Volume 161 — Pennsylvania State Reports

<p>Appeal, No. 199, Jan. T., 1894, by plaintiff, Hannah S. Arnold, from judgment of C. P. Northampton Co., April T., 1893, No. 31, entering compulsory non-suit.</p> <p>Trespass for personal injuries. Before Reeder, 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>Practice — Pleading—Statement—Act of May 25, 1887.</p> <p>Under the act of May 25, 1887, P. L. 271, a statement should contain all the ingredients of a complete cause of action averred in clear, express, and unequivocal language, so that if the defendant is unable to controvert or deny one or more of the material averments of claim, a judgment in default of an affidavit or sufficient affidavit of defence may be entered and liquidated.</p> <p>Where suit is brought to recover damages for particular breaches of a parol contract involving a number of stipulations, there must be an averment, not only as to the aggregate loss, but specific statements of the dam age sustained in the several distinct particulars</p>

<p>Appeal, No. 385, Jan. T., 1894, by plaintiff, Adaline Carpenter, from judgment of C. P. Lycoming Co., Dec. T., 1893, entering nonsuit.</p> <p>Assumpsit on policy of life insurance, assigned to plaintiff. Before Albright, P. J., of the 31st district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting bills of exceptions and evidence, partly reviewed in the opinion of the Supreme Court; (3) refusal to take off nonsuit.</p>

<p>Appeal, No. 419, Jan. T., 1894, by the Keystone Watch Case Company, a creditor, from decree of C. P. No. 3, Phila. Co., Dec. T., 1893, No. 993, restraining sheriff’s sale of property of the Phila. Optical & Watch Co. et al. at suit of Pairpoint Mfg. Co. et al.</p> <p>Bill to restrain sheriff’s sale. Before Finletter, P. J.</p> <p>From the record it appeared that, on Jan. 10,1894, judgment was entered bjr confession against the Phila. Optical & Watch Co. in favor of the Keystone Watch Case Có. On Jan. 20, 1894, a bill in equity was filed to the same term and number, by common creditors, praying for an injunction to restrain the execution which had issued upon the judgment confessed, and for the appointment of a receiver. Under this bill the Guarantee Trust & Safe Deposit Co. and James Work were appointed receivers. Subsequently, to the same term and number, the receivers filed a petition in which they set forth their own appointment by the Court of Common Pleas No. 3, and by the chancellor of New Jersey. The petition further averred:</p> <p>“That the Philadelphia Optical & Watch Co. was a New Jersey corporation and had for some time carried on business in the city of Philadelphia and elsewhere. That on Jan. 10th a foreign attachment had issued against the Philadelphia Optical & Watch Co. at the suit of Charles C. Harrison, and the property of the said company at its place of business, No. 916 Chestnut street, Philadelphia, had been attached; and that a rule to dissolve the attachment was pending.</p> <p>“ That on Jan. 10, 1894, a judgment was entered by confession in favor of the Keystone Watch Case Co., and a fi. fa. thereon issued and levy made by the sheriff.</p> <p>“ That on Jan. 10,1894, sundry other judgments and fi. fas. against the Philadelphia Optical & Watch Co. were entered and issued in the Court of Common Pleas No. 3, of Phila. Co.; and that sundry additional writs of foreign attachment had also issued upon the above-mentioned judgments. That the sheriff had advertised for sale the goods levied upon by him.</p> <p>“ That the petitioners had been notified by the plaintiffs in the bill in equity under which they were appointed receivers that certain, if not all, of the above judgments effected preferences, and as against other creditors of the Philadelphia Optical & Watch Co. were fraudulent in law; and that should a sale of the property be allowed to proceed the same would be sacrificed and the proceeds thereof would be distributable in violation of the rights of said creditors.”</p> <p>The petition prayed, (1) That the appellant and the other judgment creditors be restrained from further proceeding with their executions. (2) That the property be sold by the receivers. (3, 4) That the judgment and attaching creditors stand unprejudiced so far as entitled to come in on the proceeds of said sale; and that distribution be made of such proceeds under direction of the court.</p> <p>The court entered a decree enjoining the sale, and directing the sheriff to deliver the property levied upon to the receivers, and directing the receivers to sell the property.</p> <p>Error assigned was decree as above.</p>

Appeal, No. 189, Jan. T., 1894, by plaintiff, Richard Gundelsweiler, by his father and next friend, Joseph Gundelsweiler, from judgment of O. P. No. 4, Phila. Co., March T., 1898, No. 741, entering nonsuit. Trespass for personal injuries. Before Arnold, J. At the trial it appeared that defendant company manufactures and purchases camphor or napthaline balls. These balls are in commercial use for the purpose of protecting clothing and furs from destruction by moths.

Appeal, No. 176, Jan. T., 1894, by plaintiff, Hugh Rooney, from judgment of C. P. No. 1, Phila. Co., June T., 1890, No. 273, entering nonsuit in favor of defendants, George Carson and George D. Irwin, trading as Carson & Irwin. Trespass for personal injuries. Before Biddle, J. At the trial it appeared that, on Nov. 29, 1889, plaintiff was injured in defendant’s mill.

<p>Appeal, No. 201, Jan. T., 1894, by plaintiff, Margaret Matthews, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1890, No. 537, entering compulsory non-suit.</p> <p>Trespass for death of plaintiff’s husband. Before Biddle, J.</p> <p>The facts of the case appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 213, Jan. T., 1894, by-defendant, Whilldin D. Halfmann, from order of C. P. No. 1, Phila. Co., Dec. T., 1873, No. 981, making absolute rule for judgment for want of sufficient affidavit of defence in favor of John Wesley Supplee et al. to use of John Born.</p> <p>Rule for judgment for want of sufficient affidavit of defence in sci. fa. to revive judgment, issued Sept. 26, 1893.</p> <p>The affidavit of defence was as follows :</p> <p>“ Prior to Nov. 29,1873, defendant had purchased from John W. Garrett a house and lot, No. 1617 Oxford street, Phila. The negotiation for the purchase of said house was transacted through John Born, who acted as agent in the matter for the seller. The deed for said premises was made to defendant prior to the completion of said house, and, under the terms of the contract of purchase, defendant paid for said property from time to time as the work on the building progressed.</p> <p>“ Upon the date when the note in suit was executed, the said John Born informed defendant that the sum of $800 was required to be immediately paid to the mechanics working upon and furnishing material to the said property. The said John Born stated to defendant that if it was not convenient for him to pay the cash immediately, he, the said John Born, could use a note for the purpose of paying said mechanics and protecting the property from liens. Thereupon defendant executed a promissory note upon which the suit in the above entitled case was brought, which said note, defendant is informed, verily believes and expects to be able to prove upon the trial of this cause, was drawn to the order of the said John Born. The said John Born failed to apply said note for the purposes agreed to, and upon the faith of which defendant delivered the same to him, and in fraud of his rights and without the knowledge of the said defendant, delivered said note to John Wesley Supplee and William H. Lukens, trading as J. W. Supplee & Co., legal plaintiffs in this suit, prior to the maturity thereof, for a valuable consideration, by reason whereof defendant was barred from presenting a legal defence thereto or setting up the fraudulent conduct of the said John Born. Suit was entered by the said J. W. Supplee & Co. against defendant upon said note. Defendant consulted counsel and was advised that in the hands of said J. W. Supplee & Co. a defence to said note by reason of the conduct of the said John Born was not available. Judgment was entered thereupon, for want of an affidavit of defence, against defendant, Dec. 20, 1878.</p> <p>“ Defendant had no business transactions of any character whatever with the said firm of J. W. Supplee & Co., and was not indebted to them.</p> <p>“ On March 1, 1893, said judgment by order of plaintiffs was marked to the use of said John Born, who is now the legal holder and use plaintiff thereof. Defendant avers that there is nothing due by him to the said John Born by reason of said note, the judgment thereon, or upon any account whatsoever; that said note upon which judgment was entered was placed in circulation by him in fraud of the rights of defendant, and that said judgment should not be revived in favor of the said John Born.</p> <p>“ Deponent is compelled to state the payee’s name, to the best of his knowledge and belief, because said note, as well as the declaration thereon, has been removed from the record of your honorable court by persons to this deponent unknown.”</p> <p>Rule for judgment absolute. Defendant appealed.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 211, Jan T., 1894, by defendant, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1892, No. 335, on verdict for plaintiff, Thomas Walters.</p> <p>Trespass for personal injuries. Before Finletter, P. J.</p> <p>At the trial it appeared that plaintiff was injured while attempting to get on a street car. He testified in part as follows:</p> <p>“ On Friday, March 13, 1891, I was coming down to the city, and I stopped at Thirty-second street, in West Philadelphia, and waited for a car. I saw a car coming, and I hailed the car and tried to board it. It gave a jerk and I slipped. I went to save myself and caught ahold of the handle, and the step pulled me under, and I hurt my shoulder, and arm, and side, and hip, and my knee. . . . Q. Did you, or did you not, say that the car stopped? A. It did stop. Q. The car stopped? A. It stopped, and when I fell off the conductor pulled me on again.”</p> <p>The gripman, the conductor and two passengers testified that the car was moving when plaintiff attempted to get on.</p> <p>The court charged in part as follows:</p> <p>“ You have heard the testimony of the witnesses, and you have had an opportunity to observe their manner while on the stand. The presumption is that every witness who appears upon the stand intends to tell the truth, but it does not always follow that, because a witness intends to tell the truth, he does tell the truth. Very much depends upon the position that he occupies in relation to the case in which he is called upon to testify, and therefore, even when it appears in the case that witnesses contradict each other, positively and flatly contradict each other, you should be cautious in arriving at the conclusion that either has committed perjury, or intended to commit perjury. [The jury should, at all times where testimony is conflicting, endeavor to reconcile it, and, if possible, come to the conclusion that the witnesses intend at least to tell the truth, although there is evidence of such a character as to impress the jury unfavorably.] [1]</p> <p>“In this case you have heard the witnesses for the plaintiff and the defendants, and it is your duty carefully to consider all that each of the witnesses said, and consider the testimony of each witness in the light of the testimony of all the other witnesses and the circumstances of the case.</p> <p>“ Of course, from what I have said to you, you will see that [the important question in this case is whether or not the car had stopped or had come to such a condition of stopping as to induce the passenger to believe that it was about to stop, and if it had come to such a condition, and if he had come to that conclusion and he was about to enter and it was started before he had got fairly into the car, and an accident occurred in consequence thereof, he is entitled to recover.] [2] If he attempted to get upon the car whilst it was running, as one of the witnesses said, from eight to nine miles an hour, or running at the usual speed, of course he is not entitled to recover.</p> <p>“ If you arrive at the conclusion that the car was in motion and was not in that condition of motion which would induce any reasonable man to get on, then the plaintiff cannot recover. [If, however, you should come to the conclusion that it had stopped, or was in the act of stopping, or was in such a condition of running or stopping as induced the plaintiff to think it was about to stop, then he had a right to get on, and if the car started before he was safely seated in the car, and an injury resulted therefrom, then your verdict should be for the plaintiff. If you come to that conclusion, then you must consider the compensation he is entitled to for the injuries which he has received.] ” [3]</p> <p>Verdict and judgment for plaintiff for $1,500.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

Appeals, Nos. 253, 254 and 255, by plaintiff, City of Philadelphia, to use of Parker & Smart, from judgment of C. P. No. 4, Phila. Co., March T., 1892, Nos. 116, 117 and 118, for defendant, Charles W. Henry, non obstante veredicto. Scire facias sur municipal lien. Before Willson, J. At the trial it appeared that in 1890, the city of Philadelphia changed the grade of Broad street northward from the Connecting Railway.

<p>Appeal, No. 182, Jan. T., 1893, by -defendant, from judgment of C. P. Washington Co., Nov. T., 1892, No. 476, on verdict for plaintiffs, William and Thomas Denniston.</p> <p>Appeal from report of viewers awarding damages for construction of pipe line for gas. Before McIlvaine, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were, (1) in permitting Joseph Estep to testify as to amount of depreciation of farm; (2) in permitting W. F. Morrison to testify as to the places and character of leaks .in pipe line and as to effect on grass, etc., quoting bills of exceptions and evidence; (3) as stated in the opinion of the Supreme Court.</p>

<p>Lease — Oil lease — Rental—Forfeiture.</p> <p>An oil lease, “ for the purpose of drilling and operating for oil and gas,” provided that the lessee should hold the leased premises during the term of two years from the date thereof, and as much longer as oil and gas were found in paying quantities or the rental paid thereon. The lessor was to receive one eighth of the oil produced and five hundred dollars per annum for each well from which gas should be obtained in paying quantities, and so long as it should be sold therefrom. The lease further provided that the lessee should commence a well within thirty days and complete it within ninety days, “or in default thereof pay to the party of the first part for further delay an annual rental of sixty dollars payable quarterly in advance on the premises from the time above specified for completing a well, until such well shall be completed. A failure to complete such well or pay said rental within the time specified or within ten days thereafter shall render this lease null and void.”</p> <p>Held that the failure of the lessee to complete a well within the term of two years enabled the lessor to terminate the lease on the expiration of it, and that the lessee could not indefinitely continue the lease by payment of sixty dollars per annum after the expiration of the two years.</p>

<p>Appeal, No. 97, Oct. T., 1893, by-defendants, Edward Fried et al., from judgment of C. P. No. 2, Allegheny Co., July T., 1892, No. 167, on verdict for plaintiff, M. Y. Taylor.</p> <p>Assumpsit for goods sold and delivered. Before Ewing, P. J.</p> <p>The facts appear by the opinion of the Supreme Court. W. P. Black, one of the defendants, was not served.</p> <p>The court charged as follows:</p> <p>“ In this case Mrs! M. Y. Taylor seeks to recover from Edward Fried, Jeremiah Miller, Lewis Sands, Lee Phillips, O. G. Glatzau and W. P. Black, for a boiler furnished at an oil well at McDonald, also for some casing furnished there. They were furnished, it seems, on the order of a man named Robert Black, professing to be superintendent at the well.</p> <p>“ The boiler, if you believe the uncontradicted testimony, was used on the ground; the casing, though, was not, and was not intended to be used there. The agent who sold it alleges that this man told him the casing was to be used to repay some casing they had borrowed to put in the well. We do not think there is sufficient evidence to go to the jury as to the casing. Where it went we do not know. It was not the business of the superintendent to buy that unless it was to be used in that well. But, as to the boiler, there is uncontradicted evidence that it was taken to the well and used there.</p> <p>“ There is evidence to go to the jury that each of these defendants was interested in the well. It is admitted that the defendants, Miller, Sands and Phillips, were interested in the well, and it seems that they got their share of the oil. But that is simply one fact for you to consider. It is not sufficient to hold them. There is evidence also that W. P. Black and Glatzau were interested in the well. There is evidence here that they made the contract to drill the well. It may be that Glatzau was simply one of those men who want to talk big and make a show of having something, when they really do not have it, but it is more likely that he had some interest at that time In the division of oil neither Glatzau nor Black is shown to have got any oí it; but Emerson & Co., who did not appear in any other way, did.</p> <p>“ There must be a joint liability to entitle the plaintiff to recover here. [If the defendants, each being a part owner of this well, made W. P. Black, who, it seems, had an interest at that time, their agent to drill this well for himself and them, and each was to pay a proportionate share of the expenses and have a proportionate share in the proceeds of the well, we think that would constitute them partners in this case and make them liable.] [1] If, however, there was an independent contract that Black himself was to be responsible for the drilling of this well, and he alone, they would not be liable to parties who furnished Black goods. As you find that fact your verdict should be for the plaintiff or defendants, for the price of this boiler.</p> <p>“ [The defendants who have been on the stand, claim that they bought an interest from Black, that he was to put down the well and that they were to pay him a proportionate share of the expenses. The precise agreement, as testified to by them, was only verbal. There was no written agreement, and the testimony seems to us a little shadowy on this point, they being interested in the proceeds of the well, or the result of it, and bound to pay a proportionate share of the expense of it, and this other man, a part owner, to put it down. There ought to be a clear showing that their bargain was that Black should do this as a principal, and not as agent], [2] but if you find he was to do it for them as principal you will find for all the defendants except Black, and you will find a verdict against Black alone, but if you find he was their agent in putting the well down, then they are liable for the boiler, but not for the easing.”</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them; (3) entry of judgment.</p>

<p>Appeal, No. 130, Oct. T., 1893, by defendant, Margaret Corrigan, executrix of James Corrigan, deceased, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1892, No. 472, on verdict for plaintiffs, Peter P. Murphy and Mary S., his wife, in right of wife.</p> <p>Assumpsit for domestic services. Before McClung, J.</p> <p>At the trial plaintiff claimed to recover for services rendered to her father as housekeeper. The evidence showed that prior to 1888, plaintiff, with her two illegitimate children, lived with her father and kept house for him. In 1888 plaintiff married Peter P. Murphy. All of the family continued to live together until 1890, when the father went to board at a hotel, and in April, 1891, married Margaret Hughes. By his will he left $2,000 in trust for his daughter for her life. Plaintiff sought to establish an express contract on part of her father to pay her wages, and for this purpose called five witnesses.</p> <p>The substance of the testimony is stated in the opinion of the Supreme Court.</p> <p>The evidence of Mrs. Haney in cross-examination, referred to in the opinion of the Supreme Court, but not quoted, was in part as follows: “ A. He came, and was telling me something ; he was irritable and cross ; Mollie had been crying and wanting clothing or something from him, and he had refused, and she told him that he ought to give her wages, — that he must give her wages, or if he refused to give her wages, she would leave and go and live out and get wages elsewhere; and he wouldn’t permit her to go; he said he would give her wages and good wages; he would give her all he was worth, but she must wait until his death. He was miserly and wanted to hold on to the money while he lived. . . . Q. Then why do you say that she wanted and how do you know that she wanted wages ? A. I told you he told me so. Q. She wasn’t present ? A. No, sir; he came right over from where she had been crying, and demanding wages from him, — wanting wages. Q. And he told you that she had been crying? A. And wanted wages, yes, sir. Q. And did he tell you that he didn’t give her any ? A. Yes, of course, he told us that he said that he would give her all in lieu of wages, but she must wait. Q. Was Mrs. Murphy present at any of these conversations ? A. No, I think not, because when he would come over to our house, he didn’t bring her with him. Q. Did he say to you what he had told ■her? A. Yes, he said he told her that she would have to wait for wages until his death, and then she would get all he was worth.”</p> <p>Binding instruction for defendant was refused. [1]</p> <p>Verdict and judgment for plaintiff for $2,800.</p> <p>Error assigned was above instruction, quoting it.</p>

<p>Contract — Freight—Variation—Allowance to charterer.</p> <p>Plaintiffs sold to deféndant iron ore to be shipped from the Island of Elba, and delivered free on board cars in this country. The price was to be “ eleven and a half cents per unit of metallic iron per ton of twenty-two hundred and forty pounds of ore.” *The contract provided that “ the above price is based upon a rate of ocean freight of eleven shillings per ton, the buyers to receive or pay any differences; such differences to be settled by their receiving or paying actual differences between eleven shillings and the rate of freight paid on deliveries to them.” Held that the words “such differences” referred to differences in the rate of ocean freight, as freight, and not to freight charges as diminished by dispatch money. In such a case the seller was to deliver free on board cars, and to assume all expenses, and all risks except the risk of freight strictly sc called. Ennis v. Pennsylvania Steel Co., 151 Pa. 138, applied.</p>

Appeal, No. 158, Jan. T., 1894, by plaintiff, Joseph H. Shermer, from order of C. P. No. 4, Phila. Co., Sept. T., 1893, No. 296, making absolute rule to open judgment against defendant, Joseph Paciello. Rule to open judgment on warrant of attorney in lease.

Appeal, No. 117, Jan. T., 1894, by defendant, from judgment of C. P. No. 4, Phila. Co., Dee. T., 1892, No. 644, on demurrer in favor of plaintiff, Richard Righter. Demurrer to plaintiff’s statement.

Appeal, No. 424, Jan. T., 1894, by Anna M. Ritter from decree of O. C. Montgomery Co., distributing estate of William J. Ritter, deceased. Exceptions to adjudication. From the report of the auditor, Edward F. Kane, Esq., it appeared that William J. Ritter died intestate on April 9, 1891, leaving to survive him a widow and three minor children.

<p>Appeal, No. 78, Jan. T., 1894, by defendant, Samuel E. Nyce, Committee, etc., of Edward Malone, a lunatic, from judgment of C. P. Montgomery Co., March T., 1892, No. 155, for plaintiff, on case stated.</p> <p>Case stated.</p> <p>The case stated was as follows:</p> <p>“ Edward Malone, the above named lunatic, being then sane and a pauper without means, was admitted to the almshouse of Montgomery county on May 24, 1877, and remained there for two months and twenty-seven days, to wit: until Aug. 20,1877, when he was discharged. He was again admitted on Oct. 12, 1877, and remained there for a period of ten years, seven months and twenty-six days, to wit: until June 7, 1888, when having become insane he was removed by the said plaintiff from the said almshouse to the hospital for the insane at Norristown, where he still continues an inmate thereof. During all the said time he was in the said almshouse, he was there as a pauper inmate of said institution. In June of 1891 Jane Malone of the city of Philadelphia died; by her last will and testament duly approved giving a legacy amounting to $8,100 to the said Edward Malone, which said sum came into the hands of the said Samuel E. Nyce as .the committee of him. The plaintiffs claim to recover the sum of $1,956, being for board and cost of maintenance for the period of 561 weeks in said almshouse at $3.00 per week, and for board and costs of maintenance for 156 weeks at $1.75 per week in said hospital for the insane. The defendant pleads non assumpsit, non assumpsit infra sex annos. Since June 7, 1891, the said Edward Malone has been maintained out of his own estate.</p> <p>“ If upon these facts and under said pleas the court shall be of the opinion that the plaintiff is entitled to recover, then judgment to be entered for the plaintiff for such sum as the court shall determine. Otherwise,” etc.</p> <p>The following opinion was filed by Swartz, P. J.:</p> <p>“ Numerous authorities may be cited to show that at common law supplies furnished to a pauper are gratuities, for the payment of which no promise is implied: Deer Isle v. Eaton, 12 Mass. 328; Stow v. Sawyer, 3 Allen, 515; Kennebunkport v. Smith, 22 Me. 445; Albany v. McNamara, 117 N. Y. 168 ; Benson v. Hitchcock, 37 Vt. 567; Charlestown v. Hubbard, 9 N. H. 195.</p> <p>“ It is true where one voluntarily furnishes food to another, the contractual relationship of debtor and creditor does not arise. Whether this principle should have any application where the supplies must be furnished upon the demand of the pauper, is not so clear. Why should the recipient of the supplies under such circumstances escape payment when in funds ? If he is compelled to pay he simply does that which in good morals he ought to do voluntarily. His payment enables the county to enlarge its liberality in other needy cases. It is said that such repayment is in conflict with the policy of our poor laws and our idea of charity. But it seems to us there is something radically wrong with the theory that a patient may lea vean institution with a large estate of his own in his pocket without any legal obligation resting upon him to pay for the food he consumed. Such treatment of the patient is not calculated to stimulate his honesty or improve his citizenship. Nor does the demand for reimbursement under such circumstances detract from the charity. If the pauper receives the maintenance-upon the condition that he shall pay when able, it answers his needs just as much as if there were no obligation to pay under any conditions.</p> <p>“Whether there is any obligation to pay without a statute creating the liability is immaterial, for our act of 1836, by section 83, fixes the obligation to pay. The act declares, ‘it.shall be lawful for the directors of the poor of any county and for the overseers of any district, as the case may be, in which any person shall have become chargeable, to sue for and recover any real and personal estate belonging to such person, and to sell or otherwise dispose of the personal property, and to collect and receive the rents and profits of the real estate, and to-apply the proceeds or so much thereof as may be necessary to defray the expenses incurred in the support and funeral of such person.’</p> <p>“ If this act does not cover the case before us it is difficult to see the purpose of the enactment. The man who has an estate sufficient to provide for his maintenance at the time he makes application for charity, is not in fact a pauper, and the authorities are not obliged to furnish the support. If he gains admission through false statements his estate is liable without any statutory provision. Stow v. Sawyer, 3 Allen, 515; 11T N. Y., supra. There are no doubt cases of emergency where it is the duty of the authorities to furnish aid before there is-any opportunity to inquire into the condition of the man’s estate, but it cannot be that the act was intended to protect the county against these exceptional cases alone.</p> <p>“ The act declares that the directors of the poor may take the estate to ‘ defray the expenses incurred;’ they are not limited to the expenses which may be incurred in the future. Nolis there anything in the act limiting them to the property which the pauper had at the time the expenses were incurred. The act seems to contemplate a case similar to the one before us. The ‘person shall have become chargeable,’ that is, he was •chargeable at the time he was admitted because he had no estate ; the estate is to be applied to expenses incurred, not the ■estate which he had when the supplies were furnished, because then he had no estate at all and by reason of that fact became a charge.</p> <p>“ An act was passed in Massachusetts Feb. 24, 1818, wherein it was provided ‘ that the inhabitants of any town or district within this commonwealth, who have incurred expenses for the support of any pauper, whether he was legally chargeable to them by means of his settlement or not, may recover the same ■against such person, his executors or administrators in an action of assumpsit, for money paid, laid out and expended for his use.’ Under this law the pauper was liable, and it does not appear that any exception was made in his hehalf if he happened to be without estate at the time the relief was furnished: Gfroveland v. Medford, 1 Allen, 23; Medford v. Learned, 16 Mass. 215. Our act is as broad as the law just cited. It is true, under our law the directors of the poor can only sue for the property which belongs to the person chargeable, but the power to sue where there is no property is of little value.</p> <p>“ Under the law the poor district has a direct recourse to the relatives bound to maintain the pauper: Wertz v. Blair County, 66 Pa. 18. And where, in such case, suit is brought for past maintenance, the present ability of the relative to pay seems to be the limit of the inquiry. We know of no case where the ability to pay at the time the relief was furnished was made the test of liability. It would certainly be a hardship to relieve the person under such circumstances who received the aid, and compel the relative to pay who may be less able at the time than the pauper himself.</p> <p>“ The act of 1836, so far as it provides for the reimbursement of the poor directors, is a remedial statute and should therefore receive a liberal construction. We are satisfied that under it the plaintiffs are entitled to recover from the committee for the support furnished at the almshouse.</p> <p>“ The act of April 8, 1861, P. L. 249, gives the directors of the poor right to recover the moneys expended at the insane asylum. The estate of the pauper is liable to the extent of its liability under the poor law: Lower Augusta Township v. Northumberland Co., 37 Pa. 143; Wertz v. Blair Co., supra.”</p> <p>Judgment for plaintiff for amount claimed for six years.</p>

