Volume 160 — Pennsylvania State Reports

Appeal, No. 34, July T., 1893, by plaintiffs, Celinda Bitterling, Annie E. Seip et al., surviving executrices of Sarah Keipler, deceased, from judgment of C. P. Lehigh Co., Nov. T., 1891, No. 45, entering nonsuit in favor of defendant, William H. Deshler. Assumpsit against agent for account. Before Albright, P. J. At the trial it appeared that Annie E. Seip was the only contending plaintiff.

Appeal, No. 151, July T., 1893, by plaintiff, Abel Walton, from judgment of C. P. Montgomery Co., Dec. T., 1891, No. 10, entering nonsuit in favor of defendant. Trespass for personal injuries. Before Weand, J. The facts appear by the opinion of the Supreme Court. The court entered a compulsory nonsuit, and subsequently refused to take it off. Error assigned was refusal to take off nonsuit.

Appeal, No. 197, Jan. T., 1894, by defendant, .Gerhard C. Aschbach, from judgment of C. P. Le-high Co., Sept. T.,1891, No. 38, on verdict for plaintiff, Morris Hoats. Assumpsit on promissory note. Before Albright, P. J. At the trial, it appeared that on Oct. 4, 1889, plaintiff and W. P. Snyder called on defendant at his place of business and presented the following order for slate, signed by F. M. Hower : “ Cherryville, Pa., Oct. 2, 1889.

<p>Sale — Installments of purchase money — Contract—Forfeiture.</p> <p>Three persons entered into a joint agreement to purchase a quarry. One of them was to advance the purchase money, the other two to repay him by monthly installments, in the meantime having the use of the land for quarrying. The agreement further provided: “In case the party of the second part, by neglect or refusal to pay the aforesaid monthly installments, becomes more than three months in arrears, then this agreement to become null and void, and the party of the second part to forfeit to the party of the first part all the amounts paid by them and relinquish all claims against the party of the first part.” Held, that time was of the essence of the contract, and that a failure to pay any one of the monthly installments worked a forfeiture not only of the agreement but of the previous payment.</p>

<p>Will — Devise — Life estate — Issue — Buie in Shelley's Case — Act of April 27, 1855.</p> <p>Testator directed as follows: “ I direct that my son shall have for his own use and occupancy during the period of his life my home farm, on which I now reside, situate on the Springhouse and Hilltown turnpike, near Montgomery Square, together with all the stock and appurtenances, the farm to be maintained in its present state of fertility and repair by my said son, and at his death the use and occupancy to be continued to his issue, if he shall so have, and if none then to the next of kin and so on as long as the laws of this commonwealth will permit.” Held, that the will gave a life estate to the son, and after his death an estate in fee to the son’s issue, and, in default of such issue, to the next of kin; and that by the operation of the rule in Shelley’s Case and the act of April 27, 1855, P. L. 868, the son took an estate in fee.</p>

<p>Duress — Assignment of chose in action — Evidence.</p> <p>An assignment of a chose in action by a debtor to a creditor will not be set aside on the ground of duress where the assignment was the result of a threat by the creditor to arrest the assignor, but the evidence did not show that there was any arrest of the person, or process of arrest, or prosecution for any criminal offence instituted, or that there was any officer of ■ the law ready to arrest, and that the threat was not made directly to the debtor, but to a friend who communicated it to him.</p> <p>Duress — Assignment for benefit of creditors — Parties.</p> <p>An assignee for the benefit of creditors has no standing to plead duress of his assignor for the purpose of setting aside an otherwise legitimate transfer of property made by the assignor to pay an honest debt.</p>

Appeal, No. 162, Jan. T., 1894, by plaintiff, James Sutherland, from judgment of C. P. Montgomery Co., March T., 1892, No. 127, on verdict for defendant, William Ross. Ejectment. Before Swabtz, P. J. On the trial defendant offered in evidence deed of James Sutherland and wife to Nicholas F. Dager, dated Feb. 14, 1877, acknowledged Feb. 15, 1877, and recorded April 2, 1877.

<p>Appeal, No. 314, Jan. T., 1893, by Luther Martin, Jr., et al., trustees, from decree of O. C. Phila. Co., Oct. T., 1886, No. 508, ordering trustees to pay over to widow portion of principal of estate of Luther Martin, deceased.</p> <p>Petition for order on trustees to pay over portion of principal of estate.</p> <p>The petition averred that Luther Martin, petitioner’s husband, died July 18, 1886, testate, leaving to survive him a widow, four daughters and two sons; that the will was duly admitted to probate in Philadelphia county and letters testamentary issued to the widow, two sons, Luther Martin, Jr., and Robert W. Martin, and the Fidelity Insurance, Trust and Safe Deposit Co., the executors being also named as trustees.</p> <p>The material portions of the will were as follows:</p> <p>“ I give, devise and bequeath all the property of which I may die seised unto my executors and trustees hereinafter named [here follows full powers of sale and reinvestment] and as to all such investments and reinvestments and all the rest of my said property, real and personal, I devise and bequeath the same unto my executors and trustees hereinafter named to hold the same in trust for the following purposes:</p> <p>“First. To pay over unto my wife, Emma R. Martin, all the net rents, interest, and income to be derived therefrom for and during the term of her natural life: Provided, that if my wife should wish to use or occupy for her own purposes all or any part of said property, then it is my will she should have such power.</p> <p>“ Second. After the death of my said wife I direct that my property and estate shall be held and applied by my executors and trustees for the use and benefit of my children, as follows: [Here follows a strict trust for the six children during their respective lives, with provision for succession to their children and issue.]</p> <p>“ I further will and direct that the trusts under this will shall continue, and the division of the incomes and profits thereof shall be made to the persons entitled thereto by the provisions hereof, until the death of my last surviving child, and upon the death of my last surviving child the trusts herein contained shall cease and determine, and the division of the principal of my estate shall be made among the children and issue of my said six children respectively. . . . But my said wife shall during her lifetime be entitled to the possession of all my estate, without being required to give security therefor.”</p> <p>The petition further averred that the income of the estate payable under the terms of the will to the petitioner had been reduced, and that in consequence thereof the petitioner found herself in need of an advance from the principal of the estate as may be required to meet her necessities, and that she required for such purposes the sum of $1,500 ; that demand had been made upon the respondents for the payment of this sum, but the respondents had declined to accede thereto; that under the terms of testator’s will she was entitled to the possession of all the estate without giving any security therefor.</p> <p>To this petition the respondents filed an answer, admitting the averments of fact contained in the petition, except as to the construction of testator’s will, but denied the petitioner’s right to receive the advance asked for, upon the ground that the same was not justified by the terms of the will and could not be complied with without selling and disposing of the assets of the estate held in trust under the terms of the will.</p> <p>The court entered a decree in accordance with the prayer of the petition, in an opinion by Ashman, J., 2 Dist. R. 282.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 119, July T., 1893, by James Coyle, one of the defendants, from judgment of Q. S. Cumberland Co., on verdict for Com’ltb.</p> <p>Indictment for permitting cruelty to pauper.</p> <p>At the trial, before'’ Sadler, P. J., defendants moved the court to quash the entire bill of indictment on the ground that it alleged no offence indictable at common law or under any statute. The court denied the motion. Bill sealed. [7, 8]</p> <p>The substance of the third count of the bill was that defendants had committed a misdemeanor in office by indenturing the pauper to a person residing without the limits of the county of Cumberland. On motion the court quashed this count. The Commonwealth excepted, and a bill was sealed. [1 a]</p> <p>It appeared from the evidence that defendants, James Coyle, Michael Seavers, and John H. Rhoads, directors of the poor of Cumberland county, indentured Joseph N. Diller, a pauper seven years of age, to John W. Lafferty, of Adams county, and that at the time of the indenture Lafferty was known to be a man of cruel and dangerous character, and that he and his family had ill treated another child intrusted to their care.</p> <p>■ The Commonwealth offered to prove by Abraham Fink that when Mr. Boyer brought the child over he said he had been sent over by the directors of the poor, as their steward, their servant or agent, with the child, on six weeks’ trial; that he asked the witness what kind of people the Laffertys were, and witness told him he didn’t know much about them ; and witness said he had heard of their having a boy and ill treating him, and running a fork in him; and then Mr. Underwood, who was the agent of the directors of the poor, said that he had seen this boy the Laffertys had in whom they had run a fork, and he would rather follow a child of his to its grave than put it to Lafferty’s; he said he had lived near Laffertys and knew all about them and their ill treatment of-the boy, and he told Mr. Boyer this. To be followed up by further proof.</p> <p>Objected to on the ground that it does not propose to show that it was communicated to the defendants. Objection overruled, offer admitted, exception. [2]</p> <p>“ Q. You never complained to anybody, to the directors of the poor? A. No, sir.”</p> <p>Defendants were notified by letter on Sept. 8,1891, that the boy was being ill treated; they sent appellant, as a committee, to see the boy Sept. 5,1891, but the boy was allowed to remain.</p> <p>Reuben M. Underwood, witness for the Commonwealth, testified as follows: “ Q. Go on and state your knowledge of this case. A. The day the Diller boy was brought over to Lafferty’s, I was going to the station with some grain, and there was a little boy in Lafferty’s yard, and knowing they had no little boy I took particular notice of him. I thought perhaps it was some of their relations; and I unloaded my grain and stopped at the store to get some groceries, and while he was waiting on me, the steward, Mr. Boyer, came in there.”</p> <p>Defendants objected to the testimony of the conversation that occurred between Mr. Fink and the witness. Objection overruled, exceptions. [3]</p> <p>“ A. He came in there and shook hands with them; they used to be neighbors. Fink and Boyer were neighbors when they lived in Cumberland; they told me so. And he said he had brought some children over to put at Lafferty’s, a couple of children; and Fink said, ‘ It is a pity you didn’t get them a better place.’ And we talked on a little, him and me, and I told him I thought it was my duty to state to him that they had almost killed a child before, and I couldn’t stand here and let other children be put there for them to kill.”</p> <p>Mrs. Elizabeth Smyers, Commonwealth’s witness, was asked in her examination in chief whether Mrs. Lafferty told her that they tied Joe’s hands behind his back and pushed him into the wash house ?</p> <p>Objected to unless it is proposed to be followed by proof that this was communicated to defendants. Objection overruled, offer admitted, exception. [4]</p> <p>The witness answered in the affirmative.</p> <p>Testimony, by a number of witnesses, of other acts of cruelty prior to Sept. 5,1891, was admitted under objection and exception, and grouped together in the first assignment of error. [2]</p> <p>.Commonwealth’s counsel also offered to show by Mrs. Smyers the ill treatment of the boy when he was dying. I offer to prove that when the witness got to the house, that Mrs. Lafferty said: ‘Joe’s going to die.’ And I said, ‘I guess not,’ and she repeated it; ‘ Yes, Joe is going to die.’ ” That they had not put him to bed; that Liz got some old rags and put them under him, and they laid him on the bench in the out kitchen or wash house, and the doctor said when he came that they should put him to bed and get some good blankets on him and warm him up; that they didn’t put him to bed, but made him a bed on a bench; that the doctor said they should take off his clothes; that they took off his pants and his drawers were wet, and the witness wanted to take them off, as the doctor had told her, but Mrs. Lafferty would not allow this, but said that she and John would do that if it was necessary; that the witness told her that they had a good lounge, and could make him a good bit easier on that; that they set two small benches together and made him a bed on that, and on that he died there, and never got to bed or on the lounge. This is offered to show ill treatment, and to follow it up to the time the boy was dying.</p> <p>Offer objected to by defendants’ counsel, on the ground that it does not show any ill treatment or abuse on the part of the Laffertys, and that the same was not communicated to the directors of the poor, nor does it show any guilt or tend to establish any guilt on part of defendants. Objection overruled, offer admitted, exception. [5]</p> <p>Andrew Kerr having testified that he knew this little boy, Joe Differ, and knew his size, the Commonwealth proposed to ask the witness how Joe Differ compared in size with this boy, James Muffin, so that we may have a more vivid idea of the size of little Joe Differ. Objected to by defendants’ counsel as irrelevant and highly improper. The witness described the size and so forth of Joe Differ, and the jury are competent to judge of the size from such description, which is the only competent evidence of those facts ; and the' offer is for the purpose of creating a sensation, and the tendency is to mislead and confuse the jury in respect to the real issue trying. Offer admitted and exception. [6]</p> <p>Defendants’ points were among others as follows :</p> <p>“ 1. If the apprenticing of the boy was done by the defendants pursuant to a statutory duty, and without any intention or reasonable expectation that harm would thereby result to the apprentice, then there is no crime that can be imputed to these defendants, — the intent necessary to constitute the crime is wholly wanting. Answer: Affirmed, unless you find that they negligently indentured him to a person of improper character.” [9]</p> <p>“ 6. The court is requested to withdraw from the jury all evidence tending to show maltreatment of Joseph N. Diller after September 5, 1891, which was not communicated to the defendants, and, as no information was given them of any acts occurring after September 5,1891, all evidence of such acts should be disregarded by the jury. Answer: Unless you find, as contended for by the Commonwealth, that, on or before the 5th day of September, 1891, the directors or their committee were given such information of the maltreatment of the boy as made it their manifest duty to take steps to have the boy taken away from Lafferty, or to compel him to do his duty, and they disregarded it, you will not consider testimony offered by the Commonwealth to show the maltreatment of Joseph N. Diller after that date, and it will be regarded by you as withdrawn from your consideration. But should you find that the committee received the information, as testified to by Group, Smyers, Mrs. Smyers., Strewig, and was told of others, who could acquaint him with specific acts of ill treatment of the boy, but failed to call upon them, the prayer is refused.” [10]</p> <p>“ 7. The court is requested to withdraw from the jury all the evidence of Rachel Baker, Amos Kreiner, Mrs. Jessie Smyers, tending to show maltreatment of Joseph N. Diller, which was not communicated to the defendants, and that as no information was given them of any such acts prior to or after September 5, 1891, all evidence of such acts should be disregarded by the jury. Answer: This prayer is refused. Amos Kreiner’s testimony was in reference to an alleged occurrence in August, that of Mrs. Baker in hay-making, and Mrs. Smyers testified that she offered to communicate with Mr. Coyle on the afternoon of September 5th, and that he promised to return and meet her, but failed to do so; and if this should be found to be true, his failure to get information she possessed was his fault.” [11]</p> <p>Yerdiot of guilty. The sentence was as follows :</p> <p>June 14, 1892. Defendant James Coyle sentenced to pay a fine of $100 and three fourths of the cost of prosecution. Defendants Michael Seavers and John H. Rhoads, sentence suspended upon the condition that they pay one fourth of the costs of prosecution. [13]</p> <p>Errors assigned by James Coyle were (1-6) rulings on evidence, quoting bills of exceptions and evidence; (7, 8) refusal to quash indictment; (9-11) instructions, quoting them; (13) sentence.</p> <p>Error assigned by Commonwealth was (1 a~) quashing third count of indictment.</p>

<p>Appeal, No. 159, Jan. T., 1894, by defendant, Anna Maria Rose, from judgment of C. P. No. 3, Phila. Co., March T., 1892, No. 810, on verdict for plaintiff, Richard Fullam, executor of Luke Otis, deceased.</p> <p>Assumpsit for money deposited with defendant by plaintiff’s testator.</p> <p>At the trial, before Gordon, J., the court, under objection and exception, refused to admit in evidence, as offered by defendant, a certified copy of the inventory of the estate of Luke Otis, deceased, the claim in suit being omitted therefrom. [4]</p> <p>The court also refused, under objection and exception, to admit in evidence, as offered by defendant, a certified copy of the adjudication of the account of William Fullam, as executor of the estate of Luke Otis, deceased, made, as stated, for the purpose of showing that defendant was a creditor of the estate and a distributee under the said adjudication, and that no claim or set-off was made against her in the orphans’ court on the paper on which suit is here brought. [5]</p> <p>The court charged in part as follows:</p> <p>“ [The defence rests mainly upon the testimony of this boy, who was fourteen years of age at the time of the occurrence with relation to which he has testified. I say that it rests mainly upon his testimony, and I shall show you in a little while why that is so. He and what he testified to constitute the luminous point in this case, from which all rays go, towards which they all tend. It is impossible to discard his testimony and find a verdict for this defendant upon the other testimony alone, because the testimony of Mr. Hyland, Mrs. Dauvry and Mr. Busch is indissolubly connected with the occurrences, which, the boy Dauvry says, took place in Mrs. Rose’s tavern on that day.] [7] Now, he says that he wrote a postal card to Luke Otis to come down on important business to Mrs. Rose’s saloon, and that he did come there on the 10th of January, and that she said to him that she wanted to pay him the money which she owed him, and that it had troubled her, and that she did not want to keep it any longer. McOambridge, he says, was present, and Michael Rose, husband to Mrs. Rose, he says, was also present. According to his story, Luke Otis did not want the mo^ey, but wanted her to retain it, and said that he wished it was $2,000 instead of $1,000, and that she was as good as gold, but he says that she insisted upon the payment of the money, and he had to take it ultimately, and that when she asked him for the paper, which she had given him acknowledging the receipt of the money, that he said, ‘ I have not got it; I tore it up; it was of no consequence.’</p> <p>“ I said to you in my opening that your verdict one way or the other made either the dead man dishonest or this defendant dishonest, and it is upon that item of testimony that I make that observation. Because, if this money was paid then, and paid on account of this paper, Luke Otis told a deliberate falsehood, and deceived his sister. But the witness Dauvry says the money was paid, and that when the dead man said he did not have the paper, that he had torn it up, that then Michael Rose, the husband of this defendant, got pen and ink from behind the counter, and drew a receipt which Luke Otis signed. He says that she also insisted upon him taking twenty-five dollars as interest, and that she forced it upon him by putting it in his pocket. By the testimony of Busch, when testifying as to what occurred upon that day, as they were coming from this very scene which Dauvry described, Mrs. Rose and a man named McCambridge, who is said to have witnessed the receipt, and the dead man, all went to Busch’s tavern, and he says that there the dead man said that the old woman or Mrs. Rose had paid him all she owed him, and we came down to take a drink, and that there they had one or two drinks, and that Otis said he was going to deposit this money in bank, but would first stop at Hyland’s, and that he left there alone, as I understood him to go to Hyland’s, and thence to the bank. Then, Mr. Hyland was called, who said that Mr. Rose and Mr. Otis came into his place, but the time he could not fix, as to whether it was in 1886 or 1887, or earlier or later than any of those dates, he did not know. He declined to approximate even within a year or two, as to when it was, but he says that at the same time Mr. Rose and the dead man came into his place, and that Otis said that Mrs. Rose had paid him some money that she had borrowed from him to build a house at Sea Isle City, and that he exibited the money and said he was going to bank to deposit it. Mr. Hyland also said that he thought he wrote the deposit slip for this $1,000, but the deposit slip actually put in bank that day by Otis is in evidence, and Mr. Hyland says that the writing is not his. From there Mr. Otis seems to have gone to the bank and deposited the money.</p> <p>“ Mrs. Dauvry was also introduced and said that upon this day, the tenth of January, she saw Luke Otis alone, standing outside of Mrs. Rose’s tavern, and that he told her that Mrs. Rose had paid him the money she owed him, and touched his pocket, and said that he had it there.</p> <p>“ Now, gentlemen of the jury, as I have said, everything hinges upon the truth of Dauvry’s statement. If Hyland’s testimony stood alone, to wit, that upon the day, which he could not fix, Mr. Otis came and said that Mrs. Rose paid him all she owed him, $1,000, and if it was proven that it was deposited, that would not prove the payment of this $1,000. So, too, if Busch’s testimony simply was that Otis came in and said, ‘ Mrs. Rose had paid me the thousand dollars she borrowed of me to build the house in Sea Isle City,’ and that was all the testimony, that would not prove the payment of the $1,000 deposited by him with her for safe-keeping, supported by the production of this paper. But all of them bring the parties to their place and fix the conversation as to the payment as to which the boy Dauvry has testified; and Dauvry says it was the payment expressly of this $1,000, when she demanded the return of the paper, and when he said, ‘ I have not got it, I tore it up.’ Gentlemen of the jury, this, taking the testimony as I have stated it, if true, presents Otis as a man who had deposited with his sister $1,000 which he wanted her to keep, and did not want to receive, and yet the man who had that confidence and trust in his sister takes the money from her and lies about the possession of the paper, and tells her that he has destroyed it. On Dauvry’s testimony it would not do to say that his retention of the paper was a mistake, because Dauvry coupled his evidence as to that with her express demand for the paper and Otis’s declaration that he had destroyed it, though it seems to have been in his possession for more than four years afterwards. So the man who, by Dauvry’s testimony, received $1,000 upon the false declaration that he had destroyed Mrs. Rose’s evidence of indebtedness, goes out of the place, and to a woman whom he meets on the street, and to Busch and to Hyland, and voluntarily makes statements which convict him of falsehood. In other words, the man who wanted to deceive by obtaining the money and saying that he had destroyed the paper goes out of the place and tells the world that he received the money. Those facts are all in this testimony as presented by the defendant.</p> <p>“ Let me also call your attention to this fact: Busch says that upon this occasion Mrs. Rose and McCambridge came into his tavern with Mr. Otis, that drinks were had, and the declaration made that the money was paid, but he says that the statement which was made was that it was the money which Otis had loaned Mrs. Rose to build the Sea Isle City house, and which she had borrowed from him for that purpose. It appears by the evidence in the case that they had had many transactions in which money had passed between them, there had been loans before and after this, and he fixes the statement made by Otis as relating to borrowed money, loaned for this specific purpose. But the paper in this ease declares that the thousand dollars was deposited for safe-keeping, and that it was demandable at any moment. And so, also, while Busch’s testimony is that Mrs.,Rose and McCambridge came with Otis at that time, the testimony of Hyland is that, upon the occasion to which he refers, Mr. Rose came alone, and that McCambridge or Mrs. Rose was not with him. And so, also, the testimony of Mrs. Dauvry. is that, when she saw him standing outside Mrs. Rose’s tavern, he was there alone. It appears, moreover, that both of these parties were depositors in this bank. It may immediately arise, it occurred to me, and it may to you, to ask why, as Otis had a bank for the safe-keeping of his money, he did not deposit it there instead of with Mrs. Rose for safe-keeping. It is probably impossible to understand it. I see no explanation of it, but it occurs in the case, and is worth mentioning. It is argued to you also that Mrs. Rose, whose visible means of support seemed to have been a drinking place alone, was maintaining and had an account at the Southwark National Bank, and that, if she had paid him the $1,000, she would not have been likely to have kept that much money about her establishment, but that she would have been more likely to have drawn it from the bank, and that as it was within her power to produce her account at the bank, and as she has not shown you that at about that time she drew $1,000 from it, you are to take that fact into consideration in determining the credibility of the witnesses. It is also argued to you that she would have given a check upon the bank, rather than the money. But what force there is in that is entirely for you.</p> <p>“ Mr. Otis died in January, 1890. According to the testimony he was paid this money in January, 1887. He therefore kept this paper, which the defendant says he had declared he had destroyed, over three years afterwards, and it is now produced among his assets. Death has silenced two of the parties to this transaction. Otis cannot testify, and McCambridge, who it is alleged was present and saw the payment of the money and the making of the receipt, is likewise dead, and the law has closed the mouth of Mrs. Rose and her husband, and [hence this whole transaction, the integrity of this defence, hinges upon the reliability of the witness, the boy Dauvry].” [8]</p> <p>' Defendant’s points were, among others, as follows :</p> <p>“ 1. That as the obligation in writing, bearing date the 23d day of June, 1886, offered in evidence by the plaintiff, recites that the defendant, Maria Rose, was, at the date of the execution thereof, the wife of Michael Rose, the claim here is made upon an instrument or obligation in writing, made by a married woman, such writing or obligation when so made not being binding upon married women, the verdict must be for the defendant.” Refused. [1]</p> <p>“ 2. If the jury believe that the writing or obligation on which suit is brought is a promise to pay $1,000, on the part and under the hand and seal of a married woman, such promise is not binding upon her, and the verdict must be for the defendant.” Refused. [2]</p> <p>5. Request for binding instruction. Refused. [3]</p> <p>Verdict and judgment for plaintiff for $1,050.</p> <p>Errors assigned were (1, 2, 3, 7, 8) instructions ; (6) waived; (4, 5) rulings on evidence; quoting instructions, and bills of exceptions, but not evidence.</p>

<p>Appeal, No. 18, Jan. T., 1894, by Commonwealth ex rel. Henry Fernberger, from order of C. P. No. 4, Phila. Co., March T., 1898, No. 189, discharging rule to show cause why writ of quo warranto against James Butter-worth should not be granted.</p> <p>Petition for quo warranto.</p> <p>From the petition and answer it appeared that at a meeting of the stockholders of the Fire Association of Philadelphia, the relator cumulated his votes, thereby giving him the highest number cast for the position of director. Thirteen directors were to be elected, and a ticket containing thirteen names, not including the relator’s, received a smaller number of votes, James Butterworth being the lowest.</p> <p>The Fire Association of Philadelphia was incorporated by-various acts of assembly, all prior in date to the adoption of the constitution of 1874. By its original charter no salaried officer was eligible to the position of director, but whether this had been changed by the supplements was disputed. On May 2Q, 1891, an act was passed authorizing salaried officers of private or business corporations to serve as directors. On Jan. 8,1892, the Fire Association elected as directors two who had been salaried officers the previous year, and who, the answer averred, “ were afterwards elected to salaried offices,” by the directors, on the same day. Relator claimed that the action of the association involved an acceptance of the constitution of 1874, so as to give him the privilege of cumulating his votes under art. 16, § 4.</p> <p>Rule for writ discharged. The’ relator thereupon appealed.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 455, Jan. T., 1898, by plaintiff, James C. Shedwick, from decree of C. P. Delaware Co., Dec. T., 1890, No. 3, on bill in equity for reconveyance of land.</p> <p>Bill in equity for reconveyance.</p> <p>The case was referred to J. B. Hinkson, Esq., as master, who reported that the land for which the reconveyance was asked had been included in a deed of gift to the church defendant by mutual mistake, and recommended a decree of reconveyance and a division of the costs between the parties equally.</p> <p>Plaintiff and defendant both filed exceptions as to the costs, which were disposed of by the court below in the following opinion by Clayton, P. J.:</p> <p>“ This is a bill in equity to reform a deed in which, by mutual mistake, a wrong lot was included. The evidence sufficiently sustains the report of the master, and also pretty clearly shows that the mistake was the result of negligence on the part of the plaintiff in signing the deed without reading it. The evidence faijs to show any fault, negligence or improper conduct on the part of the defendants. The defendants, being a corporation, could only act by and throúgh the agents of the society. These agents supposed the church had purchased the lot described, and proceeded to take possession of it. While the plaintiff is entitled to have his deed reformed, he, being the cause of the mistake, must have it corrected at his own costs. We cannot see how the defendants could well do other than they did. They simply denied all knowledge, and required that the plaintiff should prove his allegations. In their representative capacity they could not safely do less. If the proof had been made that the defendants knew of the mistake and obstinately refused to correct it, the costs might, with propriety, be placed upon them, but it clearly appears that the corporation had no knowledge upon the subject. The report of the master is confirmed, except upon the question of costs, which are directed to be paid by the plaintiff.”</p> <p>• Errors assigned were, (1-4) disposition of exceptions, and decree as to costs, quoting exceptions.</p>

