionable.</p> <p>Slander — Innuendo—Province of court and jury.</p> <p>In an action for slander where the alleged slanderous words charge an indictable offense, it is for the court to decide whether the words laid in the plaintiff’s statement are capable of the meaning ascribed to them by the innuendo, and for the jury to decide whether such meaning was truly ascribed to them.</p> <p>To charge a butcher with knowingly selling diseased meat whereby his customers are being made sick, is to impute to him an indictable offense, and one involving moral turpitude in the ordinary and well understood meaning of these terms ; it moreover has a tendency to injure him in his trade or calling.</p> <p>Slander — Damages—Special damages.</p> <p>General damages are such as the law will presume to be the natural or probable consequence of the defendant’s conduct. Such general damages will only be presumed where the words are actionable per se. If any special damage has also been suffered it should be set out in the pleadings, but should plaintiff fail in proving it at the trial, he may still resort to and recover general damages.</p> <p>Special damage is such a loss as the law will not presume to have followed from the defendant’s words, but which depends, in part at least, on the special circumstances of the case.</p> <p>In an action to recover damages for slander where the charge was that plaintiff, a butcher, knowingly sold diseased meat, and the damage alleged was that he lost the trade of divers persons, and this is sufficiently averred in the statement, but not established by the evidence, plaintiff can recover general damages only, which, however, may be a substantial sum.</p> <p>Slander — Evidence—Witness.</p> <p>It is not competent in an action for slander for the plaintiff to repeat upon the witness stand the statements of his witness of what was said'to the witness by the defendant. Proof that a witness has made statements out of court, consonant with his testimony, is sometimes admissible, but not in chief, nor until his veracity has been attacked.</p> <p>Slander — Mistake in charge.</p> <p>In an action for slander where the defendant did not swear that the charge that plaintiff sold diseased meat was true, but admitted that he did not know whether the plaintiff sold diseased meat or not, it is not strictly accurate for the court in its charge to say that defendant admitted that the charge was false.</p> <p>Slander — Evidence—Repetition of defamatory words.</p> <p>In an action for slander if the defendant states that he qualified his utterance of the defamatory words by the statement that he was repeating what was told him, a witness may be permitted to testify that he was present and heard a third party make the defamatory statements to the defendant.</p>

<p>Deeds — Plans—Streets—Dedication.</p> <p>References in a deed to a plan have the effect of making the plan a part of the deed, and this constitutes a dedication of the streets and alleys laid down upon the plan to the use of the purchasers as public ways.</p> <p>A person who accepts a deed with both actual and constructive notice and knowledge of the location of a street designated for the use of the different owners of portions of the tract of land of -which his lots area part, acquires, as between him and his grantor and those who cotemporaneously accepted grants from the same party, the right to use all the streets upon the plan, and takes his own land subject to the easement of such streets as were by the plan located upon it; and this right is not-confined to the part of the street upon which the lots immediately abut, but extends to all the streets upon the plan.</p> <p>Practice, G. P. — Question of law reserved.</p> <p>It is not within the power of the court to reserve a question of fact, or a mixed question of law and fact. When a verdict is taken subject to the opinion of the court upon points reserved, the facts should be distinctly stated as well as the question raised by them; and the judgment to be pronounced upon the solution of the question of law to be reserved, should also be specified as in a case stated.</p> <p>Where the question reserved involves only the construction and effect of a written instrument, it is not necessary that the instrument should be set out at length in the question reserved, and the same rule applies as to a record. It is sufficient if it be set forth in the pleadings, or, if its execution be admitted, that it be fully identified.-</p> <p>When there is a verdict for plaintiff for a definite sum, and no reservation which will authorize a judgment to be entered contrary to the verdict, the appellate, court is obliged not only to reverse the judgment, but also to enter judgment for plaintiff in accordance with the verdict.</p> <p>Practice G. P. — Reserved question — Record—Problem—Streets—Trespass.</p> <p>In an action of trespass for obstructing a street-, it appeared that plaintiff and defendant had bought land as tenants in common according to a plan in which the street in controversy appeared as of a certain width. Subsequently in partition proceedings the land was sold to defendant. The record of the partition proceedings showed that the plaintiff did nothing which could have led the defendant to believe that his right to the street was to be waived, but on the contrary at the sale plaintiff gave notice that it was his intention to maintain his right to the street. It also appeared that there was no evidence whatever that there had been any agreement or understanding between the parties that the lines of the street should be changed. The jury returned a verdict for plaintiff, the court reserving a question which referred to the purchase by plaintiff and defendant, and the sale in partition proceedings, and left for the determination of the court whether the plaintiff was estopped from having the obstruction removed to the width of the street as specified in the plan. Held, that the plaintiff was not estopped by any deed offered in evidence, or by anything shown by the record of the proceedings in partition, and that the court below erred in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 20, Oct. T., 1900, by plaintiff, from judgment of C. P. Berks Co., Aug. T., 1898, No. 114, on verdict for defendant, in case of Leo Schaetzle v. John Christman and G. Fred Mertz, trading as the Klondike Cold Storage Company. Assumpsit for work and labor done. Before Endlich, J. At the trial it appeared that John Christman leased from J. H. Shenk a building in the city of Reading.