<p>Appeal, No. 435, Jan. T., 1893, by defendant, Sarab Ann Gathers, from judgment of G. P. Montgomery Co., Oct. T., 1891, No. 178, on verdict for plaintiff, Sarah C. Medary.</p> <p>Appeal from justice of peace. Assumpsit against surety for vent. Before Swartz, P. J.</p> <p>At the trial, it appeared that in February, 1890, plaintiff leased a farm to George W. Beans. Defendant became a surety for the tenant. Default having been made in payment of the rent and an attempt to collect it from the tenant having failed, suit was brought against the surety.</p> <p>Defendant objected to the admission of the lease in evidence, because plaintiff stated that she did not see defendant write her name. [1]</p> <p>A rule of court provided that such an instrument might be admitted in evidence without proof of execution, if no notice were given that such proof would be required. No notice was given in this case. The lease was admitted.</p> <p>Defendant testified as follows : “ I am the defendant in this suit. Q. Under what circumstances did you sign this lease as surety ? ” Objected to. Mr. Long: My offer is to show that Mrs. George W. Beans came to her and asked her to become security on this lease, and said that Mrs. Medary was to give up entire possession and move with her daughter to New Jersey, and that Mrs. Cathers then said, “ T will go security, but Mrs. Medary must give up full possession.” The Court: The offer does not propose to show it was by fraud, accident or mistake that this was left out of the lease, or that this arrangement which may have been had with Mrs. Beans was communicated to Mrs. Medary. Objection sustained. Defendant excepted and bill sealed. [3]</p> <p>When G. W. Beans, defendant’s witness, was on the stand he was asked: “ Were there any other losses ? ” The Court: Objection sustained; unless the witness can show that the value of the premises as tenanted was diminished by reason of a failure to make repairs that were stipulated in the agreement, he cannot recover damages. He can only recover damages for a failure to repair according to the terms of his lease. Defendant excepted and bill sealed. [4]</p> <p>There was evidence that plaintiff occupied some rooms in the house on the farm with the consent of the tenant.</p> <p>The court charged in part as follows :</p> <p>“ [If Sarah C. Medary, the landlord, refused to give possession, then she did not carry out her part of the contract, and although he may have been willing to waive it, yet unless the defendant waived it there can be no recovery in this case.] [5] ....</p> <p>“ [If, however, you find there was a change of the contract, or if you find the owner of this farm refused or failed to give up possession when she was requested to do so, in either of those events there can be no recovery in this case. But if she was simply there occupying some rooms with the knowledge and consent and approval of the tenant, then that would not destroy this lease nor did it relieve the surety in this case from liability.” [6]</p> <p>Plaintiff’s points were among others as follows:</p> <p>“ 1. That under the law where there is no express agreement or stipulation in the lease to the contrary, the tenant and not the landlord is bound to do and pay for all necessary repairs, and in this case if the pig pen and barn needed repairing during Beans’s tenancy, it was Beans’s duty and not Mrs. Medary’s duty to put them in good repair. Answer: This is affirmed with this modification, that instead of saying that it is the duty of the tenant, in the absence of any stipulation to the contrary, to make necessary repairs, I would say ordinary repairs; and then it is not necessary that the tenant should put the premises in better condition than he finds them. He is only to make ordinary repairs, but so far as the barn and the pig pen are concerned I say to you that there is nothing before you which would justify you in deducting anything from the rent by reason of the defective roof or by reason of having the pig pen in an improper condition.” [7]</p> <p>“ 2. That if Beans consented to Mrs. Medary’s remaining on the premises in April and May, her remaining there is no bar to recovery in this suit. Answer: This is true, as I have already instructed you. If she remained there with his consent this fact would not prevent a recovery in this case, although, as I instructed you, it may reduce the claim in this case.” [8]</p> <p>“ 3. That the evidence in this suit shows that Beans did consent to Mrs. Medary’s remaining on the premises until the time she left. Answer: This is a matter for you, although I must say to you that there is no testimony in this case that he requested her to go or demanded her to go. But I cannot say that he either said that she should go or should not go, but she was there, and so far as this testimony goes there is no evidence that he requested her to go or that he demanded of her that she should vacate those rooms. Therefore I leave to the jury the question whether the evidence in this suit shows that Beans did consent to Mrs. Medary’s remaining on the premises until the time she left. I leave that matter to you.” [9]</p> <p>Defendant’s points were among others as follows :</p> <p>“1. If after the execution of the lease an arrangement was made between the plaintiff and the tenant, George W. Beans, and not communicated to the surety, Mrs. Oathers, by which the plaintiff retained possession of the premises, it will operate as a discharge of the surety and the verdict must be in favor of the defendant. Answer: This is true. Where there is a change of the contract without the consent of the surety, the surety is released; but the mere fact that the tenant allowed or agreed or consented to the remaining of Mrs. Medary for two months in this house and her occupying part of the rooms, would not constitute such a change or alteration in the contract as to relieve the surety.” [10]</p> <p>“ 2. The evidence being that plaintiff retained such possession of the premises without the consent of defendant, and the lease being for the possession of all the premises therein described, the defendant as surety is not liable and the verdict must be in her favor. Answer: This is refused, because this requests me to instruct you to render a verdict for the defendant. I cannot do this.” [11]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 3, 4) rulings on evidence, quoting bills of exceptions ; (2) refusal to enter nonsuit; (5-11) above instructions, quoting them.</p>

Appeal, No. 303, Jan. T., 1894, by defendant, Francis S. Haeseler, from judgment of C. P. Schuylkill Co., Sept. T., 1893, No. 8, on demurrer to answer to petition for writ of quo warranto. Quo warranto; demurrer to answer. Before Weidman, J. From the pleadings it appeared that, on Feb. 15,1893, Francis S. Haeseler was elected a school director in Pottsville. On the same day the school board met and elected him treasurer, and he accepted the office.

Appeal, No. 4, Jan. T., 1894, by defendant, Hampton L. Patterson, from judgméntof C. P. Berks Co., Dee. T., 1891, No. 32, on verdict for plaintiff, Webster Snyder, by his next friend and father, Almond F. Snyder. Trespass for bite of vicious dog. Before Endlich, J. At the trial it appeared that, on May 25,1891, plaintiff, a boy twelve years old, was bitten by a dog in the immediate vicinity of defendant’s residence.

Appeal, No. 109, Jan. T., 1894, by-defendant, from judgment of C. P. Berks Co., Dec. T., 1892, No. 35, on verdict for plaintiff, Walter G. Roland. Assumpsit for goods sold and delivered. Before Endlich, J. At the trial it appeared that, on May 8, 1892, defendant school district invited bids for free text-books for three years.

Appeal, No. 110, Jan. T., 1894, by defendant, from judgment of C. P. Berks Co., Dec. T., 1892, No. 36, on verdict for plaintiff, Walter G. Roland. Assumpsit for goods sold and delivered. Before Endlich, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 6, Jan. T., 1894, by plaintiff, Harry McNeal, from order of C. P. Sullivan Co., May T., 1890, No. 155, making absolute rule by defendant, Eliza EMcNeal, to open judgment. Rule to open judgment. Before Sittser, P. J. The facts appear by the opinion of the Supreme Court. The court made the rule absolute March 22, 1892. JError assigned was making rule absolute.

<p>Appeal, No. 173, Jan. T., 1894, by plaintiff, Margaret Ottersbach, from judgment of C. P. No. 1, Philadelphia Co., March T., 1893, No. 162, entering nonsuit.</p> <p>Trespass for death of plaintiff’s son.</p> <p>At the trial it appeared that, on Jan. 24,1893, plaintiff’s son, a boy about fifteen years old, was asphyxiated by illuminating gas escaping from a broken pipe into an outbuilding. The boy and his mother lived with the boy’s uncle at the corner of Diamond and Palethorp streets. The uncle was the owner of the premises.</p> <p>It was proven that, for about two weeks before the accident, a smell of gas, at times greater than at others, had been noticed by the uncle in this backhouse, in which there was no window.</p> <p>The door was closed when the boy was found.</p> <p>The uncle testified that he had noticed the smell over two weeks before the accident; that on the Sunday previous thereto he and his wife had been affected by it. No complaint was made by him, however, to the city authorities. He thus testified concerning a call at the house, by a man named Gibson, employed by the gas department of the city: “ On Jan. 19, on Tuesday, and between nine and ten o’clock, was my time to go out collecting, and as I was going out I met him; I seen him open the street in two different places. The first I noticed of it they were smelling round the vents in the neighborhood. They were smelling there to trace it, and as I came out I told the gentleman. I says, ‘ Just go in that water-closet and you will find plenty of gas,’ and he followed suit, and when he was in there he used those words; he says, ‘ Don’t strike no match and don’t take no candle in there or it will blow up,’ and I called my wife out at the same time and I gave her notice then what the gentleman had said, and he told her the same thing, and then I says to him — I explained the case to him, because the odor was more than bearable ; I could hardly stand it. I wouldn’t have complained, but he just happened to come up there. I told him then to follow it up; he saj's, ‘ I haven’t got the time; I have got to go some-wheres else ; but,’ he says, ‘ there will be a tracing gang sent here to-morrow ’ — that was on Wednesday — ‘ and they will follow that up until they find it.’ I then said, ‘ I wish you would.’ Q. You were going on to tell us what took place between you and Mr. Gibson? A. Yes, sir. I related the affair at home— that is, my wife and myself — and then I told him, I think, three times to attend to it. I asked them how soon it would be attended to. He said, ‘ I won’t be in before four o’clock, but there will be a tracing gang round here to-morrow morning, because there is lots of gas around here that ought to be attended to,’ and I asked him then if he thought it was illuminating gas, and he said yes. By Mr. Johnson. Q. Did the-tracing gang come ? A. No.”</p> <p>The aunt was present when Gibson called, and testified that all he said was, “We should not strike a match in the closet nor put no paper in, because it would set on fire and explode.”</p> <p>Plaintiff testified that she had never heard that any notice-had been given not to go into the water-closet. She also testified as follows: “ Q. Did you notice aiij*- odor around that place at the time? A. The gas? Q. Yes. A. Yes, sir. Q. What sort of smell was it ? A. It wasn’t sewer gas; it was burning gas. Q. Tell us about the smell you noticed — how great it was and sb forth? A. Well, it was for two weeks, about,that we had the smell in the water-closet, but certainly we didn’t think it would do the damage that it did do, but then it was sometimes greater than other times. . . . Q. Had you noticed the smell anywhere excepting in the outhouse? A. No, only in the outhouse.”</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 227, Jan T., 1894, by-defendant, Mary Y. Eyre, from judgment of C. P. No. 1, Phila. Co., March T., 1890, No. 78, on verdict for plaintiff, A. Lewis Smith. Assumpsit for money had and received. At the trial it appeared that plaintiff, a member of the bar, represented defendant in litigation which she had with the remainder-men in an estate of which defendant was life-tenant.

Appeal, No. 230, Jan. T., 1894, by defendants, Howard F. Conrow et al., trading as Conrow Bros. & Co., from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1890, No. 72, on verdict for plaintiff, Lewis M. Birch. Trespass for wrongful use of civil process. At the trial, before Biddle, J., it appeared that defendants had sold goods to S. R. Birch, who kept a store on Frankford avenue, Phila.

<p>Appeal, No. 17, May T., 1894, by defendant, from decree of C. P. Dauphin Co., No. 178, Equity Docket.</p> <p>Motion for rule to show cause why appeal should not be declared supersedeas, and restraining order be issued.</p> <p>From the record it appeared that on Aug. 28, 1893, plaintiff company filed a bill in equity praying the court for a decree to permit them to construct a crossing over the tracks of defendant company. After answer filed, and submission to a master, the court entered a decree permitting the crossing to be made. Defendant company took its appeal Feb. 24,1894, entered into recognizance in the sum of $8,000, which was the amount fixed by the court, “ conditioned to prosecute its appeal with effect, and, if the decree be affirmed or the appeal be discontinued or nonprossed, to pay all debts, damages and costs adjudged accruing upon such appeal, and all other damages and costs that might be awarded upon such appeal,” and a writ of certiorari was duly issued thereon from the Supreme Court.</p> <p>On March 2, 1894, notice of the talcing of that appeal and the entering of said recognizance was given in writing to plaintiff company. On March 5, 1894, plaintiff company gave notice that it would on March 15, 1894, proceed to construct its crossing over the lines of tracks of defendant company on Front street, at Adams street, in the borough of Steelton, and, to prevent this, defendant company filed its petition for an order, declaring the appeal in the case to be a supersedeas, and to restrain plaintiff company from proceeding to construct said crossing until defendant’s appeal should be decided and the record remitted to the lower court.</p>

Appeal, No. 405, Jan. T., 1894, by plaintiff, John C. Lowry, trustee for Arthur H. Williams’s Sons, from order of C. P. No. 3, Phila. Co., Dec. T., 1893, No. 1004, restraining proceedings upon execution against defendant. Petition to restrain sheriff’s sale. From the record it appeared that on Jan. 11,1894, judgment was entered by plaintiff on bond and warrant of attorney for $36,000 against the defendant. On the same day execution was issued.

Appeal, No. 248, Oct. T., 1893, by defendant, from judgment of O. P. No. 1, Allegheny Co., Sept. T., 1892, No. 64, on verdict for plaintiffs, Robert Dunseath and wife. Trespass for death of plaintiff’s child. Before Collier, J. At the trial it appeared that, on Feb. 22, 1892, plaintiff’s child, Earle Dunseath, a boy five years old, was killed by an electric car of defendant company.

Appeal, No. 247, Oct. T., 1893, by defendant, from judgment 'of O. P. No. 3, Allegheny Co., Feb. T., 1892, No. 213, on verdict for plaintiff, John Downey. Trespass for personal injuries, and. for injury to horses and wagon, by collision with electric car.

Appeal, No. 302, Jan. T.,1893, by defendant, from order of C. P. Schuylkill Co., Jan. T., 1893, No. 78, making absolute rule for judgment for want of sufficient affidavit of defence. Assumpsit on check.

Appeal, No. 168, July T., 1891, by defendant, Anna A. Joyce, from judgment of C. P. Schuylkill Co., July T., 1891, No. 168, oil verdict for plaintiff, Michael J. Moore. Assumpsit on warranty alleged to have been implied in an assignment of mortgage. Before Green, J. At the trial it appeared that, on July 30, 1887, defendant and T. J. Joyce, her husband, assigned to plaintiff a mortgage from Edward Dolan and wife to defendant for $700.

<p>Poor laws — Settlement—Payment of taxes by political committee.</p> <p>Payment of a poll tax by a political committee without the voter’s knowledge or authority, for the purpose of qualifying him to vote, is not such a payment of taxes as will give the voter a settlement under the poor laws.</p> <p>It seems, however, that such unauthorized payment may be ratified and adopted by the return of the money so paid, or by an undertaking to repay it.</p> <p>The father of a pauper lived in a township between two and three years before his death. In one of the years he had paid his tax himself, in the other the tax had been paid by a political committee. He had maintained himself by his own labor and by his pension money, without becoming a public burden. He had aided his son-in-law by a small loan to purchase a home, but had not purchased or leased real estate himself. Held that he had acquired no settlement under the poor laws.</p>

Appeal, No. 251, Jan. T., 1894, by defendant, Joseph E. Straus, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1893, No. 902, in favor of plaintiff, James J. Sullivan, on case stated. Case stated to determine title to real estate.

Appeal, No. 275, Jan. T., 1894, by Annie E. Jarman, claimant, from decree of O. C. Phila. Co., April T., 1892, No. 493, dismissing exceptions to adjudication in estate of Jesse C. Coulston, deceased. Adjudication of executor’s account. At the audit, appellant presented a claim for $1,154.19 for domestic services rendered to decedent from March 23, 1887, to Sept. 1, 1890, at six dollars per week.

<p>Taxation-Exemption — Gharity—Library—Revenue.</p> <p>Such portions oí a building owned and occupied by a charitable association as are occupied by lessees paying rent are not exempt from taxation.</p>

<p>Appeals, Nos. 226, 277, 278, 323 and 358, Jan. T., 1894, by George Philler et al., Clearing House committee, B. F. Fisher, receiver of the Spring Garden National Bank; Tradesmen’s National Bank of New York; National Bank of the Republic of New York; and Hanover National Bank of New York, from order of C. P. No. 1, Phila. Co., June T., 1891, No. 505, dismissing exceptions to audit- or’s report, distributing assigned estate of the Millward-Cliff Cracker Co.</p> <p>Audit of account of Charles E. Lex, Esq., assignee for benefit of creditors of Millward-Cliff Cracker Company.</p> <p>The auditor, Joseph DeF. Junkin, Esq., reported as follows :</p> <p>“ The following claims were presented, all based upon promissory notes upon which the name of the Millward-Cliff Cracker Company appears either as maker or indorser, to wit: [Here follow twelve notes held by the different appellants.]</p> <p>“ The signature or indorsement upon all of these notes, as far as the assignor is concerned, was the same, to wit: ‘ MillwardCliff Cracker Company, Frank H. Brenton, Treasurer.’ The president’s counter-signature does not appear upon any of them.</p> <p>“ The validity of these claims as against the fund was earnestly contested by the assignee and the assignor, and on behalf of some of the creditors, and a large amount of testimony was taken concerning them. From this testimony your' auditor finds the following facts:</p> <p>“ As before noticed, the assignor is a corporation incorporated upon December 31, 1884, under the general incorporation act of 1874, its certificate of incorporation containing nothing beyond the bald requisites of the act.</p> <p>“Upon January 12, 1885, the corporation passed the following by-law, among others:</p> <p>“ ‘ By-law, section II, Millward-Cliff Cracker Company :</p> <p>“ ‘ The treasurer will give bond in the sum of one thousand dollars, shall receive all money, and make all payments and furnish a report of the receipts and payments at the monthly meetings of the board of directors. He shall be the only authorized person to sign checks and obligations for the corporation, and no check or obligation signed by him will be good unless countersigned by the president of the corporation. He shall keep a separate account as treasurer in such bank or banks as the board of directors may from time to time designate. He shall also keep the accounts of the corporation, which shall include a set of double entry books for the business, with a separate set for the pie department of the business.’</p> <p>“ Whether any obligations of the corporation had been given prior to that time, did not appear, nor, if any were given, what form they took. But it did clearly appear, and your auditor finds, that, from that time until the assignment, a large amount of money, running into hundreds of thousands of dollars, was obtained by the president and treasurer from various institutions and persons, upon notes and indorsements, exactly similar in form to those in question, without the counter-signature of the president, such money being for the use of the corporation, and the notes being met at maturity, from time to time, with moneys of the corporation. The president and treasurer also, upon numerous occasions during these years, gave similar notes, which were met at maturity, in liquidation of the corporation’s indebtedness. And not until shortly before the assignment did any of the corporation paper contain the president’s countersignature, and then only in a few instances. No countersignature of an indorsement was produced.</p> <p>“Your auditor also finds that during all this time the same president, Ephraim Young, and the same treasurer, Frank H. Brenton, were in office. [He also finds that the course thus pursued by the president and treasurer was not called to the attention of the directors of the company, either as a body or individually, and was entirely unknown to the stockholders at large.] [8]</p> <p>“ It appeared that the treasurer would make his stated reports to the board of directors and the corporation, of moneys borrowed and paid in the aggregate, and the notes were not produced to them. In other words, it distinctly appeared that,, practically from the inception of the corporation business, down almost to the day of the assignment, the executive officers of the company had ignored the by-law in the assumption of such corporation obligations, and, either carelessly or ignorantly, placing their own construction upon it, treated it as a dead letter. Had not the frauds occurred, which were discovered and are about to be mentioned, they might be pursuing this-same course to this day.</p> <p>“ The notes for which the company thus received value appear to have been received and discounted in at least seven different banks and a number of business houses, and a course of dealing-was thus established with such banks and houses.</p> <p>“ But, with the exception of the Spring Garden Bank, attention is called to the fact that none of the parties now claiming, holders of this paper, had had any previous dealings with the-corporation or its officers upon paper of this character. There was no course of dealing established with them.</p> <p>“Beginning in 1885, it appeared that Francis W. Kennedy, then president of the Spring Garden Bank, induced Ephraim Young, who was a director in said bank, to have Frank H. Brenton, the aforesaid treasurer of the assignor, execute and deliver to the said Kennedy a series of notes, in the form mentioned, without the counter-signature of the president, which notes, whether made by the company ostensibly, or ostensibly indorsed by them, were all without consideration passing to the company, and were used by Kennedy and Young in fraud of the company’s rights and for their own purposes.</p> <p>“ The transactions and frauds were long and complicated and the details -are not needed for the purposes of this finding. It is sufficient to say that by means of the books of the Spring Garden Bank, to each of the notes in question was fastened the fact that it was either an original note or a renewal of a note, the proceeds of which the Millward-Cliff Cracker Company did not receive, but which all went either to Kennedy or Young, and that, so far as the company was concerned, the notes were entirely without consideration.</p> <p>“ These notes or series of notes were all discounted through. Francis W. Kennedy’s agency as president of said bank, he either discounted them between his board meetings and subsequently informed the board of the bank, or presented them at a regular meeting. The proceeds of such notes, when discounted, went either into his personal account or into that of Ephraim Young.</p> <p>“ Such are believed to be the general and salient facts necessaiy to a correct understanding of the position taken by the corporation assignor, that as such notes were issued without consideration to it, and in fraud of its rights, they are not valid claims upon this fund, because they are not executed as required by the above mentioned by-law. They admit that had consideration passed to the corporation for the same, it would be liable, but; they claim that, lacking such element, the corporation is only bound by such obligations as are executed, strictly in accordance with its law.</p> <p>“ The question upon its face appears to be clear-cut and simple, but its solution has been approached by your auditor with no little hesitation, in view of the magnitude of the interests involved, and the possible importance of the ultimate decision of this question to the community at large, it being one of first impression, at least in this state.</p> <p>“ Most able and exhaustive arguments were made by several of the learned counsel engaged in the cause, and no little light has been shed upon the matter by them.</p> <p>“ Much consideration has brought your auditor, however, to the firm conviction that all of these claims should be rejected, and he finds that none of them are entitled to share in this fund. A large number of authorities and text-books have been read and consulted, but, without referring in detail to them, he submits the following deductions and conclusions as having bearing upon the subject:</p> <p>“ [The controlling feature of the situation as between these claimants and the assignor, to the mind of the auditor, is found in the fact that the assignor is a corporation, and is purely a creature of statute. Nepessarily it can be governed, controlled, and held responsible only within the enabling and disabling lines of the statute.] [12, 13]</p> <p>“ That it could borrow money and cause obligations to be executed to secure the repayment of the same, which would be valid as against it, seems obvious from the powers contained in its franchise. Where the proceeds of such obligations went into the treasury of the corporation, and it received the benefit thereof, the form of such obligation would appear to be of little consequence, as such circumstance would estop any technical defence as to form.</p> <p>“ But such was not the case here. From the obligations sought to be enforced, this corporation received no benefit, and their defence is simple — the obligation is not in the form provided for and required by the law of our existence ; we received nothing from it; therefore we decline to recognize it, although it bears upon its face the name of an agent of ours, such agent, however, not having authority, express or implied, to so bind us.</p> <p>“ With great earnestness and ability the learned counsel for the claimants sought to impress upon the auditor that this defence was ill-founded» for the following, among other reasons :</p> <p>“ (1) Because a by-law, such as the one in question, was simply a regulation inter sese, a private agreement, as it were, among the incorporators, which in no way could be binding upon outsiders, and therefore was not effectual here to prevent a recovery, when the paper bore the name of the corporation placed thereon by one of its duly elected agents.</p> <p>“ From the citations handed the auditor, it would seem that, in some cases, the force of certain by-laws has been so restricted, and it is, of course, in the very nature of by-laws that many of them should be applicable only to that extent. And under the statutory provisions of several of the states, with reference to corporations, it is evident that by-laws of corporations of these states are only thus far effective.</p> <p>“ But, under our statute, the by-law becomes of the very essence of the corporation life. The words of the statute are express: Act of assembly, approved the 29th day of April, A. D. 1874, sec 5 : ‘ The by-laws of every corporation created under the provisions of this statute, or accepting the same, shall be deemed and taken to be its law, subordinate to this statute, the charter of the same, the ponstitution and laws of this commonwealth, and the constitution of the United States. They shall be made by the stockholders or members of the corporation, at a general meeting called for that purpose, unless the charter prescribes another body, or a different mode. They shall prescribe the time and place of meeting of the corporation, the powers and duties of its officials, and such other matters as may be pertinent and necessary for the business to be transacted, and may contain penalties for the breach thereof, not exceeding twenty dollars.’</p> <p>“ It would be difficult to frame a charter, or draft a statute, where the modus operandi of the corporation life is less defined than under the laws of this state. With the exception of a few trifling provisions, the rights, duties, powers and responsibilities of the officers are left to be defined by the by-laws; in like manner, to them all matters regulating the methods of dealing with the public are confided; and your auditor is clearly of the opinion that such by-laws, when enacted, in so far as they toucli upon the same or kindred matters, become written into the charter: and not only define and limit the rights, duties and powers of the officers inter nos, but so far as those with whom such corporation has dealings are concerned, put such parties upon notice in treating with such officers, as to the extent of their power and agency, whether the specific by-law has been brought home to them or not.</p> <p>“ As before said, this seems to the auditor to be clear, from the very words of the statute. But common sense and reason fortify such conclusions as well. Were this not the case, all stockholders in corporations would be at the mercy and whim of their officers, and those with whom such officers dealt. Necessarily, the corporation must act through its officers. Is the extent of their powers to bind the corporation to be a matter of implication at the will of those who deal with them, ostensibly for the corporation? The question seems to contain its own answer; and to also answer the second position of the claimants, viz.: .</p> <p>(2) “ That there was implied in the right and duties of the treasurer of a corporation, the right and duty to execute and deliver obligations binding upon the corporation, virtute officii. Your auditor has searched the books in vain for any decided case sustaining such a proposition, and he does not believe that it is sustainable. Not only do the customs of corporations differ radically as to the execution of obligations, but there does not even seem to be anything in the position occupied by a treasurer to give a color of warrant for such a contention.</p> <p>“ A treasurer is one who holds or keeps the treasury. His duty is to receive and guard its funds and to expend them, not at his own whim, or upon his own judgment, but as directed by those vested with the authority under its law.</p> <p>“ While it is possible that a check, drawn fraudulently by a treasurer alone, where counter-signature of another officer was required, and upon the faith of which some innocent third person had acted to his detriment, might be binding upon the corporation, although your auditor doubts it, yet such a recognition of power in a treasurer is certainly the extreme limit to which this power could be carried by implication.</p> <p>“ The signing or indorsing of a promissory note, binding the corporation, is the execution of a solemn contract on behalf of the corporation, which, to the auditor’s mind, is entirely beyond the purview of a treasurer’s, duty or power. Such power may be expressly conferred upon him by his constituents, but, until that is done, it should not impliedly extend so far. It is an executive act, and if any implication could carry such power, it should be vested only by implication in the executive head, the president.</p> <p>“ The fact that, with many corporations, the treasurer creates such obligations, without express authority, and that the public accepts the same as valid, does not strengthen the argument in favor of the implication, but only serves to emphasize the thought that the conduct of corporations is apt to be eminently careless and lawless, and to point the conclusion that the hour has come when a halt should be called upon practices such as these, and the officers of corporations and the public both be made to understand that stockholders, and others interested in corporation existence, have some rights and powers of limitations ; that an officer of a corporation is but an agent with limited authority, and that, in dealing with him as such, the public is bound to inquire into and be guided by the reasonable scope of such authority as defined in the law of his constitution, and as in the case of any other principal or agent.</p> <p>“ (3) This brings us to the third and most important of claimants’ contentions, viz.: That these notes were issued in the exercise of the apparent authority of this treasurer, because of the long-continued issuance of similar notes, which the corporation had duly honored without objection. Upon its face, and at first blush, the position has some strength, but when closely examined, such strength fades away. As before found, none of the claimants, excepting the Spring Garden Bank, had had previous dealings upon similar notes with this corporation, so that the principle of estoppel, which might be invoked under such circumstances, has no application here. As to rights of the Spring Garden Bank, under the facts, they will be considered hereafter.</p> <p>“ It was also found that, although the corporation did receive the proceeds of notes so issued, to a very large amount, extending over a series of years, yet, no one of the other officers or stockholders was ever made aware of the irregularity of such notes, nor of what the" president and treasurer had been doing. [When discovered, the practice was promptly stopped, and measures taken to punish the wrongdoers.] [11]</p> <p>“ It is claimed that such continuous practice amounted to an abrogation of the by-law, and vested the treasurer with an apparent authority to issue notes and give obligations, equivalent, at law, to a real authority. Such contention appears to the auditor as most specious. It seems to him that it would be as sound an argument to claim that title would pass to an article stolen from one, who had been systematically robbed for years in a similar way and had made no outcry, either ignorantly or willfully, the person claiming having had no previous dealings with the thief or the owner.</p> <p>“ It is said by claimants that even had they made inquiry, they would have been told by these fraudulent agents that this was the customary way in which this corporation issued its notes ; and would have received a similar reply from those with whom it had had previous dealings. That might or might not have been the result. If inquiry had been made, the truth might have come out. But the fact remains that not one of them did make inquiry, or endeavor to ascertain the extent of this agent’s authority to bind his principals. They assumed that he had such authority, and, in your auditor’s opinion, in so assuming, also assumed all the risks attendant thereon, and have no one to blame but themselves.</p> <p>“ (4) The claimants further insist, fourth, that this defence is of the most technical character, raised to defeat honest and just claims, where good money has been parted with upon the ■credit of the corporation, and that as the president of the corporation stood by and was cognizant, indeed the author, of the frauds, therefore such acquiescence was equivalent to his counter-signature, and the corporation should be liable.</p> <p>“ This thought also, at first blush, seems to contain some force, but its complete answer lies in the very fact that, of necessity, the business of a corporation must be conducted along technical lines. Its inception and whole existence is technical, and the only protection which its incorporators have consists in the strict and technical enforcement of the laws of the corporation, which are as open to those who choose to deal with it as they are to the stockholders and officers.</p> <p>“ As remarked at the commencement of this discussion, the corporation is purely a statutory creature, with its powers and limitations strictly defined, and this fact is or should be as patent to outsiders dealing with it and its officers, as to the incorporators themselves. In the ordinary business transactions of every day, no one would dream of charging a personal principal with the act of an agent, where his authority was not either expressed or clearly implied from the character of his agency. And where it was or should be known from the nature of his employment that the extent of the agent’s authority must have certain defined limitations, the law casts the burden upon the party seeking to charge the principal of proving the scope of this authority. Such your auditor takes to be the position here. The very fact that the agent is an officer of a corporation, which is required by the statute to have by-laws expressing the extent of his powers, should put all persons dealing with him upon their guard in investigating the extent of his powers. Ignorantia legis neminem excusat.</p> <p>“ (5) But it is still further insisted upon by these claimants, fifth, that the enforcement of the equitable doctrine that, where one of two innocent persons must suffer, the party who puts it within the power of the wrongdoer to commit the fraud is the one who should suffer; and that here, the corporation having chosen to put officers in power who perpetrated these frauds, it should suffer as between it and themselves.</p> <p>“ The invocation of this doctrine might prove of service to the claimants, were the foregoing considerations out of the way; but if the observations of your auditor with reference to the corporation and the relations sustained to it by those dealing with it are well founded, it cannot be successfully maintained that these claimants are innocent parties within the principles of this doctrine. They dealt, or are considered at law to have dealt, with these officers with their eyes open. They were charged by law with knowledge of this by-law and its consequences, and are' presumed to have known that the notes, to be valid against the corporation, require the president’s countersignature. This doctrine is therefore without application here.</p> <p>“ Your auditor therefore finds that the by-laws of this corporation required that an obligation, to be binding upon it, should be signed by the treasurer and counter-signed by the president. That such by-law was valid and subsisting at the time that each of the notes in question was executed, and was not abrogated by the secret practice of such officers in executing obligations in a different manner. [There was no apparent authority conferred upon the treasurer by such secret practice to execute obligations in any other manner which would be binding upon the corporation.] [14] That there is no implied authority in the treasurer of a corporation to execute any obligation binding upon the corporation. And that in this particular case, the parties claimant accepted their notes charged with the notice that the obligations of this corporation, to be valid, required execution in a particular way, and that none of the notes presented were so executed.</p> <p>“The fact has been adverted to before that the Spring Garden Bank’s position here differed from that of the other claimants in this, that there had been a long course of dealing between the bank and the assignor, whereby many thousands of dollars’ worth of obligations, which the corporation had met when they matured and which were in the very form which the present obligations assume, had been discounted by the bank. [Under such circumstances, the assignor would clearly be estopped from contesting the bank’s claim, were it not for the other controlling fact, that the president of the bank, in accepting these notes for discount, knew them to have been executed in fraud of the assignor, and, indeed, procured their execution for his own purposes mainly.] [10]</p> <p>“ It is clear to the auditor that it is impossible to separate the knowledge of Francis W. Kennedy, as an individual, from his knowledge as such president. The knowledge of the president of the bank necessarily charges his corporation in the fullest manner, and your auditor can conceive of no principle of law or equity which would render the assignor liable under such circumstances. Indeed, the decided cases upon this subject clearly seem to point to the confirmation of the auditor’s position. He cites the following to that end: Holden v. New York, 72 N. Y. 292; Bank v. Town of New Bedford, 36 Conn. 93; Fishkill v. Bostwick, 19 blunter, 354.’"</p> <p>Exceptions to the auditor’s report, among others to the findings in brackets, were dismissed without an opinion.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