<p>Appeal, No. 377, Jan. T., 1893, by defendants, Augustus R. Hall and George W. Carpenter, trading as Hall & Carpenter, from judgment of C. P. Chester Co., Aug. T., 1892, fi. fa. No. 25, on verdict for plaintiff, Sarah J. Phillips, in sheriff’s interpleader.</p> <p>Interpleader to determine ownership of personal property levied on as property of plaintiff’s husband. Before Hemp-hill, J.</p> <p>At the trial it appeared that the property levied upon consisted of wheat, oats, potatoes and corn in the ground, horses, cows and agricultural implements. Mrs. Phillips claimed the property. The evidence showed that at various times plaintiff had received from relatives large sums of money, and that she had invested the money thus received in a farm and mill property. Her husband failed in business in 1876, and was indebted to Hall & Carpenter and other creditors. In 1878, Mrs. Phillips associated with her, as a partner in the milling business, Henry C. Way, and the title of the firm was “Phillips, agent, & Way.” This firm continued in existence three years. Mr. Way put in, as his share of the capital, $1,000 in money, and Mrs. Phillips put in, as her share of the capital, personal property, consisting of horses, wagons and other chattels, valued at $1,000. At the end of the three years, the partnership was dissolved, there having been no net profits.</p> <p>Mr. Israel Durham succeeded Mr. Way as partner of Mrs. Phillips and for five years the business was conducted under the firm name of the “ Clifton Milling Company, Israel Durham, and W. H. Phillips, agent.” No net profits resulted from the milling business. During these nine years that the Phillipses resided at Clifton Mills, Mr. Phillips continued to act as agent of his wife; and for seven years of that time she kept boarders, and realized from this source a profit of about $650; she being the lessee of the property, and owning all the furniture and household goods, and all the stock, farming utensils and mill fixtures.</p> <p>In 1887 Mrs. Phillips purchased the farm and paper mill known as “ Willow Brook Mill,” where she and her husband have from that time continued to reside. The deed was made to her, the consideration being $10,250. Of this amount $6,000 was secured by a mortgage, which yet remains on the premises, and $4,250 was paid by Mrs. Phillips; she at that time receiving $2,000 from the estate of her uncle John Bailey, and $1,600 from the proceeds of a mortgage, it being the same $1,600 which she inherited from her aunt Mary Bailey. The balance, $650, Mrs. Phillips made keeping boarders during seven of the nine years she resided at the Clifton Mills property.</p> <p>Defendant’s points, among others, were as follows:</p> <p>“ 2. It appears from the evidence that, of the purchase money of the farm upon which these crops were raised, $650 were the earnings of the claimant, while married, which earnings in law belonged to her husband, so that he was and is the owner of the said real estate to that extent, and the ownership of the •claimant to said crops produced thereon is partial, and, as to them, your verdict must be for the defendants.” Refused. [1]</p> <p>“ 3. All the partnership business which was carried/on by William H. Phillips, agent, prior to 1887, in which the property ■of Sarah J. Phillips was invested, was, as a matter of law, the business of the said Wm. H. Phillips, and any property or profit derived therefrom was his, and is liable for his debts, .and if the jury find that any of the property here claimed arose from such partnership business, as to such property their ver■diet must be for the defendants " Refused. [2]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Mrrors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 324, Jan. T., 1893,. by defendant, Joseph H. Darlington, from judgment of Ci P. Chester Co., Aug. T., 1892, No. 4, on verdict for plaintiff, Lydia Ann Darlington.</p> <p>Ejectment. Before Waddell, P. J.</p> <p>At tbe trial, it appeared that plaintiff claimed title under the will of her husband, Job G. Darlington.</p> <p>The material portions of the will were as follows:</p> <p>“ 1st. I order and direct that all my jus.t debts and funeral expenses be paid by my executors hereafter named as soon- as it can conveniently be done after my decease-.</p> <p>“ 2d. And in order to enable tbem to pay tbe same, I do authorize and empower them to sell all my real and personal estate within one year after my decease, either at public or private sale as they may think best and make and execute a deed or deeds to the purchaser or purchasers thereof in fee, for the said real estate.</p> <p>“8d. I do give and bequeath to my grandson, Joseph H. Hilton, the sum of three hundred dollars, I do give and bequeath to my daughter Phebe Ann Jones and to my granddaughter Della A. Jones five dollars each, and to my daughter Dellilah Shird the sum of fifty dollars ($50).</p> <p>“ 4. Then all the residue or remainder of my estate I do give and bequeath to my wife Lydia Ann Darlington to her heirs and assigns.</p> <p>“ Lastly, I do hereby make, constitute and appoint my wife Lydia Ann Darlington and my grandson Joseph H. Hilton executors of this my last will and testament with full power to carry out the same.”</p> <p>Defendant offered to show that, after death of Job G. Darlington, plaintiff agreed with defendant that the property now in dispute, or its proceeds, was to belong to defendant, and that the property at Oxford, or its proceeds, were to go to her, or the estate of her husband, coming to her under the will. Objected to as making title by parol. Objection sustained and exceptions. [5-8]</p> <p>Defendant then offered to prove that, prior to the time the agreement between Jos. H. Hilton, executor, and Jos. H. Darlington, dated Peb. 14, 1891, was made, and after the death of Job G. Darlington, plaintiff and defendant had a discus•sion about the validity of a certain $7,000 note, and that' they agreed to settle all controversy between them by allowing Joseph to have-the proceeds of this farm now in dispute, and the widow was to receive the Oxford farm. Same objection as before. Objection sustained and exceptions. [9]</p> <p>Defendant then offered in evidence the agreement of Feb. 14, 1891, to be followed by testimony that plaintiff assented to this agreement, consented to it, and it was done with her authority. Objected to. Objection sustained and bill sealed. [10]</p> <p>The agreement was as follows:</p> <p>“ Whereas, letters testamentary on the estate of Caleb Darlington, were duly granted to Job G. Darlington, and he being now deceased, it is necessary to obtain letters of administration with the will annexed.</p> <p>“ And Whereas, It is alleged by Joseph H. Darlington, that when the debts of Caleb Darlington, deceased, are all paid, they will consume all of his estate, real and personal, and that there will, in fact, not be sufficient estate to pay all of his debts.</p> <p>“Now, for a valuable consideration, it is agreed by and between Joseph H. Hilton, executor of Job G. Darlington, and. Joseph H. Darlington, that the letters of administration with the will annexed, shall be granted on the estate of Caleb Darlington, to J. Carroll Hayes, of West Chester, who shall proceed at once to sell all the real estate of said Caleb Darling-ton, by order of the orphans’ court, for the payment of debts. And that after deducting the expenses attending the administration and sale of the real estate, of said Caleb Darlington, located near Oxford borough, in East Nottingham township, said administrator shall pay over to said Joseph H. Hilton, executor as aforesaid, the net balance of the proceeds of said real estate, which shall be in full settlement and payment of all claims and demands of the estate of Job G. Darlington against the estate of Caleb Darlington, deceased.” Signed by the parties.</p> <p>Binding instructions for plaintiff were given. [1, 2]</p> <p>Defendant’s points were, among others, as follows:</p> <p>“2. No evidence having been presented by the plaintiff of any acceptance of the real estate, or of any election to take the same, the verdict must be for the defendant. Answer: As between these parties we cannot say that that is necessary, and the second point is therefore disaffirmed.” [4]</p> <p>3. Request for binding instructions. Refused. [8]</p> <p>Yerdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4) instructions; (5-10) rulings on evidence; quoting instructions, bills of exceptions and evidence.</p>

Appeal, No. 63, July T., 1893, by plaintiff, D. Hiester Bradley, from order of C. P. Chester Co., April T., 1893, No. 45, directing sale of property of plaintiff, set apart under debtor’s exemption, to pay master’s fee. Petition to sell property set apart as debtor’s exemption, under act of April 9, 1849, P. L. 533.

<p>Negligence — Boroughs— Obstruction in street — Independent contractor.</p> <p>Property owners engaged in paving and curbing the sidewalk in front of their respective properties, in obedience to the requirements of an ordinance, are not contractors exercising an independent employment over which the borough authorities have no control.</p> <p>Where such improvements are being made pursuant to ordinance and by direction of the borough authorities, the latter are not thereby relieved from the duty of seeing that the street or streets on which the work is being done are kept in a condition that is' reasonably safe for public travel.</p> <p>In such a case where alarge stump is taken out of the sidewalk and rolled into the street several feet outside of the curb, and is permitted to lie there ten days or two weeks, without alight or anything to warn travelers at night of its position, and a person is injured thereby, the borough is liable in damages for the injury.</p>

Appeal, No. 178, July T., 1893, by the School District of the Borough of Darby, from order of Q. S. Delaware Co., confirming report of auditor appointed to report upon the proper adjustment of the property and indebtedness of the school districts of the boroughs of Darby and Sharon Hill. Petition for incorporation of borough of Sharon Hill.

Appeal, No. 30, July T., 1893, by Margaret A. Irwin and James B. Stewart, administrators of Robert Irwin, deceased, from decree of O. C. Chester Co., sustaining exceptions to auditor’s report. Adjudication of administrators’ account. Before the auditor, Geo. M. Rupert, Esq., creditors of Robert Irwin, deceased, claimed that the administrators should be surcharged with the value of two horses which had been omitted from the inventory.

<p>Limited partnership — Schedule of assets — Acts June 2,1874, May 1,1876.</p> <p>Under the acts of June 2, 1874, P. L. 271, and May 1, 1876, P. L. 89, the property contributed to a limited partnership association is intended as the equivalent of cash, and the plain object of the provision requiring a schedule is to enable creditors to ascertain precisely of what the property consisted, and to judge its value. Where property has not been contributed, scheduled and valued as the act of May 1, 1876, directs, there is no payment of the capital.</p> <p>Property described as having been purchased by the partners from another limited company subject to the payment of the company’s debts and liabilities, is not such a contribution of property as the act contemplates.</p> <p>An item in a schedule of “bills receivable $2,206.17,” is insufficient where no other information is given by which a creditor could ascertain whether the notes were worth anything or not.</p>

Appeal, No. 191, Jan. T., 1894, by U. H. Painter et al., property owners, from order of Q. S. Chester Co., dismissing exceptions to report of street viewers.

<p>Live stock insurance — Assessments—Affidavit of defence.</p> <p>In an action by tlie receiver of a live stock insurance company to recover assessments levied for the purpose of paying the death losses of certain specified horses, an affidavit of defence is sufficient which denies the existence of any such indebtedness and avers that at the time said assessments were made there was no such indebtedness by the company nor is there now, and that the very claims for which said assessments were made have been paid.</p>

Appeal, No. 179, July T., 1893, by • Abraham Albert, executor and trustee of the estate of Malin'■da Albert, from order of C. P. Lebanon Co., June T., 1893, No. 346, making absolute rule for judgment for want of sufficient ■affidavit of defence, in favor of plaintiff, Mary Gernert. ' Rule for judgment for want of sufficient affidavit of defence on sei. fa. sur mortgage.

<p>Appeal, No. 54, July T., 1893, by plaintiff, A. S. Keiser, from judgment of C. P., Schuylkill Co., July T., 1892, No. 330, on verdict for defendants, D. L. Esterly Sons, and The Pottsville Lumber Co., Ltd.</p> <p>Interpleader to determine the ownership of property levied upon.</p> <p>At the trial, before Green, J., it appeared that D. L. Esterly Sons and the Pottsville Lumber Co., Ltd., defendants, obtained judgments against H. R. Knerr, and issued executions thereon, and certain* personal property (building material) claimed by A. S. Keiser, plaintiff, was levied upon by the sheriff. Knerr was a contractor engaged in building a schoolhouse in St. Clair borough. He obtained financial assistance from Keiser, and gave him an assignment of the moneys due upon his contract for building the schoolhouse. Among the persons who furnished materials for the schoolhouse were Smyth & Co. of Williamsport and Stevens of Port Carbon. Smyth & Co. assigned all their interest in their claim for lumber to Keiser. Keiser claimed that the material levied upon had been furnished upon his credit, and that the title to it was in him. Defendants denied this.</p> <p>Plaintiff’s points were as follows:</p> <p>“ 1. If the jury believe that the property levied upon by the sheriff on the executions of the defendants above against Knerr was furnished on the credit of the plaintiffs as claimed by them, and not on the credit of Knerr, no part of it could be seized and sold by his, Knerr’s, creditors; the levies made on said property by virtue of said executions did not vest any interest therein in the execution creditors. Answer: That we have not affirmed; we have already said as much to you in our general charge; even though the goods may have been furnished by reason of Keiser being responsible for them, that in itself does not make him the owner of the goods. [1]</p> <p>“ 4. That upon the execution by Knerr of the assignment offered in evidence of all moneys due to him, Knerr, under his contract with the school board, and the arrangements made with Keiser as testified to by him, Knerr, concerning the furnishing by Keiser of materials for said building, which is uncontradicted, Knerr, besides being the contractor with the school board, became the agent of Keiser in constructing the building, and even though under such circumstances he, Knerr, bought the property levied upon, it was for his principal’s (Keiser’s) benefit and use and on his credit, and as such it was Keiser’s property, and the verdict of the jury must be for Keiser.” Refused. [2]</p> <p>“ 5. Even though the shipments and delivery of the property levied upon were made to Knerr, that in itself would not confer ownership of the property upon Knerr; if the property was not paid for, the party furnishing it could, in order to protect himself, take and reclaim it from Knerr at any time before it was worked in the building, and as it is uncontradicted that Keiser acquired by purchase the right of the parties furnishing such materials or property levied upon before the sheriff’s levy, the verdict of the jury must be in favor of Keiser for the property claimed by him. Answer: We decline to affirm this point. After the property had been purchased, even though it was not paid for, and had been delivered to the party, then the right to reclaim it was gone.” [8]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-3) instructions, quoting them.</p>

<p>Appeal, No. 372, Jan. T., 1893, by defendant, Leonora Meredith, from order of C. P. Schuylkill Co., Nov. T., 1892, No. 199, making absolute rule for judgment for want of sufficient affidavit of defence, in favor of plaintiff, M. A. Gerber.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit on contract of suretyship.</p> <p>From the record it appeared that Daniel Frack by his will gave all his property to his three children, share and share alike, of whom defendant was one. Plaintiff was indebted to the estate of Daniel Frack. Defendant was indebted to plaintiff under a contract of suretyship. Defendant claimed in her affidavit of defence to set off one third of plaintiff’s indebtedness to the estate against her debt to plaintiff.</p> <p>Rule for judgment absolute. Defendant appealed.</p> <p>Error assigned was above order.</p>

Appeal, No. 29, Jau. T., 1894, by Thomas F. Wright, admr. c. t. a. of Benj. Haywood, deceased, a property owner, from order of Q. S. Schuylkill Co., dismissing exceptions to report of viewers vacating street. Exceptions to report of viewers vacating street. Opinion of court below was as follows, by Bechtel, J.: “ Has the court jurisdiction, and if so should the report be confirmed ?

Appeal, No. 249, Jan. T., 1894, by defendant, from judgment of C. P. Schuylkill Co., March T., 1891, No. 193, on verdict for plaintiff, Nicholas C. Madara. Trespass for death of plaintiff’s minor son. At the trial, before Weedman, J., it appeared that, on Jan 7, 1891, plaintiff’s son, aged eighteen, was fatally injured while working in defendant’s mill on a dangerously narrow platform. The platform was part of a tramway used to support coal ashes.

Appeal, No. 225, Oct. T., 1893, by-plaintiff, McKeesport Borough, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1893, No. 221, on verdict for plaintiff for less than full amount of claim against defendant, W. Dewees Wood. Assumpsit for cost of paving. Before Ewing, P. J. The work for which suit was brought was a repaving of Fifth avenue.

<p>Negligence — Railroads—Grade crossings — “ Stop, look and listen."</p> <p>In an action against a railroad company to recover damages for personal injuries at a grade crossing, it is proper to enter a nonsuit where plaintiff’s evidence shows that there were four tracks at the crossing, that she did not stop, look or listen before stepping on the first track, and that after starting upon the tracks she did not look when she could have seen the locomotive which struck her, or, if looking, took the chances of getting across in front of it.</p>

<p>Appeal, No. 392, Jan. T., 1893, by defendant, John J. Egan, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1891, No. 70, on verdict for plaintiff, Leopoldina Hill.</p> <p>Trespass for malicious prosecution.</p> <p>At the trial, it appeared that defendant procured a warrant of arrest against plaintiff for breach of the peace. Plaintiff was arrested, and, after hearing, was held in $500 bail to keep the peace. After the hearing, defendant left the magistrate’s office, and subsequently plaintiff was discharged without being required to enter bail.</p> <p>The court charged in part as follows:</p> <p>“ [In this case it appears that the plaintiff was charged with a breach of the peace, and it also appears that the magistrate who heard the case adjudged her to be guilty and held her in $500 bail to keep the peace. Now, that would appear, upon its face, to be such an adjudication of her guilt as would prevent her having a right of action, because it was the solemn judgment of the tribunal before which she was charged, that a breach of the peace had been committed, and that she should be put under bonds. But it is singular, still it is so, that, as a matter of fact, she was discharged. While the record shows that she was held to keep the peace, she was, nevertheless, allowed to go. Whether that was because of kindly feeling and sympathy may not appear; or whether it was done by the magistrate who had adjudged her guilty, is not clear; but it appears that the sergeant and some others had said some kind and complimentary things about her, and she was permitted to go, if somebody would agree for her that she would behave herself. Your first inquiry would, therefore, be to inquire whether it was the act of the magistrate which discharged her, or whether it was his judgment that she should be held to keep the peace. If it was an escape merely, that is to say, if those who had charge of her discharged her erroneously, that would not be a legal discharge. You must judge as to whether it was the act of the magistrate. If it was, that would relieve her from the charge, and entitle her to recover if she showed that the prosecutor acted without probable cause, and through malice. Hence, nevertheless, if you find that she was held in |500 bail, and that the magistrate did discharge her, then the next inquiry is as to whether the defendant had probable cause, and was he actuated by malice. That is entirely for you, and is entirely a question of fact.] ” [1]</p> <p>Plaintiff’s point was among others as follows :</p> <p>“ 2. When one accused of crime has been discharged by the examining magistrate, the burden of showing probable cause is thrown on the prosecution, in an action against him for mar licious prosecution.” Affirmed. [2]</p> <p>Verdict and judgment for plaintiff for $100.</p> <p>Errors assigned were (1, 2) instructions, quoting them.</p> <p>Appellant in his paper-book printed the charge of the court, but no bill of exceptions appeared of record, and no evidence was printed in the paper-book. The record did not show that the charge was filed by the judge, or in obedience to his command.</p>

<p>Appeal, No. 37, July T., 1893, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1890, No. 60, on verdict for defendant, Frank Barber, owner, and Luther E. Albert et al., trustees, registered owners.</p> <p>Sci. fa. sur municipal claim for taxes, 1889. Before Reed, J.</p> <p>At the trial it appeared that the defendants Luther E. Albert et al. were trustees of a church known as the “ All Saints Evangelical Lutheran Church.” On Nov. 28,1888, the trustees went into possession of a lot of ground with a brick and stone building thereon, under an agreement to purchase the lot and building. On March 1, 1889, a deed was made to them. At the time the agreement was made certain rooms were rented to the city of Philadelphia for school purposes. Counsel for defendant in his paper-book described the building as follows:</p> <p>“ The building is one structure, built of brick and stone; the front half of the building is two stories high, with cellar, the rear half is of the same height exteriority as the front half, but is one clear story containing the auditorium, but has no cellar under it. This rear portion is used exclusively by the church for its worship; access to it is by means of a hallway through the front half; the first floor of front half is divided into two rooms used five days in'the week by the public school. Over these on the second floor are two rooms; the front one is used by the school and the church, while the rear one is used exclusively by the church for religious worship. To reach these second-story rooms the same stairway must be used, and the rear one can only be reached by going through the front room used by the school. The entrances and exits to both floors are common to church and school; the cellar, in which all the heating apparatus for school and church is contained, is located under the front half of the building, access to which is common to both school and church.”</p> <p>Binding instructions for defendant were given.</p> <p>Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was instruction, quoting it.</p>

Appeal, No. 26, July T., 1893, by plaintiff, Andrew Sommer to use of Mary F. Lathrop, admrx. of John Lathrop, deceased, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1870, No. 1919, on verdict for William J. Gilmore, garnishee of Ransom Rogers. Attachment execution. At the trial, before Arnold, J., it appeared that, in J une, 1875, judgment was entered against William J. Gilmore and in favor of Ransom Rogers for $5,381.21 on a judgment note.

<p>Appeal, No. 121, July T., 1898, by defendants, Stacy Reeves & Sons from judgment of C. P. No. 8, Phila. Co., Dec. T., 1891, No. 201, on verdict for plaintiffs, W. H. Harrison & Bro.</p> <p>Assumpsit for work and materials. Before Gordon, J.</p> <p>At the trial it appeared that on July 1, 1890, Mrs. Charles P. Sinnickson entered into a contract with defendants by which they agreed to make alterations in her house. The material portions of the contract were as follows:</p> <p>“ The contractor shall execute the work in accordance with the drawings and the following specifications, prepared by Addison Hutton, architect, to whom all questions as to their true interpretation shall be referred, and whose decision thereupon shall be final and conclusive, and thoroughly binding upon said contractor and his subcontractors.</p> <p>“ He shall make changes from original design if so required by the owner, without any claim for vitiation of the contract. . . . Payments on account will be made upon certificates issued by the architect. . . .</p> <p>“Tiles. . . . The new tiles for fireplace fronts and hearths to be estimated at $40.00 each fire set complete, and the grates or backs and jambs are to be included also in this proposal at $40.00 each. The owner is to have the privilege of selecting these articles within the above figures.”</p> <p>Plaintiffs wrote defendants July 11, 1890, as follows:</p> <p>“We propose to supply and set in the house of Mrs. Chas. P. Sinniekson, 280 South Nineteenth street, according to the plans and specifications of Mr. Addison Hutton, architect, the tile work in kitchen and bath rooms; the backs and jambs and tile hearth and facings; the range work and broiler; and we •will remove the fireplace in parlor, dining-room and library with the tile hearths and facings — but will not remove the wood mantels, or agree to remove the tile hearths and facings without damage, or so that they can be used again — for $1,768.00.” Mrs. Sinniekson selected tiles less in price than $40.00, and plaintiffs wrote the architect May 6,1891, as follows :</p> <p>“ Below please find memorandum of selection of tiles, hearths and facings and fireplaces for new house for Mrs. Sinniekson. The fireplaces are for our patterns, except where they are designated by Conover’s name and number. They may not be indicated in the right room, but can be changed in accordance with Mrs. Sinnickson’s wishes.” Here followed an enumeration of tiles for thirteen fireplaces, naming price for each, altogether aggregating $597.</p> <p>The architect, Addison Hutton, replied May 9, 1891:</p> <p>“ I have your favor of May 6th, with proposals for Mrs. Sinnickson’s backs, jambs, tiles, etc., amounting to $597. Will you kindly proceed without delay to put in the same, beginning in the fourth story. . . . Kindly go on with this work as a part of your contract with Stacy Reeves -& Sons, reporting the same to them.”</p> <p>This suit was brought to recover an unpaid balance, on the basis of $40.00 for each fireplace.</p> <p>When Addison Hutton, the architect, was on the stand, defendants’ attorney made this offer: I desire to prove by this witness that he was the architect who prepared the original contract and specifications under which the work was done; that the matter in controversy between the plaintiff and defendant in this suit was submitted to him at the request of Messrs. Stacy Reeves & Sons, and that, having given notice to the plaintiffs herein, Harrison & Bro., he made his award in writing, in which he determined that there was nothing due to Messrs. Harrison & Bro. under the contract; and also produced the award which he made. Objection sustained, and bill sealed. [1, 2]</p> <p>The court charged as follows :</p> <p>“ [In my view of this case, the plaintiffs are entitled to your verdict for $645, with interest] [4] from the date fixed by counsel. There were two defences. The first was, that Messrs. Stacy Reeves & Co., the defendants, agreed with the owners, as the original contractors, to do the work on this building, and that one of the covenants of their contract was, that they would-submit all disputes to arbitration by the architect, and also that all subcontractors would likewise submit all disputes to the architect for arbitration. They say that they submitted this dispute between them and the plaintiffs to the architect, and that a certain award was made. I have declined to let them prove that, because [there is nothing in this case which shows that the plaintiffs here agreed to submit this claim to arbitration by anybody. There is absolutely no proof that they ever agreed to submit it to arbitration.] [5]</p> <p>“ The other defence is what you have heard counsel and myself trying to clarify, and which I may probably have made less clear to you by the remarks which I have made. I will say that [the defendants have been unable to show intelligibly what they do claim, and hence, in my view of the case, the plaintiffs are entitled to recover for the balance claimed.] [6] According to my view of this contract, the plaintiffs agreed to do a certain amount of work for $1,763, and afterwards the range work was taken out of that bill, and the remaining contract was $1,515. There is no dispute as to the manner in which the work was done, and the defendants admit that the work done by plaintiffs was done in a proper and workmanlike manner. [I therefore direct you to find for the plaintiffs for $645, with interest.] ” [7]</p> <p>Verdict and judgment for plaintiff for $704.14.</p> <p>Errors assigned were (1, 2) rulings on evidence; (3) in directing verdict for $704.14 ; (4-7) above instructions, quoting instructions, but not quoting bills of exceptions or evidence.</p>

Appeal, No. 161, July T., 1893, by Grace Ann Brown et al., legatees, from decree of O. C. Chester Co., overruling exceptions to auditor’s report, distributing estate of Sarah Colgan, deceased. Adjudication of executor’s account.

Appeal, No. 3, Jan. T., 1894, by defendant, Thomas J. Haldeman, from judgment of C. P. Delaware Co., June T., 1890, No. 81, on verdict for plaintiff, J. C. McNaughton Co. Assumpsit on promissory note by indorsee against indorser. At the trial, before Clayton, P. J., it appeared that I. L. Haldeman was a stock broker, and J. C. McNaughton was one of his customers. In settlement of certain transactions between them, the note in suit was given by Haldeman to McNaughton.