<p>Appeal, No. 59, Oct. T., 1900, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1894, No. 81, on verdict for plaintiff in case of Amos G. Gingrich v. Amos A. Sheaffer.</p> <p>Appeal from judgment of justice of the peace. Before Landis, P. J.</p> <p>The material portion of the record of the justice of the peace was as follows:</p> <p>September, 4, 1894, 10 A. m. Parties appear. Plaintiff is sworn and claims $60.00, being the amount due plaintiff for repairs and loss of time for a buggy which defendant borrowed from plaintiff, the said buggy being broken while being used by an employee of defendant. Defendant affirmed and disputes the claim. Witnesses sworn. After hearing proofs and allegations, judgment is reserved.</p> <p>September 10,1894. Judgment is rendered in favor of plaintiff and against defendant. Sixty dollars, with costs for suit.,</p> <p>The plaintiff’s statement in the common pleas was as follows:</p> <p>And the plaintiff avers that he is the keeper and proprietor of a livery stable in the city of Lancaster, and keeps horses, carriages and other vehicles for hire; that about the 15th of January, 1894, the defendant, Amos A. Sheaffer, hired from him a buggy, the value of the hire of which was $1.00 per day, and the value of which vehicle was $150; and that the said Sheaffer undertook to pay for the hire of the same and to return the same in as good condition as when he got it; that instead of complying with his promises and undertakings, he negligently permittted the said vehicle to become broken, wrecked and ruined; and that he agreed to pay the cost of repairing the same and of restoring it to its former condition, and agreed that he would pay to plaintiff whatever it would cost to restore it; and plaintiff was obliged to pay to Henry Nolty, Jr., $40.00 for the repairs to said wagon, the items of which were as follows:</p> <p>Jan. 17. Two new wheels, .... $11.00</p> <p>“ “ One side bar,.......1.50</p> <p>“ “ One spring platt, .... 1.00</p> <p>“ “ Tracking two axles, .... 2.00</p> <p>“ “ Fixing body,.....1.00</p> <p>“ “ Two clips,.......80</p> <p>“ ■ “ Four bolts,..... .20</p> <p>“ “ Fixing joints on top, .... .50</p> <p>“ “ Fixing a rail,..... .50</p> <p>“ “ New top on buggy .... 22.00</p> <p>$40.00</p> <p>That the plaintiff was deprived of the use of his wagon for the space of twenty-one days by reason of the failure of the defendant to restore it, which was worth to plaintiff $21.00; so that there became due in all from the defendant to the plaintiff the sum of $61.00, which he was liable to pay on April 1,1894, but he refused and neglected to pay it, and to recover that amount, namely, $61.00, with interest, from April 1, 1894, this suit is .brought.</p> <p>The court refused a compulsory nonsuit, saying:</p> <p>We think that this motion for a nonsuit must be denied. If the case arose purely out of the negligence of the defendant, the case could not be sustained; for it then could only be maintained by an action of trespass on the case, of which the magistrate would have had no jurisdiction ; but if, after the accident, upon consultation between the parties, Gingrich was directed to have the buggy repaired, and he, Sheaffer, would pay the bill, then Sheaffer would be liable on his express contract. On this principle we have rejected the claim for the alleged loss of time for the use of the buggy by reason of the accident. It is not necessary for the magistrate to set forth the testimony in his transcript. We think there is sufficient set forth in regard to repairs in the testimony, if the jury should believe the testimony, to warrant a recovery. That is a matter entirely for the jury, after all the evidence has been submitted before them.</p> <p>This case comes de novo into the common pleas. It is true that, on certiorari, if part of the judgment is bad, none of it can be sustained; for the court must sustain all the judgment or none, and cannot divide it; but, when the appeal is brought into the common pleas and tried there, the court and jury can consider that portion of the claim which is properly before them, and was properly before the magistrate, and can reject the portion of which the magistrate erroneously entertained jurisdiction. Under these circumstances, we think that you can open your defense as to this part of the claim, the $40.00 part of the claim.</p> <p>Verdict and judgment for plaintiff for $50.80.</p> <p>On a motion for a new trial Landis, J., filed the following opinion:</p> <p>From the testimony in this case, it appeared that the plaintiff kept a livery and boarding stable in Lancaster city, at which the defendant boarded his horses. On the evening of January 17, 1894, the defendant ordered one of plaintiff’s men to hitch up his horse to plaintiff’s wagon, as he desired to send the team to tlie country. The following day the wagon was returned in a damaged condition. Plaintiff thereupon interviewed the defendant, who instructed him to get the wagon fixed and he would pay for it. Plaintiff had the wagon repaired at an expense of $40.00, and, when the bill was presented by him, the defendant repudiated it. Suit was then brought before Alderman Deen. The transcript sets forth a claim for $60.00 “ for repairs and loss of time for a buggy, which defendant borrowed from plaintiff, the said buggy being broken while being used by an employee of defendant.” Judgment was entered for the sum of $60.00, and defendant appealed.</p> <p>Plaintiff’s statement alleges that the said Sheaffer undertook to pay for the hire of the same (the buggy) and to return the same in as good condition as when he got it; that, instead of complying with his promise and undertakings, he negligently permitted the said vehicle to become broken, wrecked and ruined, and that he agreed to pay the cost of repairing the same and of restoring it to its former condition, and agreed that he would pay to the plaintiff whatever it would cost to restore it, and the plaintiff was obliged to pay to Henry Nolty, Jr., $40.00 for the repairs. ” The statement also averred that the plaintiff was deprived of the use of the wagon for twenty-one days, which was worth $21.00.</p> <p>Upon the trial, the court excluded all evidence relating to the damages for the deprivation of said wagon, on the ground that such injury was consequential and not within the jurisdiction of the justice; but submitted to the jury the question whether or not there was an agreement for its repair, as alleged by the plaintiff. The jury found in favor of the plaintiff for $40.00, and interest.</p> <p>The defendant contends that, because a portion of plaintiff’s demand before the alderman was not within'his jurisdiction, the court should not have permitted a verdict for any portion of the claim, even though a portion of it was properly before the alderman, and a verdict should, therefore, have been directed in favor of the defendant.</p> <p>It cannot be doubted that, where a justice entertains a demand, part of which is within his jurisdiction and part for consequential injuries, which he has no right to pass upon, upon certiorari, the court of common pleas will reverse and set aside the whole proceedings. The reasons are palpable, for the court has no power to divide the judgment, in order that it may affirm the portion of the claim which- is well founded, and set aside that portion which is illegal: Grosky v. Wright, 2 Kulp, 415.</p> <p>But where the defendant waives the right to a certiorari and appeals from the decision of the magistrate, the situation changes. On an appeal, the proceedings are de novo. Of course, it is not meant by this that the plaintiff can substitute a new and different cause of action. The forum is changed by the appeal; but tbe cause of action remains the same. If the justice had jurisdiction of no part of the claim, an appeal from his judgment does not dispose of the objection, and it may be raised at any time in the common pleas: Deihm v. Snell, 119 Pa. 316; Moreland Township v. Gordner, 109 Pa. 116. But the maxim of the law is “ Cessante ratione legis cessat ipsa lex.” If a portion of the claim is within the jurisdiction of the aider-man, the court can permit a recovery for so much as is properly cognizable by him, and exclude so much as he improperly entertained.</p> <p>Viewing the law in this light, we are of opinion that there is no merit in the reasons assigned by the defendant, and we, therefore, discharge the rule.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

Appeal, No. 101, Oct. T., 1900, by defendant, from judgment of C. P. Bucks Co., Jan. T„ 1899, No. 11, on verdict for plaintiff in case of Borough of New Hope v. Western Union Telegraph Company. Assumpsit to recover license fees imposed upon telegraph companies.