<p>Guaranty — Consideration—Release of Ken.</p> <p>Where the consideration for a contract of guaranty was the release of a right to lien a building, it is immaterial that, at the time the contract was signed, a release of liens had already been executed. In such a case the guarantor received the consideration for which he gave the guaranty at the very moment he signed the contract.</p> <p>Guaranty — Promissory note — Extension of time.</p> <p>Where a contract of guaranty for the payment of promissory notes provides that no extension of the notes should in any way affect or release the liability of the guarantor, the fact that one note for thirty-two hundred dollars at two months was given in place of two notes for sixteen hundred dollars each, one at one month and the other at two months, as originally contemplated, will not release the guarantor. In such a case the enlargement of the time of payment of one of the sixteen hundred dollar notes for one month was nothing more than an extension of that note.</p>

<p>Landlord and tenant — Dwelling house — Habitable condition.</p> <p>A tenant went into possession of a dwelling house in the month of January under a lease for a year. He remained in the property during the remainder of the winter, and during the whole of the following winter until the month of May. His only reason for removing before the end of his term was the fact that the heater did not heat the house properly, and that therefore the house was untenantable. The lease provided that the tenant should keep the premises in good order, condition and repair. The tenant admitted that the house was not untenantable at the time he removed from it. Held, that the tenant was liable for the rent for the remainder of the term.</p>

<p>Appeal, No. 246, Jan. T., 1894, by the Fidelity, Insurance Trust and Safe Deposit Company et al., executors of Henry C. Gibson, deceased, from decree of O. C. Phila. Co., April T., 1893, No. 383, dismissing exceptions to adjudication of appellants’ account.</p> <p>Adjudication of executors’ account.</p> <p>At the audit, before Ashman, J., Samuel G. Diehl, a real estate broker, presented a claim for $1,150 commissions on the sale of the property No. 813 Chestnut street, which decedent in his lifetime sold to the Commonwealth Trust Company.</p> <p>The auditing judge found the facts to be as follows :</p> <p>“In the spring of 1888 the claimant called upon the president of the Commonwealth Trust Company (which company afterwards became the purchaser) and informed that officer that he had in his hands, as agent of the ’decedent, a property, 813 Chestnut street, which he offered for sale at $125,000. In reply the president of the company suggested that he should submit the proposition in the fall, when the board of directors would hold their next meeting. The claimant accordingly, on September 21,1888, addressed a letter to the president embodying the terms of his original proposal. This letter was submitted to the board of directors, and the board, on October 5, 1888, appointed a committee to consider generally the question of the purchase of a suitable property for the purposes of the corporation. After the appointment of this committee the president of the company, with the consent of the claimant, saw the decedent in person. At this interview he informed the decedent of the offer which had been made by the claimant as decedent’s agent, and he objected to the price as too high. The decedent refused to recede therefrom. On January 18, 1889, the board authorized the committee to offer the decedent $100,000 for the property, and on February 9,1889, the committee reported that the decedent would accept no sum below $120,000. On June 14, 1889, the committee made another and elaborate report to the board, in which they discussed the merits and demerits of various properties, and finally recommended the purchase of the premises in question at the price named by the decedent, viz., $120,000. On June 28, 1889, Mr. Sylvester, a member of the committee, reported on behalf of the committee to the board a proposal by the decedent that the Commonwealth Trust Company should execute a lease for the premises, with an option to purchase for $120,000; and finally, July 24, 1889, he reported for the committee an offer from the decedent to sell the premises for $115,000. Upon this offer the bargain was finally consummated, and the premises passed into the ownership of the Commonwealth Title Insurance and Trust Company. On these facts, standing by themselves, no doubt can well be entertained that the sale was effected through the instrumentality of the claimant. He first brought the property to the notice of the president of the purchasing corporation, and the corporation formally acted upon the proposition. The fact that the offer had been so made by the claimant as the agent of the decedent was distinctly made known to the decedent by the president of the Commonwealth Company, who had called upon the decedent in consequence of the offer, and the agency was never repudiated.</p> <p>“It was shown, however, that in December, 1888, the decedent put the property into the hands of the Real Estate Trust Company, in which he was a large shareholder, for sale. That company placed a bill or poster on the premises, offering them for sale, and some negotiations were afterwards had between the trust officer of the company and Mr. Sylvester. Mr. Sylvester appears to have been regarded by the trust officer as a real estate agent, who was acting for the proposed purchaser, because after the sale was effected he divided with Mr. Sylvester the commissions which were paid by the decedent to the Real Estate Trust Company. But the part which was taken by that company in the transaction can have no possible bearing upon the claim as presented by Mr. Diehl. The proof is complete that when the decedent applied to the Real Estate Trust Company the agency of the claimant was in full force, and was not terminated by any act of the decedent. Certainly his constituting without notice to the claimant another party as agent did not annul the first contract. He could not escape from one obligation simply because he entered into another obligation, although he might be liable upon both. The initial action of the committee and board of directors of the corporation buyer was based upon the written proposal which the claimant made as agent of the decedent, and their whole after-course, as shown by the minutes of the board, followed as a regular sequence from that letter.</p> <p>“ The claim is allowed and payment is decreed to be made out of the balance remaining for distribution, $4,981, and the balance is awarded to the accountants for further accounting.”</p> <p>Exceptions dismissed in opinion by Ferguson, J., 8 Dist. R. 147.</p> <p>Errors assigned were dismissal of exceptions, quoting them.</p>

Appeal, No. 265, Jan. T., 1894, by-defendant, John M. Sharp, from order of C. P. No. 4, Phila. Co., Sept. T., 1893, No. 906, making absolute rule for judgment for amount admitted to be due. Scire facias sur mechanic’s lien.

<p>Will — Residuary estate — “ Money ” — Disinheriting heir.</p> <p>While the word ‘ ‘ money ” may, when so intended by the testator, include any kind of property, even land, it can never have that effect when the text of the testament clearly shows that it was not so intended.</p> <p>Testatrix left to survive her one son and three daughters. Her will was in four parts, each separately signed and witnessed, and each relating to a particular child. It contained specific bequests of household effects and small bequests to servants. It also contained these clauses: “If any money not disposed of in my name is to my credit, I wish my daughters to share equally their part,” and “ any sum of money I may have by me to be equally divided between my three daughters.” There was no other provision as to the residue or balance of her estate. Held, that under the circumstances of the estate, the word “ money” did not include the estate generally.</p>

<p>Fixtures — Curbing stone and monument in cemetery.</p> <p>A cemetery company inclosed a burial lot by a stone curbing and erected on the lot a monument consisting of a stone foundation extending down below the frost line, and upon the foundation a marble base was placed surmounted by a marble shaft. Upon the shaft a statue was erected. The whole of the structure was cemented together, and the entire work was built for the ornamentation of the grounds. Held, that the curbing and monument were fixed to the realty as a part thereof, and passed with the realty to the purchaser of the cemetery at a sheriff’s sale under a mortgage.</p>

Appeal, No. 297, Jan. T., 1894, by defendant, William T. Lindeman et al., from order of C. P. No. 2, Phila. Co., June T., 1893, No. 786, making absolute rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence in assumpsit on promissory notes.

Appeal, No. 304, Jan. T., 1894, by defendant, William H. Snowdon, from order of C. P. No. 1, Phila. Co., March T., 1893, No. 10, discharging rule to quash return in foreign attachment, and to set aside judgment. Rule to quash return and set aside judgment in foreign attachment.

<p>Appeal, No. 223, Jan. T., 1894, by E. Keeler Co., from order of C. P. Columbia Co., Feb. T., 1890, No. 7, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report distributing proceeds of sheriff’s sale of realty.</p> <p>The opinion of court below was as follows by Ikeleb, P. J.:</p> <p>“ By a number of decisions of the Supreme Court of this state, we are led to the conclusion that the auditor was right in disallowing the claim, or right, of E. Keeler & Co. to have any portion of the fund impounded.</p> <p>“ Had we the auditor’s report before us, which, on account of its loss, seems impossible at this time, we, no doubt, would be relieved from writing out our reasons, and could simply confirm his report; but, as it is, aud in order to spread the whole ease again upon the record, for consideration of a higher court,, if desired by either party, we briefly cite our reasons and authority for approving the report of the auditor.</p> <p>“ It is admitted that nothing but the record evidence of the claim was offered before the auditor, and that upon such evidence he was asked to impound, out of the fund for distribution, the sum of eight hundred dollars, which sum was to be held by the court until the final disposition of the said sci. fa. on the mechanic’s lien, by trial in court. Hence, the only question in the case before the auditor, and now before the court, is the right of E. Keeler & Co. to have the said portion of the fund impounded. The fund for distribution arose from a sheriff’s sale of real estate, and was paid into court to await distribution through an auditor, to and among lien creditors. The fund in court then stood as to creditors, in the place of the property. Such sale divested all liens. It became the duty of E. Keeler & Co. to make the same proof before the auditor, of their right to preference, or priority of lien, and payment out of, the fund, as they would be required to make on a trial in court on the scire facias sur mechanic’s lien, in order to entitle them to-a judgment there, and in such case in an issue before the auditor, every lien creditor would then and there have had the right to controvert the validity of the lien and claim : See Denkel’sEstate, 1 Pearson, 213; Norris’s Ap., 30 Pa. 122; McCay’s Ap., 37 Pa. 128; Hahn’s Ap., 39 Pa. 413; Field v.Oberteuffer, 2 Phila. 271, and other cases to the same purport. It is even held in the case of McLaughlin v. Smith, 2 Wharton, 122, that where property has been sold upon a judgment before recovered, further proceedings on a scire facias on a mechanic’s lien would be stayed. From the foregoing line of decisions it follows that E. Keeler & Co., not having asked for, or shown cause before the auditor for an issue, and having failed to make, before him, the necessary proof to entitle them to recover anything on their claim, it must fall. Their day in court was the day of the audit. It is not the proper or approved practice to impound a portion of the fund in the situation that this fund was, to await the trial in court on a sci. fa. at some future time. The place and time for the issue to be tried was before the auditor on the day of the audit, and that opportunity having been voluntarily passed by the mechanic’s lien claimant, E. Keeler & Co., the auditor was clearly right in refusing to impound eight hundred dollars of the fund to await the future trial in court of the scire facias on the lien.</p> <p>“ And now, Dec. 4, 1893, the exceptions to the auditor’s report are dismissed, and «his distribution, as testified to and admitted by the parties to have been made by him in his report, is approved, and his report is confirmed absolutely.”</p> <p>. Errors assigned were (1) in refusing to refer the case to the auditor for a hearing to enable him to supply the lost record, to wit, the auditor’s report and exceptions thereto, (2) in requiring and directing the argument of the case in the absence of the auditor’s report and exceptions, without having first given parties in interest an opportunity to reproduce the same in a proper manner; (3) in dismissing the exceptions and confirming what the court believed, from the imperfect testimony and brief admissions, to be the auditor’s report.</p>

<p>Appeal, No. 207, Jan. T., 1894, by defendants, Angelo Matz et al., from judgment of Q. S. Luzerne Co., June T., 1898, No. 38, on verdict of guilty.</p> <p>Indictment for felonious wounding. Before Lynch, J.</p> <p>The indictment charged that defendants, with a deadly weapon, to wit, a revolver, “ did unlawfully and feloniously shoot and wound and cause bodily injury dangerous to life with the intent them, the said Adam Novack, Mike Sharp and Mike Kriekel, then and there feloniously, willfully of their malice aforethought to kill and murder, contrary to the form of the act of the General Assembly in such case made and provided.”</p> <p>At the trial the court read to the jury the 82d section of the act of March 31, 1860, intending to read the 81st section, but immediately afterwards said: “ The charge is, that the prosecutor was wounded by a shot from a pistol. . . . The first count is a charge of wounding with the intent to commit murder, the wound being dangerous to life.”</p> <p>Defendants’ counsel made this request:</p> <p>“ I would like to have the court say that it is incumbent upon the commonwealth to show that the wound is dangerous to life, and that that element has not been shown in this case affirmatively. Answer: The court can go no further than to say, as the court has stated, that if you believe the evidence in this case, that Angelo, with a loaded revolver in his hand, held it close to a vital part, to wit, the head, of Novack, and discharged it at the head, the law presumes that he knew the consequences of his act; it was a dangerous weapon and pointed at a vital part. That all depends, gentlemen of the jury, upon you, as to whether he is the man who did it, and whether you believe he pointed it as testified to.” [5]</p> <p>Verdict, guilty; and defendants were then sentenced.</p> <p>Errors assigned were, among others, (1) mistake of court in reading wrong section of act; (5) instruction, quoting it.</p>

<p>Trusts and trustees — Will—Revocation of trust.</p> <p>Where a testator creates a trust by his will conveying all of his property, but before his death sells some of the property mentioned in the will, the court will enforce the trust as to the remainder as far as circumstances will permit.</p> <p>Trusts and trustees — Spendthrift trust — Active trust.</p> <p>Testator directed that the shares of his daughters should be held by his trustees during their natural lives, with remainder to their children “ without the same, either principal or interest, being in any manner or under any circumstances or any form of proceeding subject to or liable for the present or any future debts, contracts or engagements either of themselves or of any husbands they may now or any time hereafter respectively have, the interest and income alone of said shares to be paid to them rospectively, and their respective receipts alone from time to time as the same may become due and payable, and not by way of anticipation, to be sufficient discharge ior the same.” Held, that the trust was an active one.</p>

<p>Appeal, No. 190, Jan. T., 1890, by Margaret J. Hummel, widow, from decree of O.. C. Schuylkill Co., Nov. T., 1893, distributing estate of Charles Hummel, deceased.</p> <p>Exceptions to auditor’s report.</p> <p>From the report of the auditor, James W. Ryan, Esq., it appeared that, on Nov. 4,1885, decedent executed two promissory notes under seal, one to Annie Riland and the other to Emma Dietrich. They were the daughters of a deceased sister of decedent’s first wife, and had resided with him as members of his family from their childhood till their marriage. On June 2, 1888, decedent executed three other promissory notes under seal, two of them to nephews, and the other to a niece of the obligor, the three notes being delivered to one of the nephews to be delivered to the other nephew and to the niece after decedent’s death; and they were so delivered. The aggregate amount of these notes was $4,000, and all were made payable after his death. Decedent was twice married, but left no issue by either wife. His will, which was probated Oct. 5, 1890, devised to his wife a house “ as long as she lives, or as long as she shall bear my name,” etc. The balance of his estate, which was nearly the whole of it, was not disposed of. His widow refused to accept the provisions of the will. She, together with two of the collateral heirs, contested the payment of these notes out of decedent’s estate.</p> <p>The auditor found : (1) That the said promissory notes were given by the decedent to evade the payment of the collateral inheritance tax to the state, and to deprive the widow of her just share of his estate, “ and that none of the obligees were parties to or participated in his illegal purposes.” (2) That said notes were founded on a “good ” as distinguished from a “ valuable” consideration — “ what the law defines as voluntary deeds.” (3) That there was a delivery of the notes to the several obligees ; and further that the estate of the obligor was liable for their payment after the widow, as against whom the auditor found the notes were void, was first paid her portion of the estate. The personal estate amounted to $4,933.80 ; from this the auditor deducted the costs, $256.83, leaving a balance of $4,676.97 ; deducted widow’s share of one half, leaving a balance of personal estate of $2,338.48; added real estate fund, $3,057.90, making a balance for distribution, $5,386.39; deducted notes, $4,000, leaving balance for distribution among heirs of $1,386.39.</p> <p>Exceptions to the auditor’s report were sustained in an opinion by Pershing, P. J., who directed payment of the notes out of the personal estate in preference to the widow, and distribution of the fund raised by sale of real estate to the heirs. The sale of the real estate had been made in partition proceedings, and was subject to the widow’s dower.</p> <p>Errors assigned were in sustaining exceptions, and in not confirming the original report.</p>

<p>Appeals, No. 301 and 349, Jan. T., 1894, by Security Company, admr. of Hubert G. Welles, deceased, and Caroline H. Steinman, from decree of O. C. Berks Co., Dec. T., 1893, distributing estate of Hubert G. Welles, deceased.</p> <p>Exception to adjudication of administrator’s account.</p> <p>Prom the report of the auditing judge, Bland, P. J., it appeared that Hubert G. Welles, a minor, domiciled in Connecticut, died on March 24, 1892, possessed of a fund in the hands of a Pennsylvania guardian. Letters of administration upon the estate were granted by the probate court of Hartford, Connecticut, to the Security Company, one of the appellants. At the special request of the Security Company, principal administrator of decedent, the register of wills of Berks county, Pa., granted ancillary letters of administration to Wm. J. Young. On the settlement of the guardian’s account, the balance was distributed by the orphans’ court of Berks county to William J. Young, the decedent’s Pennsylvania administrator, and comprised the entire assets coming into his hands. Upon the settlement of the administration account, a balance of $1,876.01 remained for distribution.</p> <p>The fund in dispute had the following origin : John M. Hale, the maternal grandfather of the decedent, died Feb. 4, 1869, intestate, seized at the time of his death of certain real estate situate in Reading, Pa. He left to survive him a widow, since deceased, and five children, one of whom was Susan M. Hale, the mother of decedent. Susan M. Hale, who had been married to Thomas G. Welles, died Dec. 18, 1880, intestate, leaving to survive her a husband, who afterwards died, and two children, viz., Hubert G. Welles, the decedent, and John M. H. Welles, who died a minor, April 4, 1882, unmarried, and without issue. Proceedings in partition in the orphans’ court of Berks county took place in 1888, resulting in a sale of the above-mentioned real estate, whereby decedent’s one-fifth interest in said real estate was converted into the present fund. The decedent left to survive him neither father nor mother, nor any lineal descendants, nor any brother or sister of the whole blood, nor descendants of any. His surviving next of kin of his mother’s blood was Caroline H. Steinman, his mother’s sister, one of the appellants. He also left two half-brothers, Samuel and Thomas Welles, children of his father by a, second wife, who are domiciled in the state of Connecticut.</p> <p>The Connecticut statute for distribution of intestates’ estates •is as follows: “ If there be no children or any legal representatives of them, then, after the portion of the husband or wife, if any, is distributed or set out, the residue of the estate shall be distributed equally to the brothers and sisters of the intestate, of the whole blood and those who legally represent them, ■and if there be no such kindred, then to the parent or parents, •and if there be no parent, then equally to the brothers and sisters of the half blood and those who legally represent them, and ■if there be no parent and no brother or sister or those who le•.gally represent them, then equally to the next of kin in equal degree, kindred of the whole blood to take in preference to kindred of the half blood in equal degree, and no representatives to be admitted among collaterals after the representatives ■of brothers and sisters; but all the real estate of the intestate •which came to him by descent, gift, or devise from any kinsman, shall belong equally to the brothers and sisters of the intestate and those who legally represent them of the blood of the person or ancestor from whom such estate came or descended, and in case there be no brothers and sisters or legal representatives as aforesaid, then equally to the children of such person or ancestor and those who legally represent them, and ,if there be no such children or their representatives, then equally to the brothers and sisters of such person or ancestor and those who legally represent them, and if there be none such, ■then it shall be divided in the same manner as other real estate; provided, that when such intestate shall be a minor and shall ■not leave any lineal descendants, or brother or sister of the whole blood, or any descendants of such brother or sister, or ■any parent, such estate shall be distributed equally to the next of kin to the intestate of the blood of the person or ancestor from whom such estate came or descended; and if there be no such kindred, then to the next of kin of the intestate generally, and in ascertaining the next of kin in all cases the rule of the civil law shall be adopted and the real estate, subject to dower or to the life-use of husband or wife, remaining undivided at the expiration of such term, shall be distributed in the same manner by the same or other distributors, or the same may be distributed during the continuance of said life-interest and subject thereto.”</p> <p>The entire fund was claimed by Caroline H. Steinman, the maternal aunt of the decedent, alleging that she was the next of kin of Hubert G. Welles, of the blood of the person or ancestor from whom the property in dispute descended. The Security'Company, of Hartford, Connecticut, principal administrator of the decedent, also olaimed the entire fund, alleging-that the distribution should be made by the courts of Connecticut, and that under the law of that state the fund passed to-the half-brothers. At the time the orphans’ court of Berks county filed its first adjudication, all parties were under the impression that Mrs. Susan M. Welles at the time of her death left but one son, viz., Hubert G. Welles, the decedent. The court therefore awarded the entire fund to Caroline H. Stein-man. The Security Company, administrator, filed exceptions,, introduced proof of the fact that Mrs. Welles, at her death, left two sons, viz., Hubert G. and John M. H. Welles. The court thereupon amended its former decree by awarding one- half of the fund to the Security Company, administrator of Hubert G. Welles, deceased, and one half to Caroline H. Steinman; whereupon both parties appealed.</p> <p>Errors assigned were dismissal of exceptions, quoting them, and distribution.</p>

Appeal, No. 92, Oct. T., 1894, by-plaintiffs, Order of Solon et al., from decree of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 795, on bill in equity in favor of plaintiffs against defendants, Glenn I. Folsom et al. Bill to avoid assignment for benefit of creditors.

<p>Appeal, No. 165, Jan. T., 1894, by defendant, John-G. R. McCorkell, from order of G. P. No. 1, Phila. Co., Sept. T., 1893, No. 836, making absolute rule for judgment for want of sufficient affidavit of defence.</p> <p>Rule for judgment for want of sufficient affidavit of defence, in assumpsit for electricity furnished for lighting.</p> <p>The affidavit of defence was as follows :</p> <p>“ Defendant is charged for current not used, and will prove on the trial of the cause that the lamp-hour consumption and measurement of current through meter is totally wrong; and defendant will further prove on the trial of the cause that the measurement of current used is incorrect, and that the meter placed for the measurement of current and to regulate lamp-hour consumption was, during the running of the period of time sued for, out of order and repair and did not register correctly. And deponent will further prove that said meter for measurement of lamp-hours is the property of plaintiffs, and under their sole control; and deponent will prove that he used but fifty-five lamps or lights, instead of one hundred, as stated in said contract, and he was to be charged only with lamp consumption or current consumed. Deponent is unable to state, by reason of said defective meter, in what sum he is indebted to the plaintiffs as the meter had been removed by plaintiffs, and he has had no opportunity to test by a new and correct meter; but deponent is willing, and has been always willing, to pay what is justly due, if anything, upon a proper test of the current by a proper instrument.”</p> <p>Rule for judgment absolute. Defendant appealed.</p> <p>Error assigned was order above.</p>

<p>[Marked to be reported.]</p> <p>Negligence — Railroads—Passengers—Rudeness—Breach of peace — Boors.</p> <p>A common carrier is not bound to protect its passengers from rudeness or bad manners on the part of strangers or other passengers, unless such conduct amounts to a breach of the peace.</p> <p>A railroad company is not liable for an injury to a passenger caused by another passenger- rudely and suddenly pushing a swinging door in the first passenger’s face.</p> <p>Appliance used for carriage of passengers — Presumption of negligence.</p> <p>In such case the company cannot be convicted of negligence because a station door was not of glass above the middle rail, so that persons approaching the door could see each other; nor was the presence of a small screw eye on the inner surface of the door, where it could come in contact with a person’s head, evidence of negligence; they were no part of the machinery used for the carriage of passengers, so as to raise a presumption of negligence from the accident.</p>

Appeal, No. 290, Jan. T., 1894, by George Fenner, claimant, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in estate of Joseph Sloan, deceased. Exceptions to adjudication of administratrix’s account. At the audit, before Hanna, P. J., George Fenner, a member of the bar, presented a claim for $570.20, being fifty per cent of a sum collected for the estate.