<p>Railroads — Turnpike companies — Street railways — Sale of railroad— Act of March 15, 1865.</p> <p>Where a turnpike company is authorized by an act of assembly to purchase the road, property and franchises of a passenger railroad company, and is invested with the like powers, privileges and immunities as the railroad company, but with authority to remove the tracks, the turnpike company may, after the expiration of twenty-seven years, rebuild and operate the railroad.</p> <p>Corporations — Charter—Forfeiture—Act of Feb. 19, 1849.</p> <p>In such a ease the removal of the rails and the sale of the cars and property formerly belonging to the railroad in pursuance of an express legislative authority, raises no implication of abandonment or other disability as to the future exercise of the fraiichises. The provision of the act of Feb. 19, 1849, as to forfeiture, does not apply to such case.</p> <p>No charter to a corporation for public purposes can be forfeited except by the commonwealth in a direct proceeding for that purpose.</p>

Appeal, No. 410, Jan. T., 1893, by Alfred Fritz, assignee of expectant legacy, from decree of O. C. Lehigh Co., sustaining exceptions to report of auditor distributing estate of Charles Fritz, deceased. Adjudication of executor’s account. W. LaMonte Gillette, Esq., was appointed auditor to distribute. From the testimony it appeared that Charles Fritz died in 1891, leaving a will by which he. bequeathed $700 to his son Benjamin, and also made him one of his residuary legatees.

<p>Appeal, No. 412, Jan. T., 1898, by defendant, James F. Minogue, from order of C. P. Scliuylkill Co., Jan. T., 1898, No. 227, discharging rule to strike off judgment.</p> <p>Rule to strike off judgment. Motion to quash appeal.</p> <p>From the record it appeared that on December 1, 1892, the auditors of Schuylkill county filed a report finding that James F. Minogue was indebted to the county in the sum of §425, “ moneys overdrawn for solicitor’s fees.” On the same day judgment was entered on the report. On Feb. 20, 1893, the court granted arule tostrike off the judgment. On Feb. 27 th the court discharged the rule. On the same day defendant appealed from the county auditors’ report to the court of common pleas, which appeal was pending when defendant took this appeal to the Supreme Court.</p> <p>The appellee moved to quash this appeal.</p> <p>Errors assigned were (1) discharge of rule to strike off judgment; (2) in not striking off judgment; (3) to the jurisdiction of auditors.</p>

<p>Will — Equity—Charge of maintenance on devisees jointly — Contribution —Jurisdiction—Effect of voluntary hearing — Practice.</p> <p>Where a testator imposes upon his sons to whom he has devised his land the duty of maintaining his widow and daughters, one of the sons who has performed this duty may compel the other to contribute to the expense thereof by a bill in equity, where a question of accounts is raised by the pleadings.</p> <p>While a manifest want of jurisdiction of a court of equity may be taken advantage of at any stage of the cause, the court will not permit an objection to its jurisdiction to prevail in doubtful cases after the parties have voluntarily proceeded to a hearing before a master on the merits. In such case the court will administer equitable relief. j</p>

<p>Appeal, No. 156, Oct. T., 1893, by-plaintiffs, James M. Miller and Theodore Hawkins, from judgment of C. P. Washington Co., Nov. T., 1891, No. 7, on verdict for defendant, William J. Baker.</p> <p>Ejectment. Before Stowe, P. J., 5th district, specially presiding.</p> <p>At the trial, it appeared that plaintiffs claimed title as purchasers at a sheriff’s sale under a judgment against defendant. Defendant claimed that he was entitled to possession in right of his wife; that the property had been purchased with his wife’s money, and that the deed had been made by the vendors to him through a mistake.</p> <p>Defendant was asked under cross-examination: “Were you not in this town in the latter part of 1890 endeavoring to borvow money on the strength of your title to this land — to that Young land and to the McKee land? ” Objected to as incompetent. Objection sustained and bill sealed. [1]</p> <p>Plaintiff’s offer to prove that prior to 1891 the land had been assessed to defendant was refused. [2]</p> <p>Plaintiff offered to prove declarations by defendant that he held a clear title to the land. Objected to unless the evidence connects Mrs. Baker with the transaction. Objection sustained and bill sealed. [3-5]</p> <p>Theodore Hawkins, one of plaintiffs, was asked: “ Q. Before you lent William J. Baker any money, did you have his title examined? A. Yes, sir.” Objected to as incompetent and irrelevant; objection sustained and bill sealed. [6]</p> <p>The same witness was asked: “ Q. Did you lend him the money evidenced by these judgments on the faith of advice that you got with reference to the validity of Baker’s title ? A. Yes, sir.” Objected to as incompetent; objection sustained and bill sealed for plaintiffs, and answer stricken out. [7]</p> <p>Defendant asked leave to read in evidence exhibit A, being a paper given to Mr. Fordyce, a surveyor, as testified to by Mrs. Baker, showing the courses and distances of a tract of 134 acres adjudged to her in partition proceedings in her father’s estate, which she sold, and the money from which constituted part of the purchase money of the land here in controversy. The reading of the Fordyce paper is objected to because it contains no evidence with regard to this matter one way or the other; has no date and is in no respect evidence. Objection overruled, bill sealed, and paper read in evidence. [8]</p> <p>Defendant’s points were among others as follows :</p> <p>“1. If the jury find that Joanna Baker, the wife of the defendant, was the owner of the moneys with which the land in controversy was purchased from John A. Young and Henry McKee; that the purchases from Young and McKee were made with said moneys for her, and on her account, and the titles were to have been taken in her name, but by mistake were conveyed to William J. Baker, and the mistake was not discovered until after delivery of the respective deeds made by Young and ■ McKee; and that the moneys, in consideration of which such conveyances were made, belonging to her as aforesaid, were furnished by her for the purpose of paying the consideration of said conveyances, and were so applied and thus went into the land at the time said conveyances were made, then a trust arose in favor of Joanna Baker; and in such case, as the plaintiffs admit that they purchased with notice of her claim of equitable ownership, and it is undisputed that she and her family have been in possession of the lands, purchased from Young and McKee as aforesaid, since at or about the dates of such purchases respectively, the verdict must be for the defendant.” Affirmed. [9]</p> <p>“ 2. If the jury find that Joanna Baker, wife of the defendant, was the owner of a tract of 134 acres in Dunkard township, Greene county; that she and her husband sold and conveyed .said land to John Dowlin fora consideration exceeding $6,000; that $6,000 of the purchase money so received from Dowlin was, by direction of Joanna Baker, invested for her use and benefit in government bonds, with which bonds the whole of the purchase money of the tract conveyed to William J. Baker by the deed of John A. Young and wife, in evidence, was paid at the time of the delivery of said deed, such payment being made by direction of said Joanna Baker, and for her account, and with the intention on her part, and on the part of her said husband, that she should become the owner of said land, and that she thereupon went into possession of said land' and has since resided on it with her husband, then, notwithstanding the fact that the legal title to said tract was conveyed by Young and wife to William J. Baker, said Joanna Baker thereupon became the equitable and beneficial owner of said land, and the verdict must be for the defendant as to it.” Affirmed. [10]</p> <p>“3. If the jury find that in the summer of 1865 Joanna Baker received upwards of $6,000, being the purchase money of a tract of land conveyed by herself and her husband, William J. Baker, to John Dowlin, and that she was the owner of the money so received by her ; that with said money, or with government bonds in which she had caused it to be invested for her usé, she purchased and paid for the tract of land described in the deed of John A. Young and wife, in evidence in this case, making such payment at the time when said deed was delivered ; that by mistake or accident said deed was made to her husband instead of to herself, and that since a few days after the delivery of said deed she has resided upon and has been in possession of said tract of land last mentioned, occupying it with her husband, these facts established an equitable ownership in .her and the verdict as to said land must be for the defendant.” Affirmed. [11]</p> <p>“ 4. If the jury find that the tract described in the deed of Henry McKee and wife, in evidence in this case, was purchased from said McKee by Joanna Baker and paid for by her, at the time of the delivery of said deed, with money and property that belonged to her as her own proper estate, and that thereupon she took possession of said land and has since been in the possession and enjoyment thereof; and that the said deed was made to her husband instead of to herself by mistake or accident, — these facts established an equitable ownership in her, ■and the verdict as to said land must be for the defendant.” Affirmed. [12]</p> <p>Plaintiff’s points were among others as follows:</p> <p>“ 2. The evidence to sustain a resulting trust in favor of Mrs. Joanna Baker in the land conveyed to Wm. J. Baker by John A. Young and Henry McKee must be clear, unequivocal and ■convincing; and as the evidence adduced by the defendant to sustain the alleged resulting trust in this case is not of the ■character thus indicated, the verdict of the jury must be for the plaintiffs.” Refused. [14]</p> <p>“ 8. If it be true that the money of Mrs. Joanna Baker was used by her husband to pay for the land Young and McKee •conveyed to him, and so used in each case upon the understanding and agreement with his-wife that the titles were to be made to her, the taking of title in his own name was a fraud upon her; and as the fraud was discovered by her within ■six months or a year after the making of the respective deeds by Young and McKee to her husband, the assertion of title in her now, after the lapse of more than twenty-five years in the Young case and of more than twenty years in the McKee case, is barred by the five years limitation in the 6th section of the ■act of April 22, 1856, and the verdict must be for the plaintiffs.” Refused. [13]</p> <p>4. Request for binding instructions. Refused. [15]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were (1-8) rulings on evidence; (9-15) in«tractions; quoting instructions and bills of exceptions and evidence.</p>

<p>Appeal, No. 200, Jan. T., 1898, by plaintiffs, John W. Haynes et al., from order of C. P. No. 4, Phila. Co., March T., 1892, No. 200, discharging rule for judgment for want of sufficient affidavit of defence.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit against surety of tenant to recover taxes which the tenant had covenanted to pay.</p> <p>Plaintiffs’ statement was as follows:</p> <p>“ The plaintiffs bring this suit to recover from the defendant the sum of $308.70, with interest from Oct. 31, 1891, upon the following facts</p> <p>“ The plaintiffs, with the late Oliver Ditson, who were trading as Oliver Ditson & Co., of Boston, Massachusetts, on or about January 31, 1886, leased to Albert G. Smalley a certain piece of partnership land in the said city of Boston on North street, more particularly described in the lease (a true copy of which is hereunto annexed), from the first day of June, 1886, for the term of five years. The rent agreed upon by the said lease was $1,764 a year, payable in monthly installments, and the said lessee, Albert G. Smalley, covenanted to pay, in addition to the rent aforesaid, all ‘ the taxes and water taxes payable on said premises or any part thereof during the said term.’</p> <p>“ The said Albert G. Smalley, on the expiration of the term of the lease, June 1, 1891, had paid all the rent aforesaid, and all the taxes, except the tax which was levied and assessed on the said leased premises on the first day of May of said year 1891, by the city of Boston, amounting to $308.70, whereupon the plaintiffs, on October 31,1891, were obliged by law to pay, and did pay the said tax of $308.70 to the said city of Boston. The said lease was made and executed in Boston, Massachusetts, for property situated in Boston, and its covenants were to be performed there, and it was therefore subject to the laws of Massachusetts, under which a tenant who contracts by his lease to pay the taxes on the leased property during his term is liable for all taxes levied and assessed during such term. The said Smalley did not pay and was not bound to pay the taxes assessed May 1, 1886.</p> <p>“ The defendant in this suit, Thomas W. Synnott, bound himself for the punctual payment of the rent and taxes reserved in the said lease by writing annexed to said lease, of which the following is a true copy:</p> <p>“ ‘ In consideration of the execution of the preceding lease, and of one dollar to me paid, the receipt whereof is hereby acknowledged, I do hereby guarantee to the said Oliver Ditson & Company the true and punctual payment of the rent and taxes reserved at the times mentioned, and in default thereof I promise to pay the same on demand,’ (with signature, etc.)</p> <p>“ The defendant, Thomas W. Synnott, thereby became liable for the payment of the said Í308.70, which the said lessee had neglected and refused to pay and still refuses to pay. The said Thomas W. Synnott, defendant, has often been requested to pay said sum in accordance with his said undertaking, but has always refused and still refuses to pay said sum or any part thereof, and the same is now unpaid, wherefore the plaintiff brings this suit and craves judgment for the amount as aforesaid.”</p> <p>The copy of the lease filed showed a covenant for the payment of the “ taxes and water taxes which may be payable for or in respect of the said premises or any part thereof during the said term.”</p> <p>The original lease, produced on the argument in the court below, read, “ all taxes and water taxes [and assessments whatsoever, whether in the nature of taxes now in being or not] which may be payable,” etc, the part in brackets being erased.</p> <p>The affidavit of defence averred:</p> <p>“ 1. The said Albert G. Smalley, lessee, did not covenant to pay to the plaintiffs the taxes ‘ levied and assessed ’ on the- demised premises — the words which import such covenant having been scored out in the contract and intended to be eliminated.</p> <p>“ The taxes now claimed for were not ‘ payable for or in respect of the said premises or any part thereof during said term,’ but were for taxes payable from the property for the year ending May 1, 1892, covering but one month of the term of the lease.</p> <p>“ 2. I am informed and believe that after the making of the said lease the said plaintiffs and the said Smalley entered into an agreement unknown to me by which the lessee was given time for the paj^ment of the taxes, and that by reason of such agreement the taxes which should have been collected at the proper time are now sought to be recovered against me under my contract of suretyship.</p> <p>“ 3. I believe that no demand has been made upon the said Smalley, the lessee, for the payment of the said taxes. I have been advised and upon such advice aver that the said Smalley was obliged by the terms of his lease to pay the taxes on the property from June 1, 1886, to the end of his term of tenancy, including eleven-twelfths of the taxes assessed for that year.</p> <p>“ 4. I am informed and believe that the said Smalley has means and property within the jurisdiction of the courts of Massachusetts which should be exhausted before I am called on to pay any rent or taxes under the lease.”</p> <p>Rule for judgment discharged. Plaintiffs appealed.</p> <p>Error assigned was above order.</p>

<p>Negligence — Infants— Contributory negligence — Presumption.</p> <p>The measure of a child’s responsibility is his capacity to see and appreciate danger, and the rule is that, in the absence of clear evidence of the lack of it, he will be held to such measure of discretion as is usual in those of his age and experience. This measure varies of course with each additional year, and the increase of responsibility is gradual. It makes no sudden leap at the age of fourteen. That is simply the convenient point at which the law, founded upon experience, changes the presumption of capacity, and puts upon the infant the burden of showing his personal want of intelligence, prudence, foresight or strength usual in those of his age: Kehler v. Schwenk, 144 Pa. 359.</p> <p>In an action by a boy over fourteen years of age against his employer to recover damages for personal injuries, the court cannot assume that plaintiff, with six months’ experience in a machine shop, is incapable of forming a judgment of the danger of going up a ladder to put a belt on a pulley, particularly where he was warned by another workman as he was going up the ladder that he ought not to put the belt on.</p> <p>Negligence — Fellow servants — Master and servant.</p> <p>In an action by an employee against his employer to recover damages for personal injuries, binding instructions should be given for defendant where the evidence shows that the accident was caused by the negligent conduct of a workman employed as an engineer who had no general authority or control over the men, although at rare intervals left in charge when the defendant, who was his own superintendent, was away from the works, and that the accident occurred when the defendant was not absent.</p>

<p>Mortgage — Ground rent — Assignment—Aet of June 12, 1878.</p> <p>The act of June 12,1878, P. L. 205, which provides that grantees of real estate shall not be personally liable for mortgages, ground rents or other incumbrances thereon, unless they expressly bind themselves in writing, does not apply to an action by a grantor for the unpaid balance of the purchase money, where the grantee agreed by parol as a part of the consideration for the property to pay off the mortgages thereon.</p> <p>Plaintiff owned three adjoining lots, each subject to a separate ground rent, and all jointly subject to subsequent mortgages. Two of the lots had been sold by the sheriff for arrears of ground rent, but title had not been taken. Judgment had been obtained for ground rent due on the third lot.</p> <p>Defendants verbally agreed to purchase plaintiff’s interest in all the lots for the consideration of a certain sum in cash and the payment of all claims against the property. Held, that an action could be maintained by the plaintiff on this agreement.</p>

Appeal, No. 168, July T., 1893, by plaintiff, Emanuel G. Reyenthaler, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1891, No. 634, on verdict for defendant. Appeal from assessment of land damages for opening street.. At the trial, before Wilson, J., plaintiff by his own testimony sought to convey the- impression that certain buildings on the line of the street had been torn down by the city. He testified as follows on this subject.

<p>Corporations — Elections—Equity—Quo warranto — Act of June 16, 1836.</p> <p>Tlie power of supervision and control of corporations conferred by the act of June 16, 1886, P. L. 621, upon Courts of Equity will be used to supervise and control corporate elections where it is shown in advance that by reason of fraud, violence or other unlawful means a fair and honest election cannot be held, but it will not be exercised to set aside an election regularly held.</p> <p>Where a corporate election is held at. the proper place and the appointed time, and the meeting is regular, quiet and orderly, the only way to contest the validity of the election is by a writ of quo warranto, as provided by the act of June 16, 1886, P. L. 621.</p>

<p>Practice — Charge of court — Duty of counsel to ash court to correct charge —Review—Evidence.</p> <p>In an action against a corporation to recover the amount of an alleged loan, a verdict for plaintiff will not be reversed because the trial judge said to the jury that “ the payment to the company was conceded on all sides,” when there was no serious issue upon that question, and the testimony of the plaintiff was practically undisputed on the question of payment to the company, the evidence against such payment being merely inferential, and the judge not having been asked at the trial to modify the language which he used.</p> <p>In the above case the president of the company signed this writing which plaintiff offered in evidence: “I have this day received from William D. Hallman $2,000 in cash to be used for the Pennsylvania Boiler Insurance Company.” The court charged as follows: “ The paper which was given when the money was paid by Mr. Halfman acknowledges the receipt of the money to be used by the company. It states no time for repayment, and Mr. Miller, the president of the company, said no agreement for repayment was made. Perhaps he meant that no time for repayment was set.” Held, not to be error.</p> <p>Defendant offered evidence which tended to show that Halfman had made statements at various times of the debts of the company, to parties negotiating for the purchase of his stock, and that from these statements he had omitted his claim. Held, that it was not error for the court in the charge to refer to the evidence for plaintiff to the effect that he had not placed this claim among the others because he had no control of it, having assigned it to another person, there being testimony to that effect.</p>

Appeal, No. 300, Jan. T., 1894, by plaintiff, Joseph Deacle, from order of C. P. Lackawanna Co., Sept. T., 1893, No. 28, discharging rule to reinstate sheriff’s return, and making absolute rule to strike off award of arbitrators. Rule to reinstate sheriff’s return and rule to strike off award of arbitrators in ejectment.

Appeal, No. 388, Jan. T., 1893, by defendant, from decree of C. P. Berks Co., equity docket 1891, No. 547, in favor of plaintiff, Hannah Evans, on bill in equity. Held: in State v. Neidt, (N. J.) 19 Atl. R. 318, that, when offensive smells compel citizens to retire from their porches and close their doors and windows, cause nausea and sickness of the stomach, produce retching and vomiting, and oblige them to forego their meals, a case of nuisance is made out.

<p>Appeal, No. 361, Jan. T., 1894, by plaintiff, Michael W. Hook, from judgment of C. P. Berks Co., Dec. T., 1889, No. 57, on verdict for defendant.</p> <p>Assumpsit on fire insurance policy. Before Endlich, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Binding instructions were given for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

Appeal, No. 349, Jan. T., 1893, by plaintiffs, from decree of C. P. Berks Co., equity docket 1884, No. 341, dismissing bill and cross bill. Bill to restrain railroad from occupying street. Cross bill to restrain plaintiffs from crossing defendants’ tracks at grade until the rights of the parties are determined. An appeal by defendants from the same decree is reported in 157 Pa. 42.

Appeal, No. 339, Jan. T., 1893, by defendants, J. S. Ammon, Isaac R. Fisher, Henry J. Mays and John N. Leavy, from judgment of C. P. Berks Co., June T., 1883, No. 48, on verdict for plaintiff, George W. Hassinger. Assumpsit on bond. At-the trial it appeared that the Farmers’ Beneficial Society for Unmarried Persons was incorporated by the Court of Com-, mon Pleas of Berks county, Aug. 29, 1881, under the act of 1874.

<p>Appeal, No. 403, Jan. T., 1894, by-Samuel B. Wentzel, from order of C. P. Berks Co., Insolvent Docket, No. 243, refusing to discharge defendant, Samuel B. Wentzel, from custody.</p> <p>Petition for discharge under insolvent laws.</p> <p>From the paper-books it appeared that defendant was charged with embezzlement of funds received by him as guardian. Defendant presented his petition to be discharged under the insolvent laws. The court refused his petition, and remanded him for trial in the quarter sessions. The order was made on the Saturday before the June sessions of 1892 began. Defendant entered into a recognizance for his appearance, but on account of the alleged shortness of time no bill of indictment was found, and defendant was ordered to renew his recognizance. A true bill was found by the grand jury at September sessions, 1892. The case, however, was not tried at that sessions. Defendant was never imprisoned. Defendant renewed his application for a discharge.</p> <p>The court, Ermentrout, P. J., refused the petition.</p> <p>Error assigned was refusal of petition.</p>