Appeal No. 222, Oct. T., 1900, by defendant, from judgment of C. P. Delaware Co., March T., 1898, No. 156, on verdict for plaintiff in case of Paul D. Johnson to use of Samuel Johnson v. The Sharon Building Association. Assumpsit to recover tbe value of certain shares of stock of a building and loan association.

<p>Appeal, No. 18, Oct. T., 1900, by de- . fendant, from order of Q. S. Chester Co., overruling motion to quash indictment in case of Commonwealth v. Samuel S. Young.</p> <p>Motion to quash indictment.</p> <p>From the record it appeared the appellant was a member of the republican county committee of Chester county, representing the western precinct of East Fallowfield. As such member he was, under Rule 4 of the party, the executive officer of his precinct.</p> <p>A primary election for the election of delegates to a county nominating convention was held in the appellant’s precinct on June 3, 1899. The party rules required the appellant to call, and he did call, the assembled voters to order for the purpose of electing a judge and two inspectors to hold the primary election.</p> <p>Two persons were nominated for the office of judge, the ballots of the voters were placed by them in a hat and were subsequently counted by the appellant and the result announced as follows: Broomall, 33; Moore, 43.</p> <p>The defendant was indicted for falsely counting the votes for judge, and making a wrongful certificate of election. The bill of indictment contained two counts, the first, charging the offense under the act of June 29, 1881, and the second, at common law. The court overruled the motions, and at the trial refused to give binding instructions for defendant.</p> <p>Yerdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) order overruling motion to quash. (3) Refusal to give binding instructions for defendant. '</p>

Appeal, No. 3, Oct. T., 1900, by defendant, from judgment of C. P. Schuylkill Co., May T., 1891, No. 441, on verdict for plaintiff in case of Seth Thomas Clock Company v. Edwin A. Dobbins. Assumpsit for goods sold and delivered. Before Henning, J. At the trial it appeared that on July 9,1890, defendant wrote to the plaintiff as follows: “Edwin A. Dobbins; wholesale grocer, American House Building, Pottsville, Pa., July 9th, 1890. See your letters of April 5th and 9th.

Appeal, No. 365, Jan. T., 1900, by plaintiff, from order of C. P. Northampton Co., July T., 1897, No. 45, refusing to take off nonsuit in case of James R. Hummel, administrator of Joseph Hummel, Deceased, v. William E. Lilly. Scire facias to revive judgment.

Appeal, No. 215, Oct. T., 1900, by Mary Phillips, from decree of O. C. Schuylkill Co., appointing a guardian of Mary and Emma Oakum. Petition for the appointment of guardian. Prom the record it appeared that on July 24, 1899, the orphans’ court appointed Rev. J. H. Umbenhen. as guardian of Mary and Emma Oakum without notice to the mother of the children.

Appeal, No. 116, Oct. T., 1900, by plaintiff, from order of C. P. No. 3, Phila. Co., March. T., 1893, No. 11, M. L. D., striking off a judgment in case of Philadelphia to use of John M. Mack v. John H. Merz, owner and registered owner, and May Brinton and Ferree Brinton, who intervened. Scire facias sur municipal lien for paving. Rule to strike off judgment.

Appeal, No. 231, Oct. T,, 1900, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1900, No. 903, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of Pure Oil Company v. Howard Terry, Assignee, and the Real Estate Trust Company of Philadelphia. Assumpsit on a replevin bond.

Appeal, No. 40, Jan. T., 1901, by defendant, from judgment of C. P. Columbia Co., Feb. T., 1900, No. 14, on case stated in suit of W. H. Henrie, prothonotary, v. Columbia County. Case stated to determine liability of a county for the supplies furnished to the prothonotary. The material portions of the case stated were as follows: 2.

Appeal, No. 24, Jan. T., 1901, by-defendant, from judgment of C. P. Lackawanna Co., March T., 1900, No. 447, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Taylor Borough v. Postal Telegraph & Cable Company. Assumpsit to recover a license fee of $1.00 per pole, and $2.50 for each mile of wire owned by the defendant company in the -borough of Taylor.

<p>Appeal No. 18, Jan. T., 1901, by Elizabeth Stewart, from order of C. P. Luzerne Co., June T., 1895, No. 233, making absolute a rule to strike off an appeal in a summary conviction in the case of City of Wilkes-Barre v. Elizabeth Stewart.</p> <p>Appeal from summary conviction.</p> <p>From the record it appeared that the appeal, which was from a summary conviction of the mayor of Wilkes-Barre, had not been specially allowed as provided by the act of April 17, 1876. The only question involved was whether the act of April 17,1876, repealed section 14 of the special act of May 4, 1871, relating to summary convictions in the city of Wilkes-barre.</p> <p>The court made absolute the rule to strike off the appeal.</p> <p>Error assigned was in making absolute the rule to strike off the appeal.</p>

<p>Partition — Tenants in common — Equity—Jurisdiction—Act of July 7, 1885, P. L. 257.</p> <p>A bill in equity for partition will be sustained where the plaintiffs aver that the defendant conveyed an undivided interest in the land to their ancestor from whom they derived title under the intestate laws, and the defendant does not deny the execution of the deed nor allege that his holding was adverse to the plaintiffs.</p> <p>To make the possession to one tenant in common adverse, it must be with acts of exclusive ownership of an unequivocal character.</p>

<p>Appeal, No. 43, Jan. T., 1901, by-defendants, from decree of C. P. Luzerne Co., Oct. T., 1900, No. 17, on bill in equity in case of Thomas Mitchell v. Michael Kearns et al., School Directors of Pittston Township and E. J. Keating, Tax Collector of said Township.</p> <p>Bill in equity to restrain the collection of a building tax. Before Woodward, P. J.</p> <p>From the record it appeared that the tax levied would raise the' sum of about $3,500. The alleged purpose of the tax was to purchase a lot and building said to be worth about $1,200. It was not denied that a very considerable portion of the fund was to be used in paying indebtedness. The evidence tended to show that there was an outstanding and collectible indebtedness to the district of more than $6,000, and a state appropriation of $3,000. The court granted and subsequently continued a preliminary injunction.</p> <p>Error assigned was in continuing the injunction.</p>