<p>Practice — Pleading—Statement—Affidavit of defence — Act of 1887.</p> <p>To entitle plaintiff to judgment for want of an affidavit of defence, or for want of a sufficient affidavit of defence, the statement of his demand under the act of May 25, 1887, P. L. 271, must set forth in clear and concise terms such averments of fact as, if not controverted, would entitle *him to a verdict for the amount of his claim.</p> <p>Promissory notes — Action against indorser — Pleading.</p> <p>In an action by an indorsee against the indorser of a promissory note the statement must aver that the note, on becoming due, was duly presented to the maker, and that he refused to pay, of which the defendant had notice.</p> <p>In such a ease a mere reference to the costs of protest, from which it might be inferred that the note was protested for nonpayment, is insufficient to sustain the action.</p> <p>Affidavit of defence — Promissory note.</p> <p>In an action against an indorser of a promissory note, an affidavit of defence is sufficient which avers that no consideration was paid either by the maker of the note, or by the plaintiff; that the latter paid nothing either for or on account of said note to any one, but was a mere transferee, and holds the note merely for collection for account of the maker, who is indebted to defendant “in large sums of money much in excess of the amount of said note.”</p>

Appeal, No. 156, July T., 1898, by defendant, D. L. O’Neil, from judgment of O. P. Luzerne Co., March T., 1898, No.0lll, on verdict for plaintiff, Patrick G. McDonald. Ejectment. Before Rice, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was binding instruction for plaintiff, quoting it.

Appeal, No. 1,. Jan. T., 1894, by defendant, from judgment of C. P. Luzerne Co., May T., 1888, No. 543, on verdict for plaintiff, John Brady, executor of Margaret Brady, deceased. Trespass for damages caused by a change of grade of streets adjoining plaintiff’s property. At the trial it appeared that plaintiff owned a lot at the corner of Chestnut and Main streets, in the city of Wilkes-Barre.

<p>Practice — Capias ad satisfaciendum — Discharge.</p> <p>A capias ad satisfaciendum was issued and returned “ Stayed.” The evidence showed that the sheriff had undertaken to arrest the defendant, but had been so much intimidated by defendaiS: and his counsel who denied the legality of the writ, that he had let the defendant go free. Subsequently an alias capias ad satisfaciendum was issued. Held, that the issue of such a writ was proper, and that the court below was not in error in refusing to quash it.</p>

<p>Appeal, No. 295, Jan. T., 1894, by defendant, from judgment of C. P. Luzerne Co., March T., 1893, No. 32, on verdict for plaintiff, Anthony J. Clifford, administrator of Thomas Anderson, deceased.</p> <p>Assumpsit on policy of life insurance. Before Lynch, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points were as follows :</p> <p>“ 1. Thomas Anderson having assigned and set over unto Anthony J. Clifford, by assignment dated Oct. 29,1891, all his right, title and interest in and to the policies offered in evidence, as collateral security for the payment of the judgment No. 227, Dee. term, 1891, and the testimony showing that said judgment remains open and unpaid, the estate of Thomas Anderson had no interest in said policies at the time of his death; and the debt remaining unpaid the estate has acquired none since, it not having been shown that the estate is solvent; therefore the verdict must be for the defendant. Answer: Refused, but if you believe the evidence, the verdict should be for plaintiff.” [1]</p> <p>2. Request for binding instructions. Refused as above. [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p> <p>The court gave appellee permission to file of record a statement of the fact that the assignee and the administrator were one and the same person.</p>

Appeal, No. 442, Jan. T., 1894, by plaintiffs, Joseph Freiberg and Abraham Freiberg, trading as J. & A. Freiberg, from order of C. P. Luzerne Co., Oct. T., 1893, No. 2, dismissing bill in equity. Bill in equity to restrain assignee for benefit of creditors from paying out money.

Appeal, No. 371, Jan. T., 1894, by defendant, Henry Hinkson, city treasurer of Chester borough, from judgment of C. P., Delaware Co., Sept. T., 1893, No. 220, on demurrer to petition for mandamus. Demurrer to petition for mandamus.

Appeals, Nos. 261 and 262, Jan. T., 1894, by plaintiffs, Anne Mulhern et al., and Ann O’Boyle et al., from judgments of C. P. Schuylkill Co., Nov. T., 1890, Nos. 67 and 68, on verdicts for defendant. Trespass for death of plaintiffs’ husbands. Before Gtieen, J. At the trial it appeared that plaintiffs’ husbands, Charles Mulhern and John O’Boyle, each between forty and fifty years of age, were miners in the employ of defendant company.

<p>Appeal, No. 282, Oct. T., 1893, by-plaintiff, John M. Wolf, from judgment of C. P. No. 2, Allegheny Co., April T., 1891, No. 827, on verdict for defendant, James M. Guffey.</p> <p>Assumpsit on oil and gas lease. Before White, J.</p> <p>At the trial it appeared that, on May 18, 1886, E. B. Beardsley, the assignor of defendant, obtained oil and gas leases from plaintiff; The material clause in the leases was as follows:</p> <p>“ Operations on the above described premises shall be commenced and one well completed within six months from the date hereof, and in case of a failure to complete one well within such time, the party of the second part hereby agrees to pay to the party of the first part for such delay the sum of two hundred and sixty dollars per annum, within three months after the time for completing such well as above specified, payable at the premises, and the party of the first part hereby agrees to accept such sum as full consideration and payment for such yearly delay until one well shall be completed, and a failure to complete one well or to make any such payments, within such time and at such place as above mentioned, renders this lease null and void, and to remain without effect between the parties hereto.”</p> <p>On Feb. 24, 1887, plaintiff, without making any demand upon defendant, leased his premises to the Philadelphia Co. for twenty years. This suit was brought to recover the first year’s rent, claimed to be due under the lease.</p> <p>Binding instructions were given for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Frror assigned was above instruction.</p>

Appeal, No. 305, Oct. T., 1893, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1891, No. 736, on verdict for plaintiff, John R. Mc-Kelvy. Assumpsit on policy of fire insurance. Before Collier, J. The facts appear by the opinion of the Supreme Court. The court charged in part as follows : “ That policy was not taken out by Mr. McKelvy, that is clear. The evidence is his wife took it out, but she took it out in his name.

<p>Waters — Interference with subterranean flow — Damages.</p> <p>An injury caused to a subterranean supply of water by the lawful acts of an owner of land is damnum absque injuria, unless the stream is well defined and its existence known or easily discernible, or unless the injury be caused by negligence or malice.</p> <p>Preliminary injunction — Water tunnel.</p> <p>A court of equity will not award a preliminary injunction to restrain the construction of a tunnel by defendants upon their own land for the purpose of procuring a supply of water for a tannery, where the bill and plaintiffs’ affidavits show merely an apprehension that defendants’ purpose is to unlawfully divert water to which plaintiffs claim the exclusive right and there is no averment of a belief that defendants intend any excavation outside their own land.</p>

<p>Equity — Equitable ejectment — Specific performance.</p> <p>A bill in equity is the proper proceeding on part of defendant in an equitable ejectment to compel performance by plaintiff of a condition of the verdict requiring a conveyance of the legal title.</p> <p>A person who takes a conveyance of the legal title to land with knowledge that his grantor has agreed to sell it to another person, takes it subject to the equitable estate already vested in the purchasers.</p> <p>In such a case the grantee of the legal title may maintain ejectment against the purchaser in possession to recover either the possession or the balance of the purchase money, and such an ejectment is an equitable one.</p>

<p>Appeal, No. 397, Jan. T., 1894, by defendant, S. N. Bronson, from judgment of C. P. Bradford Co., Sept. T., 1891, No. 316, on verdict for plaintiff, George W. Harrington.</p> <p>Assumpsit for work. Before Searle, P. J. of the 34th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant offered to show by J. T. Dutton, a witness for defendant, “that Mrs. L. E. Harrington said to him in 1879, and many times afterward, that she had all the profits of the goods that were sold in that store, and that she could not buy any goods on time for which Mr. Bronson would be liable, without his knowledge and consent, and that she could not run Mr. Bronson in debt without his consent. And that Mr. Bronson had to sign all contracts by which he would be bound.” Objected to, objection sustained, and bill sealed. [11]</p> <p>The court charged in part as follows :</p> <p>“ [So that one of the main questions for you to pass upon in this case is, which is true ? Did Mr. Bronson not only have the control of that farm and receive the products of the farm as his when they were raised, but did he employ the Harringtons to work for him in raising them, the same as any man owning a farm employs a hired man to go on there and run it and the products are his ? If he did, then they were his agents simply in running the farm, and the products of the farm would belong to him, and the labor that was performed on the farm, either by William Harrington or his son, would be labor performed for Bronson.</p> <p>“Now, I will recapitulate a little in relation to this farm hiring. If Mr. Bronson was running this farm occupied by Harrington, and paying for the labor and receiving the crops and proceeds as his own, and the plaintiff worked upon said far.m understanding that he was working for Bronson, Bronson having received the labor, the plaintiff would be entitled to recover from him the value of the same.] [7] ....</p> <p>“ [One.of the claims put forward by the plaintiff is the claim for his wife’s services. In order to entitle the plaintiff to recover for her services under the implied contract of the work being done for Bronson and not done for the Harringtons, you must be satisfied from the evidence in the case that Bronson was not only running the farm as his own, but that he was also running the house and boarding Harrington and his wife and family, and paying for those provisions, and hiring the labor to do it, and also the dairy work on the farm. Because, if Harrington was running the house, and it was for his benefit that this domestic labor was performed, of course it would not be for Bronson to pay for. But if Bronson was running the farm and running the household, and maintaining the house and hiring the labor to cook the victuals and perform the duties of the household, then he would be responsible under the implied contract, the same as to George.] ” [8]</p> <p>Plaintiff’s points were, among others, as follows:</p> <p>“5. If the jury find from the evidence that S. N. Bronson owned and controlled the real estate, stock and goods in possession of the Harringtons and left the Harringtons to manage, sell, buy and add to, from time to time, and run said farm and store together, and they have so run the same for ten years, and upwards, without any arrangement or agreement except that the Harringtons were not to run Bronson in debt, it would be such an arrangement as would make the defendant liable to third parties dealing with the Harringtons, who had no knowledge of such secret arrangement and whose debt was contracted within the scope of their authority in managing and running said business and farm. Answer: Affirmed, provided such parties dealt with the Harringtons with tire understanding that they were dealing with them as the agents of Bronson.” [9]</p> <p>“ 7. If the jury believe that the defendant and L. E. Harrington and William Harrington in 1879 and subsequently caused all the real and personal property, either or both, to be transferred by sale, lease or otherwise, to the defendant, and he allowed the same to remain there and left the Harringtons in possession and charge of the same and allowed and permitted them to do business as L. E. Harrington, agent for S. N. Bronson, for the purpose of defrauding, hindering and delaying the creditors of William Harrington and L. E. Harrington, and the defendant permitted the relation to be held out to the public, and by his (the defendant’s) acts and conduct he encouraged the public to believe tbat be was the principal and L. E. Harrington and William Harrington were his agents, it would be such conduct ao would estop him from denying the legal obligations and liability growing out of his conduct, so far as innocent third parties were concerned dealing with his supposed agents.” Affirmed. [10]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. That under all the evidence and the pleadings in this case the plaintiff cannot recover.” Refused. [1]</p> <p>“■ 2. That the contract of hiring as testified to by the plaintiff himself shows a hiring by the mother in her individual capacity, without any stipulation as to the length of time the service was to be performed, but for which he was to be given her farm, and was simply an agreement for the continuation of the family relation, and the expression in regard to Bronson’s liability being a mere expression of her opinion, and not a contract as agent for Bronson, under the pleadings in this ease, the plaintiff cannot recover.” Refused. [2]</p> <p>“ 3. That the evidence of the plaintiff’s witness, William Vibbert, if believed, that Bronson told him that Mrs. Harrington was agent for the store and William Harrington for the farm, and the alleged contract being made with Mrs. Harrington to work on the farm, she was unauthorized so to do, and therefore the plaintiff cannot recover under the pleadings in this case.” Refused. [3]</p> <p>“ 4. It being the uncontradieted evidence on the part of the plaintiff that after the purchase by the defendant in 1879 of the personal property, the plaintiff continued to live with his father and mother as a member of the family without receiving wages, and there was no knowledge of any hiring afterwards on his account by Bronson, and no ostensible change in the family relation mentioned, calculated to put Bronson upon inquiry after the alleged hiring, it was the duty of the plaintiff to inform him of the same, and his failure so to do, coupled with the facts of his telling Bronson in 1886 and 1888 that he had received nothing and would never get anything for his labor, and during the whole time of his alleged service never calling on. Bronson for pay, but paying to him money on his indebtedness and leasing from Bronson the same farm he alleges he was to have for his services, would be such a fraud upon Bronson as would prevent a recovery in this case.” Refused. [4]</p> <p>“ 5. That even if the jury believe that the defendant said to the plaintiff if he stayed at home, etc., he, Bronson, would see that he did not lose anything; that such a promise would be within the statute of frauds and perjuries, and would not be a contract of hiring, and under the pleadings in this case the plaintiff cannot recover under that evidence of a contract.” Refused. [5]</p> <p>“ 6. It being the evidence on the part of the plaintiff that the land of Mrs. L. E. Harrington, which was owned and controlled by her, was worked together with, and the proceeds of the same put in with the proceeds of the William Harrington farm and the store, and there being but one witness on the part of the plaintiff who knew anything about under what arrangement the defendant had any of such proceeds, and that the witness, Mrs. Mary Warner, who swore that they were paid to him and the other creditors to apply on the indebtedness of the Harringtons, and the contract of hiring made by L. E. Harrington being to pay the plaintiff by giving him the Decker farm, which was owned and controlled by her, — that these facts create such a presumption, overcome by no other evidence in the case, that William Harrington and L. E. Harrington were running the farm and the store for the benefit of themselves, and had and were to have all the profits of the same, and that the plaintiff was hired to work for them, that the plaintiff cannot recover.” Refused. [6]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-10) above instructions; (11) ruling ; quoting bill of exceptions, and instructions.</p>

Appeal, No. 316, Jan. T., 1894, by plaintiff, from decree of'C. P. No. 4, Phila. Co., March T., 1892, No. 503, dismissing bill in equity. Bill to restrain collection of tax.

Rule to show cause why special writ under statute of Westminster 2d should not issue to Hon. Michael Arnold, directing him to seal bill of exceptions.

<p>Will — Prior will — Implied revocation by inconsistency.</p> <p>While a second will which fails -because of defective execution does not revoke a legacy in a former will in harmony with that in the one which fails, yet where the residuary clause is different there is a fatal inconsistency which operates as a revocation.</p> <p>Will — Religious use — Act of April 26, 1855.</p> <p>A gift to a religious use made in a will executed two days before the death of testatrix cannot be sustained, under the act of April 26, 1855, P. L. 332, although the gift was identical with one made four years before in a codicil to a former will, and the later will contained no words of revocation.</p> <p>Equity — Trust—Gift in pursuance of promise.</p> <p>A gift to a religious use made in a will executed within thirty days of testatrix’s death will be sustained where it appears that the gift was made in pursuance of a promise given to one who bequeathed her whole estate to testatrix on the express understanding that such a gift should be ■made.</p> <p>The money goes to the church, not by the will, but because there was no valid will when there ought to have been one ; it is a right of the church, for whose benefit the promise was made, to insist on the fulfillment of the obligation in a court of equity in whose hands is the fund and before whom are all parties in interest. By Mr. Justice Dean.</p> <p> Statute of limitation. </p> <p>Where such promise was made in 1883, to be performed after the death of the promisor in 1888, and the adjudication in the orphans’ court was made in 1893, the statute of limitations will not bar the claim.</p> <p>Mr. Justice Mitchell filed a dissenting opinion.</p>

<p>Appeal, No. 466, Jan. T., 1894, by Henry Gross, from order of Q. S. Luzerne Co., Jan. T., 1894, No. 544, refusing wholesale liquor license.</p> <p>Petition for wholesale liquor license.</p> <p>From the record it appeared that twenty-five persons certified to the temperate habits of the applicant and to the necessity of the place. It was stated in appellant’s paper-book that a hearing was had as required by the rules of court, and that seven qualified voters of the township testified to the necessity of the place, and to the qualifications of the applicant. The court entered the following order: “ Now, March 1,1894, after hearing, sureties on the within bond are approved, and the license as prayed for is refused.”</p> <p>Error assigned was above order.</p>

Appeal, No. 101, July T., 1893, by defendant, from judgment of C. P. Huntingdon Co., May T., 1893, No. 10, on verdict for plaintiff, Percival Roberts, trading as A. & P. Roberts & Co. Assumpsit on coupons. Before Furst, P. J. At the trial, plaintiff offered in evidence the bonds to which the coupons had been attached. Defendant objected to the admission of the bonds and coupons on the ground that they had not been properly executed.

Appeal, No. 69, July T., 1898, by plaintiff, Commonwealth ex rel. Wilbur F. Reeder, Administrator of Rebecca J. Royer, deceased, from judgment of C. P. Centre Co., April T., 1892, No. 386, on verdict for defendants, Henry Royer, David Krape and John Stoner. Assumpsit on recognizance given in partition proceedings. Before Furst, P. J. At the trial, it appeared that John Royer died Nov. 4, 1855, intestate, leaving to survive him a widow, Mary Royer, and nine children.

<p>Appeal, No. 78, July T., 1893, by George Arick, one of the defendants, from judgment of C. P. Clearfield Co., Dec. T., 1892, No. 348, on verdict for plaintiffs, A. M. and P. W. Draucker against Geo. Arick and J. Scott Flegal.</p> <p>Assumpsit for money loaned. Before Krebs, P. J.</p> <p>The court charged in part as follows:</p> <p>“ It seems from the evidence that some time about May 8, 1891, the two plaintiffs, with George Arick and John Hayes, entered into an arrangement with Hoover, Hughes & Co. for stocking some timber upon certain lands in this county. It is not material what these arrangements were, or what was covered particularly, but that partnership continued up until about June 20, 1891. It is a fact, alleged by the plaintiffs, and not denied by the defendants, that on that day, or the day previous, an arrangement was consummated by which J. Scott Flegal purchased the interest of A. M. and P. W. Draucker in this partnership, under the contract made with Hoover, Hughes & Co., and, so far as the written evidence of that contract is concerned, it was in consideration of the sum of one dollar that they assigned their interest in this contract.</p> <p>“ It is claimed by the plaintiffs that at that time they had paid out, to the use of the members of the firm that took the contract originally, the sum of $286.29 to the men who worked on the job. The checks have been produced here by the plaintiffs to show the several items that enter into that $286.29. It is not denied by the defendants that that money was paid out to the men who worked on that job at the time when A. M. Draucker, P. W. Draucker, George Arick and John Hayes had the contract.</p> <p>“ When Draucker and his brother, sold out — to J. S. Flegal— their interest in this contract, they allege that Mr. E. C. Humes (who was apparently the agent or representative of Hoover, Hughes & Co.) came there to pay money on account of the work that had been done under this contract; that five hundred dollars was to be paid at that time ; that he (Humes) asked who this money was to be paid to; that he (Humes) came there, as they (plaintiffs) claim, to pay it to the Drauckers, and when he asked who this money was to be paid to, an arrangement was then entered into by which an order was given to Humes, and this money was paid to Arick and Flegal, and that it was agreed by Arick and Flegal, at that time, that the $286.29 should be paid to A. M. and P. W. Draucker on the next pay day, which I understand would be the 20th of the next month (July, 1891). That is, it was to be repaid to them out of the next money which they — Arick and Flegal — would receive from Hoover, Hughes & Co. upon this contract.</p> <p>“ Now, if those facts were true, there is no difficulty, that we can see, in maintaining this form of action. [It is true, as a matter of law, that one member of a firm cannot sue the firm during its existence, in the ordinary form of action in assumpsit, and he must bring an action in case as account render. But when one member sells out to another member of the firm, and is to receive a specific sum of money — that is, for his interest and money advanced, a certain amount was agreed to be paid to him — we see no difficulty whatever in his maintaining an action of assumpsit — such as this action is — to recover that money against the incoming or new firm.] ” [8]</p> <p>Defendant’s points were as follows :</p> <p>“ 1. It appearing that the money claimed for was money advanced by the plaintiffs to a firm or partnership composed of A. M. and P. W. Draucker, George Arick and John H. Hayes, while the plaintiffs were members thereof, and was used in carrying on the business of said partnership, and that at the time it was advanced no contract of any kind was made for its payment, and no settlement of the partnership accounts was ever made, the action in this case should be account render and not assumpsit, and therefore your verdict must be for the defendants. Answer: We cannot affirm that point for several reasons. The first is, that it would be asking the court to assume, as a matter of fact, that there was no arrangement by which this $286.29 was to be repaid to the Drauckers. This is a matter of fact for the jury, and the court cannot assume it. In the next place, we cannot affirm it, because if you believe the testimony of the plaintiffs in this case, Arick and Flegal agreed to repay this money to them out of the next moneys they received from Hoover, Hughes & Co., and whether or not you believe that fact is a question that you must determine under all the evidence.” [1]</p> <p>“ 2. It appearing from the evidence that the plaintiffs sold or assigned their interest in the partnership, prior to the beginning of this suit, to one of the defendants, which fact is not disputed by the plaintiffs, they are thereby estopped from recovering in this case, and especially in this form of action, and your verdict must be for the defendants. Answer: We decline to affirm that point, because that would also require us to assume the facts to be as stated; but we say to you, that if you find that this was a loan to the firm of Arick & Flegal, as is claimed by the plaintiffs, then they are not estopped from recovering in this form of action, and your verdict would be accordingly.” [2]</p> <p>Verdict and judgment for plaintiffs. Defendant, George Arick, appealed.</p> <p>Errors assigned were (1-3) instructions, quoting them,</p>

Appeal, No. 214, Jan. T., 1894, by Maria Meek, widow, from decree of O. C. Centre Co., Jan. T., 1894, No. 214, dismissing exceptions to report of auditor, on petition for citation against Geo. Y. Meek, Jr., et al., to enforce charge on land under will of Geo. Y. Meek, Sr., deceased. Exceptions to report of auditor, on petition for citation to enforce charge on land. Before Furst, P. J. The facts are sufficiently recited in tire opinion of the auditor on the questions of law.

<p>Judgment — Opening judgment — Evidence—Practice.</p> <p>Where several persons join in purchasing the contents of a store, and, by direction of the vendor and as part consideration of the sale, give a judgment note to a creditor of the vendor, certain of the persons signing the judgment note cannot allege as a ground for opening the judgment that they joined in the purchase for the purpose of helping a third party who formerly owned the store, and who agreed to run it, and pay the debt represented by the judgment note.</p>

<p>Appeal, No. 237, Jan. T., 1894, by defendants, F. Rosenberg and Carl M. Gage, from decree of C. P. Huntingdon Co., Sept. T., 1892, No. 65, in equity, in favor of plaintiff, Martha Jane Harris.</p> <p>Bill in equity for an account.</p> <p>The bill averred that on April 1, 1889, F. Rosenberg, Carl M. Gage and H. I. Harris purchased what is called “The Cove ” tract of land, containing about 499 acres, for $5,000, upon the terms of one third to be paid in cash, the balance to be paid in one and two years, with interest to be secured by the mortgage and bonds of the purchaser, the said parties to be tenants in common. About the same time the said parties entered into an agreement in writing, forming a copartnership under the firm name of Harris, Gage & Co., for the purpose of engaging in buying and selling white oak and rock oak, railroad cross- and switch-ties along the line of the Bedford division of the Pennsylvania Railroad, and the Huntingdon. & Broadtop Railroad, and to cut, saw and manufacture into lumber, chestnut wood, paper wood, cord wood, bark and ties, all timber on said “ Cove ” tract. The interest of the partners to be equal, and each to contribute one third of the capital stock for operating said business. That H. I. Harris, at the request of both his partners, paid the vendors of the “ Cove ” tract $1,666.66, the cash payment, and the balance of the purchase money of the “ Cove ” tract was to be paid out of the profits of the copartnership.</p> <p>That on Jan. 22, 1890, H. I. Harris’s interest in the firm of Harris, Gage & Co. was sold by the sheriff, and Martha J. Harris became the purchaser thereof, and by agreement the business was to continue with her as a partner under the original agreement, and the business was so conducted until April 1,1891.</p> <p>That the interest of H. I. Harris in the said “ Cove ” tract was sold by the sheriff in 1891 to C. M. Gage, and that, without the knowledge of the plaintiff, F. Rosenberg and C. M. Gage sold and conveyed the same to Wm. Weaver for $2,250, and that no settlement of the partnership accounts had been made, and all of the books and papers were under the control of C. M. Gage, who was the treasurer and bookkeeper, and that all indebtedness had been paid and that large sums of money, profits and increase from said business, were held by defendants, of which she was entitled to a proportionate share; and prayed that the said copartnership be dissolved and that the defendants account.</p> <p>The defendants in their answer admit the purchase of the “ Cove ” tract as tenants in common and the agreement of' co-partnership to buy, sell and manufacture lumber, etc., and that under the copartnership each was to furnish the one third of the money necessary for its successful operation, but that no money was advanced under the agreement, as the business sustained itself while in operation under the management of Carl M. Gage, one of the defendants.</p> <p>They deny that H. I. Harris contributed $1,666.66, the hand money for the “ Cove ” tract; that they contributed equally with Harris in this payment; that the second and third payments for the “ Cove ” tract were paid according to the agreement of copartnership out of the proceeds of their business, except $220, which was paid by C. M. Gage and F. Rosenberg, the defendants. The defendants deny thatC. M. Gage bought the interest of H. I. Harris in the “ Cove ” tract for Martha J. Harris, the wife of H. I. Harris, and paid the purchase money out of funds in his hands due her. They further deny that C. M. Gage had any money due her from the copartnership, or otherwise. They further aver that H. I. Harris’s interest in the “ Cove ” tract was sold on a judgment of $1,111.11, which F.- Rosenberg held against H.I. Harris, and bought by Gage for Rosenberg, and that Rosenberg paid the amount of the bid to the sheriff, and that the balance of the said judgment remains unpaid and owing by H. I. Harris. That they sold the “ Cove ” tract for $2,150, instead of $2,250, and that the plaintiff had no interest in said tract, directly or indirectly.</p> <p>The case was referred to T. W. Myton, Esq., who found the facts substantially as averred in the bill. He also found that the poi'tion of the mortgage remaining unpaid at the time of the sheriff’s sale of Harris’s interest had been subsequently paid by Rosenberg and Gage out of the partnership moneys. The master’s supplemental report was in part as follows :</p> <p>“ The sheriff’s sales materially changed the rights of the parties. Mrs. Harris, by assignment of M. G. Beaver, the sheriff’s vendee, of the interest of H. I. Harris in the firm of Harris, Gage & Co., succeeded to all the lights and interest of H. I. Harris in the said firm, and the partnership having been afterward continued without any change, she is to be treated as a partner, and in the distribution of the assets of the partnership is entitled to all the payments, shares, etc., to which H. I. Harris as a member of said firm would have been entitled had his interest never been sold.</p> <p>“ At the sheriff’s sale of the real estate, Rosenberg bought the interest of Harris subject to the lien of the mortgage for the unpaid purchase money, and must pay it himself. The articles of. copartnership are only binding in so far as the conditions, relations and rights of the partners remain unchanged. The'provision that the profits of the business should be applied to the payment of the debts of the real estate was based on the consideration that it was the joint property of all the partners; when the interest in the partnership became the property of one person, while the title to the real estate vested in another, this provision was no longer applicable. The provisions in an article of copartnership, however worded, must be so construed, if possible, as to defeat any attempt of one or more of the partners to avail themselves of it for the purpose of advancing their own interests at the expense of their copartner. The utmost good faith is due from every member of a partnership toward every other member.</p> <p>“ On the 7th day of March, 1891, Carl M. Gage applied all the funds of Harris, Gage & Co. in his hands to the payment of the balance due on the mortgage against the said Cove tract, which had been the property of H. I. Harris, Carl M. Gage and F. Rosenberg, but at that time was the property of Carl M. Gage and F. Rosenberg alone. The money belonged to the firm of Harris, Gage & Co., and we think could not be applied to the payment of a debt against the real estate belonging to but two members of that firm; at least that part of it which belonged to Mrs. Harris could not. To allow such an application of this fund would be to allow two of the members of a firm to advance their own interests at the expense of their copartner.</p> <p>“ The amounts paid by the partnership on the purchase money of the real estate were evidently fair compensation for the timber cut. The land sold for more without the timber than the balance of purchase money due on it. This, we think, is a fair, reasonable and equitable rule by which to determine the rights of the parties as to the timber cut after the sale of Harris’s interest in the partnership and before the sale of his interest in the real estate; but if it was not, under the facts in this case, we think Gage and Rosenberg cannot claim compensation for the timber cut during this time. So far as Harris’s interest in the land is concerned, all the timber cut by the firm had been cut before Rosenberg had acquired title to Harris’s interest. He bought it as it was at the time of sale. He secured no right to claim an account for timber cut by Harris, Gage & Co. before the sale of the land. The owner of the title at the time of the sale is the only person who could make such a claim here.</p> <p>“ The claim for royalty for timber cut after the sale of Harris’s interest in the partnership and before the sale of his interest in the real estate is therefore not allowed.</p> <p>“ The whole fund belonging to the firm of Harris, Gage & Co. is $1,702.59. From this must be deducted the amount due J. Murray Africa for services performed for the firm before the signing of articles of copartnership, but while the partnership was in contemplation, at the request of at least two of the members of the firm, who believed the work to be necessary preliminary work.</p> <p>“ From the balance must be deducted the costs of this proceeding, amounting to $238.68, leaving a balance of $1,455.91; less than enough to recoup the partners for the amounts advanced by them in payment of the purchase money of the real estate, with interest from April 1, 1889, and leaving nothing for distribution among the partners.</p> <p>“ This balance is distributed between Martha J. Harris and F. Rosenberg pro rata — paying to each a little more than 96 per cent of their claim. In calculating interest on the amount advanced by F. Rosenberg, interest is calculated to May 9, 1891, the day on which he received two thirds of the assets of the firm. He is not entitled to interest while the money remained in his hands.</p> <p>“ The partners must account severally for the funds in their hands belonging to the partnership. Mr. Rosenberg having received two thirds of the assets of the firm must account for that sum; and Mr. Gage having received one third of the assets of the firm must account for one third.”</p> <p>Exceptions dismissed in following opinion by FtTRST, P. J.:</p> <p>“ The original agreement of copartnership between Messrs. Rosenberg, Gage and Harris, of April 1, 1889, fixed the title to the fee in the laud in them as tenants in common, and not as partners; — both sides now concur in this view. But the same agreement converted the timber growing upon the land into partnership property, and this made the timber personal property. The copartnership was formed for the express purpose of manufacturing the timber into lumber by the partnership. It was thus severed from the land and converted to the uses of the firm. Hence when Mrs. Harris purchased her husband’s interest in the partnership, she obtained his interest as a partner, or his partnership interest in the timber, and this was so recognized by both Rosenberg and Gage, in continuing the lumbering business with her as a partner after the sale, and converting the lumber into money, and covering the same into the common treasury of the firm. She had her husband’s interest therein.</p> <p>“ When Rosenberg afterward levied upon H. I. Harris’s interest in the land and sold it at sheriff’s sale to either himself or to himself and bis associate, subject to the mortgage, and which sale, in view of its being subject to the mortgage, was made at a nominal sum, he could not then legally or equitably, under the original agreement, take the money in the treasury and apply it to his own private profit in the liquidation of the balance due on the mortgage. To our mind this would be inequitable and unjust. We must not overlook the fact that we are in a court of equity, and nothing so inequitable as this can be sanctioned.</p> <p>“ The parties changed, the rights of the parties also changed, and new rights were acquired in these changes. If Mr. Rosenberg were willing to admit that upon the application of the money in the treasury to the payment of the mortgage which now rested on his individual land, not the laird of his cotenants, Mi's. Harris should have the equity flowing from the appropriation of the partnership money by giving to her her proper proportion of the price he received from Weaver, to whom he and Gage sold the land, clear of the incumbrance, then he would be doing equity and just what he should.”</p> <p>Error assigned was decree, quoting it.</p>