<p>Appeal, No. 350, Jan. T., 1894, by-Mary Moyer, from decree of O. C. Berks Co., distributing estate of John Gerhard, deceased.</p> <p>Exception to adjudication of executor’s account.</p> <p>The following opinion was filed by Bland, P. J.:</p> <p>“ The exception complains that the court erred in distributing to Mary Moyer the sum of $1,400, made up as follows: (a) Charge on land sold to Adam Gerhard, $600. (5) Charge on land sold to William Gerhard, $400. (c) Charge on land sold to David Beber, $400.</p> <p>“ The provision of the will of the decedent, under which the distribution was made, is as follows:</p> <p>“ ‘ Item. After the decease of my said wife I order and direct that all my real estate owned by me at the time of my decease, as well as all the personal property then remaining, shall be sold at public sale by my hereinafter named executors. . . . And the money arising from such sale or sales, together with all the rest, residue and remainder of my estate whatsoever the same may be, I give and devise the same unto my eight children, Isaac, Lydia, wife of John Shaffner, Mary, wife of Aaron Moyer, Bebecca, William, Daniel, Sarah, wife of Adam Stoudt, and Adam, share and share alike, and their heirs. . . .</p> <p>“Item. My will is and I order and direct that of the share hereinbefore given and bequeathed to my daughter Mary, wife of Aaron Moyer, the sum of $1,400 shall remain charged on my real estate as follows, etc.: six hundred dollars ($600) thereof shall remain charged on my farm at present occupied by my son Daniel; four hundred dollars ($400) thereof shall remain charged on my farm at present occupied by my son Isaac, and four hundred dollars (400) thereof shall remain charged on the farm whereon I and my son Adam at present reside, of which several sums the respective owners or ocouplers of said farms shall pay the annual interest at the rate of five per cent to my said daughter during her natural life, and upon her decease said principal sum shall be paid to her bodily heirs in equal shares, and in case my said daughter shall die without leaving bodily heirs, then the said sum of fourteen hundred dollars shall revert and fall back to my estate and shall be paid to my other children and their heirs.’</p> <p>“ Exceptions to said distribution were filed by the executors, in that character, on the 4th day of January, 1893, which, in an opinion filed April 19,1893, were overruled, one of the grounds for the action of the court thereon being the want of interest of the executors, as such, in the subject-matter of the exceptions. In order to obviate the objection of want of interest in the original exceptants, a petition was presented to the court on the 9th day of May, 1893, praying that Adam Gerhard and Daniel Gerhard be allowed to file exceptions to the original adjudication as heirs and legatees of the decedent; and an order was made on the same day granting the prayer of the petition.</p> <p>“ The exception now before the court was filed in pursuance of the order so made, and properly raises the question as to the interest of Mary Moyer in the said $1,400 charged on the real estate of the decedent, in pursuance of his will as above set forth. The gift to her, in the first instance, is absolute, i. e., to her and her heirs; and the controversy is upon the effect of the subsequent direction to charge the $1,400 on certain real estate of the decedent, the owners thereof to pay the interest thereon to Mary Moyer during her natural life, and the principal upon her decease to her bodily heirs in equal shares; and in case she should die without leaving bodily heirs, the principal to revert and fall back to testator’s estate, and to be paid to his other children and their heirs.</p> <p>“ Generally, words which will create an estate tail in a devise of a freehold will confer an absolute interest in a gift of personal property; but where there are any words or expressions in the bequest, showing that the testator did not intend ‘ issue ’ or bodily heirs,’ or their equivalents, in their technical sense, but used them in the popular sense of ‘ children,’ such words and expressions are sufficient to displace the operation of the rule and limit the interest of the first taker to an estate for life; and where the expressions ‘ leaving issue,’ or ‘ leaving bodily heirs,’ have been used by a testator in a bequest they have universally been held to denote ‘children.’</p> <p>“ It was said by Gibson, C. J., in Seibert v. Butz, 9 Watts, 494, that ‘there is perhaps no case in which the limitation over of personal estate, after an indefinite dying without issue, whether the first limitation were indefinite or expressly for life, has, ex vi termini, been confined to a dying without issue at the time of the death; but the courts have seized with avidity on any circumstance, however trivial, denoting an intent to fix the contingency at that period.’ The law, as stated by Judge Gibson, has been often applied by the courts since his time ; and so recently as Miller’s Est., 145 Pa. 561, and Wallace v. Denig, 152 Pa. 251, his statement of the rule has been repeated and applied in terms.</p> <p>“ It seems to have been the law since the case of Pinbury v. Elkin, 1 P. Wms. 563-4, decided in 1719. There the testator bequeathed to his wife all his goods and chattels, made' her his executrix, and provided that if she should die without issue by him, then, after her decease, ¿680 should remain to the testator’s brother, J. S. The testator died ; next his brother died; and subsequently the widow died, without issue. It was held that the will meant issue living at the widovPs death, and that the executor of J. S. was entitled to the legacy of ¿680.</p> <p>“Next came the case of Forth v. Chapman, 1 P. Wms. 664, decided in 1720. That case, doubtless, is the true authority for the ca.se here, for the reason that the bequest over was given upon the contingency of the first legatees leaving no issue. There Walter Gore devised a leasehold to his nephews, William Gore and Walter Gore, and if either of them should die and leave no issue of their respective bodies, then he gave the leasehold premises to the daughter of his brother William. The nephews having died without issue, the question was whether the limitation over to his niece was too remote. . Lord Chancellor Parker decided that it was not, and said: ‘ The reason why a devise of a freehold, to one for life, and, if he die without issue, then to another, is determined to be an estate tail, is in favor of the issue, that such may have it, and the intent take place; but there is the plainest difference betwixt a devise of a freehold and a devise of a term of years; for in the devise of the latter to one, and, if he die without issue, then to another, the words, “ if he die without issue,” cannot be supposed to have been inserted in favor of such issue, since they cannot by any construction have it.’ The case of Forth v. Chapman has been repeatedly cited and approved by our Supreme Court. In Clark v. Baker, 3 S. & R. 477, Tilghman, C. J., said of it: ‘ These words, “ without leaving issue,” applied to personal estate, have been held to mean issue living at the death of the person to whom the property is given in the first instance. But not so with regard to land. This is the distinction taken in Forth v. Chapman, 1 P. Wms. 667, and it is well founded, because it carries into effect the intention of the testator.’</p> <p>“ In Amelia Smith’s Appeal, 23 Pa. 9, the rule established by Forth v. Chapman was distinctly recognized by Lowrle, J., who, at page 10, said: ‘ Now as to personal property. Let it be noticed that the legacy is in terms absolute, and that it is qualified only by the bequest over on his death without issue. But these are words of entailment, and, therefore, when applied to personal estate, they pass the absolute property. A different construction is usually put upon the phrase “ dying without leaving issue,” when applied to personal property. It is a general, though-not universal, rule that words which, when applied to land, would create an estate tail, will, when applied to chattels, pass the entire interest. How can it be otherwise ? Chattels cannot be inherited. They pass to one set of representatives, and land to another.’</p> <p>“ In Still v. Spear, 3 Grant, at page 307, Strong, J., said : ‘ The property which the plaintiff below seeks to reach by his attachment is personalty. Lajdng aside for the present any notice of the trust, and treating the gift as directly to Levi, the first taker, we have a legacy of the interest of a fund to him indefinitely, and, in case he should die “ without leaving issue,” a gift of the principal to the children of Charles. The case is then completely within the rules laid down in Smith on Executory Interests, 599, 600, which are as follows: “ Where personal estate is limited, either directly to, or by way of executed trust for a person indefinitely, or for life, with a limitation over on indefinite failure of his issue, the whole interest vests in the ancestor. But where the limitation over is on failure of children only, or on failure of issue within a given time, the ancestor will have a life estate with a limitation over of a springing interest, or the entire interest with a conditional limitation over.” The limitation over to the children of Charles is not a limitation after an indefinite failure of issue. Notwithstanding the doubts which have been expressed in some cases, it is now settled, that in gifts of personalty the phrase, “die without leaving issue,” means die without leaving issue living at the death of the person ; the failure of the whole issue is spoken of.’</p> <p>“In Train v. Fisher, 15 S. & R. 148, Duncan, J.,said: ‘Personal estate cannot be entailed. It makes no difference in regard to the rules of construction, whether the use, interest or profits be given, with a limitation over of the thing itself, or a bequest of the thing itself. This was formerly a finespun distinction, which, in process of time, as personal property increased in estimation, and the liberality of courts extended, has been’ exploded; and it is now perfectly settled that, whether it be a bequest or its use, makes no difference. The principle is that where there is a limitation of a chattel by words which, if applied to freeholds of inheritance, would create an estate tail, in personal estate the whole interest vests absolutely in the first taker. There is a distinction, however, as to the words “dying without leaving issue ” between a devise of real estate and personal estate; in the former generally thejr seem to be construed to mean indefinite failure of issue; in the latter, issue at the time of the death of the first taker.’</p> <p>“In Hopkins v. Jones, 2 Pa., at p. 71, Sergeant, J., said: ‘ The words “ die without lawful issue ” are to be construed, in case of personal estate, to mean “ die without leaving lawful issue,” when that corresponds with the testator’s intent: Pin-bury v. Elkins, 1 P. Wms. 563.’</p> <p>• “ In Miller’s Estate, 145 Pa., at pp. 565-6, Mr Justice Ster-RETTsaid: ‘But the courts have seized with avidity on any circumstance, however trivial, denoting an intention to fix the contingency at the time of the death: Seibert v. Butz, 9 Watts, 490. And accordingly, in Snyder’s Ap., 95 Pa. 174, where the bequest'was to H., and if he should, “at any time, die without issue I then give and bequeath ” over to all testator’s children, it was held that the use of the words “ at any time,” and “ then ” imported a definite failure. So, when the time at which the devise over is to take effect is expressly or impliedly limited to a particular period within a life or lives in being and twenty-one years after, or if lie die without leaving issue behind him, or leaving issue at the time of his decease, or if the devise over be of a life estate, which implies necessarily that such devisee may outlive the first estate, the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure.’</p> <p>“In 2 Roper on Legacies, p. 1551, the learned writer says: ‘Again, the words ‘leaving” or “leave” have been held suffi-cient to restrain the general import of the term “ issue ” to those living at the death of the first taker, so as to give effect to the bequest over, upon there being no such issue in existence at that period. Thus, where a testator bequeaths a legacy to A generally, or to A for life, and in case he should die leaving no lawful issue then over; or to A, his executors, administrators and assigns, and if he die before twenty-one, leaving no issue; or to A generally, or for life, and to tbe heirs of his body, and if he die leaving no heirs of his body to B; or to A and his heirs, and if he die leaving no lawful heirs, to B ; or to the children of A living at his death, and if such children should die without leaving issue, to B ; or to A for life, and to his heirs-male after him, and if he should not leave any son, then over.’</p> <p>“ The foregoing citations show how little vigor technical, words, importing presumptively the gift of an inheritance, have,' when used in a bequest of personal property; and how easily their presumed meaning, as words of inheritance, is overcome by expressions of the testator tending to show that he did not use them in their legal sense. If, upon a fair construction of the words of the will, it is manifest that the testator intended a failure of issue within the period allowed for the vesting of future interests, by the rule against perpetuities, the failure of issue intended is, in a legal sense, a definite one, and a gift over is good; and in the ascertainment of the testatorial intent courts are satisfied with any reasonable indication of such intent. Not only does Forth v. Chapman furnish an example of the rule of construction for cases of this kind, but also the probable reason for the rule, in the words of Lord Chancellor Parker, at p: 666, where he says: ‘ Besides, tire testator, who is inops concilii, will, under such circumstances, be supposed to speak in a vuJgar, common and natural, not in a legal, sense.’</p> <p>“As shown bjr the above authorities, the word ‘leaving,’ in the connection in which it is used by the testator, would seem to fix the decease of Mary Moyer as the point of time in tbe mind of the testator, when a failure of bodily heirs of Mary • was to vest the $1,400 absolutely in the other children of the testator. But it seems to the court that for other reasons than those arising out of the rule established in Forth v. Chapman, as far as the conclusion in that case depended on the use of the word ‘ leaving,’ it is necessary to hold that Mrs. Moyer is entitled only to the income of the said fund. The $1,400 is distinctly charged upon the several purparts of the testator’s real estate, and'those who may become the owners are charged with the duty of paying the interest thereon to her, at the rate of five per cent, and the principal to her bodily heirs; and in case she shall die without bodily heirs ‘ then ’ the principal shall revert to his estate and be paid to his other children and their heirs.</p> <p>“In Scott v. Price, 2 S. & R. 59, the testator gave his daughter certain bequests, and then proceeded: ‘ As also 550 pounds specie, to be paid to her in yearly payments, viz.: 100 pounds yearly, after she arrives at the age of eighteen years, until the said 550 pounds be paid. ... It is further my will, that if it should please God that any of my before-mentioned sons or daughters should die before he, she or they attain the age of twenty-one years, unmarried or without lawful issue, that then, or in either case, the bequest or bequests hereinbefore made, to any or either of them, shall devolve to the survivor or survivors, to be divided share and share alike; and in case it should happen that my sons and daughters should also die, under age and without lawful issue, that then and in such case my whole estate real, before divided, shall descend to my brother James Scott’s son, Alexander.’ Sarah was nine years old when testator died ; she subsequently married Price, and died without issue. Tilghman, C. J., said, p. 72: ‘The question is, whether the legacy was vested absolutely in Sarah Price, or went over, on her death, to her surviving brothers and sisters. An executory devise of a chattel, to take effect after an indefinite failure of issue, would be void, the contingency being more remote than the law permits. It is granted, however, by the counsel for the defendant, that the contingency mentioned in this will is not too remote, because the dying without issue is not indefinite, but restricted to the time of the death of the first taker. But a question has been made, whether money can be the subject of an executory devise ; of this I entertain no doubt. A sum of money devised to one for life, with remainder to another, may be of great use to the first taker; he may put it to interest or invest it in goods or land, and thus make profit. ... It was once supposed that a gift of a chattel for an instant was a gift forever, and that any limitation over would be void. But since the law of executory devises has been established there has been no difference between money and any specific chattel.’</p> <p>In Deil v. King, 6 S. & R. 29, the will was, p. 29: ‘I also give and bequeath unto Henry King, my grandson, .... and to his heirs and assigns, the sum of one thousand pounds, . . . to be paid to him in 200 pounds yearly payments; the first payment whereof to be made in May, 1808, and from hence 200 pounds successively until the whole shall be fully paid; nevertheless, if the said Henry King should die unmarried and without issue, that then and in such case the sum so bequeathed shall be equally divided to and among all my'children, share and share alike; but in case he shall marry, and then die without issue from his body, that then in such case two thirds of the said legacy shall only be divided amongst my children as aforesaid, and one third of the said legacy shall be given to the widow.’ The will was dated January 6,1801; the testator died in 1812; Henry King died in 1816, never having been married; and at his death children of the testator survived. At pp. 30, 31, Duncan, J., says: ‘ However rigid the rule may be, in ex-ecutory devises of real estate, as to the construction of the words, dying without issue, signifying an indefinite failure; yet the most strenuous adherents of this rule consider that, in ex-ecutory bequests of personal estate, any words in the will, will be laid hold of to restrain the generality of the words, “ dying without issue,” and confine them to dying without issue living at the time of the person’s decease, in order to support the intention of the testator; for by this construction the devise over becomes valid. Anderson v. Jackson, 16 Johns. 409; Executors of Moffat v. Strong, 10 Johns. 12.’ At p. 33 it was declared to be demonstrative of an intention to limit over on a definite failure, that the gift over was given to persons in being at the death of the first taker.</p> <p>“ In Seibert v. Butz, 9 Watts, 490, the words of the will were ‘ All the above mentioned and what will be found in cash, bonds and notes, and all that what shall accrue out of my personal property after my decease, shall be divided in equal shares unto my four daughters or their heirs as afterwards shall be mentioned. . . . Should one of my daughters die without issue or will, in that case her inheritance shall come to my other daughters then living, or to their offspring in equal shares, but to prevent misunderstanding, the share of the sister to her children.’ In holding the language of the will to import a failure of issue at the decease of tine daughters, Gibson, O. J., p. 494, said : ‘ The daughter’s will would speak at her death, and the contingency of dying without issue was evidently so closely coupled in the testator’s apprehension with the idea of her dying with or without one, as to have been inseparable from it; and though there may be an indefinite dying without issue, there can be no indefinite dying without a will. The legacy was to go to the survivors if the dying sister made no will and had no children; but if she made a will, or perhaps an appointment in the nature of one, it was to go to her appointee; but to either, necessarily, at her death.’</p> <p>“ In Emma Myer’s Appeal, 49 Pa. Ill, the words of the bequest were: ‘ I give and bequeath unto my friend, J. R. Ingersoll .... the sum of 120,000 in trust for the use of my daughter, Emma J. Snyder, during life, and after her decease, for such issue, if any, as she may have ; I direct that the interest on said legacy shall commence from the dajr of my death, and that the same shall be paid to my daughter in monthly installments of $100.’ Read, J., at p. 112, 113, said : ‘ The natural construction of the first legacy is to give only a life interest to the appellant with remainder to such issue as she may leave at her death. The rule is now certainly settled in England, that a legacy to A. for life, and after his death to his issue, gives the legatee an interest for life only, and that the issue take as purchasers. This was the rule laid down by Lord Thurlow in Knight v. Ellis, 2 Brown C. C. 570, and after various contradictory decisions it is now recognized as the established law of the land.’</p> <p>“In Bentley v. Kauffman, 86 Pa., at p. 100-1, Chief Justice Agnew said: ‘Did Leon Kauffman take an estate for life, or absolutely, in the personalty bequeathed to him’by his mother, Hannah Ann Kauffman? We think it was a bequest of the interest or income for life only. That a bequest of income or profits will carry an absolute estate in the principal or corpus of the estate in some cases is well settled; but the ground of the conclusion in such instances is that no contrary intent of the testator appears to sever the product from its source; and the fruits, therefore, carry with them that which bears them. In the interpretation of a will, however, in order to gather the testator’s intention, the words income and interest as distinguished from the corpus or principal, and the enjoyment for life only, have an important bearing: Earp’s Appeal, 25 P. F. Smith, 119; Ogden’s Appeal, 20 Id. 501. Hence, when the intent clearly appears to carry the corpus or principal over to others, the words of the will must be permitted to have their proper force. Here the bequest of the interest only for life, connected with the provision immediately following, is inconsistent with an intent to confer the principal absolutely upon him. The provision is: “ If my son, Leon Kauffman, should die without issue, it is my desire that the whole amount of my investment be given to the Orphans’ Asylum.” ’</p> <p>“In Eichelberger’s Estate, 135 Pa. 160, the words of the will, p. 161, were: ‘I give and bequeath to my son, Martin Eichelberger, a sum of money which shall be of equal value with the share bequeathed to my other sons. The said sum of money to be placed on interest by my executor, and the interest thereof to be paid annually to my said son, Martin Eichelberger, during his natural life. In case the said Martin Eichelberger should die and leave no legitimate heirs of his own body, then the sum bequeathed to him shall revert to my other heirs.’ At pp. 171-2, Mr. Chief Justice Paxson says: ‘Where it is the manifest intent of a testator to sever the product from its source, a bequest of an income of an estate will not carry an absolute estate in the principal: Bentley v. Kauffman, 86 Pa. 99. The trust is an active one, intended to preserve the contingent remainders: Kay v. Scates, 37 Pa. 31; Sheets’s Est., 52 Pá. 257; Eaehus’s Ap., 91 Pa. 105. Moreover a limitation over on the death of the first taker, or a direction that the interest of money shall be paid annually to him for life, is held to be evidence that he has but a life interest: Myers’s Ap., 49 Pa. Ill; Sheets’s Est., supra. . . . And in Beck’s Ap., 78 Pa. 432, it was held that “ all mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful.” ’</p> <p>“I have presented the decisions so fully and quoted from them so copiously, in order that the distribution under review may be looked at, if possible, from the standpoint of every important and controlling case heretofore decided by the Supreme Court, and involving the construction of testamentary dispositions similar in character to the one now before me.</p> <p>“A consideration of the cases cited,and they are representatives of the only class pertinent to the question before the court, has conclusively satisfied me that my former adjudication was erroneous, and that Mary Moyer has no interest in the corpus of the §1,400, charged by the testator on his real estate during her life.</p> <p>“Under the will she is entitled only to the interest of the fund during her life; and the principal upon her death will pass to her issue, if she shall leave any, as purchasers; and, in the contingency of her dying without leaving issue, over to the other children of the testator.”</p> <p>Error assigned was above award.</p>

<p>Appeal, No. 175, Jan. T., 1894, by plaintiffs, Samuel W. Reiff et al., from order of C. P. Berks Co., Sept. T., 1893, No. 37, making absolute rule to dissolve attachment execution.</p> <p>Rule to dissolve attachment execution.</p> <p>The following opinion was filed by Endlich, J.:</p> <p>“ The question raised by this rule is a most interesting one, and one upon which I have been directed to no authority in this state both precisely in point and binding upon me.</p> <p>“ The attachment sought to be dissolved was issued upon a judgment entered against defendant to No. 50 August term, 1893, J. D. On or about August 14,1893, defendant received from the government of the United States a check for $216, pension money. This check he placed with the Farmers’ National Bank of Reading for collection. Said bank, as was admitted by counsel upon the argument, collected the check and put the amount thereof to the credit of the defendant, who has since drawn upon the same as a deposit in said bank. The balance of said deposit, not exhausted by the defendant’s draft thereon, is the subject of this attachment.</p> <p>“ The United States’ Revised Statutes, in section 4747, provide as follows: ‘No sum of money due or to become due to any pensioner shall be liable to attachment, levy or seizure under any legal or equitable process whatever, whether the same remains with the pension office or any office or agent, thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner.’</p> <p>“ There can be no doubt that Congress has the power-to protect pension money against seizure under our state laws, until it shall have passed into the hands of the pensioner: U. S. v. Hall, 98 U. S. 348. But a pension being a gratuity, involving no claim of right, nor agreement of parties, nor rights of third persons (Harrison v. U. S., 20 Ct. Cl. 122), I am unable to perceive any principle which would render it incompetent for Congress to make that gratuity, even in his hands, inaccessible to his creditors. That question, I think, is not one to be determined by reference to the constitution of the United States or to the powers of Congress under the same, but by reference to the law of the state in which the question arises. Now, an unbroken line of decisions, from Fisher v. Taylor, 2 Rawle, 33, down to such recent ones as Overman’s Ap., 88 Pa. 276 ; Thackara v. Mintzer, .100 Id. 151; Stambaugh’s Est., 135 Id. 585 ; Ghormley v. Smith, 139 Id. 584, has settled the law in this commonwealth that one may provide for another without exposing his bounty to liability for the debts or improvidence of the beneficiary. If a private person has that right in this state, why not the United States ? And what substantial difference can it make whether the provision be made through the medium of a trustee, or directly to the beneficiary? It has never been deemed indispensable, that, e. g., in a gift of a separate estate to a married woman, a trustee should intervene between her and the grantor in order to protect b er estate against the usual incidents of legal estates of married women: Wright v. Brown, 44 Pa. 224. True, in both this and the former instance cited as illustrations, the interest of the beneficiary is an equitable one. But I need not quote authorities to prove, that, in this state, equity is part of the law, and that the legal rights and liability of persons are determined upon principles of equity. Neither, as I am well aware, is the analogy betweén the instances cited and a case like this a complete one; And if it were ‘ analogies are as likely to misguide as to guide safely:’ Over-man’s Ap., supra, p. 285, per Woodward, J. I have referred to them simply to show that the theory of our law does not exclude the possibility of the exemption I am discussing. It seems to me, however, that, apart from theory, the question of the right of Congress to exempt pension money, even in the hands of the pensioner, from seizure by his creditors under our state laws, is no longer an open question, — any more than that the language of the pension law is sufficient to indicate an intention so to do. ‘This act,’ says Mr. Chief Justice Paxson, in Holmes v. Tallada, 125 Pa. 133, 135, ‘not only protects the pension money from attachment while on its way to the pensioner,’ but it- goes further, and declares that it ‘ shall inure wholly to the benefit of such pensioner; ’ and upon the strength of that declaration it was held that, where a pensioner, having received a check for accrued pension, indorsed and gave it to his wife, who drew the money and applied it to the purchase of. real estate, taking the title in her own name, the property was not liable to seizure and sale for the husband’s debt: Ibid. We all know that it is the law of Pennsylvaniá, that where a married woman acquires property by gift, or by means of the proceeds of a gift, from her husband, it may be taken by his creditors, who would otherwise be kept out of their claims: See Herr’s Ap., 5 W. & S. 494; Duffy v. Ins. Co., 8 Id. 413; Stickney v. Borman, 2 Pa. 67 ; Coates v. Gerlach, 44 Id. 43; Ammon’s Ap., 63 Id. 284. It is equally clear that the only exception to this rule can be where the gift by the husband to the wife is of something which, in his hands, would be exempt from seizure by his creditors: See Robb v. Brewer, 60 Iowa, 539. Hence it follows that the logic of the decision exempting the property in- the hands of the wife implies an exemption in the hands of the husband of that whereby it was acquired. It is further to be observed that the ruling in Holmes v. Tallada, supra, was not put upon the ground that the check, not being cashed when indorsed to the wife, represented money in transit from the government to the pensioner, and for that reason, at the time, exempt from seizure under the first clause of sec. 4747, above quoted: See Farmer v. Turner, 64 la. 690; Hissem v. Johnson, 27 W. Va. 652; Hayward v. Clark, 50 Vt. 617. It is, on the contrary, based upon the language of the last clause declaring that the gratuity ‘ shall inure wholly to the benefit of such pensioner.’ Concerning that provision, it is said: ‘We think the rational interpretation of this language is, that the pensioner may use the money in any manner he may see proper for his own benefit and to secure the comfort of his family, free from attacks of creditors. . . . In his hands it was not liable to seizure:’ 125 Pa., p. 136. I cannot understand this decision otherwise than as authorizing the inferences, (1) that Congress may exempt the gratuity given by it to a pensioner, in his hands, from liability for his debts under the laws of this state; (2) that, by the language of its enactment it has done so; and (3) that, therefore, property acquired by means of pension money is exempt from levy and sale upon execution. So understood, the case is in perfect harmony with the decisions in Crow v. Brown, 81 la. 344, (holding that property purchased by a pensioner with pension money is exempt from execution or attachment by virtue of U. S. Rev. Stat., sec. 4747, and over-a’uling-a whole line of earlier cases to the contrary); Marquardt v. Mason, (la.) 54 N. W. R. 72 (holding, on the authority of Crow v. Brown, supra, that property, purchased by a pensioner’s wife with the proceeds of a pension certificate presented by him to her, was not to be subjected to the payment of a judgment recovered against the pensioner before the purchase); Yates Co. Nat. B’k v. Carpenter, 119 N. Y. 550 (holding that, where the receipts from a pension can be directly traced to the purchase of property, the latter is exempt from execution) ; Folschow v. Werner, 51 Wis. 85 (holding that the specific money received from the government in payment of a pension cannot be attached), and a dictum in Hayward v. Clark, supra (similar in effect to the rulings in the case just cited). I am not unmindful of the fact that there are a number of authorities to the contrary. Besides in the overruled Iowa cases '(Webb v. Holt, 57 la. 712; Triplett v. Graham, 58 Id. 135; Farmer v. Turner, 64 Id. 690; Baugh v. Barrett, 69 Id. 495 ; Foster v. Bju’ne, 76 Id. 295, 300), the doctrine that the exemption from seizure enacted by U. S. Revised Statutes, sec. 4747, extends only to pension money remaining in the pension office or its agencies, or while in course of transmission, and not to pension money paid and in possession of the pensioner or to property bought with such money in his or his wife’s name, seems to be maintained in the following: State v. Bld’g Ass’n, 44 N. J. L. 376 ; Spelman v. Aldrich, 126 Mass. 117; Faurote v. Carr, 108 Iud. 126; Robion v. Walker, 82 Ky. 61; (overruling Eckert v. McKee, 9 Bush, 365) ; Johnson v. Elkins, (Ky.) 13 S. W. R. 448; McFarland v. Fish, 34 W. Va. 548; Friend v. Garcelon, 77 Me. 25 (citing Knapp v. Beattie, 70 Id. 410, and the overruled Iowa cases) ; Berry v. Berry, 84 Id. 541; Cranz v. White, 27 Kan. 319; Fulwiller v. Infield, 6 Ohio C. C. 36. They are, however, clearly inconsistent with the latest deliverance of our Supreme Court on the subject to which they relate, Holmes v. Tallada, supra, and therefore not applicable to the question before me. Under that decision, and those of other states which agree with it, it is my duty to hold that pension money in the hands of a pensioner, and property acquired by him or his wife with such money, are exempt from execution ; and that, I think, settles this case</p> <p>“ When the defendant placed his check with the Farmers’ Bank for collection and after collection by it received a credit with the bank for the amount, what did he do? He did not receive the money. The bank received it. The bank, however, does not hold it for him as his bailee. The deposit made the money paid upon the pension check the property of the bank: Thompson v. Riggs, 5 Wall. (U. S. ) 663, 678; Scammon v. Kimball, 92 U. S. 362, 369, 370; Bank v. Jones, 42 Pa. 536, 537. In return, the bank became debtor to the defendant for that amount: Bank v. King, 57 Id. 202, 205; Thompson v. Riggs, supra; Florence Mining Co. v. Brown, 124 U. S. 391; i. e., the defendant became the holder of a claim upon the bank, a chose in action: Nat. B’k v. Millard, 10 Wall. (U. S.) 152, 357, and cases there cited. In other words, in exchange for the money paid by the government of the United States as a pension to the defendant, the latter became the owner of another kind of property (for a chose in action is property: Carlton v. Carlton, 72 Me. 115, 116; Ides v. Harwood, 30 Minn. 195; Vaughn v. Murfreesboro, 96 N. C. 317), viz., a credit with the bank which enabled him to draw upon it. This property, therefore (for a credit is property: People v. Worthington, 21 111. 171), being acquired with pension money and in the hands of the pensioner, was, under the decisions I must regard as conclusive upon me, exempt from seizure for the owner’s, the defendant’s, debts under the law of this state.</p> <p>.“Neither can I perceive any inconsistency in this respect between the decision in Piolines v. Tallada, supra, which I am following, and that in Rozelle v. Rhodes, 116 Pa. 129, relied upon by plaintiff’s counsel. The language of the Supreme Court must be understood with reference to the facts to which it was applied : Bank v. King, 57 Pa. 202, 208; Jíart v. Carroll, 85 Id. 508, 511. The money attached in Rozelle v. Rhodes, supra, was pension money. But it was neither in the hands of the pensioner, nor was it, by a general deposit in a bank, converted into another species of property. It had been placed by the pensioner in the hands of another as a bailee for safe keeping, the identical money to be returned to the pensioner. It was held, that, thus in the hands of the bailee, it might be attached. It may not be clear to me why this should be so, whilst in the pensioner’s hands or converted into some other kind of property it would not be liable. But it is enough for us that it has been so decided, that the present case falls within the latter category, and that, therefore, the decision in Rozelle v. Rhodes, supra, is not here applicable.</p> <p>“ There are, indeed, in Holmes v. Tallada, supra, two expressions that may be referred to as making against my interpretation of that decision. The Chief Justice, on page-136, says: (1) ‘We need not discuss the question whether property purchased by a pensioner with the pension money and held in his own name would be liable to execution for his debts. No such question is before us; ’ — and (2) ‘ In Rozelle v. Rhodes, 116 Pa. 129, the pensioner had deposited the pension money with a bailee for safe keeping, and it was held that it could be attached in the hands of the bailee. So here, if Jackson Tallada had deposited this money in his own name in bank, it might, under the authority cited, have been liable to attachment.’ (1) The former of these observations simply amounts to a declaration of that which, without it, is self evident, viz., that the facts of the case were not such as to render the decision upon them an express decision of the status of property acquired with pension money while in the hands of the pensioner. That, however, the point is incidentally covered, — that the proper rule upon it results logically from the decision of the precise question in the case, is not excluded by that statement. Nor, of course, can the latter, by any possibility,,be construed as being even an intimation that such property acquired with pension mone3 would not, in the hands of the pensioner, be exempt. (2) In the other, the first sentence is but an accurate statement of what was decided in the earlier case, and a recognition of it as authority to that extent and no farther. The second sentence, following in immediate sequence, must be read in connection with the first. So read, the word ‘ deposit ’ obviously has reference to a special deposit, such as was proven and passed upon in the earlier case, and is mentioned in Thompson v. Riggs, ubi supra. If, however, the learned Chief Justice had in mind a general deposit in a bank, then it is equally clear that, that question not being before the court, the observation is to be taken as intended merely for illustration or as an obiter dictum, and in either aspect, upon a very familiar principle, not authoritative.</p> <p>“ It would' be an omission not to refer, in concluding my discussion of this subject, to several decisions, which, though not binding upon me, are entitled to great respect and support the views I have expressed. In Moore v. March, 16 W. N. 239 (1885), the C. P. of Clearfield county, per Krebs, P. J., held a deposit by a pensioner of pension money in a bank not attachable. In Clark v. Ingraham, 38 Leg. Int. 393 (1881), where defendant, a pensionér, had directed his banker, through whom the pension had been collected, to give to defendant’s wife a certificate of deposit for an unused balance of the pension money, it was held by the C. P. of Tioga county, per Williams, P. J., that this deposit could, not be attached for the defendant’s debt. In Stockwell v. Malone Bank, 36 Hun, 583, it was decided that moneys received from a pension and deposited in a bank in the name of the pensioner were not subject to seizure by his creditors, the claim of the pensioner upon the bank by virtue of the deposit representing the pension money itself. True, this decision is directiy based, not upon U. S. Revised Statute, sec. 4747, but upon the N. Y. Civil Code, sec. 1393, providing that ‘ A pension .... granted by the United States .... for military .... services .... is ... . exempt from levy and sale by virtue of an execution .... or in any other legal. . . .proceeding.’ But it is manifest that this enactment does not make the matter any clearer, or go any farther than the federal statute with which we are here concerned. The latter speaks of any ‘sum of money due or to become due to any pensioner.’ The former exempts the ‘ pension ’ granted by the United States. Now, a pension is defined to be ‘a periodical allowance granted by a government for services rendered : ’ Anderson, Law Die., ad verb. The word ‘ pension ’ as used in the New York statute is, in other words, identical in meaning with the ‘ sum of money due or to become due to any pensioner,’ as used in the act of Congress. Hence, if the one is to be understood as including property acquired by means of the gratuity received — such as a credit in a bank — the other ought to include it also.</p> <p>“ For the reasons stated, I am of the opinion that the attachment ought to be dissolved. I am glad to be able so to hold, consistently with the decisions in this state, as I understand them, because, apart from any authority, I feel very certain that the act of Congress meant to exempt pension money, or property representing pension money, in whatsoever form, in the hands of the pensioner, from liability for his debts. The declaration that it ‘ shall inure wholly to the benefit of such pensioner,’ following so closely upon the direction that it shall not be liable to attachment, etc., clearly indicates that its appropriation, against the pensioner’s consent, to the satisfaction of his debts was not regarded by Congress as a disposition of it inuring to his benefit, upon the principle noscitur a sociis. Hence that declaration is, to my mind, an unmistakable and emphatic exemption of it from liability to attachment by his creditors.”</p> <p>Rule to dissolve made absolute. Plaintiffs appealed.</p> <p>Error assigned was making rule absolute.</p>

Appeal, No. 112, Jan. T., 1894, by ■ defendant, George W. Leedom, from judgment of G. P. Berks , Có., Oct. T., 1891, No. 37, on verdict for plaintiff, Maggie Lee- ' dom. Assumpsit for money received for benefit of plaintiff.