<p>Appeal, No. 49, Jan. T., 1901, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1900, No. 18, continuing preliminary injunction in case of Thomas Mitchell v. Michael Kearns et al., School Directors of Pittston Township, and The American Book Company, a Corporation.</p> <p>Bill in equity to restrain the carrying out of a contract to purchase school books. Before Woodward, P. J.</p> <p>From the evidence it appeared that on August 81, 1900, the school directors of Pittston township school district passed a resolution adopting the American Book Company’s series of text books. It was claimed that this meeting had been held without proper notice to the directors and to the school teachers as required by the act of May 8, 1854, sec. 25. Subsequently, three or four of the directors entered into a contract with the American Book Company for the purchase of school books of the American Book Company. This contract was not made at any special or regular meeting of the directors.</p> <p>The court granted a preliminary injunction which it subsequently continued.</p> <p>Error assigned was in continuing the preliminary injunction.</p>

Appeal, No. 1, Jan. T., 1901, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1898, No. 925, discharging rule to open judgment in case of William McDonough to use of Luther Keller v. Ann Sheridan. Rule to open judgment entered on judgment note. From the record it appeared that William McDonough had a contract to build a house for Mrs. Ann Sheridan, the defendant, and to deliver it to her free from liens.

Appeal, No. 28, Jan. T., 1901, by defendant, from decree of C. P. Lackawanna Co., May T., 1899, No. 1, on bill in equity in case of Ellen C. Kelly v. James F. Donnelly. Bill in. equity to restrain the construction of a fence. The case was heard by Gttnster, J. After a hearing and after a report had been filed in favor of complainant, Judge Gtinstek died. Exceptions were filed to the report.

Appeal, No. 36, Jan. T., 1901, by defendant, from judgment of C. P. Lackawanna Co., May T., 1899, No. 565, on verdict for plaintiff, in case of William Baylor v. L. G. Stevens. Trespass for the alleged negligent burning of timber. Before Albright, P. J., specially presiding.

Appeal, No. 38, Jan. T., 1901, by defendant, from judgment of C. P. Lackawanna Co., May T., 1897, No. 201, on verdict for plaintiff in case of D. B. Replogle v. Arthur Frothingham. Trespass for malicious prosecution. Before Albright, P. J., specially presiding. At the trial it appeared that on May 8, 1895, plaintiff was arrested at the instance of the defendant for embezzlement, and was discharged.

Appeal, No. 47, Jan. T., 1901, by defendant, from order of Q. S. Lackawanna Co., Oct. T., 1900, No. 226, imposing sentence in case of Commonwealth v. Anthony Dunleavy. Indictment for selling liquor without a license. The case was tried before Love, P. J., of the 49th judicial district, specially presiding.

Appeal, No. 29, Jan. T., 1901, by plaintiffs, from order of C. P. Bradford Co., May T., 1899, No. 28, quashing writ of certiorari in case of Mary O. Nobles et al. v. John C. Piollet et al., Commissioners of Roads of Wysox Township. Certiorari to review proceedings of township road commissioners.

<p>Mechanic's lien — Contract—Stipulation against liens — filing of contract in prothonotary's office — Act of June 26, 1895, P. L. 369.</p> <p>An original building contract filed with the prothonotary on the day after its date, and containing a stipulation that “ no lien shall be filed against the building either by the contractor or subcontractors, nor by any of the material men or workmen,” will prevent the filing of liens, although the written document filed does not show that the stipulation against liens was executed prior to the giving of authority to proceed with the work.</p> <p>The provision of the Act of June 26, 1895, P. L. 369, which requires that the stipulation against liens shall be written and executed prior to the giving of authority to the contractor to proceed with the work, applies only to the case of the filing of a separate stipulation.</p> <p>It seems that it is better practice to introduce a clause even in the original contract to show that the stipulation against liens was made before authority to do the work was given.</p>

Appeal, No. 230, Oct. T., 1900, by plaintiff, from order of C. P. No. 1, Pliila. Co., Sept. T., 1899, No. 431, refusing to take off nonsuit in case of James Sanford v. The Union Passenger Railway Company. Trespass to recover damages for the loss of a horse. Before Beégy, J. At the trial it appeared that on August 4, 1898, plaintiff’s horse was killed as the result of falling into a hole in a street between defendant’s tracks.

Appeal, No. 178, Oct. T., 1900, by the President and Managers of the Bustleton and Somerton Turnpike Road Company, from order of Q. S. Phila. County, March T., 1899, Docket 46, page 401, dismissing exceptions in proceedings to coudemn and free from toll the Somerton turnpike. Petition of residents and taxpayers for the appointment of a jury to condemn and free from toll the Somerton turnpike. From the record it appeared that Albert D. Wilson, Esq., was appointed master.

Appeal, No. 176, Oct. T., 1900, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1899, No. 228, on verdict for plaintiff in case of Frank P. Dormer and Mary Dormer v. The Alcatraz Paving Company. Trespass to recover damages for personal injuries.

Appeal, No. 183, Oct. T., 1900, by defendant, from judgment of C. P. Lancaster Co., June T., 1900, No. 37, on case stated in suit of Frank Long v. Lancaster County. Case stated to determine the liability for witness fees. The case stated was as follows: In March, 1897, A. L. Harnish, was charged with embezzlement, on the complaint of J. P. Hollinger, a member of the firm of Mentzer & Hollinger, and he gave bail in the sum of $300 for his appearance at court.

Appeal, No. 109, Oct. T., 1900, by defendant, from decree of C. P. Lancaster Co., Equity Docket No. 8, p. 231, on bill in equity in case of Maria Weaver v. Benjamin Getz. Bill in equity for an injunction, to restrain the obstruction of a right of way. From the record it appeared that plaintiff is the owner of a tract of mountain timber land of about forty-five acres in East Earl township, and that she had a right of way acquired by deed over adjoining land owned by defendant.

Appeal, No. 110, Oct. T., 1900, by defendant, from order of Q. S. Berks Co., June T., 1899, No. 120, refusing to arrest judgment in case of Commonwealth, v. James E. Norton. Indictment for counterfeiting a label of the Cigar Makers’ International Union of America, registered under the act of May 21, 1895.