<p>Appeal, No. 170, Jan. T., 1893, by John Arble et al., children and heirs of George Arble, deceased, from decree of O. C. Blair Co., No. 39, Partition Docket A, appointing Jacob C. Arble, administrator of George Arble, deceased, trustee to sell land.</p> <p>Partition. Rule to show cause why Jacob C. Arble, administrator of George C. Arble, deceased, should not be appointed trustee to sell land of decedent.</p> <p>From the record it appeared that John Arble and others, children and heirs of George C. Arble, deceased, filed a petition protesting against the issuance of the order of sale to Jacob G. Arble, the administrator, upon the grounds, as they alleged, that said Jacob G. Arble was indebted to the estate of Susan Arble, deceased, mother of the petitioners, in the sum of $3,000; that he was insolvent, and that in their opinion he was unfit to be intrusted with so responsible a trust.</p> <p>Jacob C. Arble filed an answer, alleging that he was not indebted to his mother’s estate in the sum of $3,000; but that on a fair settlement he might owe one half that sum; that he was always ready and willing to make a settlement; that he was not insolvent; that he had been exact, honest and liberal in all his transactions with the petitioners; and that he was distributee of one half the property to be sold.</p> <p>The court appointed the administrator, trustee, and ordered a sale Nov. 29, 1893, saying: “We have no discretion in the matter. We are bound to appoint the administrator trustee to execute the order of sale. He has the legal title to the office as administrator.</p> <p>A rule had previously been taken to show cause why the administrator should not be discharged. On Dec. 1, 1893, the court ordered the administrator to pay into court the balance with interest owing by him to other heirs, as shown by his account, within thirty days, or be discharged. Dec. 7, 1893, the writ to the Supreme Court was taken. On Dec. 18, 1893, the court below made an order suspending all proceedings under order of sale until the Supreme Court disposed of the appeal.</p> <p>Errors assigned were (1) appointment of administrator as trustee pending rule for his discharge; (2) the oral opinion, quoting it; (3) appointment of administrator as trustee; (4) not appointing a disinterested person.</p>

<p>Appeal, No. 33, Jan. T., 1894, by A. T. & C. M. Mead, from order of Q. S. Clearfield Co., Jan. T., 1894, No. 31, refusing wholesale liquor license.</p> <p>Application for wholesale license. Before Gordon, P. J.</p> <p>From tlie record it appeared that the applicant’s petition was indorsed by sixteen citizens residing in Da Bois borough. There were no remonstrances filed, and no evidence was taken in opposition to the petition. The opinion of the court below in this case was substantially the same as in the next case, except that, in this case it is stated that the application was refused chiefly because of the unfitness of the applicant.</p> <p>Hrror assigned, was above order.</p>

<p>Wholesale liquor license — Discretion of court — Review—Act of 1891.</p> <p>A judge has lawfully exercised his discretion' in refusing a wholesale liquor license under the act of June 9, 1891, P. L. 257, where he states in his opinion that he had personal knowledge of the facts pertinent to the case, and made careful inquiry as to the necessity of the license, and the fitness of the applicant, and that having a due regard to the number and character of the petitioners for said license, and considering the best interests of the community and of the county at large, together with the facts and information had and obtained as aforesaid, and exercising what was considered a sound discretion, the application was refused.</p> <p>In such case the refusal of the application was in the exercise of a sound legal discretion and therefore not reviewable by the Supreme Court.</p>

<p>Amendment — Parties—Practice, Supreme Court.</p> <p>The record of an action, brought by a father to recover damages for the death of his minor son, may be amended in the Supreme Court by the addition of the name of the mother as a plaintiff.</p> <p>Negligence — Infant—Master and servant — Contributory negligence.</p> <p>In an action against a mine owner by a father to recover damages for the death of his son, fourteen years of age, it is proper to submit the question of plaintiff’s contributory negligence to the jury, where the evidence is conflicting as to whether the father permitted the boy to work in the mine without any consideration as to where he was to work, and without using any precautions to protect him from danger.</p> <p>In such case the question of defendant’s negligence is for the jury where there is evidence that the boy was employed to drive a mule, and had imposed upon him the additional task of opening a door to see whether the track ahead was clear, and there was evidence that a regular attendant should have been placed at the door, and that the absence of such attendant was the cause of the accident.</p>

<p>Corporation — Suit on coupons — Execution—Evidence—Buie of court.</p> <p>Where an action is brought upon coupons it is not necessary to prove the execution of the mortgage securing the bonds to which the coupons were attached, particularly where a rule of court providing for an affidavit denying the execution of a writing sued upon has not been complied with.</p> <p>Recovery may be had upon coupons signed by the vice president of the company, although the mortgage accompanying the bond provided that the bonds should be signed by the president.</p>

Appeal, No. 266, Oct. T., 1893, by Elizabeth J. Bear et al., from decree of O. C. Lawrence Co., distributing estate of Michael Jordan, deceased. Exceptions to auditor’s report.

Appeals, Nos. 330, 338, 341 and 342, Jan. T., 1891, by defendant, from decree of C. P. No. 3, Phila. Co., June T., 1892, Nos. 1314, 199, 200, 272 and 273,' Sept. T., 1892, enjoining construction of an elevated railroad. Bills in equity for injunction to restrain construction of elevated railroad upon Market street in tbe city of Philadelphia.

<p>Appeal, No. 4, May T., 1894, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1893, No. 84, on demurrer to answer to writ of quo warranto.</p> <p>Suggestion for writ of quo warranto.</p> <p>The suggestion averred that the Northeastern Elevated Railway Company was incorporated on April 23, 1891, under the act of April 4, 1868; that said company illegally and contrary to the laws of the commonwealth had commenced the erection of an elevated railway for the conveyance of passengers on certain streets in the city of Philadelphia; and that said elevated railway was an illegal encroachment upon the public highways.</p> <p>Defendant filed an answer setting forth that the company had received the consent of the city of Philadelphia for the construction of its railroad ; and that the company had the light to construct the railroad. " The commonwealth demurred to the answer. The court entered judgment on the demurrer in favor of the defendant, in an opinion by McPherson, J., 3 Dist. R. 104.</p> <p>Error assigned was above order.</p>

Appeal, No. 5, Jan. T., 1894, by defendants, David M. McCall et al., heirs at law of Samuel McCall, deceased, from judgment of C. P. Crawford Co., May T., 1892, No. 73, on verdict for plaintiffs, S. T. McCall et al., heirs at law of Joseph McCall, deceased. Ejectment. Before Noves, P. J., specially presiding.

Appeal, No. 354, Jan. T., 1893, by William Benson, from judgment of C. P. Erie Co., Sept. T., 1889, No. 16, on verdict for plaintiffs, Sarah Phelps and L. F. Phelps, her husband, et al.-, widow and heirs of James F. Benson, deceased. Ejectment. Before Gunnison, P. J. At the trial it appeared that James F. Benson died intestate on March 15, 1885, seized of the land in controversy. At the time of his death three judgments were liens upon the land.

Appeal, No. 171, Jan. T., 1894, by plaintiff, Matilda R. C. Keller, from decree of C. P. Cumberland Co., Nov. T., 1893, No. 6, in equity, refusing to continue preliminary injunction. Bill in equity for an injunction to restrain a water company from entering upon and condemning plaintiff’s lands.

<p>Appeals, Nos. 99 and 241, Jan. T., 1894, by John L. Barner, executor of C. Long, deceased, and L. G. Maglaughlin et al., from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report, distributing estate of Elizabeth Cressler, deceased.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, W. Trickett, Esq., reported as follows:</p> <p>“1. George Klippinger died Feb. 22, 1843, testate, seized of certain real estate. Two children survived him, and, but for the will, would have been his only heirs, viz.: Sophia, intermarried with Joseph Cressler, and Elizabeth, intermarried with John H.' Cressler.</p> <p>“ 2. The will of George Klippinger directed, inter alia, that his executors should, within five years from his death, cause the real estate of which he died seized to be divided into two equal parts by the appointment for that purpose of five or seven suitable men, and ordered that the purparts should be allotted by them to the devisees, and declared that the “ division, valuation and allotment ” should be final.</p> <p>“ 3. Pursuant to this direction of the will, five persons were appointed on March 12,1844; and on March 23,1844, the persons so appointed made a division of the land into two parts, one containing 237 acres and 144^ perches, which they allotted to Elizabeth Cressler, the other containing 297 acres and 144^ perches, which they allotted to Joseph Cressler and Sophia, his wife. They valued each of these purparts at $7,600.</p> <p>“ 4. Elizabeth Cressler took possession of her purpart, retaining it without alienation till her death, which occurred on Monday, Feb. 20,1888. She died testate, and there survived her, of nine children who had been born to her, Daniel Cressler, George W. Cressler, Susan E., wife of H. C. Bomberger. Her daughter Victoria, married to David Griffith, had died Aug. 24,1870, leaving to survive her a son John, who is still alive, and her husband, David.</p> <p>“5. At the time of the writing and. probate of George Klippinger’s will, his daughter Elizabeth had four children [three of them since deceased]. After the death of George Klippinger there were born to Elizabeth [four more children, three of them since deceased].</p> <p>“ 6. On Oct. 20,1885, an inquisition finding Mrs. Elizabeth Cressler a lunatic was confirmed by the court of common pleas of Cumberland county, and Alexander Bishop was appointed her committee. At this time Alexander Bishop occupied the land of Elizabeth Cressler, derived from her father George Klippinger, and he has remained a tenant thereof to this time, farming on shares since her death.</p> <p>“ 7. The will of George Klippinger contains the following:</p> <p>‘1 give and devise unto my daughter Elizabeth (intermarried with John H. Cressler) for the support of herself and her children, one moiety of my plantation and tract of land situate in Southampton township above mentioned, with the appurtenances, containing about 500 acres of land.’ Immediately following is a devise ‘ unto my son-in-law, Joseph Cressler and to my daughter, Sophia, his wife, and to their heirs, the other moiety of my plantation and tract of land above mentioned.’ Then follows a direction that, while the real estate remains undivided, and undisposed of, ‘my executors, hereinafter named, shall, in each and every year from the time of my decease, pay unto my said daughter Elizabeth, or, in the event of her death, to the use of her children, the one half of the clear yearly proceeds of my said real estate above mentioned.’ Then follows a direction to the executors to have the real estate divided within five years from the testator’s death into two equal parts, the appraisers to ‘ allot to each their respective part or share.’ Following this is: ‘I desire further, that should my said exec-' utors think it advisable and for the interest of my said daughter Elizabeth and her children to dispose of her share or part of my said tract of land, with the other moiety of the same or separately, I do hereby authorize and empower them so to do, either at public or private sale and in part or in whole, and to execute and deliver such conveyance as will be necessary to pass the title to such purchaser or purchasers for the same, and the proceeds of such sale or sales to be by them, my said executors, safely invested in other real property, or loaned out upon interest, where the same will he safe, and the yearly interest thereof be punctually applied to the use of my said daughter Elizabeth and her children.’ After this comes: ‘and as touching all the rest, residue and remainder of my estate, real and personal, of whatever kind or nature soever the same may be, I give and devise the same unto my daughter Elizabeth and to her children, and to my son-in-law Joseph Cressler and his wife Sophia and their children share and share alike.’</p> <p>“ 8. The will of Elizabeth Cressler provides: ‘ First. I direct that all proper privileges, rights and claims honestly and justly belonging to my said husband John H. Cressler shall be duly respected and allowed so far as they affect my estate. Subject to this, I direct that all my estate of whatsoever kind or description shall he divided equally between my children share and share alike, subject however to the after provisions of this my will. The lineal descendants of any child, however, either now dead or who may hereafter die in my lifetime, always to stand in the place of the parent and to receive the proper proportion.</p> <p>“ ‘ Second. I direct, at the death of my said husband, that my real estate of every kind and description and however held and wherever situated, shall be sold and the proceeds divided as I have above directed.</p> <p>“ ‘ Third. As to any interest and estate which my son Daniel may take under this my will, I direct the same to be held by my executor .... in trust, the interest and income thereof to be paid to said Daniel. . . .</p> <p>“‘Fourth. As to the share of my grandson, John M. Griffith’ ... .</p> <p>“The will appointed the testatrix’s husband, John H. Cressler, executor. He dying before his wife the present administrators c. t. a. were appointed.</p> <p>“9. To No. 11 Jan. T., 1867, F. Grove & Co. recovered a judgment in the court of common pleas of Cumberland county against Daniel Cressler & Co. for $447.04. On an alias.fi. fa. issued Aug. 23, 1871, upon this judgment, a levy was made upon the interest of Daniel Cressler and, on an alias venditioni exponas, issued Jan. 24, 1872, the sheriff sold this interest to Charles E. Maglaughlin for $10.00. P. New, formerly of the firm of F. Grove & Co., had, as a new firm of P. New & Co., become owner of the property of F. Grove & Co. (Grove retiring), and Charles E. Maglaughlin, as attorney for P. New & Co., caused the executions aforesaid to issue and purchased the interest of Daniel Cressler for them, holding it as a trustee for them. P. New & Co. paid the costs of the execution and sheriff’s sale and also the purchase money bid at the sale. Ample and distinct admission by Mr. Maglaughlin that he had bought the interest and was holding it for P. New & Co. is in writing signed by Mr. Maglaughlin. In a letter dated May 14, 1873, to P. New & Co., Mr. Maglaughlin says: ‘ Then I levied upon what I believe to be an interest of Cressler in a valuable farm left by his grandfather. This interest (if it is an interest in the land) is worth several thousand dollars. After some negotiation about arranging the claim, which Cressler subsequently declined to make any effort to fix, I sold this interest in land at sheriff’s sale and bought it in myself for ten dollars. . . . Whatever title this sheriff’s sale conveyed is held by me for your benefit, and 1 really believe that the sale did convey a substantial title to an interest which will bq worth at the death of Cressler’s mother (an old and feeble woman) $1,500 or $2,000. . . . Of course the costs arising on the suit and from the executions are a legal claim against you as the plaintiff in the case, and as having been incurred on your behalf.’ On May 20, 1873, P. New & Co. drew and sent their check payable to the order of J. K. Foreman for $71.36, on which the sheriff, Foreman, ob-. tained the money. On March 27, 1885, P. New, trading as P. New & Co., Peter New and Regina his wife, by deed conveyed to Christian Long'of Shippensburg all the undivided interest of Daniel Cressler, which Charles E. Maglaughlin as the attorney of P. New & Co. had purchased for them. Charles E. Maglaughlin, married Feb. 24,1863, and had two children: Wilmer K., born Dec. 25, 1864, and Maud L., bom Feb. 20, 1867. Mr. Maglaughlin died intestate April 29, 1874, leaving to survive him these two children and a widow, all of whom are still alive. . . .</p> <p>“ 24. There are exceptions to the account of the administrators c. t. a. of Elizabeth Cressler. The first alleges that certain debits should not appear in the account because they are not proper charges, ‘ being the proceeds of grain raised on real estate not belonging to Elizabeth Cressler,’ which the said administrators had no right to receive and which belonged to other parties under the will of George Klippinger, deceased. The second exception denies the right of the administrators to ‘meddle ’ with the real estate or its proceeds. The third exception denies the right to credits in so far as they consume the amounts with which the administrators are debited, to which debits the first raises exception.</p> <p>“ It was agreed however, before the auditor, that he should consider the question of title to the land and award the proceeds of it to the persons found to be its owners.</p> <p>“ CONCLUSIONS OB’ LAW.</p> <p>“ 1. Under the will of George Klippinger, Elizabeth Cressler took a fee in the land devised ; Elizabeth continuing to own it till her death, it passed by her will.</p> <p>“ 2. The sheriff’s sale of Daniel’s hypothetical interest as land, in 1872, sixteen years before Elizabeth Cressler’s death, passed no interest. If it had, the ostensible purchaser, Charles E. Maglaughlin, would have held the interest as trustee for P. New & Co. and then for Christian Long, grantee of P. New & Co., and this trust would have been enforceable.</p> <p>“DISCUSSION OB' LAW.</p> <p>“ 1. The estate of Elizabeth Cressler under the will of George Klippinger: If the provision in George Klippiuger’s will first quoted stood alone, unqualified by the dispositions in other parts of the will, what estate would it give to Elizabeth ?</p> <p>“ This will was written in 1843, and is therefore subject to the operation of § 9 of the act of April 8, 1833, P. L. 249, that ‘ all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate : ’ 2 Bright. Purd. 1711, pi. 10. The testator having a fee, he would be considered as disposing of it in this clause. To whom ? The gift is ‘ to my daughter Elizabeth.’ Prima facie, then, the fee is given to her. Does the testator’s expression of the inducement to make the devise, of the end which he believed and desired the devisee to be able to accomplish by it, reduce or qualify the estate ? This end is ‘ the shpport of herself and her children.’ The purpose in almost every devise is that the land shall contribute to the support of the devisee, and, if he or she has children, to the support of such children. Will the expression of this purpose or expectation diminish or modify the estate which, but for it, would unquestionably have passed ? We cannot think so. When a life estate is given to a widow for the ‘ support of herself and my daughter ’ it is not reduced nor affected with a trust for the daughter by this expression of the purpose : Dale v. Dale, 18 Pa. 446 ; Paisley’s Ap., 70 Pa. 153 ; Mazurie’s Est., 132 Pa. 157; Haskins v. Tate, 25 Pa. 249. ‘We think,’ says Shauswood, J., in 70 Pa. 153, ‘that the words which express the object for which the devise of the entire property was made to the wife for life, meant to repose that discretion in her, did not vest any present interest in the children as cestuis que trust of any particular share or shares, and in that respect the principles of construction adopted in Pennock’s Estate, 8 Harris, 268, are applicable.’</p> <p>“ If the bestowal of a life estate upon a mother for the support of the children creates no trust affecting that life estate, it is impossible to see how the bestowal of what would, but for the expression of the purpose to provide a support for children, be a fee, becomes a trust because of such expression. In one case the life estate is given to the mother for the support of herself and her children, but the children do not thus become equitable or legal co-owners ; in the other case the fee is given to the mother for the support of herself and her children ; how do they become legal or equitable co-owners ? If it is possible to give an estate of a certain magnitude (e. g., a life estate) for such purpose without making the designed beneficiaries co-owners, is it not possible to give a still larger estate (e. g., a fee) for a similar purpose with a similar exclusion of co-ownership? The expression of a desire or expectation will not convert a devise into a trust unless ic appears that the testator intended not to commit the estate to the discretion of the devisee : Good v. Fichthorn, 144 Pa. 289 ; Burt v. Herron, 66 Pa. 400; Hopkins v. Glunt, 111 Pa. 287; Bowlby v. Thunder, 105 Pa. 173.</p> <p>“ Nor are we able to persuade ourselves that a legal life estate was given to Elizabeth Cressler and a legal remainder to her children. Had the devise been to Elizabeth and her children and had she had no children, the rule in Will’s Case might have operated, Elizabeth taking a fee tail converted by statute into a fee simple : Will’s Case, 6 Rep. IT; see Cote v. Bonnhorst, 41 Pa. 243 ; 2 Jarman, Wills, 39 (Little, Brown & Co.’s ed. of 1881). But as Elizabeth had children this rule is not applicable. The principle has been recognized that a devise to a mother and her children, of whom she has some when the devise is made, constitutes them tenants in common : Will’s Case, 6 Rep. 17 ; Graham v. Flower^ 13 S. & R. 439 ; McKeehan v. Wilson, 53 Pa. 74. Similarly a conveyance between W. and S. ‘ in trust for herself and her children,’ granting unto the said S. ‘ in trust for herself and her children and unto their heirs and assigns,’ made the ten children and S. tenants in common, each taking an eleventh : Shirloek v. Shirlock, 5 Pa. 367. But as the devise of George Klippinger is not to Elizabeth and her children, nor to Elizabeth in trust for her children, the words ‘ for the support,’ etc., not making a trust, the hypothesis of a cotenancy between Elizabeth and the children is excluded. That successive estates were given to them finds no warrant in the testamentary language already cited.</p> <p>“ Following the devise already quoted, the testator’s words are: ‘ I give and devise unto my son-in-law, Joseph Cressler, and to my daughter Sophia, his wife and to their heirs the other moiety of my plantation and tract of land above mentioned.’ The testator then orders that so long as his real estate remains undivided and undisposed of, ‘my executors . . . . shall in each and every year from the time of my decease pay unto my said daughter Elizabeth, or in the event of her death to the use of her children, the one half of the clear yearly proceeds of my said real estate above mentioned.’</p> <p>“‘In the' event of her death’ may possibly refer to death before the testator, Caldwell v. Skilton, 13 Pa. 152; Fahrney v. Holsinger, 65 Pa. 388; Stevenson v. Fox, 125 Pa. 568; King v. Frick, 135 Pa. 575; McCullough v. Fenton, 65 Pa. 418, 428; Karker’s Appeal, 60 Pa. 141; Mickley’s Appeal, 92 Pa. 514; or it may mean death before the division of the estate. If the latter, it may have been predicated on the assumption that Elizabeth would not before that time have aliened the land or that she should not have the power to alien it. A restraint on alienation during life after a fee is given is void: Williams v. Leech, 28 Pa. 89; Naglee’s Appeal, 33 Pa. 89; Jauretche v. Proctor, 48 Pa. 466; McWilliams v. Nisly, 2 S. & R. 513. Even if we infer an intended restraint on alienation during the five years, we cannot find in this provision, operative in fact for slightly more than one year only, in favor of children, sufficient to justify the construction that only a life estate is given to Elizabeth.</p> <p>After the clause just commented upon, is a direction to the executors to cause a partition of the land into two equal parts. This power of partition by arbiters is not inconsistent with the existence of a fee in the devisees. Lebling’s Estate, 27 W. N. 161. It operates upon the interest of Joseph Cressler and his wife Sophia, and their heirs, which is unquestionably a fee simple.</p> <p>The clause following the provision for partition contains (1) a power of sale in the executors; (2) a power and duty to invest the proceeds of Elizabeth’s half. Do these or either of them coerce the conclusion that Elizabeth takes but a life estate ?</p> <p>“ The power to sell is not limited to Elizabeth’s part. The executors may sell her half ‘ with the other moiety of the same or separately.’ This could not have meant that, after the partition already provided for, the part allotted to Joseph and his wife could be sold along with that allotted to Elizabeth. But prior to such partition the power extended to the sale of both purparts. Now it is undisputed and we think indisputable that Joseph and wife take a fee. If then the power to sell is not inconsistent with their fee it- is not inconsistent with a fee in Elizabeth. Besides the presence of a power of sale is no more consonant with a fee in remainder (e. g., in Elizabeth’s children) than with a fee in possession in Elizabeth.</p> <p>“ The trust in the executors is a trust affecting the proceeds. It begins to operate only in ease the power to sell is exercised. On conversion the executors are to safely invest the proceeds in other land or loan them out upon interest. When the proceeds are reinvested in land the trust ipso facto terminates. It continues only when they are put out at interest. In that case the yearly interest is to be punctually applied to ‘ the use of my said daughter Elizabeth and her children.’ How long ? Dur■ing Elizabeth’s life ? During the children’s lives ? It does not appear that it is to last during Elizabeth’s life only. Yet it cannot go on indefinitely. Some of the children of Elizabeth were not born when this will went into effect. Is a trust created, despite the principle of the rule against perpetuities, for these lives not in being ?</p> <p>“ At all events we do not feel warranted in deducing, from the creation of a trust for Elizabeth and her children whose duration is vague, under which the relative rights of Elizabeth and her children are obscure, and whose rise into operation is dependent on a discretion of the executors which has never been exercised, the inference that the Klippinger will created in Elizabeth an estate less than a fee simple.</p> <p>“ It may be worth while to note that in the last quoted clause the share of which the executors are authorized to dispose is termed ‘ her ’ (Elizabeth’s) share. In the residuary clause of the will the testator gives the remainder of his estate ‘ unto my daughter Elizabeth and to her children and to my son-in-law Joseph Cressler and his wife Sophia and their children, share and share alike.’ He surely intended not a per capita division between all these persons, but a division into two parts, one for Elizabeth and her children, the other for Joseph Cressler and wife and their children. It is difficult to suppose, in the absence of conceivable motive, that the testator intended to make the children tenants in common with the parents of the residuary property or to restrict the interest of the parents in this property to a life estate and limit upon it a remainder to the children, while he plainly gave the fee to Joseph Cressler and his wife Sophia in the clause above quoted. The grouping of the children with the parents seems to have been loosely done with no intention to give them a legal interest in the property.</p> <p>“ In a case of doubt as to the estate given it is necessary to remember the rules concerning the bias of the courts in the construction of wills. ‘ In ease of doubtful construction,’ says LowrIe, J., ‘ the law leans in favor of an absolute, rather than a defeasible estate; .... of the first rather than the second taker as the principal object of the testator’s bounty, and of a distribution as nearly conformed to the general rules of inheritance as possible: ’ Smith’s Ap., 28 Pa. 9. ‘ The first taker is always,’ says Sharswood, C. J., ‘ the first object of the testator’s bounty and his absolute estate is not to be cut down to an estate for life .... without clear evidence of such an intent: ’ Mickley’s Ap., 92 Pa. 514; King v. Frick, 135 Pa. 575; Stevenson v. Fox, 125 Pa. 568; Fitzwater’s Ap., 94 Pa. 141.</p> <p>“ Elizabeth Cressler was the daughter of the testator. Though she had at his death four children, of whom two died after-wards, before her and without issue, she had several born after his death, whom he had consequently never seen. There is an appreciable presumption against the testator’s intending to give the fee to these children, born and unborn, in preference to his own daughter.</p> <p>“We conclude that Elizabeth Cressler takes a fee in the land devised to her.</p> <p>Daniel Cressler’s Interest: “ The sheriff’s sale of Daniel Cressler’s share in the land, on an alias venditioni exponas, conveyed to the purchaser, Charles Maglaughlin or his cestui que trust, no title. When that sale occurred Daniel had. no title in the land. It was his mother’s. Even had it taken place after his mother’s death it would have conveyed no interest, for her will converted the land into personalty and gave Daniel the interest of his share of the principal for his life, so as not to be liable for his debts. Had a title been acquired by Charles Maglaughlin it would have been simply as trustee for his client, P. New & Co. The purchase money was, at Mr. Maglaughlin’s request, and on his assertion in writing that he had bought for the client, paid to the sheriff by the latter. The act of April 22, 1856, § 6, P. L. 533, forbids the enforcing of any resulting trust (which this was) beyond five years from the accruing of such trust ‘ with the right of entry.’ But as, if Mrs. Cressler had only a life estate, the right of entry did not accrue to P. New & Co. or to Maglaughlin till her death in 1888, this limitation would not apply. Charles Maglaughlin was not in possession nor was he otherwise enforcing any pretended rights as against Daniel Cressler or P. New & Co. until 1888. The latter could not have maintained ejectment. Even under the act of 1856 we think P. New & Co. could enforce the trust as against Charles Maglaughlin, but the act of 1856 is repealed with respect to attorneys at law by that of March 27,1865, P. L. 56. Though this act does not apply to a purchaser from an attorney having no notice of the trust, Barret v. Bamber, 81 Pa. 247, an heir or devisee of such attorney, not being a purchaser for value, would be incapable of claiming the immunity of a purchaser. The trust in Charles Maglaughlin, which is' clearly enough admitted by him in writing, is enforceable against him and his widow and heirs. But for reasons stated above, no title passed to Charles Maglaughlin, or to P. New & Co. or to C. Long, P. New & Co.’s grantee.”</p> <p>Exceptions 'filed by both parties appellants were dismissed by the court in the following opinion by Sadler, P. J.:</p> <p>“We find no just reason to complain of the findings of fact made by the auditor nor of the conclusions of law at which he has arrived. If the devise of land by George Klippinger to his daughter is uncertain as to its meaning, it was proper for the auditor to determine as he did. The devise of the one moiety of the land of the testator was to his ‘ daughter Elizabeth.’ One half of his residuary estate was bequeathed to her; and the same manner is used as in the bequest of the other half to his daughter Sophia and her husband, Joseph Cressler. Provision was made for the partition of the land, in which contingency ‘ each ’ was to be allotted a ‘ part or share.’</p> <p>“ In so far as the distribution of the balance in the hands of the accountants is concerned, there can be no doubt about the jurisdiction of the court or the authority of the auditor appointed by it to determine who are entitled to it. To do this according to law, it became necessary to find in whom the title of the land was. All parties were before the auditor in person or by counsel and made claim to participate in the distribution. It does not appear that any objection was made during the hearings before the auditor that there was no power in the orphans’ court to dispose of the questions which arose before the auditor.</p> <p>“We are well satisfied that the purchase made by C. E. Maglaughlin, Esq., now deceased, was for his clients, and that he took and held the same in trust for them, to wit, P. New & Co. The determination of the auditor is in accordance with the facts and the law applicable thereto.”</p> <p>Errors assigned were dismissal of exceptions to auditor’s report, quoting them.</p>