Appeal, No. 36, Jan. T., 1894, by defendants, from decree of C. P. Berks Co., Sept. T., 1893, No. 512, on bill in equity.

<p>Negligence — Liability of employer for acts of employee — Evidence.</p> <p>Plaintiff’s horse was frightened by the explosion of a dynamite cap by an employee of defendant company. The employee was not employed to handle caps, but for other purposes entirely distinct. There was some evidence from which it might be inferred that the employee who exploded the cap did so at the instance of the employee who had charge of the caps, and as a test for the benefit of the company. Held, that the evidence was sufficient to submit to the jury on the question of defendant’s negligence.</p>

Appeal, No. 311, Jan. T., 1894, by defendant, Frederic A. North, from judgment of C. P. Berks Co., June T., 1893, No. 23, for plaintiff, on trial by court without a jury. Detinue for steam heating pipes, radiators and valves. The ease was tried without a jury under the act of 1874. The following opinion was filed by Endlich, J.: “1. The house No. 217 North Fifth street, from the time of its erection in 1873, was, and still is, a private dwelling house. “ 2.

Appeal, No. 380, Jan. T., 1894, by defendants, from judgment of C. P. Berks Co., Aug. T., 1893, No. 125, on verdict for plaintiffs, Julia Heere et al., trading as Heere & Co. Sheriff’s interpleader.

<p>Appeal, No. 282, Jan. T., 1894, by Robert Palethorp, from decree of O. C. Phila. Co., April T., 1887, No. 259, citing executor to account in estate of John H. Palethorp, deceased.</p> <p>Petition for citation to account.</p> <p>Error assigned was decree citing executors to account.</p> <p>Appellee moved the Supreme Court to quash the appeal on the ground that it was interlocutory.</p>

<p>Contract— Guaranty — Building Machine — Evfdence.</p> <p>Plaintiffs agreed to build for defendant a machine “ as per drawings and specifications ” furnished by defendant. Plaintiffs did not guarantee that the machine would do the work that it was intended to do. After the patterns had been examined, it was found that they were incomplete, and that the drawings relating to the locomotive part of the machine were defective. Plaintiffs then undertook, at defendants’ request, to furnish revised drawings and patterns to correct the imperfections. When the machine was completed, it was found that it would not do the work contemplated. Held that the agreement of plaintiffs to furnish the revised drawings and specifications did not operate to change the contract so as to make them responsible, if the finished machine did not do its work satisfactorily as a machine.</p> <p>Damages — Imperfect machine — Charge of court.</p> <p>In an action to recover the price of a machine where defendant claims that the machine was imperfect, it is not improper to charge on the question of damages that “if the defects are due to imperfect workmanship on the part of the plaintiffs, or to any want in the materials which they used in the construction of the machine, or if the parts which they were to design, and did design and construct, were not reasonably suitable for the purposes for which they were intended, the defendant would be entitled to deduct from the claim of the plaintiffs such an amount as he would be required to expend in repairs in putting the machine in the condition whicli was arranged for in the plans and designs. He would be further entitled to deduct from that claim the necessary expenses to which he has been put which were a result of those defects.”</p>

<p>Negligence — Street railway — Defective crossing — Proximate cause.</p> <p>In an action against a street passenger railway company to recover damages for personal injuries, it appeared that defendants had two tracks on Berks street which curved northward into Front street. At the time of the accident, which was in the night lime, plaintiff was walking south' on the west side of Front street with the intention of crossing Berks. He testified m substance that when he reached the corner of these streets, and before he left the pavement, he saw a car coming east on Berks street, on the track further from him and twenty or thirty yards from the crossing. Supposing that he would have time before the car reached him he started to cross Berks street on the flag or stepping stones. After crossing the tracks nearer to him he observed for the first time that the car was approaching at an unusually rapid rate and had almost reached the crossing. He stopped in the space between the tracks to allow it to pass, and then, thinking that in turning the curve the horses would be out of the tracks, he stepped backward a step or two to avoid them. As he did so his foot went into a hole, or among loose cobble stones, and sank down, and he was thrown forward. He fell with both arms across the track and in front of the hind wheel of the car, which passed over them. It was the duty of defendant to keep the street in repair and it had been out of repair for some months. Held, that a verdict and judgment for plaintiff should be sustained.</p> <p>In the above case plaintiff testified: “In stepping back I just stepped into a hole or loose cobble stones, and my foot sank down and pitched me forward, and in falling forward I put my hands out to save myself and both went under the wheels, and after that I recollect nothing.” On cross-examination he said that he could not tell whether his foot went down among loose stones or into a hole, that he simply knew that it went down. There was other testimony that there were holes in the surface of the crossing, and loose stones on it. Held, that there was sufficient evidence to justify the jury in finding that plaintiff’s fall was due to the defective condition of the street.</p> <p>Evidence — Mortality tables.</p> <p>The American tables of mortality are, it seems, admissible in evidence in an action for damages for permanent injuries although death did not result.</p> <p> Opinion of witness as to.character, of crossing. </p> <p>The opinion of a witness as to the dangerous character of a street crossing is, it seems, admissible in evidence.</p>

<p>Appeal, No. 421, Jan. T., 1893, by defendant, Lillian Warren, from judgment of C. P. Delaware Co., Sept. T., 1891, No. 83, on verdict for plaintiff, Sarah C. Turner.</p> <p>Ejectment. Before Clayton, P. J.</p> <p>At the trial it appeared that, on Oct. 12,1885, John H. Irwin executed a deed conveying the land in question to Rebecca J. Elder, to whom at the time he was engaged to be married. Irwin acknowledged the deed before a notary in Philadelphia, and delivered it to Charles F. R. Heuckeroth, Miss Elder’s brother-in-law, to be given to the grantee. On the same day Heuckeroth delivered the deed to her. In February, 1886, Mr. Irwin and Miss Elder were married and lived together until her death in December, 1887. About a month or six weeks after the execution of the deed Irwin handed a package of papers containing the deed in question to Heuckeroth with directions to place them in his, Irwin’s safe, for Miss Elder, Heuckeroth being a manager for Irwin and having the combination to the safe. They remained in the safe until Mrs. Irwin’s death, when Heuckeroth took them out and gave them to Irwin. Heuckeroth observed that the deed was then in the same condition as when he placed it in the safe, and that the signature was untouched. Irwin put the deed with other of his wife’s papers in the hands of George E. Darlington, Esq., his counsel, where they remained until after Mr. Irwin’s death in .1890. Mr. Darlington then discovered that the grantor’s signature to the deed had been erased.</p> <p>Two wills were prepared, with the deed, by Irwin’s direction, to be executed, one by himself and the other by his future wife by the name of Rebecca J. Irwin, the latter devising the land in dispute to Irwin and reciting it as the wife’s marriage portion.</p> <p>Mrs. Irwin died without issue, and without having made a will, leaving as her heirs at law two sisters, Sarah C. Turner, the plaintiff, and Ella N. Heuckeroth, the wife of Charles F. R. Heuckeroth. Mr. Irwin died in 1890, leaving a will dated Nov. 26, 1889, in which he devised all his estate, real and personal property, to Lillian Warren, the defendant. After Mr. Irwin’s death, Ella N. Heuckeroth and her husband joined in a conveyance to Sarah C. Turner, the plaintiff, of their interest in the property described in the deed.</p> <p>At the trial, Mr. Darlington took the stand as a witness for plaintiff, and the court permitted him, under objection and exception, to produce and offer in evidence the deed which had been left in his possession by Mr. Irwin, his client, and to testify to the fact of its preparation and the circumstances under which it came into his subsequent possession, and the condition in which it was when he received it back. [1, 2J</p> <p>The court also permitted, under objection and exception, Charles F. R. Heuckeroth to testify, op behalf of plaintiff, to facts tending to prove the delivery of' the deed by Irwin to Miss Elder in his lifetime. [3]</p> <p>The court charged in part as follows:</p> <p>“The principal question in this case is the delivery of this deed. [The consideration of the deed, which does not appear by the deed, appears to be the consent of the gra'ntee to marry the grantor. That is a good consideration in law, and it seems to have been paid. Here is a case, then, of a deed, the consideration of which was marriage. The consideration is proved to have been received by the grantor, and the deed now appears to be in a canceled condition.] [4, 5] . . .</p> <p>“ [Was this deed delivered to the grantee? Now the fact that she afterward married the man, for which this deed was part consideration, you may consider as some evidence bearing upon that subject.] [7] [Without the evidence of Mr. Heuckeroth the only evidence of delivery would be the fact of the payment of the consideration, without his testimony; with his testimony, if you believe it, the plaintiff would seem to be entitled to a verdict. If you don’t believe him, then you will have to look at the other circumstances in the case to see whether there was a delivery of this deed, and the only evidence is the deed itself, and the fact that the consideration had been received.] [8] ....</p> <p>“ [ If you therefore come to the conclusion that this witness is not to be believed, the only evidence you have of the delivery of this deed is the fact that it was duly executed, and has been found among the papers of the man who would have a right to the deed as tenant by the curtesy.] [9] If it ever had been delivered, the cancellation does not render it void. If it never has been delivered it is no deed. That is all I have to say to you upon that subject.</p> <p>“I do not intend to comment on these wills or whether there was a private understanding that he should make a will to her and she to him. [She had a right to revoke her will; he had no right to revoke his deed.] [6] A will does not take effect until after you die, and you may revoke it the last minute of your life if you have sense enough to know what you are doing, but a deed you cannot revoke after having been delivered.”</p> <p>Defendant’s points were among others as follows; .</p> <p>“6. The plaintiff has not shown any evidence of title to the lands in controversy to justify a recovery by her in this action, and the verdict should therefore be for the defendant.” Refused. [10]</p> <p>7. Request for binding instructions. Refused. [11]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1 — 3) rulings on evidence, (4 — 11) instructions; quoting instructions and offers of evidence but not quoting bills of exceptions or evidence.</p>

<p>Fire insurance• — Notioe of vacation of premises — Agents—Evidence.</p> <p>Where a policy of fire insurance provides that the company shall not be liable for loss if the premises hereby insured become vacated by the removal of the owner or occupant without immediate notice to the company and consent indorsed thereon,” notice of vacancy must be given within a reasonable time, and after vacancy followed by notice in a reasonable time the policy remains in force until consent is refused by the insurer.</p> <p>In such a case immediate notice must be construed to mean notice within a reasonable time in view of the circumstances and position of the party. What would be reasonable time when the parties have ready means of communication might be very unreasonable if applied to parties without such means of communication.</p> <p>A house insured under a policy containing a provision as above was occupied by a tenant, who moved out on April 4th. On the same day plaintiff requested her husband to go to a town, thirteen miles distant, and give notice of the vacation of the house to the agent who had jfiaced the insurance,and who, until a month previous, had been the agent of the company. Plaintiff believed that he still represented the company, and the agent did not notify her husband to the contrary when the latter called April 6th, but agreed to give the necessary notice, and obtain the consent desired. Accordingly, on the following day, he called on an insurance agent who had business relations with the state agent of the company, who lived at Philadelphia, and requested him to notify the company. The insurance agent wrote to Ih’e agent at Philadelphia on the 8th, and his Tetter was received on the 9th. The agent at Philadelphia at once replied, refusing a permit. The house was destroyed by fire on the 8th. Held,:</p> <p>1. That plaintiff had acted with reasonable promptness in giving notioe.</p> <p>2. That while the failure of the agent who had placed the insurance to notify the insured of the termination of his agency would not continue his agency so far as the insured was concerned, yet what the agent did was properly in evidence, as showing how notioe was sent, and also as showing good faith and diligent effort on the part of plaintiff.</p>

<p>Insurance — Liability policy — Street railways — Sisks.</p> <p>An insurance company insured a street railway company from liability for damages on account of injuries “resulting from any and every accident to or caused by the horses, cars, plant, ways, works, machinery or 'appliances used in the business of the insur-ed and described in the application.” The street car company was obliged to pay damages for personal injuries to a passenger sustained by the upsetting of a large omnibus sleigh, which was used in place of a car while the tracks were obstructed by snow and ice. The testimony showed that such sleighs were at times used by street railway companies in the section of country in which the plaintiff’s l'oad was operated, but did not show that the custom was so general that the parties would be presumed to have taken it into consideration in entering into a contract. Held, that the insurance company was not liable for the loss.</p>

<p>Appeal, No. 38, Oct. T., 1893, by-defendant, from judgment of C. P. Washington Co., May T., 1893, No. 63, on verdict for plaintiff, Marie Behling.</p> <p>Trespass for burning house. Before McIlvalne, P. J.</p> <p>The facts appear from the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ [If you find from all the evidence in the case that the burning of the oil in the stream, and its running down from above on and over the defendant’s pipes, was a condition which the company, or its representatives in charge of the lines, could, as ordinarily prudent and careful men, easily have foreseen, and which under ordinary circumstances might have been expected, and the burning oil thus running over the pipes caused one of them to burst or break, and the company under existing circumstances had not used ordinary care and skill in laying, maintaining and protecting the pipe that burst, and that, in bursting, as a direct, natural and probable result, it threw burning oil or flame on the plaintiff’s dwelling and fired it, then the defendant would be liable.] [2] Second; but, if from all the evidence you find that the plaintiff’s buildings were fired by the oil which flowed down the run, or that any one of her buildings was so fired and from it the fire was communicated to the others, then the defendant is not liable, even if it was negligent in laying and maintaining its pipe line; or, if you find from all the evidence that the defendant’s pipes, under all the circumstances, were laid and maintained with care and skill and in a proper manner, and burning oil running down the stream caused the pipe to burst, without any fault on the part of the company, then the plaintiff cannot recover, even if the bursting of the pipe and the oil thrown therefrom caused the plaintiff’s property to be set on fire.”</p> <p>Plaintiff’s point was among others as follows:</p> <p>“ 5. If the jury find that the defendant, exercising the care and diligence which a reasonably prudent and careful man would have exercised, knew or ought to have known, when it laid its lines in Robb’s run, that, as a natural and probable result, any waste oil from the many wells in Robb’s valley must pass down said run over said lines, and that the defendant knew that large quantities of oil did so pass down said run for several months prior to this fire, and that this oil was imminently liable to be set on fire, accidentally or otherwise, at any time, burn any rubbish in said run and heat the defendant’s lines and cause them to break or burst; that defendants, exercising such reasonable care and diligence, knew, or ought to have known, that, in case of a fire at any of the wells draining into said valley, the burning oil therefrom, as a natural and probable result, would flow down said run over said lines, and heat them and cause them to break or burst; and if the jury further find that the defendant was guilty of negligence in locating, laying, operating and maintaining its lines in said run under such circumstances, and that by reason of such negligence, as a proximate cause, the plaintiff’s house and property were set on fire and destroyed, then the defendant is liable and the verdict must be for the plaintiff for an amount that will compensate her for the injury she has shown that she sustained.” Affirmed. [4]</p> <p>Defendant’s request for binding instructions was refused. [9]</p> <p>Verdict and judgment for plaintiff for $1,485.</p> <p>Frrors assigned were (2, 4, 9) instructions, quoting them.</p>

<p>Equity — Natural gas company — Damages—Bond—Practice.</p> <p>A court of equity has jurisdiction to compel a natural gas company, about laying pipes under a sidewalk, to enter a bond to secure the landowner for the direct injury caused by the disturbed condition of the street, and the consequential injury to the land, as a condition of the dissolution of a preliminary injunction.</p> <p>Streets — Servitude—Municipalities—Use of streets — Damages.</p> <p>A street in a city is subject to greater servitude in favor of the public than is a road in the open country. The city has the right to use both the cartway and sidewalk of a street to whatever depth below the surface it may be desirable to go for sewers, gas and water mains, and any other urban uses, and for such use the owners of abutting properties are not entitled to damages.</p> <p>Natural gas company — Use of streets — Actions—Act of May 29, 1885.</p> <p>Under the act of May 29, 1885, P. L. 29, a natural gas company which has obtained the municipal consent to the use oí a street, may lay its pipes under the sidewalk of a street without subjecting itself to liability for damages to the owners of abutting property under the condemnation proceedings provided by the act.</p> <p>In such a case if the owners have suffered direct injury by the disturbed condition of the sidewalk during the process of laying the pipe, or consequential injury to their property due to the proximity of the pipe line, they must proceed by an action of trespass, or upon the company’s bond, if such has been given. ?</p> <p>Streets — Sidewalks—Municipalities—Control.</p> <p>A municipality has the same control over the sidewalk that it has over the carriage way of a street.</p>

<p>Appeal, No. 367, Jan. T., 1893, by defendants, Isabella Heron, owner, and Patrick Heron, contractor, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1891, No. 176, on verdict for plaintiff, William Ballman, to use of John Lucas & Co.</p> <p>Scire facias sur mechanic’s lien. Before Arnold, J.</p> <p>At the trial, it appeared that, on March 5, 1891, Patrick Heron and Isabella Heron entered into an agreement in writing which was as follows:</p> <p>“ This agreement made and entered into this 5th day of March, 1891, between Patrick Heron of the city of Philadelphia of the first part, and Isabella Heron of the said city of Philadelphia of the second part. The said Patrick Heron, of the first, agrees to build, erect, finish and complete eleven two-story six-roomed houses according to plans and specifications, on a lot of ground situate on the southeast corner of Ontario and Philip streets, in the 33d ward in the said city of Philadelphia, for the sum of $9,500, money to be paid from time to time as the work progresses.</p> <p>“ And it is further agreed that the said Patrick Heron of the first agrees to file no liens against the same said houses, and will pay all bills for work done or materials furnished for the erection of the same said buildings, and will deliver the same said buildings over to Isabella Heron free of all charges for work done or materials furnished, on receiving the last payment.”</p> <p>It was admitted: “ That Isabella Heron, one of the defendants, became the owner in fee of the lot of ground on which the eleven houses described in above lien are erected, on March 5, 1891, by deed from Annie Heron, and was the owner when the sci. fa. in the above case issued. That the lot of ground upon which said houses are erected is correctly described in said lien. That Patrick Heron, also a defendant, was the contractor for the erection of said houses. That this admission may be given in evidence upon the trial of above case, as proof of the facts herein stated.”</p> <p>The following agreement, in writing was filed of record:</p> <p>“ And now, to wit, Feb. 2, 1893, it is hereby agreed that the record in above suit and proceedings be amended by striking therefrom the names of Annie Heron and Patrick Heron, as owners, wherever said names as owners occur in said record,' and that the lien and suit stand against Isabella Heron, owner, and Patrick Heron, contractor.”</p> <p>Plaintiffs claimed that Patrick Heron was the real owner of the land in whole or in part, and that the contract was invalid as against material men.</p> <p>Isabella Heron was called as if under cross-examination, and examined as follows: Mr. Stoekwell: What do you propose to prove by this witness? .Mr. Burnett: I propose to prove that she is not the only owner of this property. Objected to; it has been admitted by agreement of counsel, which is a matter of record, that Isabella is the owner of the property. Objection overruled; exception for defendant. [9]</p> <p>The court charged in part as follows:</p> <p>“You have heard the contract read, showing that Patrick Heron agreed to build the houses for Isabella Heron, and con-taming a clause that there should be no lien filed against the buildings. If you are satisfied that Isabella Heron was the sole, separate and individual owner of these houses, and Patrick Heron had no interest whatever in them except as her contract- or to do the work for her, that contract prevents the filing of a lien. There could be no recovery in a suit of this kind upon a mechanic’s lien. Mr. Ballman would have to look to Patrick Heron alone. [If, on the other hand, you do not so believe, but are of the opinion, from the testimony of Patrick and Isabella Heron, that she held the title for him in whole or part, he had as much interest in it as she had, and this thing was only a cover to put title in her and keep it out of Patrick, so that he could make contracts of this kind or any other kind, then you may find in favor of the plaintiff for the whole amount of his claim as you find it to be. In other words, if you believe Isabella Heron was not the sole owner of the property, but that she and Patrick together held it, or that she held it for him in secret trust, then, of course, it is-Patrick’s in whole or in part, and the contract between them does not stand in the way of this lien and would not prevent the plaintiff recovering a verdict for whatever is due to him on that contract.] [1]</p> <p>“ First settle whether there is to be a verdict at all on this contract. [Do you believe it is Isabella Heron’s own property, sole, separate and distinct, and that Patrick had no interest in it ? If you do, then, under this contract, the verdict ought to be for the defendant. If you do not, if you believe that Isabella held it in trust for herself and Patrick, or for Patrick alone, not for herself wholly and alone, then you may find for the plaintiff for whatever sum you think he ought to have.] [2] That is to say, the contract for painting and any extra work you think he ought to have, less any abatement for bad work.”</p> <p>Defendants’ points were as follows:</p> <p>“ 1. A contractor may contract with the owner of a lot of land to erect a building or buildings upon the same, and that he will file no liens against the same, but will deliver the same to the owner free of all charges for work done or materials furnished, and, having so contracted, he, the said contractor, cannot file a mechanic’s lien.” Refused. [3]</p> <p>“ 2. The right to a mechanic’s lien is founded by law on a contract to build, and a subcontractor is dependent upon the principal one, so that a subcontractor’s right to file a-mechanie’s lien is limited by the terms of the contract between the builder and the owner.” Refused. [4]</p> <p>“ 3. If the juiy believe, from the evidence, that William Ball-man subcontracted with Patrick Heron to furnish a part of the material and to perform a part of the work and labor in the erection and building of Isabella Heron’s houses, and that Patrick Heron had contracted with Isabella Heron to build the houses at a price agreed upon between them, and that he would not file a lien therefor, but would deliver them over to her free of all charges for work done or materials furnished, then Ball-man, the subcontractor, had no right to file a mechanic’s lien against Isabella Heron’s houses for work and labor done and materials furnished under his contract with Patrick Iierou.” Refused. [5]</p> <p>“4. If the jury believe, from the evidence, that William Ball-man was subcontractor under Patrick Heron in the erection of the houses for Isabella Heron; and that Patrick Heron had contracted with Isabella Heron to build the houses at a price agreed upon between them, and that he would not file a lien therefor, but would deliver them over to her free of all charges for work done or materials furnished, on receipt of last payment, and that Isabella Heron, the owner, has fulfilled her part of the building contract with the said Patrick Heron, then William Ballman, the plaintiff, had no right to file a lien against Isabella Heron’s houses for work and labor done and for materials furnished under his contract with Patrick Heron.” Refused. [G]</p> <p>“5. A person who voluntarily furnishes service or materials to another, without any precedent request or subsequent promise, cannot recover therefor, and if the juiy believe, from the evidence, that William Ballman furnished the material and did the work set forth in his claim as ‘extra work,’ without any precedent request or subsequent promise on the part of either Patrick Heron, the contractor, or Isabella Heron, the owner, then the verdict must be for defendants.” Refused. [7]</p> <p>6. Request for binding instructions. Refused. [8]</p> <p>Verdict and judgment for plaintiff.</p> <p>Errors assigned were (1-8) instructions; (9) ruling on evidence ; quoting instructions and bill of exceptions, but not evidence.</p>