<p>Appeal, No. 53, Oct. T., 1900, by Martin Funck, from decree of O. O. Lebanon Co., ordering sale of real estate in the estate of John Funck, deceased.</p> <p>Petition of Daniel Funck, trustee, to sell land.</p> <p>From the record it appeared that John Funck died in 1865, seized among other lands of a fann, situate in the township of North Lebanon, on which was located a small cemetery, twenty-two feet by forty-six feet, which had been used for burial purposes since about 1795, and on which about fourteen bodies had been interred, including the wife of John Funck, who died in 1857, and was the last one buried there.</p> <p>Subsequent to the death of John Funck, his will, dated May 12, 1868, was admitted to probate and contained, inter alia, the following:</p> <p>“My three farms, plantations or tracts of land, the one situate in North Lebanon township, Lebanon county .... I direct my hereinafter-named executors to sell at public sale during the fall next succeeding my decease, or if my executors think best they may postpone the selling of the same one year longer; the same shall be sold upon the following terms: ten per cent, cash on the day of sale or a note with security to be given for that amount, and the balance of the purchase money to be paid on the ensuing first day of April after such sale when the title shall be made after payment and the payment of the purchase money to be secured.</p> <p>“ It is, however, my will, and I do expressly order and direct that the burial ground, on my farm, in North Lebanon township, county aforesaid, shall be reserved from such sale, and I do hereby give and devise the same with the appurtenances to my son, Daniel Funck, and his heirs in fee in trust and for the use of a burial ground forever; and it is my will and I do order and direct that my hereinafter-named executors as soon after my death as they conveniently can, shall build a new clapboard fence around the said burial ground; and I do further order that one hundred dollars of the purchase money of naysaid farm in North Lebanon township shall remain charged on the same forever, and that the interest accruing thereon shall be paid yearly to my said son Daniel who shall apply the same from time to time to keep the said burial ground and fence in good order and repair, and after the death of my son Daniel some other suitable person shall be appointed by the orphans’ court of Lebanon county (in the event that my surviving children cannot agree and appoint one themselves) to receive the said interest on the one hundred dollars aforesaid, and apply the same as above provided and so on forever.</p> <p>“ It is my will and I do further order and direct that at any time hereafter forever all my relatives shall have the privilege to bury therein and my kindred here, free of cost, if they wish to do so.”</p> <p>Shortly before his death he directed that he should be buried elsewhere, and also requested that his children after his death should disinter his wife, and reinter her in the place wherein he had chosen to be buried. This was done. The fourteen other bodies interred in this burial ground were removed in 1896.</p> <p>In 1896 the burial ground had become surrounded by blast furnaces, cinder banks, ore roasters and quarries. Other facts appear by the opinion of the Superior Court.</p> <p>The court in an opinion by Ehbgood, P. J., found in favor of the petitioner and entered the following decree:</p> <p>And now, January 2,1900, upon due consideration, the court award to Daniel Funck, trustee, etc., an order of private sale, authorizing and empowering him to sell and convey unto the said Lackawanna Iron & Steel Company the said tract or land and the lane approaching thereto in fee, free and discharged of any and all trust, charity or use, and divested of all right of way thereto, created by the said last will and testament of the said John Funck, deceased. The said Daniel Funck to enter into security, in the sum of $600, with two sufficient sureties, to be approved by the court, conditional for the faithful application of the proceeds of such sale, to the uses and purposes of the trust aforesaid, as may hereafter be ordered and decreed by the court. It is further ordered that the costs of this proceeding, including counsel fee for the petitioner, shall be paid by the Lackawanna Iron & Steel Company.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 83, Oct. T., 1900, by defendants, from judgment of C. P. Northumberland Co., Sept. T., 1897, No. 576, on verdict for plaintiff in case of Stanislaus Wojciechowski v. Louis Johnkowski, Walenty Jarka, Joseph Boezek, Enoch Fatz, Thomas Kulick and others, constituting the congregation of the Saint Joseph’s Polish Roman Catholic Church of Mt. Carmel, Pa. Assumpsit for money had and received.

Appeal, No. 125, Oct. T., 1900, by-defendant, from judgment of C. P. Clearfield Co., Sept. T., 1899, No. 347, on verdict for plaintiff in case of American Harrow-Company v. Philip Swoope. Assumpsit for goods sold and delivered. At the trial it appeared that on December 14, 1897, plaintiff and defendant entered into a contract in writing which although confusing in character appeared on its face to be a contract for the sale of certain agricultural implements, chiefly harrows.

<p>Appeal, No. 46, Oct. T., 1900, by defendant, from judgment of C. P. Berks Co., Nov. T., 1898, No. 49, on verdict for plaintiff in case of Bessie Royer, by her next friend and father, Nathaniel L. Royer, v. Samuel E. Tinkler.</p> <p>Trespass to recover damages for personal injuries. Before Endlich, J.</p> <p>At the trial it appeared that in March, 1898, plaintiff was injured while employed in assisting to operate a collar and cuff ironing machine in defendant’s laundry. A description of the machine and the circumstances of the accident appear in the opinion of the Superior Court.</p> <p>The jury returned a verdict for plaintiff for $900 subject to the following questions reserved:</p> <p>1. There is no evidence of negligence in the defendant and the verdict must be for the defendant.</p> <p>2. The plaintiff’s testimony shows that the accident was the result of her own negligence, and the verdict must be for defendant.</p> <p>3. If the plaintiff’s testimony is correct, she was injured because of her adopting the method indicated by Lillie Plucker, a fellow employee, for the smoothing out of the wrinkles in the muslin covering the rolls. If such method was proper, no negligence can be predicated of it, and if improper, it was a mistake of the fellow employee voluntarily adopted by the plaintiff, and for which the defendant is not responsible.</p> <p>The court in an opinion by Endlich, J., entered judgment on the verdict.</p> <p>Error assigned was entry of judgment on verdict.</p>

Appeal, No. 144, Oct. T., 1900, by Susanna E. Rothermel, from decree of O. O. Berks Oo., overruling exceptions to adjudication in the estate of Benjamin B. Peters, deceased. Exceptions to adjudication. From the record it appeared that Susanna E. Rothermel filed exceptions to the account of David K. Peters, executor, alleging that the accountant erred in claiming a credit of $700 interest on dower.

Appeal, No. 181, Oct. T., 1900, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1900, No. 40, on case stated in suit of Annie M. Hinkle v. W. C. Rehm. Case stated to determine marketable title to real estate.