Appeal, No. 273, Jan. T., 1894, by defendants, Mary Stephenson et al., from judgment of C. P. Crawford Co., Feb. T., 1891, No. 126, on verdict for plaintiffs, George Benninghoff et al. Ejectment. Before Henderson, P. J. At the trial, it appeared that, in 1873, Cordelia A. Stephenson, a married woman, was the owner of the land in dispute. On Sept. 17,1873, she joined her husband in executing a mortgage on the land, but her separate acknowledgment was not taken.

<p>Appeal, No. 501, Jan. T., 1894, by H. S. Thomman, heir, from decree of O. C. Cumberland Co., distributing estate of Adam Thomman, deceased.</p> <p>Exceptions to auditor’s report. Before Sadler, P. J.</p> <p>The auditor, J. E. Barnitz, Esq., reported as follows:</p> <p>“ Adam Thomman died April 24,1886, leaving a widow and children. In the second clause of his will duly proven he provided as follows : ‘I direct that the farm which I now own and occupy, shall not be sold during the life of my beloved wife, Margaret, if she shall survive me, but after her death it shall be sold at public sale, and the proceeds thereof shall be equally divided between my children, share and share alike.’</p> <p>“ The testator has made an absolute direction that upon the death of his wife the farm shall be sold, and the proceeds equally divided among his children, subject to a deduction from the share of Mrs. Geiling in a subsequent clause of the will. This direction works a conversion of the land into money from the testator’s death, and it is to be so treated in this distribution. The fact that the period of sale is postponed, and the land cannot be sold until the time arrives, does not affect the question of conversion, ‘if the direction be positive and explicit, irrespective of all contingencies and independent of all discretion: ’ Parkinson’s Appeal, 32 Pa. 455; Anewalt’s Appeal, 42 Pa. 414.</p> <p>“ The real contention is as to whether the legacies were vested or contingent. Lena Zeigler, one of the children, died after the testator, and before the death of the widow. The fund for distribution being treated as personalty, if the legacy is vested, the share which Lena Zeigler would have taken were she now living would pass to Philip Zeigler as her administrator; if contingent, the entire fund would be distributed to the children living at the death of the widow. Were, then, the legacies vested or contingent ?</p> <p>“As a general rule, a legacy is vested or contingent just as time shall appear to be annexed to the gift, or the payment of it. If futurity is annexed to the substance of the gift, vesting is suspended, but if it appears to relate only to the time of payment, the legacy vests. McClure’s Appeal, 72 Pa. 414.</p> <p>“ It is contended by the surviving children that the only gift the testator made to them is in the direction to pay and distribute, at a future time, and there being no antecedent gift independent of the direction to pay, the legacies are contingent. Such would be the case, unless from an examination of the entire will the intention appears to be contrary. 2 Williams’s Ex’rs, 7th ed. 1232.</p> <p>“ There is in the present case no gift, but a direction to pay. The general rule is well settled that where there is no distinct gift, but such only as is inferable from a direction to pay, the legacy is contingent. Yet if such payment or distribution appears to be postponed for the convenience of the fund, or for the benefit of the party first to take, and on account of the character of the legatee, the vesting is immediate.</p> <p>“In this case the testator directed that the farm should not be sold during the life of his wife, if she shall survive him, but after her death it shall be sold and proceeds divided, etc. It is clear the only purpose of postponing sale and distribution was for the benefit of his wife, and not on account of anything that affected the children so as to cause him to attach any condition to the legacies. If his wife had not been living there would doubtless have been an immediate distribution to his children, the testator intending postponement of payment of the legacies as stated, ‘ if she survive me,’ and this postponement was only on account of, and for the benefit of the widow. The distribution after death of his wife was not directed on account of the age or character of the legatees, but for the advantage and benefit of his widow.</p> <p>“ Testator doubtless intended the legacies to vest in his children living at his death, not to those who survived his wife. It would be a strained construction to hold that testator intended these legacies to vest only at the death of the wife. There was a possibility of all dying before that event, and no provision was made in view of it.</p> <p>“ In doubtful cases legacies are regarded as vested rather than contingent: Burd’s Exrs. v. Burd’s Adm., 40 Pa. 182.</p> <p>“ In the fourth clause of the will testator says: ‘ I bequeath the house and lot in Carlisle to my daughter, Susan G-eiling, wife of John Ceiling, subject to the payment by her annually of the interest on $600, at 5 per cent to my estate during the life of my wife. I further direct that the value of this property, to wit: $600, so bequeathed to my daughter shall be deducted from her share of the real estate when sold; that is, that this sum of $600 shall be part of her share, but that she shall not have more including it than any other children received.’ Testator here speaks of one of his children, naming her in connection with her share of the other real estate. It tends to lead to the conclusion that it was the testator’s intention that she should, in any event whatever, receive a poi’tion of the proceeds of the sale of the farm, and that the legacies should vest at his death; and in the same connection he speaks of his other children.</p> <p>“ That payment only was postponed for the benefit of the widow seems to be the onfy reasonable construction.</p> <p>“ The case of Bartholomew’s Estate, 155 Pa. 814, cited by the counsel, differs from the present case in this, that the testator in that case clearly states that in event of death of any of his children before the shares should become payable, then such share should go to the survivors. The case does not govern in the present distribution.</p> <p>“We are of the opinion that the legacies under the will of Adam Thomman vested at his death, and make distribution accordingly.”</p> <p>Exceptions dismissed ; exceptant appealed.</p> <p>Error assigned was dismissal of exceptions, and distribution.</p>

Appeal, No. 510, Jan. T., 1894, by plaintiff, James Kirkpatrick, from judgment of C. P. Erie Co., Feb. T., 1893, No. 8, on verdict for defendants, Margaret Doughty Heydrick and husband. Ejectment. Before Gunnison, P. J. At the trial it appeared that plaintiff .claimed title as heir of Eliza Flint. Defendant claimed title under the will of Eliza Flint. Defendant offered in evidence certified copy of will of Mrs. Eliza Flint, dated Oct. 2, 1886, probated Sept. 7, 1892.

Appeals, No. 346, Jan. T., 1894, and No. 44, July T., 1894, by A. P. Leidich and S. M. Leidich, individually, and as trustees of M. G. Leidich, and by John Irvine, from decree of C. P. Cumberland Co., Nov. T., 1889, No. 85, dismissing exceptions to report of auditor appointed to distribute the assigned estate of D. J. Leidich and Upton Birnie, trading as Leidich & Birnie. Exceptions to report'of E. B. Watts, Esq., auditor.

Appeal, No. 365, Jan. T., 1893, by defendants, Alexander'Goodhart et al., from judgment of G. P. Cumberland Co., Sept T., 1891, No. 257, on verdict for plaintiff, T. W. Ahl for use of C. Long. Scire facias to revive judgment. Before Sadler, P. J. At the trial it appeared that the judgment had been confessed for the purchase money of land. Defendants claimed that it was to be paid by iron ore mined from the land, and that they had delivered sufficient ore to pay the debt.

<p>Trusts — Accountant—Commissions—Interest—Continuous trust.</p> <p>In the case of a continuous trust, the trustee, except in extraordinary circumstances or when the instrument by which the trust is created so indicates, cannot diminish the fund which is to create the income during the life of the trust. For services rendered by way of collecting and paying over the income, the compensation is a fit charge upon the increase and is properly deducted from it; but the labor, care, and responsibility pertaining to the conservation of the capital itself are properly charged on it, and are to be deducted from it when the trust expires, or the particular trustee’s relation to it ends.</p> <p>• Where a trustee has improperly retained commissions on principal before the trust has terminated, he may be charged interest on the amount retained.</p>

<p>Judgment — Agreement to continue lien — Sheriff's sale.</p> <p>Where a judgment has been paid in full, the parties may lawfully agree that it shall not be satisfied of record, but shall remain as collateral for a new loan made or to be made. Judgment creditors whose liens accrue subsequently to the agreement cannot object to it.</p>

<p>[Marked to be reported.]</p> <p>Contract in restraint of trade — Combination to prevent competition— Public policy — Brewers.</p> <p>Where a number of persons engaged in the same business within the same territory enter into an agreement the object of which is purely and simply to silence and stifle all competition among themselves, the agreement is in restraint of trade, and void as against public policy.</p> <p>If it appears that such a combination is injurious to the public, the courts will not stop to inquire as to the degree of injury inflicted, nor whether the restraint be general or partial, nor will they consider the form and declared purpose of the combination.</p> <p>A combination among brewers to prevent competition among themselves in the sale of beer is illegal.</p> <p>One member of an illegal combination in restraint of trade cannot enforce a claim against the other members of the combination, where his cause of action is based upon the illegal agreement.</p> <p>In such a case the assignee of the plaintiff stands in no higher right than his assignor, as notice of the character of the combination is in the channel of his title.</p>

<p>Criminal law — Murder—Presence of defendant — Amendment of record.</p> <p>On an indictment for murder the record must show affirmatively that the prisoner was present at every stage of the proceedings against him; but if through an omission of the clerk the fact of his presence was not noted on the record, the trial court may direct that the record shall be amended so as to conform to the actual facts of the case, and show the presence of the prisoner.</p> <p>Murdei- — .Evidence—.Dying declarations.</p> <p>On the trial of an indictment for murder, the dying declarations of the deceased are admissible in evidence, where the witness to whom they were made testifies that the deceased was “ in his right mind,” and conscious that his death was imminent at the time he made them.</p> <p>Evidence — Contradictory statements — Charge of court.</p> <p>On the trial of an'indictment for murder, it is improper for .the court to refuse to charge that if the jury believe the testimony of certain witnesses, “ that the deceased made declarations at the time of the shooting and subsequently thereto that the shooting was accidental, and contradictory of his dying declarations, such declarations are to be taken into consideration by the jury, and if true then there should be an acquittal.”</p> <p>Murder — Charge of court.</p> <p>On the trial of an indictment for murder, it is not improper to charge that, “while justice is to be tempered with mercy, you will see to it in your deliberations that your compassion for the accused shall not work wrong and injustice to the commonwealth. The deceased was, and all citizens who survive him are, as much entitled to the protection of the law as the prisoner at the bar.”</p> <p>Murder of the second degree — Charge of court.</p> <p>On an indictment for murder it is proper to charge: “ If all the evidence in the case proves to the satisfaction of your minds beyond a reasonable doubt that the defendant, in cool blood, not in the heat of a passion, not demented by gross intoxication, shot the deceased and thereby inflicted upon his leg a wound, which wound accelerated or caused blood poisoning to set in, killing or causing the death of the deceased five days after such shooting, then you might find the defendant guilty of murder of the second degree.”</p> <p>Manslaughter — Charge of court.</p> <p>On an indictment for murder it is proper to charge: “ If you find from the evidence, beyond a reasonable doubt, that the defendant did, upon a sudden quarrel or provocation and without malice, shoot and wound the deceased, that such shooting and wounding caused blood poisoning to set in, and that from such disease he died on the fifth day after the shooting, then the offence would be manslaughter, and your verdict would be accordingly — all other requirements of fact and law, as we have or will instruct you, being made out.”</p> <p>Murder — Inadequate statement of defendant's ease.</p> <p>A judgment of guilty on an indictment for murder will be reversed, where the trial judge gives due prominence to the evidence on the part of the commonwealth but fails to bring to the attention of the jury evidence on behalf of the defendant which tended to show the existence of intimate and friendly relations between the deceased and the accused, and their declarations and conduct immediately after the shooting whieh tended to negative an inference of ill will or a quarrel between them at the time of the shooting.</p>

<p>Appeal, No. 192, Jan. T., 1894, by-plaintiff, Isaac Wilson, from order of C. P. Clearfield Co., Dec. T., 1892, No. 173, entering judgment of nonsuit.</p> <p>Assumpsit for royalties under coal lease. Before Krebs, P. J.</p> <p>The material portions of the lease were as follows :</p> <p>“ The said lessor agrees to lease and demise unto the said lessee, his heirs or assignees, all of the merchantable coal contained in that certain seam known and called the Soult or cannel seam of coal, on, under or upon that certain tract or parcel of land situate in Bradford township, county and state aforesaid; [with right of egress, etc.] . . . Reserving also the right at all reasonable times for himself, his agents or engineers, to enter the mines upon said leased premises, for the purpose of examination and inspection, to see that the conditions of this lease are complied with.</p> <p>“ In consideration whereof, the said lessee agrees to pay the price or sum of twelve (12) cents per gross ton for each and every, ton of merchantable coal mined and sold out of said seam, to be paid for quarterly, that is to say: For all coal sold during any period of three months is to be paid for on the twentieth day of the next succeeding month, and the quantity is to be determined by the railroad scale weight over which the same passes to market, and for all coal sold for local trade, and not passing over said railroad scales, by the weight accounted for by the purchaser.</p> <p>“ The said lessee agrees to pay all the taxes assessed upon the improvements by him erected upon said premises, and further agrees to mine said coal by the most improved methods, making as little waste or slack as is possible in the mining, preparing, screening and shipping of said coal.</p> <p>“ The said lessee agrees to commence within three months from the date hereof to open a mine or mines upon above premises, or upon some othér property leased, controlled or owned by said lessee in the neighborhood, that is to say, near the head of Millstone creek, and construct railroads, and such other improvements, and have all things in readiness to ship coal on or before July 1, 1888, from said section.</p> <p>“ It is further agreed that in the event of there being any other seam of coal above said cannel or Soult seam, which upon development proves to be three feet and upwards in thickness, and of merchantable quality, adapted to the eastern markets, the said cannel seam shall be so worked as not to destroy tíre seam above, and said lessee shall work said seam above paying as a royalty therefor the price of six cents per gross ton, to be paid for in the same manner as is above provided for the payment of coal mined and sold.</p> <p>“ It is further agreed that said lessee will advance on account-of said royalty, within four months from the date hereof, the sum of five hundred dollars ($500), and each year after July 1, 1890, said lessee agrees to pay, within sixty days after the expiration of any year, the sum of two hundred and fifty dollars ($250), until July 1, 1895, said advances to be applied to the payment of two certain judgments entered to No. 429, January term, 1884, and No. 55, December term, 1886, until the same are paid and liquidated. And after July 1, 1895, said lessee agrees to mine and ship from said premises at least three thousand tons of coal annually, or pay for that quantity whether mined and shipped or not; but for all coal so paid for, which has not been mined and shipped, the said lessee shall have the right to mine and remove the same at any time thereafter, during the continuance of this lease, so that no more coal will have been paid for than has actually been mined and sold.</p> <p>“ It is further agreed that should said seam of coal prove faulty in the strata, or unmerchantable in its quality, so rendering it impracticable to mine or dispose of the same in reasonable quantity, the said lessee shall have the right to abandon the same, with the right to remove all the improvements by said lessee erected on or under said premises; but all advances of royalties paid for coal not mined shall be forfeited to said lessor.</p> <p>“ It is further agreed that the above named lessee shall have the right to assign, sublet or transfer this lease to the Beech Creek Cannel Coal Company, their assigns or successors, and such assignment shall relieve said above named lessee from all personal liability under the covenants to be performed and kept by said lessee.”</p> <p>The first installment of rent was paid. This suit was brought Oct. 14, 1892, to recover the rent then due. It did not appear that any payment had been made by the lessee on account of^ the judgments mentioned in the lease. The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Error assigned was above order.</p>

Appeal, No. 467, Jan T., 1894, by defendants, from judgment of C. P. Cumberland Co., Sept. T., 1890, No. 76, on verdict for plaintiff, William Keller. Appeal from report of viewers to assess damages for land taken by railroad company. Before Sadler, P. J. From the record it appeared that on June 14,1890, William Keller presented his petition for the appointment of viewers to assess damages for land taken by defendant railroad company.

<p>Appeal, No. 22, Jan. T., 1894, by-defendant, David Shear, from order of C. P. Warren Co., June T., 1891, No. 128, discharging a rule to open judgment, by David Berry, W. W. Hague, the Grandins et al., trading as Tidioute and Tiona Oil Co., plaintiffs.</p> <p>Rule to open judgment. Before Noyes, P. J.</p> <p>The material averments of the petition and answer appear by the opinion of the Supreme Court.</p> <p>There was no direct corroborative testimony in support of defendant’s averments of fraud, alleged to have been made by-David Berry, one of the plaintiffs.</p> <p>Defendant claimed that the following letters, written by David Berry to defendant, referred to the question between the parties as to the capacity of the wells, and tended to corroborate defendant’s testimony:</p> <p>The first, dated June 9, 1892, was as follows:</p> <p>“ Your letter written some time since was received. I was away from home when it came here and so did not get it as soon as I would had I been here. I will say in reply that I have not been able to meet the Messrs. Grandin so as to talk with them in regard to the matter contained in your letter. On account of their absence from Tidioute and the uncertainty of meeting them the matter will have to be referred to Mr. Hague. He no doubt may have some information from them on the subject. I have none and so am unable to give anything definite. I have not been able to go to Tidioute as I expected. You better call on Mr. Hague at Tidioute. He no doubt will be able to arrange matters.”</p> <p>The second, dated June 22, 1892, was as follows :</p> <p>“ Your letter of the 12th received. I was not at home last week and so could not reply. It will be impossible for me to go to Tidioute this month. I have written Mr. Hague to this effect. He and Mr. Grandin have no doubt discussed your matter and when you see Mr. Hague he will be able to tell you all about the matter.”</p> <p>The court, after reviewing the facts, discharged the rule to open the judgment, in the following opinion, by Noyes, P. J.:</p> <p>“ [The evidence in support of the defendant’s averment consists of his own uncorroborated oath.] [2] This is an equitable proceeding and the rule that relief will not be afforded upon the oath of the party against the positive and sworn denial of his opponent applies with full force. We are unable, therefore, to grant the prayer of the petition.”</p> <p>Errors assigned were (1) holding as in brackets; (2, 3) discharging rule and not opening judgment.</p>

<p>Appeal, No. 195, July T., 1893, by plaintiff, from decree of C. P. Warren Co., March T., 1893, No. 43, in equity, dismissing bill in equity.</p> <p>Bill in equity for injunction to restrain defendant company from supplying, and the other defendants from using, natural gas so supplied for illuminating purposes.</p> <p>The following opinion was filed by Olmstead, P. J.:</p> <p>“ The plaintiff company was organizedunder a charter granted by a special act of assembly approved March 8, 186f). The 2d section of said act provides as follows : ‘ That the said corporation shall have exclusive authority to supply with gas light or water the borough of Warren and its vicinity in the county of Warren, and such persons, partnerships and corporations residing therein as may desire the same, at such prices as may be agreed upon, and also make and erect, within or adjacent to said borough, the necessary buildings, machinery and apparatus for manufacturing and distributing the same, with the right to enter upon any public street, lane or alley or highway for the purpose of laying down pipes, altering, inspecting and repairing the same, doing as little damage to said streets, lanes, alleys or highways, and impairing the free use thereof as little as possible.’</p> <p>“ No water was furnished under this charter, and the name of the corporation was subsequently changed to the ‘Warren Gas Light Company.’</p> <p>“ The company proceeded under this charter and for many years manufactured and delivered gas for lights to the people of Warren, erecting buildings for manufacturing, taking possession of the streets for laying pipes, etc., expending in the enterprise a considerable sum of money, stated in the plaintiff’s bill at $60,500.</p> <p>“ The defendant company was incorporated some years subsequently, under the provisions of an act of the General Assembly entitled ‘ An act to provide for the incorporation and regulation of natural gas companies,’ approved May 29,1885, P. L. 29. They obtained the consent provided for in the said act of assembly of the borough councils, constructed a plant, laying pipes in the streets and supplying the people of Warren with natural gas. For a time this natural gas was supplied or used for heating purposes only. At this time the defendant company is furnishing natural gas for lighting or illuminating purposes, and are furnishing it to the individuals made defendants in this case for lights.</p> <p>“ The plaintiff contends that it has the exclusive right under its charter to furnish gas for illuminating purposes in the borough of Warren and its vicinity, and that the furnishing of natural gas for illuminating purposes by the defendant is in violation of the exclusive privileges vested in the plaintiff by the terms of its charter.</p> <p>“ The defendant £>y its answers denies no allegation to be found in the plaintiff’s bill that is material for the proper determination of the question, and the case comes before the court for determination on the .bill and the answer.</p> <p>“ It will be observed that the phraseology of the 2d section of the act granting the plaintiff its franchises, and the 34th section of the act of April 24, 1874, P. L. 93 (relative to the incorporation of gas companies), is almost precisely the same. This section of the act of 1874 has received in several cases a judicial construction, and the construction put upon the act of 1874 applies with equal force to the act under which the plaintiff claims its exclusive powers, and we think that, under the well decided cases of our court of last resort, the exclusive privileges granted the plaintiff apply only to the plaintiff’s right to manufacture and sell in the borough of Warren artificial or manufactured gas. The fact that natural gas was at the time of the passage of both these acts of assembly unknown and unused as an illuminant, coupled with the provisions of both acts in reference to the erection of buildings and apparatus for manufacturing gas, shows quite clearly that the legislature did not consider that by the legislation they were granting privileges either exclusive or otherwisé to manufactured gas companies as against companies organized to supply natural gas. This question seems first to have come before the Supreme Court in the case of Emerson v. Commonwealth, 108 Pa. 111. A history of that case would be unprofitable and is uncalled for here; it is sufficient to say that in it the court held that ‘The general corporation act of 1874, providing inter alia for the incorporation of gas companies, does not authorize the creation of a corporation for the purpose of supplying natural gas to customers. The act contemplates only the supply of a manufactured product, whether gas light or heat.’ This question came before the Supreme Court incidentally in the case of the Appeal of the Scranton Electric Light and Heating Company, 122 Pa. 154. In the case just cited an electric light company incorporated under the act of 1874 claimed an exclusive privilege, and the court held that ‘ the corporation act of April 29, 1874, providing for the incorporation of companies for the manufacture and supply of gas or the supply of light or heat to the public by other means does not authorize the incorporation of companies for the supply of electric light to consumers.’ This case was decided upon the principle so frequently affirmed by the court in recent years, that a legislative grant of exclusive privilege to a corporation is to be construed most strictly and every intendment not strictly in favor of the grant claimed must be construed against it, and from the opinion of Justice Gordon I quote the following: ‘ Monopolies operate in restraint of competition and are detrimental to the public welfare, and are not to be allowed at all except where the resultant advantage is in favor of the public.’</p> <p>“ Public grants are to be so strictly construed as to operate as a surrender by them of the sovereignty no further than is expressly declared by the language employed. The grantee takes nothing by inference and except so far as the exclusive privilege can be clearly found from the grant itself, it is not conferred, and the right of eminent domain still rests with the state and may be granted to competing and rival interests, however injurious they may be to those taken by the prior grantee. The Charies River Bridge v. Warren Bridge, 11 Peters, 420, is a strong case upon this question. A charter for a bridge had been granted to the plaintiff company and bridge constructed. Subsequently a charter was granted to the Warren Bridge Company; under it the defendant company erected a bridge but a few yards distant from the bridge of the plaintiff and the second grant was sustained, although, as the judge says in his opinion, it produced a competition practically destructive of the value of the grant of the prior franchise, and this was put upon the ground resulting from the declared rule of construction of such grants, that they should be strictly construed against the grantee, and that nothing should be taken by in-. ferenee or presumption to enlarge their import. The court held that the state had relinquished its sovereignty only so far as the purpose to do so was clearly expressed in the prior grant ; there are no violations of the legal rights of the prior grantee by the subsequent grant.</p> <p>“We conclude from the case above cited that while the plaintiff company has the exclusive fight to furnish manufactured gas for light to the citizens of Warren by the terms of its charter, its right was not exclusive as against a corporation delivering natural gas to the citizens of Warren for illuminating or lighting purposes.</p> <p>“ It is contended by the able solicitors for the plaintiff that the plaintiff’s franchise gives it the exclusive right to lay pipes in the streets, and that the right to lay pipes in the streets is the franchise .which the plaintiff receives from the commonwealth and that the defendant should be restrained from laying pipes in the streets. We cannot so view the case. Of course if defendant could be restrained from the use of streets for laying pipes the whole purpose of plaintiff would be accomplished thereby, for there is no known means of conveying gas except by pipes, and pipes in a town or city could only be laid in the streets. The laying of pipes for the transportation of the gas is a mere incident to the business and not the business itself. The business was the delivering and sale of natural gas for light and heat; the transportation is incidental thereto. The same is also true of water companies; they produce, store and supply to customers water. Transportation by pipes is the means of delivering and is a mere incident of the business. See opinion of Judge Williams in Carothers’ Appeal, 118 Pa. 485.”</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was above decree.</p>

Appeal, No. 467, Jan. T., 1894, by libellant, John A. Best, from decree of C. P. Warren Co., Dec. T., 1892, No. 32, in favor of respondent, Julia B. Best, dismissing libel in divorce. Libel in divorce. Before Noyes, P. J. The case was heard on libel, answer and proofs. The evidence was taken before the court stenographer as examiner, and no reference was made to a master.