<p>Railroad — Eminent domain — Damages—Interest—Aet of May 28, 1858.</p> <p>Interest as such is not allowed on damages in condemnation proceedings, but it is proper for the jury to consider the lapse of time between the taking of the land and the time of trial in making up the amount of damages for which to render a verdict.</p>

<p>French spoliation claims — “ Next of kin ” — Act of Congress of March 3, 1891.</p> <p>The appropriation of money for the payment of French spoliation claims by the act of Congress of March 3, 1891, 26 St. at Large, 897, was a mere gratuity, and in making the gift Congress made it upon its own terms.</p> <p>The right to the fund accrued in 1891, when the act was passed, to those who were at that time the next of kin of the original claimant. Assignees in bankruptcy were expressly excluded, and by necessary implication all other parties, assignees, devisees, residuary legatees, widows, surviving husbands, etc., were also excluded.</p> <p>The act made no express provision for the ascertainment of the next of kin, but passed the fund to the administratrix de bonis non of the original claimant and therefore necessarily to the proper court of his domicile, but in so doing it dictated the scheme of distribution which was expressly to be to the next of kin, and by necessary implication such next of kin were to be ascertained by the law of the domicile. Clement’s Estate, Scott’s Appeal, 150 Pa. 85, reversed.</p> <p>Jurisdiction of orphans' court — French spoliation claims.</p> <p>The ascertainment of the next of kin to a decedent for purposes of distribution is within the general jurisdiction of the orphans’ court, and this jurisdiction may be extended to include such ascertainment with reference to a fund which, though not a part of the decedent’s estate, is, for the purpose of ascertaining who are to take, to be treated as if it were.</p> <p>Next of kin -Act of April 8, 1833.</p> <p>Under the act of Congress of March 3, 1891, an appropriation was made to pay a French spoliation claim to the next of kin of Jacob Clement. When the act was passed, all of the children of the claimant were dead, but there were living four grandchildren, children of a son, and thirteen great-grandchildren, issue of seven deceased children of a daughter. Reid that the four living grandchildren were each entitled to tako\one eleventh in their own right as the nearest of kin, and one eleventh would go to the representatives of each of the deceased grandchildren per stirpes.</p> <p>By the scheme of the act of April 8, 1833, § 2, art. é, cl. B. & C., P. L. 316, when all of the descendants are in the same degree they take per capita in their own right and not by representation, but when there are descendants in different degrees, those in the class nearest to the intestate take in their own right, and the remoter ones take by representation from deceased members of the same class as the nearest survivors.</p>

<p>Attachment — Extradition—Jurisdiction.</p> <p>The courts can in a proper ease surrender an alleged criminal to the •courts of a sister state for trial, but they cannot compel by an attachment a resident of Pennsylvania to go into another state and submit himself to the jurisdiction of its tribunals.</p> <p>Habeas corpus — Parent and child — Gomity.</p> <p>Considerations of comity do not require the courts of this state to dismiss the parties with directions to proceed to another state, in which the ■contract was made, or the parties were domiciled, so that the law of that state may be administered by its courts, but simply that our courts shall apply the same rule that the courts of the proper state apply.</p> <p>To a writ of habeas corpus issued by a father to secure the custody of a ■child, the respondent, the relatoras wife, filed an answer averring that the relator was not a fit person to have the custody of the child. It was not denied that both relator and respondent had been previously domiciled in New Jersey, and that the relator continued to reside there, and that, under ■the laws of New Jersey, he was'the natural guardian of the child. Held, that no considerations of comity justified the court in awarding the child to the relator, without inquiring as to his fitness to have tire custody of the child.</p>

<p>Title insurance — Policy—Subsequent municipal lien.</p> <p>A title insurance company issued a policy upon a mortgage and covenanted to indemnify the holder against “ all loss by reason of defects or unmarketableness of the title to the estate or interest insured or because of liens or incumbrances charging the same at the date of this policy, saving the defects, liens or incumbrances excepted in schedule B." Schedule B set forth the “ estates, defects, or objections to title, and liens, charges and incumbrances thereon, which do or may now exist and against which the company does not agree to insure or indemnify. (1) Unmarketabiliiy by reason of the possibility of mechanics’ and municipal liens is excepted from this insurance, but actual losses by reason of such liens or by reason of the noneompietion of the building now in process of erection on the premises, unless said building should happen to be destroyed by fire, are hereby insured against.” Three years after the date of the policy, municipal work was done for which claims were filed. Held, that such claims were neither a charge on the property at the date of the policy, nor became so within the period provided for in schedule B; and that they were not within the policy, and created no cause of action under it.</p>

<p>Appeal, No. 313, Jan. T., 1893, by defendant, from judgment of C. P. Lebanon Co., Dec. T., 1891, No. 170, on verdict for plaintiff.</p> <p>Assumpsit to recover moneys paid for opening streets or alleys in the city of Lancaster.</p> <p>The claim was based upon the act of April 13, 1854, P. L. 352, the material portions of which were as follows:</p> <p>“ Sec. 1. That the Court of Quarter Sessions of Lancaster County shall have the power to authorize the extension and opening of all streets and alleys within the city of Lancaster, in the manner directed, by and under the provisions of the general road laws of this commonwealth, except so far as the same may be herein altered or supplied.</p> <p>“ Sec. 3. That the commissioners of Lancaster county shall open an account with the city of Lancaster, showing the amount contributed by said city within the past two years, towards opening roads and erecting and repairing bridges in said county, and the amount drawn from the county treasury within the same period for opening streets or alleys in said city, to which account shall be charged or credited, from time to time hereafter, the sums contributed or received by said city for said purposes, and any damages that may be incurred by the opening and extending of streets and alleys, while the balance on said account is against the city, shall be payable out of the treasury of said county, and be reimbursable out of the county treasury only when the balance shall be in favor of said city, and to the extent of such balance.”</p> <p>Verdict for plaintiff for 1125,612.89, subject to the following points reserved: (1) Whether upon the uncontradicted evidence the plaintiff is entitled to recover at all. (2) If entitled to recover, whether the statute of limitations is a valid partial defence.</p> <p>The court subsequently entered judgment for $74,584.34, in the following opinion by McPherson, J.:</p> <p>“By section 8 of the act of May 8, 1850, P. L. 751, it was provided, inter alia, that all damages caused by the laying out of any street or alley in the city of Lancaster should be paid, not by the county but by the city. This of course included damages for injuring or removing buildings as well as for the taking of land.</p> <p>“ The act of 1854, P. L. 352, which repealed section 8’ of the act of 1850, relieved the city to some extent. It left it liable, as under the act of 1850, for all damages caused by injuring or removing buildings, but allowed it to apply to the payment of damages for land taken a certain proportion of the county tax collected from the taxpayers of the city. This is the substance of the act although the result just stated is reached by a somewhat roundabout process. The method adopted by the act is this : The county is made primarily liable to the landowner for the damages caused by taking his land, the city continuing to be liable, both first and last, for the damages causéd by injuring and removing buildings. In any given year the amount thus advanced by the county (and it is really nothing more than an advance on behalf of the city) is charged against the city, and the city is then credited with the proportion of county tax which its taxpayers have contributed towards opening roads and erecting and repairing bridges' in the county. If the difference is in favor of the city it is entitled to be paid in money (which it may recover by suit if necessary), or to have a credit carried over to the next year, but if the difference is in favor of the county, i. e., if the city has spent in advance a part of its proportion of the county tax for the next year, then the damages for land taken (as between the county and the city) are no longer to be paid by the county but by the city, until there is again a balance in favor of the city, whereupon these damages are once more to be paid by the county, but (as between the county and the city) only ‘ to the extent of such balance.’</p> <p>“ It seems quite clear that this simply amounts to allowing the city-to draw back a varying sum each year from the county tax, and to use it in payment for land taken in opening streets. But the landowner is not bound to inquire into the state of the accounts between the county and city and to look to one or the other as the balance may be found to incline. As between the county and the landowner the county is made primarily liable to any extent which viewers and juries may determine ; but, as between the county and the city, the county is only bound to pay for this particular purpose a varying proportion (but one easily calculated) year by year, of the city’s contribution to the county tax. If this proportion is not enough to repay the county its advances to the landowners, one of two things may be done: Either the balance against the city may be carried over for a year or for several years in the hope that succeeding credits may restore the equilibrium; or if the balance is so large that this would involve a delay the county considers unreasonable, an action may be brought to recover what is due, and a new starting point for the future accounting may be reached. Indeed, there is a third course which the county may adopt if it sees proper: It may sue for any balance in its favor, whether large or small, but ordinarily we presume so strict a settlement would not he insisted upon.</p> <p>“ In brief, the act makes the county the paymaster for land taken, and requires it to advance to the landowner whatever may be needed for this purpose, whether the city is its debtor or its creditor; but, as between the city and the county, the county is only bound to pay — or perhaps to speak more accurately, to pay back — the city’s due proportion of the county tax. This proportion the county controls, for it has the money in its own hands ; whatever sum it pays beyond this is really lent to the city — lent by compulsion of the statute, and in our opinion may be recovered by suit.</p> <p>“ This view of the act of 1854 is only a restatement in other language of the construction already announced by the Supreme Court in Lancaster County v. Frey, 128 Pa. 598, as a few extracts from the opinion will show. On pages 597 and 598 Mr. Justice Clark says: ‘ It is conceded that by force of the second section of the act óf 1854 all sums awarded for damages for the opening of streets in the city of Lancaster are to be paid out of the county treasury, with the exception of such damages as may accrue from the removal of or injury to any house, etc., which are to be separately assessed and paid out of the city treasury. The second section as thus construed is a complete adjustment of the rule of responsibility attaching to the city and the county for the opening of streets within the city. ... In the third section it is assumed that under the second the county will expend county funds in payment of damages as therein provided, and the policy of the third section is that the city shall not thus withdraw from the county fund more than she contributes to it; that is to say, the city is responsible to the county that the amount thus expended in its behalf shall not exceed the amount contributed by the city to the county funds for opening roads,’ etc. He then shows that the one hundred and eighteenth word in the third section should be read city ’ instead of ‘ county ’ —a conclusion which we adopt in the present case, as the question is again raised and we are asked to pass upon it — and proceeds to say on page 599 : ‘ But this obligation of the city was to the county, upon which by the second section the primary obligation to pay was imposed.’ After explaining why the county must be primarily liable to the landowner, the learned justice declares that the city must repay the county if the latter has been forced to advance too much; ‘ hence it was provided that the county commissioners should- open an account with the city of Lancaster, showing the amount contributed by the city to the county treasurer towards opening roads, etc., on the one side, and the amount withdrawn from the county treasury for opening streets, etc., in the city on the other side; and, whilst the balance on that account was against the city, the damages incurred in the opening of streets in the city should be payable out of the treasury of the city — payable to the county, of course, who is primarily liable to the property holder.’ The opinion is summarized i'n the concluding sentence: ‘ We are of opinion that the question of the liability of the city in each case can only be raised in a proceeding between the county and the city; that the property holder must resort to the county treasury, and the county must in a proper case resort to the city; and further, that the city upon payment of any such claim is reimbursable out of the county treasury, when the balance is in favor •of the city, to the extent .of such balance.’</p> <p>“ It will be observed that this construction accords with the rule declared by Mr. Justice Shabswood in Holl v. Deshler, 71 Pa. 301: ‘Every part of a statute should be brought into action in order to collect from the whole one uniform and consistent sense if that may be done, or, in other words, the construction must be made upon the entire statute and not merely upon disjointed parts of it: Broom’s Leg. Max. 513. “ It is the most natural and genuine exposition of a statute,” says Lord Coke, “ to construe one part of the statute by another pai*t of the same statute, for that best expresseth the meaning of the makers.” ’ The same rule is to be found in Potter’s Dwarris on Statutes, p. 144, in this language: ‘In the construction of a statute every part of it must be viewed in connection with the whole, so as to make all its parts harmonize if practicable and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of a statute to be without meaning.’</p> <p>“ And to this construction it is not sufficient to object that the act does not expressly give the county a right to sue, and, therefore, that no suit of any kind can be maintained. For the act clearly requires the county to advance money on behalf of the city, and, unless it manifestly appeared that the county was restrained from recovering its advances, it seems to us that this necessarily carries with it a right to sue if repayment is refused.</p> <p>“ As to the form of action, we. think.it may be either assumpsit or a bill in equity. Ordinarily assumpsit would be an adequate remedy, and in the case before us at least we see no need for a resort to equity. All the facts are either agreed upon or not disputed, there are no complex, mutual rights to be adjusted, and the only contention is over the proper legal principles to be applied. It is easy to do complete justice in this proceeding, and it would, therefore, be most inequitable at the very end of the controversy to turn the parties over to another tribunal and, merely for the sake of form, compel them to prove again the facts already proved or admitted, and to advance again the same legal propositions.</p> <p>“For the same reason, namely, the ability of the court to do complete justice, either in this proceeding or by bill in equity, the remedy by mandamus is not appropriate. This writ lies ‘ where there is a clear legal right in the relator, a corresponding duty in the defendant, and a want of any other adequate, appropriate and specific remedy : ’ Easton v. Water Co., 97 Pa. 560. It is used ‘only as a process in the last resort; never where there is a specific remedy: ’ Ins. Co. v. Com., 92 Pa. 77.</p> <p>“ It was argued, however, that, even if a right of action is given by the statute, the keeping of the account mentioned in section 3 is a condition precedent, and as no such account is shown to have been kept, no recover}' can be had in the present suit. Doubtless the act does contemplate the keeping of a formal account, and such an account ought to be kept, but we think the provision is directory merely, and that the failure to keep it will not prevent a recovery. It is not always easy to determine whether a provision is mandatory or only directory, but there are two good rules which are often of much assistance in deciding this question. The first is referred to in Bladen v. Phila., 60 Pa. page 466: ‘ Where the words are affirmative and relate to the manner in which power or jurisdiction vested in a public office or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory.’ See also Pittsburgh v. Coursin, 74 Pa. 401; Dewhurst v. Allegheny, 95 Pa. 442; Hersberger v. Pittsburgh, 115 Pa. 86; Cusick’s Election, 136 Pa. 470; Potter’s Dwar. St., p. 222, note 29. The other side of the rule is approved in Norwegian St., 81 Pa. 353-4, in the following language : ‘ There is a class of cases which hold that whether a statute is to be regarded as directory or not, is made to depend upon the employment or failure to employ negative words which import that an act should be done in a particular manner or time and not otherwise.’ Perhaps Lord Mansfield’s rule in Rex v. Loxdale, 1 Burr. 445, is a better one (and this is the second rule we have in view), that ‘ whether a statute is mandatory or not depends on whether the thing directed to be done is the essence of the thing required.’</p> <p>“ Tried by either of these rules, we think it must be said that the direction to keep an account is not a condition precedent either to the county’s right to sue or its right to recover; and we may add that in fact no harm has been done by the failure to keep the account, for we have now before us in orderly detail every item which such an account, if kept year by year, would have shown, and these items have always been readily accessible to either party in the records of the county and'of the county offices.</p> <p>■ “We are of opinion, therefore, that the plaintiff is entitled to recover in this action, but are also of the opinion that the statute of limitations is a valid defence to part of its claim. Taxes are yearly contributions; almost all public accounts are settled annually, and we think the act contemplates yearly settlements and the striking of a balance once a twelve-month. If this had been formally done there could be no doubt that a right of action would have accrued year by year when the balance was struck, and that the statute would now bar recovery, except for six years preceding date of suit. In effect, however, the county has been treated in this action as if the account had actually been kept as required by the act, and we think it may'fairly be held to all the consequences which in that event would have followed. Moreover, as the balance each year was hardly more — and might indeed be nothing more —than a matter of arithmetical calculation, it does not seem unreasonable to consider the balance as formally struck, although the computations were not actually made. And still further — and perhaps alone of decisive weight — since the duty of keeping the account was laid upon the county, it can hardly set up its own neglect as a successful answer to the plea of the statute, and thus derive a benefit from its failure to obey the law.</p> <p>“ The amounts named in-the verdict were agreed upon by the parties, and, in accordance with the views above expressed, we direct judgment to be entered for the plaintiff on the points reserved in the sum of seventy-four thousand five hundred and eighty-four dollars and thirty-four cents ($74,584.34).”</p> <p>Error assigned was entry of judgment as above.</p>

Appeal, No. 86, July T., 1893, by defendant, Matilda R. Lawrence, administratrix of Jacob S. Lawrence, deceased, and Matilda R. Lawrence, garnishee, from judgment of C. P. Schuylkill Co., July T., 1892, No. 299, on certiorari from justice of the peace in favor of plaintiff, in suit of S. Strouse & Co., against Matilda R. Lawrence, administratrix of Jacob S. Lawrence, and Geo. L. Brown and Geo.

<p>Appeal, No. 336, Jan. T., 1894, by defendant, Isidore Lauterstein, from judgment of C. P. Schuylkill Co., Jan. T., 1890, No. 166, on verdict for plaintiff, P. J. Ferguson.</p> <p>Replevin to recover possession of furniture. Before Bechtel, J.</p> <p>At the trial, it appeared that, on Aug. 27,1887, plaintiff, who was the owner of the hotel building known as the Ferguson House in Shenandoah, purchased the outstanding lease of his tenant, O. B. Keiser, and at the same time purchased from him the entire furniture contained in the hotel, and necessary for the purposes of a hotel, plaintiff going from room to room and making an inventory of their several contents. He received from Keiser the keys belonging to the establishment, and subsequently, on the same day, executed a lease of the hotel and furniture to Crinnian Brothers, who entered into possession, plaintiff delivering to them the keys. The last paragraph of the instrument of lease provides for the leasing of the furniture and the terms thereof as follows: “ Also the party of the first part hereby leases all the household furniture now on the premises and being used in the said ‘ Ferguson House,’ at the yearly rental of six per cent on four thousand one hundred ($4,100) dollars, .... the party of the second part having the right and privilege of purchasing the same for four thousand one hundred ($4,100) dollars within the term of five years, .... when a bill of sale in due form of law will be made and executed,” etc. The Crinnian Brothers remained in actual possession of the furniture in question down to Dec. 11, 1889, during which period they paid plaintiff no rent for the use of the furniture nor any portion of the $4,100, the purchase price thereof. On Dec. 11, 1889, the furniture in the hotel was sold by a constable on an execution issued on a judgment recovered against the Crinnian Brothers by one of their creditors, and the furniture in the hotel was sold. There was evidence that at the beginning of the sale a notice was read to all present, on behalf of plaintiff, that the goods about to be sold were not the property of the Crinnian Brothers, but the property of plaintiff, and that purchasers would acquire no title thereto.</p> <p>Defendant purchased the furniture and subsequently removed it.</p> <p>Defendant’s points were among others as follows :</p> <p>“ 8. The action of replevin is a possessory action, and the plaintiff must show that he had a right of immediate possession to the articles replevied at the time the writ was issued. As the plaintiff has failed to show such right of possession in himself at the time this writ issued he cannot recover, and the verdict of the jury must he for the defendant.” Answered with 5th point. [1]</p> <p>“ 4. As the undisputed evidence in this case shows that the right of possession to the articles replevied in this case at the time this writ issued, if not in the defendant, was in the Crinnian Brothers, under the contract offered in evidence by the plaintiff himself, the plaintiff cannot recover in this case, and the verdict must be for the defendant.” Answered with 5th point. [2]</p> <p>“ 5. As the undisputed evidence in this case shows that the plaintiff had neither the possession, nor the right of possession, to the goods in controversy at the time the defendant bought and removed the same from the hotel, nor at the time he brought this suit, he cannot recover in this case, and the verdict must be for the defendant. Answer : We will answer these points together. They are of much the same nature. They ask the court to direct a verdict for this defendant, and to say that certain matters are established by what is termed undisputed evidence in this case. We decline to say that you should or must find a verdict for this defendant. Upon the contract we say that under the written contract or lease between Ferguson and Crinnian Brothers, we believe that Ferguson had such title, and such right of possession in himself, and through the Crinnian Brothers, as would enable him to protect the personal property, and prevent it being removed from the hotel, under a purchase as the property of the Crinnian Brothers, especially if you find that the purchaser had notice, before he purchased, that the property was not the property of Crinnian Brothers, but the property of P. J. Ferguson. Of course this is upon the proposition that you find that the entire transaction was honest, bona fide and fair, as we have heretofore stated to you, and not intended to hinder and delay, and cheat and defraud the creditors of Crinnian Brothers.” [3]</p> <p>7. Request for binding instructions. Refused. [4]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-4) instructions, quoting them.</p>

<p>Appeal, No. 298, Jan. T., 1894, by plaintiffs, Wm. F. Wilson et al., executors of Mary E. T. Ott Wilson, deceased, and Martha J. Wilson, from judgment of O. P. Delaware Co., June T., 1892, No. 109, in favor of defendants, Jacob Ottetal., non obstante veredicto.</p> <p>Sci. fa. sur mortgage. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court admitted, under objection and .exception, the deed from Bernard Sharkley, commissioner to divide the estate of Dennis Kelley, deceased, to Mary T. Ott. [1]</p> <p>The court also admitted, under objection and exception, the deed from Mrs. Mary E. T. Ott to Jacob Ott and Jeremiah J. Ott. [2]</p> <p>The material portions of this latter deed are as follows :</p> <p>“ That the said Mary Elizabeth Theresa Ott, for and in consideration 'of the sum of five thousand dollars, doth grant, bargain, sell, release and confirm unto the said Jacob Ott and Jeremiah J. Ott, their heirs and assigns, all the estate, right, title, interest, property, claim and demand whatsoever of them the said Mary E. T. Ott and Mary T. Ott, of, in and to all that certain mill property situate in the Township of Blocldey, City of Philadelphia, etc., Being the same premises which Bernard Sharkey et al., Commissioners nominated and appointed to de-' vide the estate of Dennis Kelly, dec’d, by deed poll dated May 20, 1865, and recorded in Philadelphia in Deed Book L. R. B., No. 115, page 79, etc. allotted and assigned (inter alia,) unto the said Mary T. Ott (party of second part) by the name of Mary Ott, widow, to hold the same unto the said Mary T. Ott during the term of her natural life, and at her death to be vested in the child or children of said Mary T. Ott, respectively in fee simple. That the said Mary T. Ott had issue three children only, to wit: Joseph A. C. Ott and the above named Jacob Ott and Jeremiah J. Ott, party of the' third part hereto, and in whom the estate in remainder of said tract of land and premises above described and granted vested in fee simple: And the said Joseph A. C. Ott aforesaid departed this life in the year 1867, leaving only to survive him his widow Mary E. T. Ott, party of the second part who was at the time of his decease enceinte, and having made and published his last will and testament in writing, bearing date the 28th day of November, 1866, duly proved and registered in the office at Media, wherein and whereby after directing the payment of his just debts and funeral expenses, he willed as follows: ‘ Second: I give and bequeath unto my beloved wife Mary Elizabeth Theresa Ott all my estate, real and personal and mixed, which I now have or hereafter may have, situate in Haverford Township or elsewhere, to hold to her my said wife, her heirs and assigns forever.’ A son named Joseph A. Ott was afterwards born unto the said Mary E. T. Ott, which said son hath since departed this life, to wit: on the 26th day of July, 1877, in his minority, unmarried and without issue, whereupon the interest in remainder of the said Joseph A. C. Ott, deceased, in said tract of land and premises became vested in his widow, the above named Mary E. T. Ott, in fee simple.”</p> <p>It appeared that on the same day this deed was executed, Jeremiah J. Ott and Jacob Ott, the grantees in said deed, ex-eeuted a mortgage to Mary E. T. Ott for the sum of $5,000 on an entirely different tract of land situated in Haverford township, the principal of the mortgage to be payable after the death of the mother of Joseph A. O. Ott, who had a life estate in said farm. This represented the purchase money in the deed.</p> <p>The recital in this mortgage is identical with the recital in the foregoing deed.</p> <p>The said Mary E. T. Ott afterwards married William F. Wilson, and died April 28, 1886, leaving a will probated in Philadelphia county, wherein she appointed her husband, William F. Wilson, and Hugh Sullivan, her executors, and devised her entire estate to them. The executors afterwards assigned part of this mortgage to Martha J. Wilson, the remaining plaintiff.</p> <p>After the death of Mary T. Ott (mother of Joseph A. C. Ott), this suit was brought and a verdict was obtained in favor of plaintiffs for amount of debt, interest and costs, subject to the following point of law reserved by the court, viz.: “If the court shall be of the opinion, as a matter, of law, that the defendants can set up as a defence, the failure of title to the lands described in the deed of even date with the mortgage sued upon, said lands not being described in said mortgage, then judgment is to be entered for defendants, non obstante veredicto.”</p> <p>The court subsequently entered judgment in favor of the defendants non obstante veredicto..</p> <p>Errors assigned were among others (1, 2) rulings on evidence, quoting bills of exceptions; (6) in reserving the question of law, quoting it; (7) in directing the jury to render a verdict subject to the point of law reserved; (8) in refusing to enter judgment on the verdict for plaintiff; (9) in entering judgment for defendant.</p>