Appeal, No. 185, Oct. T., 1900, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1896, No. 17, on verdict for defendant, in case of Adam D. Swope v. Charles Crawford. Replevin for “ one large bay horse.” From the record it appeared that suit was originally begun against Charles F. Crawford and Jesse McComsey. McComsey died and his death was suggested of record.

<p>Appeal, No. 188, Oct. T., 1900, by-plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1895, No. 4, on verdict for defendant in case of the Ephrata Water Company v. The Borough of Ephrata.</p> <p>Assumpsit to recover for the use of hydrants in streets and water supplied to hydrants. Before Livingston, P. J.</p> <p>At the trial it appeared that on June 28, 1892, the Ephrata Water Company submitted to the borough of Ephrata a proposition to furnish thirty fire hydrants to be of such pattern and design as the borough council might select, and to be located at such places as the borough authorities might direct. The proposition was accepted, and on February 6, 1893, a borough ordinance was passed directing the kind of hydrants to be used, and that the hydrants should be located at such places as the borough authorities should direct. On the same day an agreement approved by the borough council was entered into between the borough and the water company fixing the terms upon which the hydrants were to be supplied. In accordance with this agreement and the borough ordinance of February 6, 1893, the hydrants were supplied by the water company and located where the committee of councils directed. The defense set up by the borough was that the ordinance of February 6,1893, was invalid because the burgess had not signed it, after it had been ■ transcribed and recorded by the clerk of council in the borough ordinance book and signed by the presiding officer. The court held that the ordinance was invalid and directed a verdict for defendant.</p> <p>Verdict and judgment for defendant.</p> <p>JSrror assigned was in directing a verdict for defendant.</p>

<p>Appeal, No. 232, Oct. T., 1899, by defendant, from order of C. P. Delaware Co., June T., 1899, No. 146, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Lansdowne Borough v. Springfield Water Company.</p> <p>Appeal from a judgment of a justice of the peace.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that the suit was brought to recover $6.00 for the price of a permit to break into and open a street in the borough. The defendant filed an affidavit of defense in which it averred that it had the right to open the roadway to make repairs to its water mains without taking out a permit; that the ordinance did not apply to the repair of leaks in mains, that the borough did not possess the power to require the defendant to take out a permit to repair leaks, and that the ordinance was unreasonable.</p> <p>The terms of the ordinance are fully set out in the opinion of the Superior Court.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 5, Oct. T., 1900, by plaintiff, from judgment of C.. P. Chester Co., on verdict of defendant, in case of John E. Ubil, administrator of Margaret A. Ubil, deceased, v. Martin Miller. Scire facias sur mortgage. Before Butler, J. From the record it appeared that plaintiff claimed to be the administrator of Margaret A. Ubil, under letters of administration granted by the register of wills of Philadelphia county on August 26, 1898.

Appeal, No. 54, Oct. T., 1900, by defendant, from order of C. P. Bucks Co., April T., 1898, No. 18, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of John C. Gazlay and George E. Gazlay, trading as Gazlay Brothers v. George A. Riegel. Assumpsit on a promissory note. Before Yerkes, P. J. The note in suit was as follows : “$375. Durham, Pa.

Appeal, No. 58, Oct. T., 1900, by defendant, from judgment of C. P. Chester Co., Jan. T., 1900, No. 8, on verdict for plaintiff, in case of William L. Hedricks v. Schuylkill .Township. Trespass to recover damages for injuries to a horse. Before Hemphill, P. J. At the trial it appeared that between four and five o’clock on August 18, 1899, plaintiff was driving a hay press weighing about 4,000 pounds drawn by three horses, along a public road in Schuylkill township.

Appeal, No. 189, Oct. T., 1900, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1897, No. 17, on verdict for plaintiff in case of Abraham Myers, Christian Myers, Charles Myers, Harvey Myers, Linda Warfel and Martha Schmalbach v. Alvildia Myers. Ejectment for a lot in the city of Lancaster. Before Livingston, P. J. The court gave binding instructions for plaintiff. Defendant appealed. Error assigned was in giving binding instructions for plaintiff.

Appeal, No. 143, Oct. T., 1900, by plaintiffs, from order of G. P. Delaware Co., March T., 1899, No. 42, refusing to take off nonsuit in case of William J. McDowell and Wesley S. McDowell, trading as W. J. McDowell & Brother, v. Hubert J. Riley and Sarah D. Thompkins, owners or reputed owners, and George S. Whittaker, contractor. Scire facias sur mechanic’s lien. At the trial it appeared that hi 1896, H. J. Riley owned three adjoining houses in South Chester.

Appeal, No. 112, Oct. T., 1900, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 103, on verdict for plaintiff in case of Owen Connell v. The Metropolitan Life Insurance Company. Assumpsit on a policy of life insurance. Before Clayton, P. J. At the trial it appeared that on June 9,1894, Margaret Connell made a written application to the defendant company for insurance upon her life. The application mentioned Owen Connell, her husband, as beneficiary.

Appeal, No. 168, Oct. T., 1900, by plaintiff, from order of O. P. Chester Co., Oct. T., 1899, No. 34, refusing to take off nonsuit in case of Joseph N. Marshall v. Timothy S. Brick. Assumpsit by indorser against maker on two promissory-notes. Prom the record it appeared that the two notes sued upon were as follows: “$200.

Appeal, No. 66, April T., 1901, by defendant, from judgment of Q. S. Washington Co., Feb. T., 1899, No. 84, on verdict of guilty in case of Commonwealth v. Samuel Hazlett. Indictment against a banker for receiving deposits when insolvent. Before Taylor, J. The case was previously reported in 14 Pa. Superior Ct. 353. The defendant pleaded former acquittal.

Appeal, No. 177, Oct. T., 1900, by defendant, from order of C. P. Schuylkill Co., May T., 1900, No. 378, awarding peremptory mandamus in case of Charles A. Bleiler v. Henry J. Muldoon, controller of Schuylkill County. Petition for mandamtis.

Appeal, No. 207, Oct. T., 1900, by plaintiff, from judgment of O. P. Montgomery Co., March T., 1899, No. 329, on verdict for defendant, in case of Thomas B. Jaquett v. Lydia B. Allabaugh. Issue to determine the validity of a judgment against a married woman. Before Swartz, P. J. The facts appear by the opinion of the Superior Court. The jury returned the following verdict.