Appeal, No. 111, Jan. T., 1894, by plaintiff, David R. Eichert, executor and trustee of Catharine Eichert, deceased, from judgment of C. P. No. 4, Phila. Co., March T., 1891, No. 632, on verdict for defendant, Jacob Schaffer et al. Ejectment. Before Willson, J. At the trial plaintiff gave in evidence a deed, dated Oct. 19, 1864, for the property in question, to Catharine Eichert; also the will of Catharine Eichert dated July 16, 1881, and its probate. He then rested.

<p>Municipalities — Streets—Paving—Street railways.</p> <p>The act of April 8, 1864, P. L. 297, incorporating the Union Passenger Railway Company, and requiring that “ the company in constructing their road shall conform to the surveys and grades now established, or hereafter to be established,” and requiring that the company should “be at the entire cost and expense of paving, repahyng and repaving that may be necessary upon any street where the track of said company may be laid,” imposes the obligation of original paving upon the company, and relieves the abutting landowner therefrom.</p> <p>The liability to pay for the original paving of a street is purely of statutory origin, and it cannot be imposed without legislative authority, and, under the constitution, not even by legislature, except where there is some special benefit to the property owner. The legislature which imposes such a liability may also relieve from it.</p> <p>Where the legislature has imposed upon a street railway company the obligation of paying for the original paving of a street, an abutting landowner can set up such legislative action as a defence to a suit brought by the city against himself to r’ecover the cost of the original paving.</p> <p>Not decided what might be the result, if, on default of the railway company to do the work, the city should do it and then be unable to collect the cost from the railway company.</p> <p>Constitution — Statutes—Title of act. — Act of March 16, 1865'.</p> <p>The act of March 16, 1865, P. L. 394, entitled: “A supplement to an act, entitled ‘ An act to incorporate the Union Passenger Railway Company,’ approved April 8, 1864, authorizing said company to extend their track,” and providing also that the company “ shall not be chargeable with the cost or obliged to pay the cost of paving any street which has never been previously paved,” violates the constitutional requirement, that each act shall contain but one subject, which shall be clearly expressed in the title.</p>

<p>Constitutional law — Judgment of another state — Contradiction of record —Jurisdiction—Affidavit of defence. ’</p> <p>In an action upon a judgment entered in the court of another state, the record may be contradicted by evidence of facts impeaching the jurisdiction of the court.</p> <p>An affidavit- of defence to such an action is sufficient which avers that the appearance recited in the record of the judgment sued on was merely constructive, and that in fact the defendant was not served with process, did not appear, and had no knowledge of the suit until recently when demand was made upon him in this jurisdiction for payment.</p>

<p>Appeal, No. 154, July T., 1893, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1893, No. 72, dismissing bill in equity against defendant.</p> <p>Bill in equity to set aside power of attorney and for an account.</p> <p>The bill averred that defendant, while acting with unusual and general powers as attorney in fact of John G. Reading, had taken advantage of the confidence reposed in him, while the latter was enfeebled and in a virtually senile condition, by procuring an agreement which gave him all the income of the estate in excess of an allowance, thereout, to Reading of $50,000 per annum; that under this agreement defendant had appropriated to himself during the two years and a half which elapsed between its execution and the death of Reading the sum of $184,489.52, or thereabouts; and that under his said general power of attorney, defendant made reckless, improper and improvident investments, which had entailed an additional loss of upwards of $300,000. The bill prayed that the letter of attorney should be surrendered for cancellation ; that the agreement should be declared fraudulent and should be surrendered for cancellation ; that an account should be stated of the income, which, under said agreement, had been appropriated by defendant to his own use; that the amount which had been thus appropriated should be decreed to be paid to the complainant; that a master should state all account of the transactions of defendant under said letter of attorney; and that any balance which should be found due under such accounting should be paid to the complainant.</p> <p>The plea made protestation against acknowledgment of correctness of bill; admitted the death of testator, John G.Reading, leaving a will “ and a codicil thereto, bearing date Nov. 8, 1888, more than eight months after the date of the letter of at-, torney, and nearly two months and a half after the agreement; ” admitted probate of will and letters testamentary to defendant “ as well on said codicil as on said will.” The rights and credits of testator, especially his claims against defendant as his agent or otherwise, in the bill mentioned or otherwise, thus became assets in defendant’s hands, and it was his duty to settle and adjust all unliquidated demands and accounts, and to collect all debts, claims, and demands, and especially to take and hold as executor all moneys which he ought to pay as agent or attorney, or otherwise. He therefore adjusted his accounts, claims, and demands with testator at and immediately before the time of his death, and the moneys payable into his own hands as executor; exhibited and filed an inventory, and included therein all securities purchased or procured by him for testator as “ agent or attorney or otherwise,” and did also include as cash in his possession the balance due and payable by him on the adjustment of the accounts between himself individually and the testator and himself as executor.</p> <p>The plea then set forth the filing of defendant’s account and the audit and adjudication thereon, and called attention to the fact that the account shows the payment of legacies, given both' by codicil and will, to the extent of $917,405, including $25,000 paid to himself, being one half of a legacy of $50,000 given him by the will. The adjudication set forth his desire to be discharged from the executorship, awarded him additional commissions, and specifically found the amount of the estate and the securities of which it is composed, “ which will go over to his successor in office.” The adjudication was confirmed.</p> <p>Defendant applied for his discharge. His petition set forth the unpaid legacies and the amount of the estate. Notice was “ duly given of said application.” The court made a decree discharging him, upon his transferring and paying over the entire estate to his successor and the final confirmation of the adjudication. The plea referred to and annexed a copy of the entire record, including the notice of his application to be discharged and the receipt from appellant.</p> <p>The plea averred that said decrees were not procured by or through fraud, covin, or concealment. Testator’s failing health (exaggerated by the bill both as to extent and time) was well known to relations and friends and all those interested in his residuary estate. The existence of the letter of attorney and agreement was also known. Testator’s daughter, Mary Anna, mentioned in the will, is the A. R. Gazzam, subscribing witness to the agreement, “ and she well knew the contents thereof.” George Junkin, Esq., and J. B. Townsend, Esq., were counsel for Mrs. Gazzam and the Philadelphia Trust etc. Company, trustees under the will, and defendant’s books, papers, and accounts, not only as executor, but also as agent and attorney prior to Mr. Reading’s death, “ were freely and fully exhibited to said counsel and especially to Mr. Townsend.” The question of responsibility for certain losses was discussed. John G. Reading, Jr., Esq., a remainder-man and counsel for a majority of the remainder-men, was also acquainted with the circumstances. Domestic differences had already arisen between defendant and his wife, and he determined to free himself from her business affairs. He procured his discharge and paid over the assets, relying on the adjudication and the ascertainment of the amount of the estate in his hands, and pleaded the proceedings, and prayed judgment whether he should answer.</p> <p>From the records of the orphans’ court, which were made part of the plea, it was established that the inventory and the first and supplemental accounts which were filed, set forth the .securities and personal property of the decedent, including the investments made by defendant while he was agent or attorney for the said John G. Reading, deceased. That the first account was duly advertised Dec. 28, 1891, as “ the account of his administration ” of the estate of John G. Reading, deceased; that the estate was called for final audit July 7, 1892; that the continuation of the audit from Jan. 4, 1892, to July 7, 1892, was by agreement of counsel, and that the adjournment was for the purpose of filing a supplemental account to come up with the account originally filed. That at the adjudication on July 7, 1892, the principal legatees were represented by counsel. The supplemental account was filed July 7, 1892. That in the application by appellee for his discharge as executor, presented on July 16th, and pending the adjudication, the petition for which sets out fully the condition of the estate, all of the principal legatees acknowledged in writing upon said petition that they had received notice of the same, and consented to the granting of the prayer -thereof, which legatees included Mary Anna Gazzam and the trustees of the residuary estate, and of the trust estate of Mary Anna Gazzam, and said petition, by affidavit appended, showed that all other legatees had received due notice that said application would be made.</p> <p>It further appeared that defendant asked for credit upon a list of securities which had been appraised at no value, or which had become valueless since the appraisement, which credit was allowed, and that the account as originally filed, and the supplemental account, which at the hearing was brought in before the court, “ there being no objection thereto, were found to be correct.”</p> <p>The cause was heard upon bill and plea. The court sustained the plea and dismissed the bill for want of jurisdiction, in an opinion by Arnold, J., 2 Dist. R. 569.</p> <p>Error assigned was dismissal of bill.</p>

<p>Appeal, No. 301, Jan. T., 1893, by plaintiff, Samuel Rhoades, guardian, from decree of O. C. Ches- • ter Co., dismissing exceptions to auditor’s report distributing estate of Laura H. P. Osmond, deceased.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, Robert S. Waddell, Esq., reported as follows :</p> <p>“Tour auditor finds that the decedent was first married to a Doctor Phillips, formerly of Cochranville, on Nov. 17,1880; that he died June 6, 1884, leaving a widow, the decedent, and two children; that during her first marriage her father, Samuel Rhoades, loaned her over $4,500 to purchase a lot and build a house in Roxboro. About the time it was finished Doctor Phillips died, and she sold the property at a sacrifice and came to her father’s house to live with her two children. She received $4,500 of life insurance on her husband’s life, with which she offered to pay her father the amount of her indebtedness which was represented by promissory notes given to him from time to time. Her father declined to accept the money and told her to keep it for the children. He destroyed the notes so that, as' he testified, in case of death, nothing should appear to make any confusion.</p> <p>“ Did Mr.' Rhoades establish a trust by parol in favor of his grandchildren ? Does the language ‘ I told her to keep it for her children ’ create a trust making Mi’s. Osmond the trustee and the children the beneficiaries ? If this is a trust created by Mr. Rhoades, then the husband has no interest in the estate. The entire fund belongs to the children. In order to determine the question we must first get at the intention of the settler or donor. Did he intend to impose a trust or do the words express only the motive of the gift?</p> <p>“ Mr. Perry in his work on Trusts, vol. 1, sec. 117, and cases there cited, says: ‘ There is another variety of cases where trusts are sometimes implied from the words used, though an express trust is not declared, as where property is given to a parent, or other person standing in relation of a parent, and some directions or expressions are used in regard to the maintenance of his family or children.’ The question to be decided in this class of cases is, as in the others, did the settler intend to create a trust and impose an obligation, or did he merely state incidentally the motive which led to an absolute gift.</p> <p>“Instances where no trust is created, are where the bequest is to a person ‘ to enable him to maintain his children,’ or an absolute bequest is made and afterwards the motive is assigned as ‘ that he may support himself and his children,’ or ‘ for the maintenance of himself and his family,’ or ‘ to and for her own use and benefit absolutely having full confidence in her sufficient and judicious provision for her children.’ Lewin on Trusts, vol. 1, sec. 137.</p> <p>“ Did Mr. Rhoades intend to impose a trust, or did he merely state incidentally the motive which led to an absolute gift? His daughter had come to live with him with her children after her first husband’s death. She had nothing to live upon but her husband’s life insurance, which she offered to her father in payment of her indebtedness to him, but he told her to keep it for her children. It was a gift to her to enable her to maintain her children. That it was the intention of Mr. Rhoades that this was to be a gift and not a trust is shown by his testimony. If it had been the intention of her father to create a trust for her children he would have had no concern about them on her second marriage. The money would have been theirs and nothing their mother could do would deprive them of it. It would have vested in them, and her death or marriage could make no difference to the trust fund. The money was loaned in the name of Laura H. P. Osmond individually. Mr. Rhoades knew this. She did not loan the money as trustee. It was the anxiety which her father felt for the children upon her second marriage that satisfied your auditor that Mr. Rhoades had no intention of creating a trust for them. The fear that her husband might acquire this money shows that he considered it as belonging to his daughter, for there was no opportunity or likelihood of his. inheriting it from them, or getting it in his possession, if it was in trust. But her delicate health indicated that she would not live long, and her husband would then inherit his share of the money. Her father knowing this, and feeling he had given her this money as a gift and anxious that the children should acquire it all, went to her, upon hearing of her second marriage, and said, ‘ How about the children now.’ Why should he have made such an inquiry if it was already theirs ? Why should he have felt any concern, unless he had given it to her absolutely ? Her reply to this inquiry was, ‘ I can fix that by making a will.’ She could, in her judgment, bequeath it all to her children by her will, and thus deprive her husband of any part of it, according to the wishes of her father. If she had been trustee, for her children she could not have disposed of it by will — she would only have been the conduit through which it passed to her children. Your auditor is of the opinion that the gift to the decedent was absolute; that her father’s intention was that she was to receive the money as hers. The children were the motive of the gift. They were the motive which led to the absolute gift to their mother. Her father gave her the money as her own, so that she might have something to live on, as well as maintain and educate her children. Your auditor finds from the testimony of Anna E. Rhoades, a sister of the decedent, and Mrs. Sallie E. Boardman, that Mrs. Osmond considered the money as a gift to herself; that she did not consider herself a trustee for her children. Miss Rhoades knew all about the arrangement between Mrs. Osmond and her father as to this money, and upon her sister’s second marriage she told her she was much concerned about this money. ‘ What about the children if anything should happen to you?’ She said Mrs. Osmond told her that she should have no concern, that the money was to educate the children and that her husband would not touch it, for he told her he did not want her money.</p> <p>“ This testimony satisfies your auditor that the entire family, Mr. Rhoades, Mrs. Osmond and Miss Rhoades, all understood that the gift was an absolute one to her, and that there was no obligation or trust imposed on her. Upon her second marriage her father and sister became concerned about the money. Fearing that her husband, in some way, might get it in his possession, Mrs. Osmond assures them that he had promised her that he would not touch it — showing that she too felt it was hers absolutely, and that she would keep it safely for the children by making a will and leaving him no part of her estate.</p> <p>“ Your auditor, therefore, finds that the $4,500 was an absolute gift from Mr. Rhoades to Mrs. Osmond, and that the money belonged to her free from any obligations of a trust; that it is her estate and is to be distributed as such.</p> <p>“ It is contended that the husband having acquiesced in the testamentary provisions of his wife’s will barred his right to claim adversely to the same.</p> <p>“Your auditor finds from the testimony that Mr. Rhoades prepared his daughter’s will during her last illness, and taking her husband into a room apart by themselves read him the will and asked if he was satisfied with it. The husband replied that ‘if that was her will he was satisfied.’ Mrs. Sallie E. Board-man testified that ‘ she was in the room when the will was signed: that Osmond was asked whether he was satisfied with its provisions and he said if that was Laura’s will he was satisfied, that he did not want her money; that he did not marry her for her money.’ Osmond himself testified: ‘ Mr. Rhoades brought it (the will) in. He took me into another room away from my wife. He said this was Laura’s will, and wanted me to read it and asked if I was satisfied. I replied that I would have to be, but it was not as she said it would be if she made a will.’ Does his language to Mr. Rhoades estop him from claiming his share in his wife’s estate under the act of 1855 ?</p> <p>“ To constitute an estoppel by matter in pais it must appear Cl) that the party has made an admission which is clearly inconsistent with the evidence he proposes to give ; (2) that the other party has acted upon the admission, and (3) that the’latter will be injured by allowing the truth of the admission to be disprove!!: Eldred v.- Hazlett’s Admrs., 33 Pa. 307.</p> <p>“ Where an act is done or a statement made by a party the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel will be given to what would otherwise be a mere matter of evidence : Bispham’s Equity, p. 350.</p> <p>“ Mr. Osmond’s claim of his share in his wife’s estate controverts his statement at the time of his wife’s death; but is it a fraud on any one ? Is any one harmed or injured by allowing him to change his mind ? There is no doubt that at the time of his wife’s death he did make certain declarations to Mr. Rhoades and Mrs. Boardman that he was satisfied with- his wife’s will. There is no testimony, however, that he had any conversation with his wife in reference to her making this will. He did not tell her that he was satisfied. Nor was it shown that she prepared this will relying on his promise to her that he did not want her money. If the estate had been settled other than in the ordinary and usual way, or if a distribution of the estate had been made equally between the two children by the executor, relying on the statements made by Osmond, perhaps this would be sufficient to estop him from controverting them. His language is more in the nature of a promise to release, but there is no consideration to support the promise. It is nudum pactum. If for a valuable consideration he had promised to release his interest in his wife’s estate, or for a consideration had agreed that the will should be drawn as it was, then he would be estopped from claiming any part of her estate. But he is not estopped from claiming what the law gives him because he made certain statements at the time of his wife’s death which did no injury to any one.</p> <p>“Your auditor therefore awards W. H. Osmond, the husband, an equal share in the distribution of his wife’s estate along with the children.”</p> <p>Exceptions to the auditor’s report were dismissed. The guardian of the children took this appeal.</p> <p>Hrrors assigned were in confirming those portions of-the auditor’s report (1, 2) which decided that there was no gift to decedent’s children; (3) no estoppel; (4, 5) awarding fund to husband; quoting schedule of distribution but not quoting exceptions.</p>

<p>Appeal, No. 143, June T., 1893, by defendant, from order of C. P. Delaware Co., June T., 1893, No. 143, entering judgment on case stated in favor of plaintiff, J. M. Allen.</p> <p>Case stated. Before Clayton, P. J.</p> <p>The case stated whs as follows:</p> <p>“ The plaintiff, J. M. Allen, is an alderman of the city of Chester, and a warrant, was regularly sworn out before him by Antonio Demijo, charging one Rafaello Masi with assault and battery. After a hearing, the defendant was bound over to the March session of the court of quarter sessions of the peace of Delaware county, to answer the charge.</p> <p>“ The bill of indictment was regularly prepared by the district attorney of said county, charging the defendant with assault and battery on the prosecutor, and was sent before the grand jury, who ignored the bill and directed that the costs be paid by the prosecutor, Antonio Demijo. The prosecutor has not been sentenced to pay the costs, nor has he been found, although a bench warrant has been issued for him and placed in the hands of a sheriff.</p> <p>“ If, under this statement of facts, the county of Delaware is liable to pay the costs of prosecution out of the county stock, then judgment is to be entered for the plaintiff for $8.85. If not, ” etc.</p> <p>Judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 129, July T., 1893, by defendant, William Henderson, from judgment of C. P. Delaware Co., Deo. T., 1891, No. 125, on verdict for plaintiff, Charles C. Huling.</p> <p>Trespass for destruction of two shade trees.</p> <p>The case was originally brought before a justice of the peace. Upon appeal to the court of common pleas, plaintiff filed a statement claiming three hundred dollars damages.</p> <p>At the trial, before Clayton, P. J., it appeared that, on March 1,1872, Price I. Patton bought a tract of land at Fern-wood, in Delaware county. He cut and laid streets through it, divided it into building lots, planted trees in front of the different lots along the curb line, and made a plan of the ground showing the lots and streets, and had it recorded in the office for recording deeds in Delaware county. Plaintiff purchased one of the lots, in front of which on the curb line were two large trees. Defendant owned and lived on a lot adjoining plaintiff’s property, and had charge of the work for a neighboring cemetery company. The two trees of plaintiff and one of defendant obstructed the view from his work to his house. The evidence tended to show that while the trees were in full foliage, defendant, without the permission or knowledge of plaintiff, and while he was away from home, trimmed these trees and one of his own, which obstructed his view, so closely that they soon afterward died. A- witness for defendant, John Brown, testified that defendant asked him to so trim the trees as to kill them.</p> <p>Defendant claimed that the Fern wood Land Association had title to the streets, and that he had been authorized by W. J. Kelly, the representative of the land company, to trim the trees.</p> <p>Plaintiff’s wife was asked: “ Q. What loss are those trees to your property ? ” Objected to. By the Court: I suppose she is competent to show what damage the property has suffered; you can examine her as to her means of knowledge. [7]</p> <p>The witness testified: “ I should suppose about $300.” Cross-examination: “I claim it will be that much damage to our property on account of the shade if nothing else. They shaded the yard nicely.”</p> <p>The witness was cross-examined as to her sources of information, but no motion was made to strike out her testimony.</p> <p>The court charged in part as follows:</p> <p>“ Defendant asked permission from the man he supposed had authority, and, not being objected to by the owner, we may take it for granted that he thought he had the right to trim the trees. Now the great question after all is did he kill the trees by his careless and unskillful trimming? That is the great question in the case. If he did, he must pay for them. If he did not, then I say you may excuse the trespass of cutting the trees without the owner’s consent; if it was done innocently and with good faith, jmu may excuse him. But only because the owner did not protest. If the owner had protested, I am inclined to think the plaintiff would be entitled to recover for cutting his trees, whether he did good or harm — a man must be his own judge how he shall trim his own trees — but not having protested and it seeming to have been the general opinion of the community that this land company had some authority over these trees and over this street.</p> <p>“ The main question in the case is, did he undertake to do what he had not skill enough to perform ? If he did, he is liable for the consequences. That will be the first question. The next question is, did he wantonly trim those trees? Was his object to kill them ? If it was, it will make a very great difference in the damages. In the first instance they must be compensatory. In the second instance they may be measured by the highest rule, wherever there is wanton trespass and wanton and malicious injury. By the words wanton and malicious, I mean intentional. Did he intend to trim these trees in such a manner that by the act the trees should die ? If he did, then he should be made to pay the highest damages, not the lowest, — the highest compensatory damages measured by the severest rule. If you find that his intention was proper, that he acted under supposed authority, and, the plaintiff not having protested, he was led to believe he had a right to trim the trees and did it according to his best judgment, with no intention to injure these or their owner, then the damages should be measured by another rule; that is to say, how much will it cost to repair the damage and what will pay for the time the plaintiff has been deprived of the shade of his trees.</p> <p>“Now gentlemen you understand the two points in the case. You need not worry yourselves about the property or whether the plaintiff owns to the middle of the street or whether he owns up to the line of the street. I charge you under all the evidence he had property enough in these trees to entitle him to damage for their wanton or careless destruction. That covers the whole question. . . .</p> <p>“ If you should come to the conclusion that the trees were destroyed b} the defendant’s unskillful trimming without the intention to kill them or to injure them, then the damages will merely be compensatory — reasonable—what will make the plaintiff reasonably whole; [some of the witnesses say $5.00 or $6.00 a tree to replace them. Others say $50.00 a tree, and it would be years before the shade would be as good as before.] [6] .... [If you come to the conclusion that there was an intention to injure these trees, and that it was done without due regard to care or to the consequences that might follow, and that the intention of the defendant was to destroy these trees, then you should give the plaintiff the fullest damages, the fullest damages the testimony would warrant you in giving, because that was a willful wrong. The other would be a mere accidental wrong,' and there is a great difference when you come to the measure of damages between a willful and accidental wrong.] ” [1]</p> <p>Defendant’s points were, among others, as follows:</p> <p>“ 2. The property lines of the plaintiff only calling for the side of Williams street and the grant only giving to him the use of the said Williams street as a free passageway and watercourse, the original grantors could exercise control over it until accepted by the public authorities as a public highway, and if the defendant obtained their permission to trim the trees, he would not be responsible to the plaintiff in damages. Answer: That is affirmed, gentlemen, unless you find the work was negligently and carelessly done, or unless you should find wanton injury. If you find either of these it is negatived.” [2]</p> <p>“ 3. If the jury find that Williams street has never been accepted by the public authorities as a public highway, that it is a street laid out upon a town plot and that the original owners of the property have continued to exercise a supervision and control over the streets, and that Mr. Kelly, the superintendent, gave to Henderson permission to trim the trees, the plaintiff is not entitled to recover. Answer: I cannot affirm that point because the question is not so much one of authority as one of negligence. It could be affirmed, as I stated in my answer to the other points, if the work was done in a careful, skillful manner without intention to do wrong, then the point would be affirmed ; but if the work were unskillfully done and the trees injured because of carelessness or want of skill by the party who voluntarily undertook to do it, then the plaintiff can recover. I stated to you, in the judgment of the court, the plaintiff here has enough property in the trees to entitle him to damages if' they were wantonly injured or unskillfully destroyed without his consent.” [3]</p> <p>“4. If the jury find that by common consent in the neighborhood the original owners of the property have been looked to and called upon to keep the streets in condition, and the. defendant, acting upon this, procured from the superintendent permission to trim the trees, the plaintiff is not entitled to recover. Answer : I must give to that the same answer I did to the other, I must qualify it if you find the trees were not skillfully trimmed, that they were injured because of the careless or unskillful trimming by the defendant, then he can recover, although he supposed he had a right to trim them.” [4]</p> <p>“ 7. If the jury find that the defendant unlawfully trimmed the trees, and that in consequence of such trimming they died, the measure of damages would be the cost of replacing them. Answer: That is affirmed, unless you find there was an intention at the time to destroy the trees.” [5]</p> <p>Verdict for $150. Plaintiff remitted $50.00, and judgment was entered for $100.</p> <p>Errors assigned were (1-6) instructions ; (7) ruling on evidence, quoting bill of exceptions, evidence and instructions.</p>

<p>Railroads — Location—Width of right of way — Act of 1846.</p> <p>While the directors of a railroad company have the discretion to locate the right of way of the railroad, the exercise of such discretion to an exceptional width when challenged in a court of law must be sustained by showing the existence of the circumstances under which the charter of the company authorizes the discretion to be exercised.</p> <p>Under the act of April 13, 1846, P. L. 319, the power of the Pennsylvania Railroad Company to take land was expressly limited to a strip sixty-six feet wide “ except in the neighborhood of deep cuttings or high embankments, or places selected for sidings, turnouts, depots, engine or water stations.” The company took a strip one hundred and forty feet wide through the whole of a farm for the length of over four thousand feet. The company’s engineer testified that there was a cut on plaintiff’s farm of thirteen feet, and an embankment of the same height, and that by the ordinary rule of engineering forty-nine additional feet would be required at such points. There was no evidence to show the length of the cut or its location. There was also no evidence to show the location of any sidings, turnouts, depots, engine or water stations. The engineer testified that the additional width was taken for the future uses of the road. Held, that under the evidence the company had no right to take any land in excess of sixty-six feet, and that plaintiff was entitled to recover in ejectment land taken in excess of such width.</p>

Appeal, No. 3, May T., 1894, from order of C. P. Dauphin Co., March T., 1893, No. 239, overruling exceptions to report of road jury in the matter of opening Second street in borough of Steelton. Motion to quash appeal.