<p>Appeals, Nos. 222 and 233, Jan. T., 1894, by Henry C. Howard, executor of Eliza F. Pyott, and J. Jones Leedom, creditor of Reese Pyott, deceased, from decree of O. C. Delaware Co., distributing estate of Reese Pyott, deceased.</p> <p>Exceptions to adjudication of executor’s account.</p> <p>The auditor, George E. Darlington, Esq., reported as follows :</p> <p>“ The amount for distribution, $9,602.30, is the proceeds of sale of real estate of deceased, sold by H. C. Howard, trustee, pursuant to the directions of the will of Reese Pyott, with the consent of the widow, and under the decree of the said orphans’ court.</p> <p>“ The account of said trustee, showing said balance, was filed May 13, 1884, and was duly confirmed July 14, 1884. Eliza F. Pyott, the widow of the testator, was entitled to receive the income from said sum during her lifetime. Eliza F. Pyottdied May 7, 1892, testate.</p> <p>“ The real estate of James Pyott was sold by the trustee on Jan. 29, 1883, and confirmed Feb. 12, 1883.</p> <p>“Reese Pyott died March 16, 1876, without leaving issue; but left a widow, the said Eliza F. Pyott', now dead, as before stated.</p> <p>“ Reese Pyott made his last will and testament, bearing date Feb. 6, 1878, duly proven in Delaware county, on April 28, 1876, wherein and whereby he bequeathed and devised as fol lows, after first directing all his just debts and funeral expenses to be paid out of his personal estate:</p> <p>“ ‘ Item. All the rest, residue and remainder of my personal estate, I give and bequeath to my wife, Eliza Pyott, absolutely.</p> <p>“‘Item. I give, devise and bequeath to my said wife Eliza,, all that certain messuage and tract of land, upon which I now live in the said township of Marple, bounded by lands of James Lewis, Sarah Fawkes, Eber Lewis and others, containing sixty acres of land, more or less, to have and to hold the same to her, for and during the- term of her natural life, and in case she shall at any time deem it to her advantage that the same, or any part thereof shall be sold, and the proceeds invested for her benefit, I hereby authorize the sale of the same, by a trustee, to be appointed by the orphans’ court of said county of Delaware, upon her petition, either in whole or in part as she may request; said sale to be upon such terms and with such security for the proper appropriation of the proceeds, as may be fixed by said court, and the proceeds of such sale, I direct shall be legally invested by said trustee after deducting all costs and charges, and the income thereof regularly paid, half yearly to my said wife Eliza for and during her life. Upon the death of my said wife, I give, devise and béqueath the said tract of land with the appurtenances, or the proceeds thereof in case the same or any part thereof shall have been sold, to -my heirs-at-law living at that time, their heirs and assigns forever, in such proportions and for such estates as they would have been entitled to the same in case of my having died intestate.</p> <p>“ ‘ Item. All the rest and residue of my estate, real, personal or mixed, of which I may die possessed, I give, devise and bequeath to my said wife, Eliza, her heirs and assigns, forever.</p> <p>“ ‘ Lastly. I name and appoint my said wife, Eliza Pyott and Henry C. Howard, attorney-at-law, executors of this my last will.’</p> <p>“ Letters testamentary were duly granted.</p> <p>After stating the next of kin and heirs at law of testator, being a sister and the children of deceased brothers and sister, James Pyott being one of them, the auditor continued:</p> <p>“ A claim is made by J. Jones Leedom, through his attorney, Edward H. Hall, Esq., for an award from the fund of $1,500, with interest from April 1,1878. This claim is made on a bond of James Pyott and Reese Pyott to J. Jones Leedom for $1,500, dated March 30,1872, and with the allegation that interest was paid to April 1, 1878, and that no part of principal has been paid, and claim for the full amount is made against the estate of Reese Pyott. The bond is payable in one year from the date thereof. . . .</p> <p>“This bond held by J. Jones Leedom does not appear to have had judgment entered on it, and no previous claim appears to have been made on it against the estate of Reese Pyott, and his executors were not called on to raise funds from the sale of real estate to pay debts in the more than sixteen jmars that have elapsed since Reese Pyott’s death to the first meeting before the auditor.</p> <p>“ By the will of Reese Pyott it will be seen that he directed his just debts and funeral expenses to be paid by his executors out of his personal estate, and he then gives the remainder of personal estate to his wife Eliza Pyott absolutely. The testator does not provide for the payment of his debts from any other source; the wording of the will shows that it was evidently in his mind that the personal estate would pay all his debts and funeral expenses.</p> <p>“ Without going into the question as to whether the presumption of payment has arisen against this bond by reason of its being over twenty years old, and treating it as a just debt of the testator, we will examine the question whether it should be paid out of this fund.</p> <p>“ Then, as said by Mr. Justice Paxson in the opinion delivered in Mason’s Appeal, 89 Pa. 404, this is nót a question of equities, or the marshaling of assets; nor a question of election by creditors between funds; but it is a matter of the payment of debts in the manner prescribed by law. Until the personal estate, the primary fund for the payment of debts, is exhausted or shown to be insufficient, the law will not permit the administrator or executor, unless so directed by the will, to sell the real estate for the payment of debts, and then only so much thereof as may be necessary to make up the deficiency of the personal estate.</p> <p>“ In this case before us, the personal estate was exhausted and shown to be insufficient by the executors’ account filed, which shows a balance due the executors of §1,074.81. Such being the case, and it being a fact that the testator left several tracts of land of a value more than sufficient to pay all the balance of debts left unpaid after the exhausting of the personal estate, let us see from what source the law would require these debts to be paid.</p> <p>“ In Hoover v. Hoover, 5 Pa. 856, in an opinion by Justice Bell, we find the law laid down that the established order of the application of the several funds liable to the payment of debts is: (1) The general personal estate not expressly or by implication exempted. (2) Lands expressly devised to pay debts. (3) Estates descended to the heirs. (4) Devised lands charged with the payment of debts generally, whether devised in terms general or specific (every devise of land being in its nature specific). (5) General pecuniary legacies, pro rata. (6) Specific legacies, pro rata. (7) Real estate devised, whether in terms general or specific. See also Estate of Jonathan Jones, Deceased, 7 Phila. 495.</p> <p>“ As what has been said in regard to the fund from which debts are to be paid applies also to the claim of Henry O. Howard, executor of Eliza F. Pyott, we will now take up the consideration of that claim also, as facts given under it apply also to both claims, and they may therefore be considered together.</p> <p>“ Garrett E. Smedley, Esq., as counsel for Henry O. Howard, executor of the last will and testament of Eliza F. Pyott, deceased, presents a claim against the fund for §1,074.81, being the balance shown by the account of Eliza F. Pyott and Henry C. Howard, executors of the last will and testament of Reese Pyott, deceased, as due said Eliza Pyott, one of the executors, for moneys advanced by her to pay debts of Reese Pyott’s estate. By the testimony of Henry O. Howard, who was Called as a witness, it was shown that the estate of Reese Pyott was indebted to the guardian of the minor children of Dr. Moore, deceased, in the sum of §1,368.65, which is also shown by the executors’ account in the estate of the said Reese Pyott. He, the said Reese Pyott, having been the former guardian of said children, and upon the settlement of his account as guardian by his executors that balance appeared as due from him to said minors. A part of the balance, to wit, the sum of $1,074.81, was paid by said Eliza F. Pyott as one of the executors of said Reese Pyott, out of her own fund; the personal estate having been exhausted, and leaving that much of the debts to be made up in some way.. She then claimed a credit for it in her executor’s account. The amount was not paid or taken from the funds at the time Mr. Howard filed his accounts as trustee, and there is no personal estate of' Reese Pyott to pay the said balance claimed by said Eliza F. Pyott.</p> <p>“ Mr. Smedley further offers in evidence a bond executed by Eliza, F. Pyott and Henry C. Howard, executors of the last will' and testament of Reese Pyott, to Eliza F. Pyott for $1,074.81, and bearing date the 2d day of March, 1881. Mr. Howard, on cross-examination, shows that no action was ever taken on the bond and no suit ever commenced for the collection of the claim, and no proceedings ever had on the bond for its collection. That no application was ever made to the orphans’ court by the trustee for leave to pay to the executors or the widow the amount due upon this bond. That the said Eliza F. Pyott never made a formal demand of her coexecutor for the payment of the bond, but that she was informed by Mr. Howard that she would have a claim against the real estate of Reese Pyott when it came to be distributed, and that is why the bond was drawn up and executed, as an evidence of the debt. This was done when their account as executors was settled. The real estate of Reese Pyott had not been sold at the time when his executors filed their account.</p> <p>“ Mr. Howard further shows that at the time of Reese Pyott’s death he was possessed of the following real estate: A farm on which he lived in the township of Marple, containing about sixty acres, which was subsequently sold to Alexander Johnson. Also another piece of property in the same township of about ten acres which was afterwards sold to Jacob Green. Also, a property called the Drove property, situate on the West Chester road, at the corner of the road crossing the West Chester road from the Springfield road, containing about forty-three acres, which was sold to Mrs. Emily Long for about $6,500.</p> <p>“The funds for distribution before the auditor are the proceeds of sale of the sixty acres in Marple township.</p> <p>“ The deed for the Drove property was made March 20,1878, the ten acres sold to Jacob Green were sold for $1,742.42, on March 28,1883, and the sixty acres were sold under order of court as before stated.</p> <p>“ Eliza F. Pyott sold these properties and made the deeds for them as owner thereof, and the purchase money was received by her, except that which was required to pay incumbrances. She claimed title to the land under the will of Reese Pyott, and as his devisee, the claim being made under the third item in the will. The executors of Reese Pyott filed their account on March 22, 1881.</p> <p>“ When Mrs." Pyott sold the piece of ground in 1878, for $6,500, there was $500 paid to her in cash of the purchase money, and she took a mortgage for $3,400, the property being taken subject to a prior mortgage of $2,600. This $3,400 has since been paid. The only reason given why Mrs. Pyott did not reimburse the executors from the proceeds of the sale of the real estate is that she thought she had already paid more than her portion of the debt, by the payment of the mortgage on the land she took, and that the balance should stand as a claim against ■the real estate in which she had a life estate.</p> <p>“ Mrs. Long afterwards sold the Drove property for $7,000. When Mrs. Long bought the property she gave as a cash consideration a lot worth $500, and the balance of the purchase money was secured on the property.</p> <p>“ It will thus be seen that from the sales of real estate one of the executors, Eliza F. Pyott, had in her hands the proceeds, amounting to $5,642, a fund more than sufficient to pay all the balance of debts, and a fund arising from the residue of real •estáte of testator. . . .</p> <p>“ The sixty acres from which this fund arises was not sold ■for the payment of debts, but was sold by order of court under direction of the will, on the petition of the widow, Eliza F. Pyott, the proceeds to be invested for her benefit for life, and at her death the principal to be divided in accordance with the directions in the will among the heirs at law of the testator living at that time, and their heirs and assigns.</p> <p>“ The devise of these sixty acres was a specific devise. In this instance, the first-class assets having been exhausted without fully satisfying the debts, and the testator not expressly de vising any lands for their payment nor charging any of his land for the payment of debts generally, and in Pennsylvania all the lands of decedent, whether descending or devised by law, being charged with the payment of the debts of the decedent, the devisee taking the residue of real estate certainly takes it subject to the payment of the debts which were not paid and satisfied by the personal estate, and the residue of real estate must certainly be taken to pay the debts before the land specifically devised. As has been shown, the. residue of real estate is amply sufficient to pay these debts, and sufficient funds were obtained from the sale of this residue of real estate by the said Eliza F. Pyott, the devisee thereof, as well as one of the executors, to pay them ; and this.she should have been required to do. In the opinion of the auditor, the claimant, J. Jones Leedora, could not sit quietly by and allow the funds of the residue of real estate to be used for other purposes than the payment of his debt, and then be permitted to come in on the funds arising from the real estate specifically devised.</p> <p>“ This also applies with stronger force to the claim of H. C. Howard, executor of Eliza F. Pyott, for the $1,074.81, expended by her. as the executor of Reese Pyott in the payment of his debts, as shown by the executor’s account. She took the residue of the real estate which should have been applied to the payment of his debts and appropriated it to her own use ; selling it as the owner thereof under the devise in the will to her, receiving the funds from such sales and paying herself back therefrom, fully, for the moneys that she had expended as executor in the payment of Reese Pyott’s debts; therefore she can have no further claim upon his estate.</p> <p>“ These claims are therefore not allowed by the auditor.</p> <p>“ Under the finding of the auditor this fund would be distributed to the parties named in the second item in the will, the heirs at law of the testator living at the time of death of the said Eliza F. Pyott, as hereinbefore named, their heirs and assigns, in the proportions designated in said will, excepting the share of any of said heirs which may be assigned or attached, and these shares are to be distributed to those legally •entitled thereto; but all the shares are subject to collateral inheritance tax.</p> <p>“ The auditor is of opinion that sale of the sixty acres, under order of court, and the direction in the will, converted the proceeds of sale into personalty, and that the fund is to be distributed as personalty.</p> <p>“ In this case the widow invoked the process of the court to enforce the execution of the positive direction in the will to sell by a trustee to be appointed by the court, and the proceeds of sale pass under the will as money. See Roland v. Miller, 100 Pa. 61.</p> <p>“ On Jan. 21, 1881, James Pyotj; and wife executed a deed of assignment to Jesse C. Dickey and R. H. Hodgson for the benefit of the creditors of the said James Pyott, which deed was duly recorded in Chester county on January 21, 1881, the trust having been accepted by the said assignees on the same date. This deed of assignment conveyed all the real estate, and all the goods, chattels, rights, credits and property of every kind, whether real, personal or mixed, of the said assignors. This deed of assignment was afterwards recorded in Delaware county on Dec. 9, 1881.</p> <p>“ The claim of Henry C. Howard, executor of Eliza F. Pyott, deceased, against the share of James Pyott, on attachment execution of Eliza Pyott against James Pyott, defendant, and Henry C. Howard, trustee to make sale of the real estate of Reese Pyott, deceased, issued Oct. 29,1884, from the Common Pleas of Delaware county, on judgment in the said court against said James Pyott, entered Oct. 29, 1884, is not allowed, as the deed of assignment antedated the judgment, and the attachment was issued before the death of Eliza F. Pyott, the widow.”</p> <p>The auditor accordingly distributed the fund to the heirs to the exclusion of these claims.</p> <p>Exceptions were filed by J. Jones Leedom and by H. C. Howard, executor of Eliza F. Pyott, alleging error in not allowing their claims.</p> <p>The auditor disposed of the exceptions as follows:</p> <p>“ The auditor sees no reason for changing his report, excepting in the following respect: In his first report the fund was treated as' personalty by a conversion, but the question as to how and when the conversion was had was not passed upon, and as this may become an important question in this distribution it is proper that the auditor should give his opinion on this subject. It will be seen that under the wording of the will the testator only intended a sale should be made of the real estate in the event of his wife deeming it to be to her advantage that the same or any part thereof shall be sold, and that then the sale is to be made by a trustee to be appointed by the orphans’ court upon her petition. Thus it will be seen that there was not an absolute direction to sell, and that the sale could only take place in the event of the wife consenting to it and presenting a petition to the court for the'appointment of a trustee. In the opinion of the auditor there was therefore no conversion of the land into money by the will, even in equity, and no such conversion could be considered as having taken place until such consent on the part of the wife had been given, by her petition to the orphans’ court for the appointment of a trustee to make sale, and the sale made under the order of the orphans’ court really worked the conversion. In Henry v. McCloskey, 9 Watts, page 145, it is decided that if the direction by the testator in his will to sell his real estate be not absolute but qualified, such as where there is a direction in the will to sell the real estate upon the widow agreeing to it in her lifetime, and if it shall appear from the words of the will that the testator only intended that the sale should be made in event of his wife consenting to it and not otherwise, a conversion of it into money would not even in equity be considered as having taken placesuntil such consent on her .part had been given.</p> <p>“ In Peterson’s Appeal, 88 Pa. page 397, it is held where a discretionary power of sale is given by will to trustees,, no. conversion of realty into personalty will take place until a. sale is actually made. To work a conversion the direction to sell must be positive, irrespective of contingencies and independent of discretion. See also the Estate of Samuel Machemer, deceased, 140 Pa. page 544. See also, Mellon v. Reed, 123 Pa. 14 ; Stoner v. Zimmerman, 21 Pa. 394.”</p> <p>Exceptions were dismissed by the court, Clayton, P. J.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

<p>Criminal law — Murder—Self-defence.</p> <p>Life may be lawfully taken in self-defence; but it must appear that he who takes it was in imminent danger of death or great bodily harm, and that no other way of escape from the danger was open to him.</p> <p>Murder — Killing of person not intended.</p> <p>Where a deliberate purpose is formed to kill one person and the defendant fires a pistol at him for that purpose, the fact that the ball misses its intended victim, and kills another person, does not relieve the murderer.</p> <p>Murder — JSvidence—Credibility of defendant — Charge of court.</p> <p>On the trial of an indictment for murder it is proper for the court to charge that the extent to which the prisoner was contradicted by the witnesses, the character of the testimony given by them, the reasonableness of his own testimony, and its consistency with the established facts in the case, were all proper subjects for consideration in determining the credit to which his testimony was entitled.</p> <p>Verdict — Practice, oyer and terminer.</p> <p>The verdict as recorded is the verdict of the jury, and the form prepared in the jury room, though handed to the clerk, is no part of the record, and has no significance.</p>

<p>Appeal, No. 370, Jan. T., 1893, by' defendant, A. E. Burr, from judgment of C. P. Lackawanna Co., April T., 1890, No. 845, on verdict for plaintiff, Frederick L. Brown.</p> <p>Assumpsit to recover value of plans and specifications for a building. Before Seeley, P. J.</p> <p>At the trial, it appeared, that in 1888 plaintiff was employed by defendant to prepare plans and specifications for a building to be erected on Washington avenue in. the city of Scranton, for a price agreed upon. Defendant claimed that one of the provisions of this contract was that plaintiff should supervise the building as it progressed in all its details. This plaintiff denied. Plaintiff also prepared plans and specifications for the plumbing and steam heating of the building, and, on the completion of that work, gave a certificate to defendant that he considered the work completed according to the plans and specifications. The plumbing and steam heating were found defective and defendant was compelled to perfect it. The items of this expense were offered as a set-off. The building was completed in the spring of 1889, and plaintiff admitted having received two hundred dollars before that time. At the trial of the case defendant produced a check for one hundred and fifty dollars dated Dec. 4, 1889, which plaintiff admitted he had received on account of the work. Further facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for the full amount of his claim. Defendant appealed.</p> <p>Errors assigned were instructions referred to in the opinion of the Supreme Court, quoting them.</p>

<p>Appeal, No. 53, July T., 1893, by defendant, F. C. Bunnell, from judgment of C. P. Wyoming Co., Aug. T., 1892, No. 39, on verdict for plaintiff, E. H. Wells.</p> <p>Ejectment. Before Sittser, P. J.</p> <p>The facts appear by the opinion of the' Supreme Court.</p> <p>At the trial the court rejected, under exception, various offers of testimony tending to show acts and declarations of Martha H. Bunnell, defendant’s wife, to prove that she was still the real owner of the propertjn [1-6]</p> <p>Defendant’s offer to call his wife, as if on cross-examination, alleging that she was the real plaintiff, was overruled. [7]</p> <p>Binding instructions for plaintiff were given. [8]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-7) rulings on evidence; (8) instructions ; quoting bills of exceptions and instructions.</p>

Appeal, No. 176, July T., 1893, by defendant, from judgment of C. P. Lackawanna Co., April T., 1890, No. 292, on verdict for plaintiffs, Joseph Chilton and wife. Trespass for personal injuries. Before P. P. Smith, J. ■ At the trial it appeared that, on Nov. 22,1889, between seven and eight o’clock in the evening, plaintiff fell and injured herself at the crossing of Main street and Eighth avenue in the city of Carbondale.

Appeal, No. 156, Jan. T., 1894, by plaintiff, U. G. Stockwell, from order of G. P. Lackawanna Co., Jan. T., 1893, No. 390, making absolute rule to open judgment. Rule to open judgment. Before Smith, J. From the depositions taken in support of the rule it appeared that, on Oct. 31, 1892, defendant obtained from plaintiff $250 in cash, giving plaintiff therefor his, defendant’s, judgment note, under seal, payable Nov. 15, 1892.

Appeal, No. 187, Jan. T., 1894, by Ira C. Atherton et al., freeholders, from order of Q. S. Lackawanna Co., June T., 1893, No. 169, incorporating Taylor Borough. Petition for incorporation of borough. From the record it appeared that the petition was signed by about 197 persons. The entire population of the territory was 295. A remonstrance was numerously signed.

Appeal, No. 238, Jan. T., 1894, by plaintiff, James Daw, chief burgess, et al., constituting the Town Council of the Borough of Dickson City, from decree of C. P. Lackawanna Co., Nov. T., 1893, No. 7, refusing preliminary injunction. Bill to restrain erection of powder-house in borough.

<p>Appeal, No. 263, Jan. T., 1894, by plaintiff, Emma A. Plummer, from judgment of C. P. Lackawanna Co., Sept. T., 1890, No. 886, on verdict for defendants.</p> <p>Trespass quare clausum fregit for entering plaintiff’s land and taking coal therefrom. Before Gtjnster, J.</p> <p>At the trial it appeared that, in 1804, Edward London took out a warrant for a tract of land on the Lackawanna river which included the'land in controversy in this case. He went into possession of it, and remained in possession until his death. The land in dispute came into possession of Samuel Callender, a son-in-law of London, who, in 1828, executed the following instrument in wilting, signed and sealed by the parties:</p> <p>“ This agreement made Oct. 1, 1828, between Samuel Cal-lender, Jr., of the township of Blakely, in the county of Luzerne and state of Pennsylvania, of the one part, and Thomas Meredith, of Belmont, in the county of Wayne and state aforesaid, of the other part, witnesseth, that the said Samuel doth lease and to farm let unto the said Thomas all the land that he now holds or is possessed of either by deed, article of agreement, or by any other title, in said township of Blakely, county and state aforesaid, except one hundred acres of land, which the said Samuel purchased of William Woodbridge, hy article of agreement, about one hundred acres. The said land leased to said Thomas contains one hundred and thirty acres or thereabouts, and the lease is to continue for the term of one hundred years from this day. It being, however, clearly understood that the possession which the said Thomas acquires under this lease shall extend only to the use of the leased premises as a coal field, that is to say, the said Thomas shall have full right, power and possession to search for coal anywhere on the leased premises in any manner he may think proper, to raise the coal when found from the beds, at all times to enter and carry away the coal in wagons, sleds or other vehicles, and to sell the same for his own benefit and profit, and also that he shall have a right to occupy whatever land may be useful or necessary as coal yards ; these rights and privileges shall extend to the heirs, executors, administrators and assigns of the said Thomas during the term aforesaid, and also to his and their agents, engineers, laborers and workmen. It is also understood that in case it shall be either useful or necessary to make roads of any description through the leased premises for the purpose of transporting the coal to market, it may be done, taking care to do the least possible damage to the land or the improvements, and in ease it may prove necessary for securing the full enjoyment of the premises aforesaid as a coal field as aforesaid, then the said Samuel covenants and agrees to execute such further writings as counsel learned in the law may deem proper, at the expense of said Thomas, his executors, administrators or assigns. And the said Thomas, for himself, his heirs, executors, administrators and assigns, covenants, promises and agrees to pay to the said Samuel on the first day of August next the sum of two hundred dollars, in manner following : So much money as may remain due for principal and interest on a contract for land, entered into by the said Samuel with the heirs of Samuel Meredith, deceased, on which he now resides, in said township of Blakely, the residue in cash, and also an annual rent of one dollar, payable on the first day of October in each and every year. And in case the coal on the leased premises shall prove extensive and abundant, and of an average thickness of ten feet, then the said Thomas, on these facts being satisfactorily proved, agrees to pay to the said Samuel the further sum of one hundred dollars. It is also agreed that the said Samuel or his heirs, so long as they shall reside on the leased premises, shall have a right to dig whatever coal they may want for their own use, but not to sell, so as not to interfere with the works of said lessees.</p> <p>“Provided always, nevertheless, that the said Thomas, his heirs, executors, or administrators, by indorsing forty dollars on the contract aforesaid made by the said Samuel with the heirs of Samuel Meredith, deceased, at any time previous to the first day of August next, shall have full right and authority to declare this agreement and lease absolutely null and void, anything in this instrument of writing to the contrary notwithstanding. For the true and faithful performance of the covenants in this agreement and lease, the parties within named bind themselves, their heirs, executors and administrators, each to the other, firmly by these presents.”</p> <p>Plaintiff claimed title, by sundry conveyances, from the heirs of Samuel Callender. Defendants claimed title to the coal under the agreement between Samuel Callender and Thomas Meredith.</p> <p>Plaintiff proposed to prove by Stephen Callender that he has lived on or near the property known as the Callender land, upon which the trespasses in this case are alleged to have been committed, since 3819; that no person has mined any coal from said land except Samuel Callender and his heirs, and no attempt has been made to mine coal under said land until the Lackawanna Coal Company, .Limited, one of the defendants, came into the coal from an adjoining tract, about two years and a half ago.</p> <p>Defendants objected to the offer as immaterial, irrelevant and incompetent; that no time was fixed in the lease when Thomas Meredith, or his assigns, would take possession of the coal field, and they, therefore, had the full term of the lease, to wit, a hundred years from Oct. 1, 1828, to enter and take possession thereof. The offer does not propose to show that Samuel Callender, or his heirs, had any other possession of the coal except such as they were authorized to have by the lease, to wit, that the said Samuel, and his heirs, may dig what coal they may need for their own use, but not to sell; and it is not proposed to prove by the offer that they exceeded the authority given them bj the lease; their possession, therefore, of the surface, and any occupancy they may have had of the coal, was in subservience to the lease and not in opposition to the same, and no possession of the surface by said Samuel, or his heirs, could, by any reasonable construction, be construed as in opposition to the rights of Thomas Meredith, or his assigns, to the coal underlying, which had been severed by the lease of 1828, which was duly recorded, and which was notice to all the world of such severance.</p> <p>By the Court: I do not quite understand the purpose of the offer.</p> <p>By Mr. Price: The purpose of the offer is to show that the lessee did not take possession of the land and search for coal in accordance with the terms of the lease. The lessee also had the right to take possession of the surface, and that he did not take possession of the surface; there were surface rights as well as coal, and if he abandoned one he abandoned the other. We will follow this by showing that there was an increased value of this land; we will show that this land is worth as much as ten to one hundred times as much as it was when this contract was made. One of the purposes of the offer is to show that they did not take possession in accordance with the terms of the lease, and determine and investigate how much coal there was and pay the hundred dollars. They have failed for sixty years to pay the additional hundred dollars; they admit that they ought to have done it; they have failed for forty years, under their own admissions, to pay the annual rental.</p> <p>By the Court: As I view the case at present, this evidence is irrelevant, and the objections to the offer are sustained. Exception. [11]</p> <p>Plaintiff’s points were among others as follows:</p> <p>1. Request for binding instruction. Refused. [2]</p> <p>“ 2. The failure of the grantees of Thomas Meredith to pay the rent stipulated in the agreement and lease between Thomas Meredith and Samuel Callender, from 1849 to 1890, is conclusive evidence of the abandonment of the interest, in the coal acquired under such agreement, and the verdict of the jury must be for the plaintiff for the value of the coal, which it is admitted is six dollars.” Refused. [8]</p> <p>“ 5. Those claiming under Thomas Meredith were in default in not paying the rent from 1849 to 1890, and the statute of limitations in 1890 had concluded all rights under the Callender and Meredith lease. Answer: I decline to affirm that proposition. I do not think this agreement of 1828 can be concluded by the statute of limitations. The right of Samuel Callender, and those under him, to collect the rent may be concluded by the statute of limitations, but the grant of the coal cannot be concluded in that way.” [4]</p> <p>“ 9. The failure of Thomas Meredith and his grantees to ascertain that the coal was ten feet thick and pay the additional one hundred dollars purchase monejq and to pay annual rental from 1849 to 1890, is evidence from which the jury may infer an abandonment of the Callender and Meredith lease, and all rights acquired thereunder.” Refused. [5]</p> <p>Defendants’ points were among others as follows:</p> <p>1. Request for binding instruction. Affirmed. [1]</p> <p>“ 6. That the lease of Samuel Callender of October 1, 1828, gave to Thomas Meredith, and his heirs and assigns, the right and title to all the coal under any land then held by said Samuel Callender, in the township of Blakely, by any title whatever, except the Woodbridge tract, for the term of one hundred years from that date. Answer: I affirm this proposition, with the qualification that it gave them title whenever it was discovered within the hundred years. This agreement of 1828 is, to some extent, a permission to go on the land and search for the coal. If Thomas Meredith had undertaken any search in his lifetime, or those claiming under him, and had satisfied themselves that there was no coal there, and then expressed themselves as satisfied with it, and left it, then it might have been an abandonment of their right under it. But there is not a particle of evidence in the case that Thomas Meredith, or any one under him, made any effort to find any coal, or to remove any, until after this suit was brought, and they have a right, under the instrument of 1828, to wait. They may have known that there was coal there, they may have supposed that there was coal there; but that is not enough, gentlemen of the jury. They had the right to wait. It may have become more valuable with time. They were not required to move a ton of coal out of there. There was nothing in the lease calling for any payment for any coal that was removed, except the considerations which were set forth in the agreement — that is, the two hundred dollars down, then the annual rent, then the amount which was to be paid in case the coal proved to be extensive and of the average thickness of ten feet.” [6]</p> <p>“ 7. That no time being specified in said leases when the grantees should take possession, they may take actual possession at any time during the term. Answer: I affirm that proposition. You will remember that these leases run for the term of one hundred years from the date. There is nothing whatever in the leases requiring or indicating that Thomas Meredith, or those under him, were to take actual possession at any time prior to the expiration of the hundred years. Of course, when the hundred years were up, then their rights ended, and they will end unless they acquire more than they have got now.” [7]</p> <p>“ 8. That there can be no forfeiture of the lease for nonpayment of the rent, as there is no clause authorizing a forfeiture. Answer: I affirm that proposition. Ordinarily, before there can be a forfeiture of a lease, there must be a clause in the lease authorizing such forfeiture; and then, also, as a rule, there must be a demand for the rent. There is no clause of forfeiture in this lease; there is no evidence that any rent was ever demanded by anybody. Of course, the obligation to pay the rent existed, there is no doubt about that, but there could be no forfeiture of this lease, because there is no clause authorizing it in the agreement.” [8]</p> <p>“ 9. There can be no abandonment claimed, because abandonment is only predicable of an inchoate title, not of a perfected estate.” Affirmed. [9]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were, among others, (1-9) instructions; (11) ruling on evidence, quoting instructions and bill of exceptions.</p>

Appeal, No. 129, Jan. T., 1894, by David Harris and James Dunn, from order of Q. S. Lackawanna Co., sustaining proceedings upon petition to annex a portion of Lackawanna township to the city of Scranton. Petition to annex portion of township to city. The petition was addressed to the select and common counoils of the city of Scranton. An ordinance of councils was passed in accordance with the prayer of the petition.