Appeal, No. 35, April T., 1901, by defendant, from judgment of O. T. Crawford Co., May T., 1900, No. 8, on verdict of guilty in case of Commonwealth v. Robert Bradley. Indictment as an accessory before the fact in the felony of shooting with attempt to kill.

Appeal, No. 33, Jan. T., 1901, by Polly C. Tiffany, administratrix, from decree of C. P. Susquehanna Co., Jan. T., 1899, No. 159, refusing to allow widow’s exemption out of proceeds of sheriff’s sale of defendant’s real estate in case of M. J. McCollum v. M. T. Perigo. Petition for rule on sheriff to pay money into court. From the record it appeared that the property was sold under a judgment entered on a bond accompanying a mortgage.

Appeal, No. 5, Feb. T., 1901, by plaintiff, from order of C. P. Lycoming Co., March T., 1900, No. 489, discharging rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Leila D. Cowles, V. The American Bonding and Trust Company of Baltimore City. Assumpsit on a bond of a guardian. From the record it appeared that the bond on its face was a general guardianship bond.

Appeal, No. 10, Feb. T., 1901, by Carrie E. Bickford, administratrix, from decree of O. C. Clinton Co., refusing bill of review in the estate of Frederick A. Bickford, deceased. Petition for bill of review. From the record it appeared that Carrie E. Bickford was the widow and administratrix of Frederick A. Bickford. Bickford was accidentally drowned, and the attorney for Mrs. Bickford collected $2,132.35 from an accident insurance company.

Appeal, No. 9, Jan. T., 1901, by F. C. Stone, from decree of O. C. Susquehanna Co., Jan. T., 1899, No. 26, dismissing exceptions to auditor’s report, in estate of Nelson Potter, deceased. Exceptions to auditor’s report. The facts appear by the opinion of the Superior Court. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 1, April T., 1899, by the Consolidated Water Supply Company, from order of Q. S. Susquehanna Co., April T., 1899, No. 1, overruling exceptions to report of viewers in the matter of the road in Herrick and Ararat townships. Exceptions to report of viewers. The exceptions were as follows: 1. The view was held without notice. 2. The view was held without notice to exceptants. 8.

<p>Criminal law — Conspiracy—Essence of the crime.</p> <p>That which gives to the crime of conspiracy its distinctive character is unity of purpose, unity of design, and focalization of effort upon a particular project by the persons named in the indictment.</p> <p>Criminal law■ — Conspiracy—Boroughs—Councilmen—Contractors.</p> <p>To allege generally against a number of councilmen of a borough and several bidders for municipal contracts that they have conspired to cheat and defraud the borough, does not enable the commonwealth to prove several conspiracies each affecting different contracts, and different persons or groups of persons interested in particular contracts, unless all of the contracts and the wrong purpose in respect to them form parts of a combination in which the parties have joined. In order that any one of the defendants may be convicted of conspiracy he must be shown to have participated in the alleged combination or concert with all or some of the other defendants.</p> <p>Criminal law — Jury—Selection of jurymen.</p> <p>A conviction in a criminal case will not be set aside on the allegation that by an inspection of the venires it appeared that a large number of names were taken from the previous year and placed in a block in the wheel for the coming year, where no proof is submitted showing that there was a transfer of the names from wheel to wheel in bulk, except an affidavit on information and belief to that effect.</p> <p>Criminal law — Discretion in refusing or granting bill of particulars.</p> <p>The matter of granting or refusing a bill of particulars lies within the sound discretion of the trial judge, and where the exercise of such discretion has not been abused, it will not be reviewed by the appellate court.</p> <p>The defendant in a criminal prosecution is not entitled to demand from the district attorney a specification of the evidence to be adduced by the commonwealth at the trial.</p> <p>Conspiracy — Confederation for unlawful purpose — Injury to others.</p> <p>If a conspiracy be to commit a crime or an unlawful act, it is easy to determine its indictable character. If the motives of the confederates be to oppress, the means they use unlawful, or the consequences to others injurious, then a confederation will become a conspiracy.</p> <p>Where five councilmen of a borough distribute money to other councilmen for the purpose of influencing Votes upon legislation in the borough council, affecting the awarding of contracts for paving, and the object is to pass such legislation in respect to the contracts as will be most profitable to the councilmen, and every one of the five has his part in the main purpose, and all participate in the results, such councilmen may be indicted and convicted of conspiracy.</p> <p>Criminal law — Conspiracy—Declarations of conspirators — Evidence.</p> <p>The declarations of a conspirator are evidence against himself and are also evidence against his associates when they are made during the performance of the fraudulent transactions which constitute the crime charged, for they then form part of such transactions, but when not made during the progress or continuation of the fraudulent scheme but afterwards, they are not evidence.</p> <p>The question whether or not a conspiracy has been proven is for the jury, but the court decides whether sufficient proof of a conspiracy has been adduced to warrant the introduction of evidence of declarations of a conspirator. The proof of the conspiracy at the point in the trial when the declarations are sought to be introduced, need not be conclusive, but only slight, in order to permit the introduction.</p> <p>On an indictment of borough councilmen for conspiracy in using money to secure the passage of legislation relating to paving contracts whore the alleged conspiracy involves the distribution not only of moneys wrongfully procured from contractors, but also of other moneys payable after the paving contracts were paid by the borough, declarations of conspirators made before the final payment, may be admitted, since they were not made after the completion of the transaction with which the conspiracy was connected.</p> <p>Criminal law — Charge of the court — Opinion upon facts.</p> <p>It is permissible for a judge in his charge to express an opinion on the facts, provided he does not encroach upon the province of the jury; and he is permitted to carry this to the extent of a free expression of opinion on the weight and value of the evidence, since he is the best advisor the jury can have.</p>

Appeal, No. 34, Oct. T., 1900, by-defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1896, No. 322, on verdict for plaintiff in case of Amelia B. Ellis v. The Alta Friendly Society. Trespass to recover damages for the alleged wrongful exclusion from membership of a beneficial association.

Appeal, No. 4, Oct. T., 1900, by defendant, from judgment of C. P. Berks Co., Jan. T., 1898, No. 63, on verdict for plaintiff, in case of John Marshall v. The American Telegraph and Telephone Company. Appeal from report of viewers. Before Ermentrout, P. J. From the record it appeared that viewers were appointed to assess damages for loss occasioned by the cutting of trees in the erection of telegraph wires.