Petition (No. 209, Miscellaneous Docket No. 1) of Mary Ann McCracken and Jennie Dougherty for mandamus to compel Hon. Harry White, president judge of the courts of Indiana county, to certify a proceeding in the orphans’ court of said county of which he is a party to the nearest president judge who shall be disinterested. The facts appear by the opinion of the Supreme Court.

<p>Constitution — General appropriation bill — Prothonotary of Supreme Óourt.</p> <p>•' The general appropriation bill of 1893 appropriating a sum “ for the payment of the salary of a clerk in the offices of the prothonotaries of the Supreme Court,” etc., does not violate section 15, art. 3, of the Constitution, which provides that “the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the commonwealth.”</p> <p>' The legislature is the exclusive judge of the form in which its enactments shall be put, and its mandate in that respect cannot be questioned unless it transgresses a plain prohibition of the constitution. ... In regard to the particular item under consideration, it appears to be intended to pay for a part of the regular and ordinary work of the offices named, and thei’efore to be for their ordinary expenses. It is a recognition by the legislature that the prothonotary cannot do the whole work of his office proprio manu, and an authority to him to have a portion of it done at the public cost. By Mr. Justice Mitchell.</p>

<p>Negligence — Railroads— Streets— Railways — Joint to rt feaso rs.</p> <p>In an action against a railroad company and a street railway company to recover damages for personal injuries suffered by plaintiff, a passenger in a street car, it is proper to submit the case to the jury where there is evidence that the driver of the street car did not stop, look or listen before going upon the railroad company’s tracks, and that when the street car was upon the tracks the gateman of the railroad company carelessly lowered the gate and kept the car on the track without any means of escape.</p> <p>In such a case a judgment upon a verdict against both companies will be sustained.</p>

Appeal, No. 72, July T., 1893, by defendant, William B. Werntz, from judgment of O. & T. Phila. Co., Feb. T., 1893, No. 96, on verdict of guilty. Indictment for murder. Before Gordon, J. At the trial it appeared that, on Jan. 4, 1893, Thomas P. Gallagher was killed in a fight that occurred in a room used for a Republican primary election poll. Three witnesses for the commonwealth, Peter Carey and the Farrells, testified positively that they saw the prisoner stab Gallagher.

<p>Bes adjudicata — Equity—Judgment.</p> <p>Where a party has been heard, or has had the opportunity of being heard in a court of law, even though his claim or defence be an equitable one, he cannot be re-heard on a bill in equity.</p> <p>Where a rule to set aside a judgment, and a sale thereunder, has been discharged, the defendant cannot be heard as to the same matters on a bill in equity.</p> <p>Equity — Pleading—Deed.</p> <p>Where the plaintiff in a bill in equity rests his title upon a deed, he must either annex a copy of the deed to the bill, orrefer to it by place of record.</p>

<p>Attorneys at law — Neglect of duty — Damages.</p> <p>In an action against an attorney at law for failure to collect a loan •secured by bonds and mortgage on several tracts of land, there was evidence that defendant was furnished with a reference to the mortgage containing a full list of the tracts of land and the warrantee names. Plaintiffs’ evidence tended to establish that defendant was employed to collect the whole claim. Defendant testified that he was employed to collect only certain matured bonds. Before the whole debt was collected, the lands were sold at a tax sale, at a price insufficient to cover the mortgage. It appeared that the attorney was present at the tax sale, and that the lands had been advertised by their warrantee names in a number of different newspapers of the county. Several members of the bar testified that when claims secured by mortgage upon unseated lands were sent to them, they regarded it as their duty to look for unpaid taxes, and watch the sales and thereupon to notify their clients of these facts. Meld, that the case was for the jury, and that a verdict 'for plaintiffs should be sustained.</p> <p>Practice, 8. G. — Perfecting record — Stenographer's certificate.</p> <p>In a proper case the Supreme Court will return the record to the court below to afford the judges thereof an opportunity to see that the stenographer makes the proper certificate, and that all requests, or general objections, actually made in regard to the charge be noted and the fact of their allowance or refusal stated, and if such request or general objection was not allowed, that the reasons for such action may be stated.</p>

<p>Appeal, No. 10, July T., 1894, by defendants, John W. Hays and William B. Hays, trading as Hays Manufacturing Company, from decree of C. P. Erie Co., Sept. T., 1890, No. 2, on bill in equity in favor of plaintiff, Frederick Jarecki.</p> <p>Bill for account of royalties. Before Gunnison, P. J.</p> <p>The master and examiner, Chas. Heydrick, Esq., reported:</p> <p>“1. That on or prior to May 1, 1878, Frederick Jarecki was the owner of letters patent of the United States, and of the inventions covered thereby, to wit, letters patent No. 181,349, dated August 22, 1876, and reissue thereof No. 7440, dated December 19,1876, for ‘improvements in cases of shut-off rods and stopcocks for gas and water pipes,’ which are in evidence marked exhibit C, and letters patent No. 190,868, for ‘ improvements in cut-off for gas and water pipes,’ exhibit D, and that an application for letters patent was pending and afterward granted August 20, 1878, No. 207,185, for ‘ improvements in hydrants,’ exhibit E.</p> <p>“ 2. That on May 1,1878, a contract or agreement was made between Frederick Jarecki, of the one part, and John W. Hays, Wm. B. Hays and Stephen J. Law, of the other part, whereby Frederick Jarecki, in consideration of the sum of one dollar and the reservation of certain royalties, granted and sold unto the firm of Jarecki, Hays & Co. and unto the heirs and assigns of each of the members composing said firm, an equal one fourth interest, the sole and exclusive right to manufacture, use and vend as well the said patented articles as the said articles for which applications for patents were pending, and any extension and reissue of same, and any improvements upon said articles which might be made by Frederick Jarecki during the existence of the firm of Jarecki, Hays & Co.</p> <p>“ 3. That at the time of making said contract, on May 1, 1878, the firm of Jarecki, Hays & Co. was composed of Frederick Jarecki, John W. Hays, Wm. B. Hays and Stephen J. Law.</p> <p>“4. That during its existence the said firm was to enjoy'the sole and exclusive right to manufacture, use and vend the said articles covered by the letters patent, application pending, extensions, reissues and improvements upon the same, and that it did so enjoy such sole and exclusive rights during its existence.</p> <p>“5. That on or about June 8, 1885, the firm of Jarecki, Hays & Co. was dissolved by the retiring therefrom of Stephen J. Law; John W. Hays and Wm. B. Hays acquiring his interest in the copartnership in the letters patent described in the contract of May 1,1878.</p> <p>“ 6. That on June 8,1885, Frederick Jarecki, John W. Hays and Wm. B. Hays entered into a copartnership by the name of the Jarecki-Hays Co., which was to continue until the 31st day of December, 1886, and so much longer as all the partners should be agreed; the capital stock was the property, estate and effects of the then late firm of Jarecki, Hays & Co., and was subject to the debts of said firm. Of such capital stock Frederick Jarecki was the owner of an undivided one fo.urth, and John W. -Hays and Wm. B. Hays each the owner of the undivided three eighths; the interests and liabilities of each were in like proportion.</p> <p>“ 7. That under the contract of June 8, 1885, the royalties payable to Jarecki on service boxes, made under letters patent, exhibit C, were reduced from five cents each to two and one half cents each on all made and sold and for which pay was collected.</p> <p>“8. That this copartnership was dissolved Jan. 1, 1887, by the retiring therefrom of Frederick Jarecki.</p> <p>“ 9. That the said firms or copartnerships, Jarecki, Hays & Co. and the Jarecki-Hays Co., accounted for and paid to Frederick Jarecki all royalties upon the said patented articles for which they were liable, during the existence of the said firms or copartnerships.</p> <p>“10. That on Jan. 1, 1887, the firm of Hays Manufacturing Co. succeeded the Jarecki-Hays Co. and has been continuously in the same business at the same place until the present time, John W. Hays and Wm. B. Hays composing said firm.</p> <p>“11. That John W. Hays and Wm. B. Hays, as the Hays Mfg. Co., have continued to manufacture and sell the ‘ cases for shut-off rods and stopcocks for gas and water pipes’ under letters patent No. 181,349 and reissue No. 7440, exhibit C, called service boxes, and have not accounted for nor paid to Frederick Jarecki any royalties thereon since Jan. 1, 1887, to the present time.</p> <p>“ 12. That the Hays Mfg. Co. has not made any ‘ washers,’ under letters patent No. 190,868, exhibit D, nor any ‘ hydrants,’ under letters patent No. 207,185, exhibit E, since Jan. 1,1887.</p> <p>“13. That John W. Hays and Wm. B. Hays, as Hays Mfg. Co., have made, sold and received pay for 55,495 cases of service boxes, as described in letters patent, exhibit C, since Jan. 1, 1887, and 1500 for which pay has not yet been collected.</p> <p>“14. That by the terms of the contract of May 1, 1878, the royalties were due and payable on the first day of each month on all articles made, sold and paid for during the preceding month.</p> <p>“ 15. That there was no contract made between Frederick Jarecki and the Hays Mfg. Co., concerning any royalties upon any of these patented articles.</p> <p>“ The master finds as matter of law:</p> <p>“1. [That the contract of May 1, 1878, is an absolute assignment] [5] by Frederick Jarecki of three fourths of all his interest in the described inventions covered by letters patent and application then pending, specified in the said contract, in equal undivided one fourth interest to John W. Haj^s, Wm. JB. Hays and Stephen J. Law, the heirs and assigns of each of them — the consideration therefor being the sum of one dollar and the payment of certain royalties upon the articles made and sold and for which pay was collected.</p> <p>“ The instrument conveyed to these parties an undivided portion of the entire interest in the patented invention and the monopoly as to every part of the United States; it placed the alienees upon an equality .with the alienor and vested in them complete but not exclusive rights and powers as to the invention and monopoly; it is therefore an assignment: Robinson on Patents, vol. 2, page 517 et seq.; Littlefield v. Perry, 21 Wal. 205. The consideration for the assignment of a patent may be in the form of periodic royalties to be paid by the assignee : Littlefield v. Perry, supra.</p> <p>“ The construction of this part of the contract is a comparatively simple matter; the intention of the parties being manifested by the insertion of the words ‘ and unto the heirs and .assigns of each of the parties composing said firm in equal ■undivided one fourth interest.’ Of course that part of the •contract by which Frederick Jarecki conveys to himself an undivided one fourth interest is surplusage. It is in the matter of the contractual obligation to pay royalties that difficulty is first ■experienced. The contract says: ‘The firm of Jarecki, Hays ■& Co., their executors, administrators and assigns, shall pay unto Frederick Jarecki, his legal representatives,’ etc. There ds no express individual liability to account for royalties. The ¡firm could not have executors or administrators; it might have ■assigns. The expression is ambiguous, but it must be construed Ly the preceding context, the grant to ‘ the firm of Jarecki, Hays & Co., and unto the heirs and assigns of each of the members composing said firm; ’ and it will be seen that the (firm name is used for the individual names collectively and the expression is perfect, ‘ the firm of Jarecki, Hays & Co.,’ that is ‘ Frederick Jarecki, John W. Hays, Wm. B. Hays and Stephen J. Law, their executors, administrators and assigns shall pay,’ etc. The plural pronoun aids this construction also. This is the legal as well as the equitable rule, to so construe the contract, one part by the other, that the meaning which the parties intended shall be carried into effect.</p> <p>“Equity will put this construction upon it too, because otherwise Frederick Jarecki will be without a remedy either in law or in equity, for I cannot agree with the learned counsel for the respondents that Frederick Jarecki has a complete and adequate remedy at law. It is entirely clear that the respondents are in no sense of the word infringers, and without a discovery on their part [the complainant could not maintain an action at law to recover these rojalties.] [6]</p> <p>“ [Having thus reasoned that the liability to pa; these royalties is an individual liability, resultant from the individual conveyance, it follows that the obligation to ‘keep accurate accounts of the number of articles made and sold,’ etc., is also a personal and individual obligation.] [4]</p> <p>“ The loose and apparently careless manner in which this contract is drawn may be accounted for by the fact that the parties to it are all men of the highest personal character and integrity; enjoying in its fullest degree the implicit confidence of each other, understanding at the time the exact obligations they were assuming, they observed not the strict attention to detail they would have in the case of a stranger.</p> <p>“ The respondents set up as part of their defence that the patent under which these eases are made is invalid and attempted to support it with evidence. The position, however, is untenable; all the authorities are unequivocally to the effect that until a patent is annulled or adjudged invalid, a licensee receiving its benefits must pay the license fees: White v. Lee, 14 Fed. R. 789; Hilsen v. Libby, 44 (S. C.) N. Y. 12; Maratón v. Swett, 82 N. Y. 526; Angier v. Eaton, Cole & Burnham Co., 98 Pa. 594.</p> <p>“ Until the United States courts have declared the patent invalid, evidence of its invalidity is not admissible in an action for the price : Elmer v. Pennel, 40 Me. 430. And even though the patent be invalid, royalties on sales are due and collectible since benefit has accrued to the licensee: White v. Lee; Mars-ten v. Sweet, supra.</p> <p>“ Had this position been sound, the evidence offered to support it was clearly incompetent.</p> <p>“ They also set up that Frederick Jarecki, after withdrawing from the firm of Jarecki-Hays Co., licensed the Jarecki Manufacturing Co., a rival concern in the city of Erie, to make these cases under his patent, and assisted in making and selling them, thereby violating the contract on his part and releasing them from liability for royalties ; that he served notice on them to cease the manufacture and sale of this article, as the Jarecki Manufacturing Co. was sole licensee under his patent; that other concerns in the United States were making them; that thej' asked the complainant to protect them, and when he declined they made them under a public right, as other concerns were doing. The notice from Mr. Jarecki to the Hays Mfg. Co. above referred to, proved on exhibition to be a letter from his counsel notifying the Hays Mfg. Co. to cease the manufacture and sale of another article, made under letters patent granted to Frederick Jarecki, dated March 29, 1881, and not under any one of the patents described in the contract of May 1, 1878.</p> <p>“ The respondents have failed to establish the invalidity of the patent and the rights of the public in the invention — but under date of Jan. 6,1887, they advertised themselves as ‘successors to Jarecki-Hays Co., manufacturing as specialties,’ ‘ Jarecki’s patent extension shut-off box for gas and water,’ which is the article described in letters patent, exhibit C, and other articles patented by Jarecki.</p> <p>“ It is not clear when they claim to have begun the manufacture of this article under claim of public right. They deny that they have made any under the contract of May 1, 1878, since Mr. Jarecki Avithdrew from the firm. Mr. John Hays testified: ‘I have spoken to Mr. Jarecki to have him protect us, and he declined to do it, so we continued to do it right along as public property.’ This testimony has much the appearance of a recognition of the existence of the contract, else Avhy if it was no longer in force should the respondents ask the complainant to protect them ? It strengthens the reasoning as to the individual liability to account for and pay the said royalties.</p> <p>“ There remains, then, of the defence to be considered, only the alleged violation of the contract on the part of Jareeki in licensing the Jareeki Manufacturing Co. to make and sell this article.</p> <p>“ The maxim that ‘ he who seeks equity must do equity ’ is invoked by the respondents, but it cannot go to the length they ask. There may be a question whether or not the exclusive rights granted by Jareeki were to continue longer than during the existence of the firm of Jareeki, Says & Co.; but, waiving that question, this act of Jarecki’s, if it be a violation of the contract, will not enure solely to the benefit of the respondents and permit or enable them to enjoy the fruits of the complainants invention without accounting for the royalties. Unquestionably this act, if it were a violation of the contract, would justify the respondents in treating it as at an end; it would relieve them of their implied contract to prosecute the manufacture and sale of the articles, or, as it is called, ‘practice the invention; ’ but it will not relieve them from the payment of royalties, if they continue the manufacture and sale of the articles : Oil Well Packer Co.’s Appeal, 128 Pa. 421; Marston v. Swett, supra; Jackson v. Allen, 120 Mass. 64.</p> <p>“ There remains, however, another equitable principle in this case, which was not raised by counsel, but which the master believes should be considered. Of the original royalties reserved by and payable to Frederick Jareeki, his interest in the copartnership was charged with and paid one quarter; his interest in the Jareeki-Hays Co. being one fourth, still paid one quarter of the royalties — now it seems but equitable that the respondents should pay no more after the withdrawal of Mr. Jareeki than they did while he was a copartner with them, which was three fourths of the royalties reserved.</p> <p>“ The master having found as a matter of fact that the respondents have net since Jan. 1, 1887, manufactured and sold any articles charged with a royalty payable to the complainant, except the service boxes or cases made under letters patent, exhibit C, upon which the royalty is two and one half cents each for all manufactured, sold and for which pay was collected; the accounting therefore is for them at the rate of one and seven eighths cents each upon the number admitted by the respondents to have been made, sold and paid for since Jan. 1, 1877, and to Sept. 30, 1893, which is 55,495, and 1500 for which pay has not yet been collected. As the respondents failed to show during which months the 1500 unpaid for were made, and as it was incumbent upon them to do so, the master has deducted from those last made and sold the number for which pay has not yet been collected.</p> <p>“There has been no discussion of the contract of June 8, 1885; it is proper therefore to remark that, aside from the specific reduction of the royalty upon the article known as ‘ service box,’ which is made under letters patent, exhibit C, it has no effect upon the contract of May 1, 1878, except that by inference it recognized it as being in full force and effect.</p> <p>“ The master finds also, as a matter of law, that the periodic royalties being due and payable on the first day of each month, the amounts so due are entitled to draw interest from their dates. For the purpose of having even months in the computation of time to facilitate the calculation of interest, the first of February, 1893, is selected as the date to which interest shall be computed, it being the nearest date to the expected and intended filing of this report.</p> <p>“ Computing the royalties at the rate of three fourths of two and one half cents, which is one and seven eighths cents each upon the articles manufactured and sold and for which pay has been collected from the 1st of January, 1887, to the 30th of September, 1892, and the interest on the sums due on the first day of each month to the 1st of February, 1893, the master states the account between the parties.</p> <p>“ In conclusion the master respectfully recommends to the court the following decree: ‘That the respondents, John W. Hays and William B. Hays, account to the complainant, Frederick Jarecki, for all articles manufactured by them under letters patent described in the contract of May 1, 1878, for which pay has been received, and that they pay over to him the sum of 11,256.20, with interest thereon from the first day of February, 1893, and that the respondents pay the costs of this suit.’</p> <p>The contract referred to in the bill was as follows :</p> <p>“ Articles of agreement made and concluded the first day of May, A. D. one thousand eight hundred' and seventy-eight, between Frederick Jarecki, of the city of Erie, state of Pennsylvania, of the first part, and Vm.B. Hays, John W. Hays and Stephen J. Law, of the same place, of the second part, as follows, to wit:</p> <p>“ Whereas, the party of the first part, did obtain letters patent of the United States for an improvement in ‘ cases for shut-off rods and stopcock for gas and water pipes,’ numbered 181,349, dated August 22,- 1876, and reissued number 7440,-dated December 19, 1876; also letters patent of the United States for ‘ improvements in cut-offs for gas and water pipes,’ numbered 190,868, dated May 15, 1877 ; also letters patent of the dominion of Canada, numbered 7835, for ‘ Jarecki’s shutoff cock for water and gas pipes,’ dated Sept. 3, 1877; also letters patent of the dominion of Canada, numbered 8185, for ‘ Jarecki’s extension street washer and cut-off casing,’ dated Dec. 6, 1877 ; and whereas also the said party of the first part has made application for letters patent of the United States for an ‘ improved single pipe hydrant and street washer,’ which application has been approved and allowed at the patent office of the United States, but letters patent not yet issued on same; and</p> <p>“ Whereas, it is desired that the exclusive right to manufacture, use and vend the said articles described in said several letters patent and in said application shall be vested in the said Frederick Jarecki, William B. Hays, John W. Hays and Stephen J. Law, together doing business by the firm name of Jarecki, Hays & Co.; now therefore :</p> <p>“ This agreement witnesseth : That the said party of the first part, as well in consideration of the premises as of the sum of one dollar to him in hand paid by the said parties of the second part, and of certain royalties to be hereafter paid by said firm of Jarecki, Hays & Co., as hereinafter mentioned, hath granted and sold unto said firm of Jarecki, Hays & Co., and unto the heirs and assigns of each of the members composing said firm in equal one fourth interest, the sole and exclusive right to manufacture, use and vend as well the said patented articles as the said articles for which applications for patents have been made, and any extension and reissue of same, and any improvement upon said articles which may be made by said Frederick Jarecki during the existence of said firm of Jarecki, Hays & Co.</p> <p>“ It is further agreed : That the said firm of Jarecki, Hays & Co., their executors, administrators and assigns, shall pay unto the said Frederick Jarecki, his legal representatives, for each article manufactured by them under this agreement, and which they may sell and collect pay for, the following sums respectively : For each hydrant, twenty-five cents ; for each street washer, twenty-five cents ; for each service box, five cents.</p> <p>“ It is also agreed that the said firm of Jarecki, Hays & Co. shall keep accurate accounts showing at all times the amount or amounts of any such articles by them manufactured and sold, and showing also the amount or amounts of such sales for which pay shall have been collected. And the said firm shall pay to said Frederick Jarecki on the first day of each month the several amounts due him from collections for the preceding month on sales made of such articles ; provided that nothing shall be paid to said Frederick Jarecki for any articles manufactured prior to the first day of May, 1878.”</p> <p>Exceptions to master’s findings (4-6) were dismissed.</p> <p>Rrrors assigned were dismissal of exceptions, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Waters — Damages—Executors and administrators — Devise.</p> <p>An action by an executrix to recover damages for the flooding of lands in violation of an agreement between the testator and defendants cannot be sustained, where it appears that the testator had devised the lands to his grandchildren, and that the damages had all accrued after the testator’s death.</p> <p>In such a case the legal right to have compensation for the injury was vested in the devisees by virtue of their title, and the circumstance that the right to have damages was affected by a contract between the defendant and the former owner was immaterial.</p>

Appeal, No. 149, July T., 1892, by Anna B. Abraham and Mary Elizabeth Taylor, heirs and legatees, from order of C. P. Fayette Co., June T., 1887, No. 223, in case of W. J. Rush, executor of S. Rush, deceased, v. C. H. Rush,’ discharging rule to strike off satisfaction of judgment. Rule to strike off satisfaction of judgment. From the record it appeared that Sebastian Rush died Feb. 9, 1878, leaving a will, with his sons, Charles H. Rush and W. J. Rush, as executors.

Appeal, No. 15, J an. T., 1894, by plaintiffs, Margaret Baugh et al., executors of Samuel Baugh, deceased, from order of C. P. Bedford Co., April T., 1893, No. 116, striking off judgment against defendants, J. K. & G. B. White. Rule to strike off judgment. From the record it appeared that in 1892 Samuel Baugh was the owner of a tannery in Bedford county, and also of a number of tracts of timber land adjoining. The tannery tract consisted of twelve acres of land.

<p>Appeal, No. 466, Jan. T., 1893, by plaintiff, from decree of C. P. Bed-ford Co., Feb. T., 1892, No. 1, dismissing bill in equity against Robert McMeen et al.</p> <p>Bill to compel surrender of corporate property.</p> <p>The bill averred substantially as follows: The Bedford Springs Co. was incorporated in 1887 under the general corporation act of April 29, 1874, and the supplements thereto ; by the charter or' articles of association, and the by-laws of the company, the principal office of the company was fixed at the hotel at Bedford Springs, Bedford township, Bedford county, Pennsylvania ; by the by-laws the annual meeting of the stockholders for general purposes and for the election of directors shall be held on the last Tuesda}'- of October at 2 o’clock p. M., m each year at the principal office of the company, of which meeting at least ten days’ notice shall be given ly the secretaiy, either by publication in one or more newspapers of the city of Pittsburg or bj written notice to each member; Tuesday, Oct. 25, 1892, at 2 o’clock p. m., at the hotel, Bedford Springs, county and township of Bedford, Pennsylvania, was the time and place for the general meeting of stockholders for the year 1892.</p> <p>The capital stock of the company was 1300,000, divided into 6000 shares, and stockholders owning or representing 3290 shares of the capital stock organized the annual meeting at the Bedford Springs hotel on Oct. 25, 1892, at 2 o’clock P. M., and in accordance with the by-laws duly elected Jesse Hilles, Samuel Bancroft, Jr., James M. Bailey, R. Sewell Wright, James P. Colfelt, Spencer M. Janney, Samuel Heilner, Johns Hopkins, Joseph R. Embery and A. M. Neeper directors for the year beginning Oct. 25, 1892; the board so elected organized, electing Samuel Bancroft, Jr., president; Jesse Hilles, vice president, and Joseph .R. Embery, secretary and treasurer; the secretary and treasurer of the board so elected made demand on the retiring board for the effects of the company, which the defendants in the bill refused to deliver him.</p> <p>The directors whose term was about expiring, with certain exceptions, illegally changed the time and place of the annual meeting as to the hour and place, fixing it at 1 o’clock at the Waverly Hotel, Bedford, instead of 2 o’clock at the Bed-ford Springs Hotel on Oct. 25, 1892, and certain of the stockholders, in compliance with notice from E. S. Doty, secretaiy, whose term was about expiring, assembled at Hotel Waverly, on Oct. 25,1892, not .at 1 o’clock, but subsequently thereto, and after due notice to and preparations by said stockholders at Hotel Waverly to attend the meeting at the Bedford Springs Hotel; the amount of stock represented at the meeting at the Hotel Waverly was 2700 shares, and all acts and things done thereat as the corporate acts of the Bedford Springs Co. were illegal and void ; the directors elected at the Hotel Waverly meeting organized and had possession of the personal property of the company and were using and controlling the same, refusing to deliver it to plaintiffs, the duly elected officers of the companjn</p> <p>The bill prayed that defendants be ordered to deliver the property of the Bedford Springs Co. to its duly elected officers ; that defendants be enjoined from intermeddling with the affairs of the company; that the Hotel Waverly meeting be declared illegal and void; and such further equitable relief as would be proper.</p> <p>The answer denied that the suit was brought by plaintiff company, and averred that defendants, together with Jesse Hilles and Samuel Bancroft, Jr., are the officers and directors, de jure and de facto of plaintiff company.</p> <p>The answer further denied that' the meeting held at Hotel Waverly was illegal, and alleged that the persons elected at that meeting were the legal officers of’the company.</p> <p>The case was heard on bill and answer, and, after argument, the bill was dismissed.</p> <p>Krror assigned was above decree.</p>

Appeal, No. 225, Jan. T., 1894, by plaintiffs, Jeffries Hague and Sarah Jane, his wife, from decree of C. P. Fayette Co., No. 181 in equity, on bill in equity against Torrence L. Hague et al. Bill in equity .to quiet title.

<p>Sheriff's sale — Setting aside sale — Discretion of court.</p> <p>Where an application to set aside a sheriff’s sale is made immediately after the sale, and before the acknowledgment of the deed, and the price is grossly inadequate, the court is at liberty to seize upon any other circumstance in order to give relief.</p> <p>In such a case the court is justified in taking into consideration the fact that a rule to stay the writ was pending, and that the defendant and certain persons who expected to bid, by reason of the rule, either did not attend the sale, or did not prepare themselves to bid.</p>