Appeal, No. 321, Jan. T., 1894, by plaintiff, from order of C. P. Lackawanna Co., Nov. T., 1893, No. 461, discharging rule for judgment for want of sufficient affidavit of defence in favor of defendant, Nicholas Bush. Scire facias sur municipal lien. The affidavit of defence averred: “ 1.

Appeal, No. 360, Jan. T., 1894, by plaintiff, Isaac B. Felts, from order of C. P. Lackawanna Co., June T., 1889, No. 437, discharging rule for change of venue. Petition for change of venue in ejectment.

<p>Will — Life estate.</p> <p>Testatrix directed as follows: “I further give and bequeath to my beloved son John, three thousand dollars, which I order and direct to be invested as a first lien on real estate by bond and mortgage by a trustee to-be appointed by the orphans’ court of Monroe county, the interest to be paid annually to the said John. If by sickness or misfortune said interest should be insufficient to supply the wants or needs of said John, I order and direct said trustee to pay him such portion or portions of the principal as he may deem necessary, and, in case of the death of the said John, I order and direct this three thousand dollars or the balance thereof to be divided equally, share and share alike, to or among my brothers and sisters or their lineal heirs.” Held, that the legatee took a life estate only in the fund.</p> <p>Decedent's estate — Distribution—Equalization of shares — Half blood.</p> <p>Where, on a partial distribution of an intestate’s estate, certain relatives of the half blood, though entitled, do not participate, and the entire fund for distribution is awarded to certain only of the distributees, the inequality will be corrected on a subsequent distribution of other funds belonging to the decedent’s estate, by awarding to the one who received nothing on the first distribution enough to make up his proportionate distributive share of both funds.</p>

<p>Constitutional law — Municipalities—Manufacture of electricity — Act of May 20, 1891, P. L. 90 — Article 9, section 7, Const.</p> <p>The legislature has the constitutional power to authorize a municipal corporation to manufacture electricity for the use of the inhabitants of the municipality.</p> <p>The act of May 20, 1891, P. L. 90, entitled “ An act to authorize any borough now incorporated or that may hereafter be incorporated to manufacture electricity for commercial purposes, for the use of the inhabitants •of said boroughs,” etc., is constitutional.</p> <p>Municipalities — Constitutional limit of debt — Burden of proof.</p> <p>On a bill in equity to restrain a borough from undertaking the erection •of an electrical plant on the ground that the borough indebtedness would be increased beyond the constitutional limit, the burden is on the plaintiff to pi-ove that the indebtedness would be necessarily increased to an amount exceeding the legal limit.</p> <p>Equity — Master's fee— Costs — Review.</p> <p>In the absence of any evidence that would justify the Supreme Court in •saying that a master’s fee is clearly excessive, it will be assumed that the compensation sanctioned by the court below was not unreasonable.</p>

Appeal, No. 24, Jan. T., 1894, by R. Slimmons & Co., et al., from order of C. P. Northampton Co., Feb. T., 1898, No. 24, refusing issue in Hagy & Bittner v. Poike. Rule to show cause why issue should not be granted to determine disputed facts concerning distribution of money arising from sheriff’s sale of personal property.

<p>Stoppage in transitu — Common carrier — Execution—Liability of sheriff —Trespass.</p> <p>Plaintiff sold merchandise to one Price living in a distant town. Before the goods reached their destination Price failed, confessed judgment, and all his property was levied upon by the sheriff. Plaintiff then notified the railroad company to stop the goods. Some days after the goods had arrived at the freight station in the town of their destination, a local express-man who had access to the station loaded them on his wagon without any special order from Price, or consent of the railroad company, and without paying the freight, and took them to Price’s store, depositing them on the pavement. Price refused to receive them, and pursuant to his direction they were taken back to the station by the expressman. Afterwards the sheriff levied on them at the station, and sold them as Price’s property. Held, that the sheriff was liable in damages to the plaintiff.</p>

<p>Contract — Agreement not to engage in same trade.</p> <p>Plaintiff and defendant entered into a contract in writing under seal. Plaintiff, who owned a photograph gallery, and had been engaged in the business of photography for several years, agreed to stock and furnish the gallery with all necessary appliances for the proper operation thereof and to teach defendant, free of charge, the art of photography until he became sufficiently versed in the business to conduct it himself. Both parties were to share in the profits of the joint business which was to continue until July 1, 1890. If, for satisfactory reasons, defendant wished to withdraw from the partnership arrangement on April 1, 1890, he should have the privilege of doing so. The agreement then concluded thus: “Also under the same consideration said Thomas J. Stofflet wishing to take charge of the aforesaid gallery April 1 next himself, he shall be privileged to do so and the "said Prank Stofflet shall peacefully withdraw to the above agreement well considered not to open oposision gallery in Bangor.” Held, that the agreement, although expressed in ungrammatical language and ill-chosen words, sufficiently indicated the intention of the parties to be that after the contract relation ceased, as provided in the agreement, either by the act of one of the parties or by the expiration of the time limited, defendant would not commence and cany on the business of photography in the borough of Bangor in opposition to plaintiff, his instructor.</p>

Appeal, No. 367, Jan. T., 1894, by defendant, Samuel O. Frantz, from judgment of C. P. Franklin Co., Dec. T., 1889, No. 79, on verdict for plaintiff, Harry McCleary. Trespass for personal injuries caused by alleged negligence of defendant in firing shotgun. At the trial, it appeared that plaintiff, in company with defendant and two other persons, started out from Waynes’boro on a gunning expedition.

<p>Deed — Conditional delivery — Escrow.</p> <p>Where the future delivery of a deed is merely to await the lapse of ■ time, or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently; but where the future delivery depends upon the payment of money, or the performance of some other condition, it will be deemed an escrow.</p> <p>Where in such a ease the grantee obtains possession of the deed without perfoi'ming the condition, he acquires at the most but a voidable title to the lands described in the deed.</p> <p>Delivery in escrow — Time when deed takes effect.</p> <p>In general, when an instrument is delivered as an escrow to a third person to be delivered to the grantee on a future event, it is not the deed of the grantor until the second delivery; but relation back to the first delivery is sometimes allowed in cases of necessity to avoid injury to the operation of tlie deed from events happening between the first and second delivery.</p> <p>A father executed a deed to his son, and delivered it to a third person to be held in escrow until the son should have paid the grantor’s debts. After the father’s death, the son obtained possession of the deed without having paid the debts. Held, that there was no relation back so as to vest title in the son at the date of delivery in escrow.</p> <p>Judgment — Revival—Deed.</p> <p>An owner of lands subject to a judgment executed a deed for the lands to Ms son, and delivered the deed to a third person to hold until all the debts of the grantor had been paid by the son. In Ms will he further directed that the deed should not be delivered to Ms son until the debts were paid. After the grantor’s death, the son obtained possession of the deed without having paid the debts, and subsequently signed an amicable scire facias to revive, as terre tenant, and also as executor of his father. Held, (1) that the son took the land under the deed, and not under the will; (2) that the title which he took was a voidable one; (3) that the amicable scire facias operated to continue the judgment against the land.</p> <p>Revival of judgment — Identification—Recitals—Practice.</p> <p>In order to continue the lien of a judgment, a scire facias to revive must correctly recite the original judgment and substantially identify it as to parties, date and amount.</p>

Appeal, No. 52, Jan. T., 1894, by plaintiff, J. H. Liiick, from judgment of C. P. Lycoming Co., June T., 1891, No. 476, on verdict for defendant, Malcolm MacMillan. Assumpsit on promissory note by indorsee against payee. At the trial, before Metzgeb, P. J., it appeared that, on March 4,1889, A. P. Sallade, being indebted to defendant, gave him his promissory note, signed by A. P. Sallade, Agent.

Appeal, No. 76, Jan. T., 1894, by defendant, A. C. Fairchild, from judgment of C. P. Bradford Co., Sept. T., 1892, No. 640, on verdict for plaintiff, R. T, Rhees. Assumpsit for goods sold and delivered.

<p>Appeal, No. 303, Oct. T., 1893, by defendant,* James T. Gormley, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1893, No. 346, on case stated in favor of Annie B. Wettengel.</p> <p>Case stated to determine ownership of royalties under oil lease.</p> <p>The case stated, was as follows:</p> <p>' “ 1. James Gormley, of Chartiers township, Allegheny county, Pennsylvania, at and immediately before the time of his decease, was the owner in fee simple of that certain tract of land in North Fayette township, Allegheny county, Pennsylvania. [Here follows description.]</p> <p>“2. On July 14, 1888, said James Gormley made a lease of said premises to J. A. Tomlinson, of Beaver county, Pennsylvania, for the purpose and with the exclusive right of drilling or operating for petroleum oil or gas thereon. And the rights of said J. A. Tomlinson, under said lease, by various assignments and transfers, have become vested in J. M. Guffy and others, doing business as the Oakdale Oil Co.</p> <p>“ 8. Said James Gormley died on Oct. 1, 1890, having first made his last will and testament duly probated and registered in the register’s office of Allegheny county, whereby he devised two hundred acres more or less of said six hundred acres to his son, James T. Gormley, in fee simple, and of the residue he devised two hundred acres more or less to his daughter, Annie B. Wettengel in fee, and the residue he devised to his daughter Mrs. Maiie J. Lockhart in fee. [The will and lease were made part of the case stated.]</p> <p>“ 4. The holders of said lease have drilled wells under and in pursuance of said lease, all of which are located within the boundaries of that portion of said six hundred acres which by the last will and testament aforesaid was devised to the said James T. Gormley, and all of which said wells are producing oil. In addition thereto one well was drilled on thiit portion of said land devised to Mrs. Lockhart, which latter well was a dry hole, producing nothing.</p> <p>“ 5. Up to the date of this agreement said wells have produced in the aggregate 14,918 barrels of oil, and under the - terms of the lease aforesaid one eighth thereof is payable as royalty, out of which royalty one third is payable to Mary Gormley, widow, as dower, and it was further provided in said lease that the lessee should pay the sum of one hundred dollars per month in advance, beginning with the date of said lease, so long as he kept said lease, until oil or gas should be found, in paying quantities, after which payment was to be made by the royalty as aforesaid. The first oil under said lease was produced on the -day of-, 1891, being since the death of James Gormley, at which time the payment of one hundred dollars per month ceased. By the terms of said lease the right was given to the lessee to use sufficient water from the premises necessary to operations thereon, the right of way over and across said premises to place of operating, together with the right of laying pipes to convey oil and gas from the said farm.</p> <p>“ 6. It is claimed by the plaintiff that she is entitled to a sum of money equal to the proportion which the area of the land devised to her as aforesaid bears to the whole amount of land included in the said oil lease, out of the oil produced as aforesaid, which for the purposes of this case is agreed to be in money value the sum of fifty-seven cents per barrel.</p> <p>“ 7. On the other hand it is claimed by the defendant that the plaintiff is not entitled to any part whatever of the production of oil from the premises devised to him as aforesaid.</p> <p>“ If the court should be of the opinion that, under the law and the facts hereinbefore stated, the plaintiff is entitled to recover, then judgment is to be entered in favor of the plaintiff and against the defendant for the aforesaid sum of two hundred and seven dollars; otherwise judgment to be entered in favor of the defendant.”</p> <p>The lease referred to in the case stated was as follows:</p> <p>“ Memorandum of agreement made and entered into this 14th day of July, 1888, by and between James Gormley, of Char-tiers township, Allegheny county, Pennsylvania, of the first part, and J. A. Tomlinson, of Beaver county, Pennsylvania, of the second part, Witnesseth: That the said party of the first part for the consideration, covenants, and agreements hereinafter mentioned, has granted, demised and let unto the party of the second part, his heirs and assigns, for the purpose and with the exclusive right of drilling and operating for petroleum oil or gas, with the right to sublet and subdivide :</p> <p>“ All that certain tract of land in North Fayette township, Allegheny county, Pennsylvania, bounded and described as follows, to wit: By lands of Abraham Bell, Fife, Donaldson, Putnam, Morrow, Lutz, and others, containing six hundred acres more or less, being all the lands of said James Gormley in North Fayette township aforesaid, upon which said land said lessee agrees to drill not less than six wells. If oil or gas be found in paying quantities the second of said wells to be commenced within six months after completing the first, and one additional well to be commenced every six mouths until the six wells are drilled, provided gas or oil be found in paying quantities. The party of the second part, his heirs or assigns, to have and to hold the said premises for the said purpose only for and during the term of fifteen years from the date hereof. The said second party, in consideration of said grant and demise, agrees to give the party of the first part, the full equal one eighth part of all the petroleum oil obtained or produced on the premises herein leased, to deliver the same in tanks or pipe lines to the credit of the party of the first part. They further agree that if gas is obtained in sufficient quantities to utilize, the consideration in full to the party of the first part shall be five hundred dollars (1500) per annum for each and every gas well drilled on the premises herein described, if of sufficient pressure to guarantee the laying of pipe lines to convey it to market, payable in thirty days after the line is laid. The party of the first part grants the further privilege to the party of the second part of using sufficient -water from the premises herein leased necessary to the operations thereon, the right of way over and across said premises to the place of operating, together with the right to lay pipes to convey all oil or gas from this farm, the right to remove any machinery or fixtures placed on the said premises by the said lessee, his heirs or assigns, provided that such removal shall not take place until all rents or royalties due under this lease have been fully paid. The said second party hereby agrees for himself, his heirs and assigns, to pay any damage done to growing crops by the laying of pipes by him, his heirs or assigns. It is also agreed between the parties hereto that should any well drilled by said party of the second part fail to produce gas or oil in paying quantities then and in that event said second party shall at his option be released from liability to drill additional wells, and in case he should so elect, he shall at once give said party of the first part notice of this fact, and thereupon all rights granted under this lease shall cease and determine so far as the same affects the land described except as to paying wells drilled and one hundred acres of land immediately adjacent and surrounding each of said wells. Three hundred feet each way surrounding the buildings ón said premises are hereby reserved from being operated by said second party unless said first party decides to have it drilled. Operations to be conducted so as to interfere the least with farming privileges. Said lessee further agrees to pay the sum of one hundred dollars per month in advance, beginning with the date hereof, so long as he occupies said premises, until gas or oil is found in paying quantities, after which payment is to be made as above provided. All gates and fences opened by said lessee, his heirs or assigns are to be kept in good order, and so used as not to injure or damage the land or crops thereon. Any increase of taxes occasioned by this lease to be paid by the lessee. All springs in use by tenants are to be protected from injury occasioned by operating under this lease. It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors and assigns.”</p> <p>After the devises above recited, testator left the residue to his three children to be equally divided between them.</p> <p>The court entered judgment for plaintiff for $207, in the following opinion, after reciting the facts, by Ewing, P. J.:</p> <p>“ The lessee paid the rental of $100 per month until he obtained oil in paying quantities. This rent was divided between James Gormley’s devisees in proportion to their average, up to the time oil was obtained. Operations began after the death of James Gormley.</p> <p>“ The lessee, exercising his discretion, has drilled several wells, all but one of which are on the portion devised to James T. Gormley, the defendant. He is not bound under the lease, to bore on any other portion of the land. The devisees on the other part of the land cannot bore for oil on their own land. They are bound to submit to passage over their land for pipes or access, and to all conditions of the lease. How should the oil or royalty be distributed ?</p> <p>“ At first impression it would seem that it should belong solely to the owner of the portion on which it is brought to the surface ; were it coal or iron ore or other substance similar, both law and equity would so award. But oil and gas are not produced solely, nor do they necessarily come, from beneath the surface where they are brought to light. It is a well-known fact, notorious to those familiar with it, that oil and gas brought to the surface by one or a series of wells, come largely from surrounding territory, — that a few wells judiciously put down in a small space will usually drain a large extent of land, and exhaust the deposit far from the point at which the drill has struck the oil.</p> <p>“ A great value of the lease or grant in question lies in the fact that there is an exclusive right to take the oil and gas from this large tract of land, and that the grantor is only required to put down six wells in all, in his own location, and bide his time for exhausting the oil from the whole tract.</p> <p>“ To give the entire royalty to one of the devisees under these circumstances would be inequitable. We do not consider it to be the law governing the case. The whole tract when devised in severalty to the three, was burdened by this previous grant. It is a common burden. The benefits should be shared. Had there been a lease on the whole tract for ten years, the rent reserved being one half the grain raised on 150 acres, to be put in wherever the tenant chose on the whole tract, (he to have pasture, timber, meadow, building, etc., on the whole tract,) and the tenant in full possession should see fit to do all his cropping on the portion devised to Mrs. Wettengel — surely she would not be entitled to all the rent thus derived from the whole tract. Yet, it would be no more inequitable than to give all the royalty in the present case to one devisee. We do not see that it is important to determine whether this royalty be rent, or product, or a part of the land, or whether the contract be a lease or a grant of an interest in the land — the governing facts and the principles are' the same.</p> <p>“ It may be, probably is, the fact, that there is a temporary inconvenience to the owner of the portion of the land on which the oil is brought to the surface. If so, there should be some reasonable allowance therefor, but that point is not suggested in the case stated, nor have we any information relative thereto.</p> <p>“ The oil furnished to the defendant as royalty on oil produced under the lease should be divided in proportion to the average held by each of the devisees.”</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeal, No. 298, Jan. T., 1893, by plaintiff, Harry Hoffmeister, from judgment of.C. P. No. 1, Phila. Co., Dec. T., 1890, No. 148, entering compulsory non suit.</p> <p>Trespass for death of plaintiff’s wife. Before Biddle, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 61, July T., 1892, by plaintiff, from judgment of C. P. No. 4, Pliila. Co., Sept. T., 1889, No. 923, M. L. D., on verdict for defendant. Sci. fa. sur municipal claim for taxes. At the trial, it appeared that the Masonic Home was incorporated under the act of May 6, 1871, P. L. 615. On April 14, 1884, the Home of Free and Accepted Masons of Pennsylvania was incorporated by the Court of Common Pleas of Philadelphia county.

<p>Ownership of railroad bonds — Evidence—Delivery—Sealing in envel- — Dectorafebras against interest — Question for jury.</p> <p>In an action by an executor against a railroad company to recover the principal and interest of twenty-four bonds, there was evidence that the bonds were found in a desk in testator’s room, in a sealed and stamped envelope addressed to the railroad company in a handwriting other than testator’s; that all of testator’s other securities were kept with a trust company; that the bonds were fourteen years overdue at the time of testator’s death, and only the first coupon had been removed; that the bonds ran for twenty years, and all others of this issue had been paid at maturity; that, shortly after the original issue of the bonds, the railroad company being in need of money, authorized the bonds to be pledged for the payment of the personal notes of the directors (of whom testator was one) made for the use of the company; that twenty-four bonds had been pledged to a bank to secure testator’s notes; that these notes had been paid by the company, and testator had secured the bonds from the bank. There was no evidence that the bonds were the same as the ones found in testator’s desk. Held, that there was sufficient evidence from which a jury might infer that the bonds were the property of the company, and that it was error to withdraw the case from the jury.</p> <p>In the above case the sealing of the bonds in an envelope addressed to defendant company was a declaration against testator’s interest as to the ownership of the bonds, and indicative of an intention to deliver them to the rightful owner.</p> <p>Evidence — Inferences of fact.</p> <p>Inferences of fact are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind without the aid or control of any rules of law whatever, and such inferences are to be drawn by the jury, and not by the court.</p> <p>Coupons attached to bond — Statute of limitations — Act of 1713.</p> <p>The statute of limitations cannot be set up to prevent a recovery upon coupons which have not been detached from bonds; nothing can avail to defeat a recovery upon them but the presumption of payment which the law allows at the end of twenty years. Such a presumption however may be rebutted by evidence of nonpayment.</p> <p>Not decided whether the statute of limitations may be pleaded against coupons detached from bonds, and in the hands of another than the holder of the bonds.</p>

Appeal, No. 468, Jan. T., 1893, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1892, No. 178, on verdict for plaintiffs, Francis Schnatz et al. Trespass for death of plaintiffs’ mother. Before Blddlb, J. At the trial, it appeared that Ellen Devine, plaintiffs’ mother, was killed in an accident on defendant’s railroad on Oct. 24, 1892. There was no dispute as to defendant’s negligence. The only contest was as to plaintiffs’ standing to sue.

Appeal, No. 136, July T., 1894, by Juliet D. Man, from decree of O. C. Phila. Co., April T., 1890, No. 37, distributing the estate of. Daniel Man, Jr., deceased. Exceptions to adjudication of account of Real Estate Title & Trust Co., substituted trustee.

<p>Road law — Change of grade of street — Cutting off ingress and egress— Consequential damages — Constitution, art. 16, sec. 8.</p> <p>Article 16, section 8, of the constitution of 1874, which provides that compensation shall be made for property injured or destroyed by public works, is not limited merely to property fronting or abutting on the particular works, highway or improvement by the construction or enlargement of which the property is injured or destroyed, but applies to any works which are sufficiently near to the property to make the injury proximate, immediate and substantial.</p> <p>Plaintiffs’ houses fronted on a street running along the line of a railroad. Two other streets crossed at grade the railroad, and the street upon which the houses were situated. To avoid the grade crossings the city depressed the two cross streets fifteen feet, so that the streets could go-under the railroad. Access to plaintiffs’ houses by vehicles was thus entirely cut off. Held, that plaintiffs were entitled to recover damages from the city for the depreciation in the value of their houses.</p> <p>Damages — Release—Evidence.</p> <p>In the above case, where the proceedings were as to one of the streets, it was not improper upon plaintiffs’ releasing damages as to the other street in other proceedings, to admit testimony tending to show the damages resulting not merely from lowering the grade of one of the streets, but from changing the grades of both streets.</p>

<p>Railroads — Grossing of one railroad by another — Act of June 19, 1871.</p> <p>The practicability of overhead crossings depends almost entirely upon the circumstances of each particular case. Among the factors to he considered are the location and surroundings of the proposed crossing, the character of the railroads, and the uses made and intended to he made of them, the increased cost of construction, and expenses of operation, the public safety and convenience, and the interests and convenience of the road intended to be crossed.</p> <p>Four grade crossings within eight miles will not be permitted where it is reasonably practicable to construct overhead crossings at a cost of from $1.2,000 to $15,000 for each crossing.</p>

<p>Appeal, No. 23, Jan. T., 1893, by plaintiff, Matthew Keng, from judgment of C. P. Delaware Go., June T., 1890, No. 121, entering compulsory nonsuit.</p> <p>Trespass for death of plaintiff’s wife. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Negligence — Street railways — Duty of driver.</p> <p>While it is the duty of a street car driver to be on the lookout for obstructions, whether persons or vehicles, on the track, he may for an instant turn his head to ascertain from a person on the sidewalk whether he desires to take passage, and in doing so he is not necessarily guilty of negligence.</p> <p>Where a child is run over by a street car, and the evidence is conflicting as to the length of time the child was on the track and whether the driver could have seen it, had he been looking at the track, in time to stop before, reaching it, the ease is for the jury.</p> <p>The mere fact that a child of tender years places itself in a dangerous position on a railroad track, will not relieve the railroad company from liability for an injury to the child, if the negligence of the company has contributed to the injury.</p> <p> Contributory negligence of parent of child. </p> <p>A boy twenty months old was run over by a street ear. The mother of the boy was a young married woman who did her own housework. Just before the accident the mother left the child in the kitchen to accompany some parting callers to the front door. While standing at the front door and talking to her visitors the child came from the kitchen through the house, passed its mother at the door, crossed the intervening sidewalk and street, a distance of about twenty-eight feet, to the farthest track of the railway, where, in immediate view of the mother, it was killed. The mother did not know it was her own child until after the accident. Held, that the mother was guilty of contributory negligence, and that neither she nor her husband could recover for the loss of the child.</p>