<p>Appeal, No. 48, Oct. T., 1900, by defendant, from judgment of C. P. Berks Co., Aug. T., 1897,' No. Ill, on verdict for plaintiff in case of George W. Manner-back et al. v. The Pennsylvania Railroad Company.</p> <p>Ejectment for a lot of land in Cumru township. Before Endlich, J.</p> <p>From the record it appeared that in 1814 Daniel Bitting conveyed to Daniel Spang forty and one quarter acres of land “ excepting and forever reserving the graveyard on the land hereby conveyed at all times hereafter to enter thereon without the hinderance or denial of the said Daniel Spang, his heirs and assigns.” Plaintiffs claimed that the clause above quoted constituted an exception in the grant, and not a reservation.</p> <p>It also appeared that plaintiff’s ancestor, Samuel Fix, in 1886, brought an action on the case against the railroad company to recover depreciation in the value of the land used as a graveyard, and that a verdict which he had recovered had been set aside by the court on the ground that he was mistaken in his form of action.</p> <p>The jury returned a verdict for plaintiffs subject to the following points of defendant reserved:</p> <p>1. The right of Daniel Bitting under the reservation in deed to Spang, dated April 2,1814, was not of the ground on which the graveyard was located, but of the right to use the ground as a graveyard and the. right to have access thereto for that purpose, and when the property was converted into one for the storage of powder, the right under the reservation ceased.</p> <p>2. The right of Daniel Bitting under the reservation in deed to Spang, dated April 2, 1814, was not of the ground on which the graveyard was located, but of the right to use the ground as a graveyard, and the right to have access thereto for that purpose, and it did not constitute such ownership of the ground as would cause the contiguous ground on which a public road was located, to become the property of Daniel Bitting, his heirs or assigns, claiming title under the said reservation, upon the vacation of the road.</p> <p>8. The graveyard reserved by Daniel Bitting, in deed dated April 2, 1814, was a famity burying ground, pertaining to tbe Bitting family, and the reservation was of a right in Bitting and his family to use the ground for burial purposes, and not of a right to sell the property out of the family even for burial purposes, and the deed from Jacob Bitting to Samuel Fix therefore vested no title in the latter.</p> <p>4. The reservation of Daniel Bitting in deed of April 2, 1814, was but a reservation for himself, and vested in him no right which he could convey or transmit to others.</p> <p>5. The deed of Henry Binckley, sheriff, dated January 7, 1841, conveying property as estate of Jacob Bitting, bounded by the lands of Abraham Hoch, the graveyard, and others, presumptively passed whatever title Jacob Bitting had in the entire tract bounded by the Gerber graveyard, and the plaintiffs have submitted no testimony which rebuts the said presumption.</p> <p>6. The plaintiffs have shown no title to the property described in the writ.</p> <p>7. Samuel Fix, by bringing action to No. 57, June term, 1886, for the recovery of the amount of the depreciation in value of property in question, disentitled himself, even though he owned the said property, to a recovery of the property itself in an action of ejectment.</p> <p>The court entered judgment for the plaintiffs on the verdict.</p> <p>Error assigned among others was in entering judgment for plaintiffs on the verdict.</p>

<p>Wills — Codicil—Definition of codicil.</p> <p>A codicil is a supplement to a will, or an addition made by the testator and annexed to, and to be taken as part of a testament; being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former disposition of the testator.</p> <p>Wills— Codicil — Revocation.</p> <p>Where a testator in a codicil revokes a provision of his will, and in a second codicil referring to the will by date says: “Ido confirm my said will in all respects, except so far as the same is changed by this codicil,” he does not by the second codicil re-establish the provision in the will which had been revoked by the first, codicil.</p> <p>Will — Life tenant — Principal.</p> <p>Where a life tenant setting up a certain construction of a will petitions the court for an allowance out of the principal, and some of the parties in interest agree that such an order shall be made, “ if it should be the opinion of the court that the construction of the will as claimed in the petition is sound and correct,” the court has no power to make the order, if it does not sustain the construction claimed by the life tenant.</p>

Appeal, No. 203, Oct. T., 1899, by-defendant, from judgment of C. P. Schuylkill Co., March T., 1893, No. 171, on verdict for plaintiff in ease of William Hoffman v. The Mill Creek Coal Company. Trespass for injuries to land caused by deposits of coal dirt. Before Lyons, P. J., specially presiding.

<p>Promissory notes — Proof of execution — Evidence—Rules of court.</p> <p>Where a rule of court provides that in actions upon promissory notes if a copy of the note be filed thirty days before the trial, and notice of such filing, together with a copy of the instrument be served upon the defendant or his counsel not less than thirty days before the trial, the plaintiff will not be required to prove the execution of the note, or the handwriting of the parties; and it appears that in an action upon a promissory note no notice of the filing of a copy of the.note had been given, nor had a copy of the note been served, it is error for the court to admit in evidence the note which upon its face showed unmistakable evidence of material alterations, without any evidence whatever explaining the alteration.</p> <p>Practice, C. P. — Affidavit of defense — Admission.</p> <p>In an action against several defendants, where one of the defendants has made an affidavit of defense, the plaintiff cannot take advantage of the affidavit as an admission, unless he offers it in evidence at the trial.</p> <p>Where one of several defendants who were not partners makes an affidavit of defense, and it appears that he is not an agent of his codefendants, the affidavit cannot be considered an admission by the codefendants.</p> <p>Promissory notes — Alteration—Evidence.</p> <p>In an action upon a promissory note, where it appears on the face of the note that the word “order” had been stricken out, and the word “ bearer ” interlined, the note cannot be admitted in evidence until evidence has been produced by the plaintiif explaining the alteration.</p> <p>Evidence — Competency of witness — Parties dead — Act of June 11, 1891, P. L. 287.</p> <p>In an action against the makers of a promissory note by the administrator of the indorsee, the defendants are not competent to testify as to the condition of the note at the time it was made if disinterested persons alleged to have been present at the time of the transaction have not been called as witnesses.</p>

Appeal, No. 198, Oct. T., 1900, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1900, No. 21, on verdict for plaintiffs in case of Harry G. Stiles v. John K. Himmelwright and Milton T. Kline, trading as J. K. Himmelwright & Company. Appeal from judgment of a justice of the peace. Before AlBBIGHT, P. J. The facts appear by the opinion of the Superior Court. The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for $52.04.