Volume 162 — Pennsylvania State Reports

Appeal, No. 45, Jan. T., 1894, by-plaintiffs, Catherine E. Bierer et al., from decree of C. P. Fayette Co., No. 164, in equity, dismissing bill in equity against Isaac Hurst and wife. Bill to restrain obstruction of stream of water.

Appeal, No. 75, Jan. T., 1894, by defendant, B. F. Crouse, from order of C. P. Snyder Co., Feb. T., 1898, No. 93, discharging rule to open judgment in favor of Chas. R. Rishel, admr. of E. R. Greegor, deceased. Rule to open judgment.

Appeal, No. 3, July T., 1894, by defendant, from judgments of C. P. Fayette Co., March T., 1893, No. 275, on verdict for plaintiff, William Bowers. Appeal from report of viewers assessing damages for the taking of water. Before Mestrezat, J. The facts appear by the opinion of the Supreme Court. Plaintiff’s points were as follows: “ 1.

<p>Appeal, No. 426, Jan T., 1898, by plaintiff, Charles Benjamin Wilkinson, assignee for benefit of creditors of William Clegg, Jr., from judgment of C. P. Delaware Co., June T., 1892, on verdict for defendants, Frank Patton et al.</p> <p>Sheriff’s interpleader. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial, John Evans, of the firm of Naulty, Evans & Co., a witness for defendants, was asked: “ Q. How much capital did you put in? By Mr. Smith: I don’t think that is very material. By Mr. Robinson: I think so — my purpose for asking this is to show that all the capital that was put in was very small. The machinery was idle and that this was an experiment, and that the $1,890 fixed in the bill of sale was unreasonable, that the agreement between these parties and the-landlord was a mere experiment. By the Court: I will permit it. By Mr. Smith: I object to that question. By the Court: Being a question of fraud [ will admit it.” Exception by plaintiff and bill sealed. [1]</p> <p>By Mr. Robinson: “How much capital did you put in? A. Somewhere about $1,200 or $1,500.”</p> <p>J. Alfred Flo ward, deputy sheriff, was asked: “ Q. Can you state whether or not this notice of wage claims was served on you ? By Mr. Smith: I object. By the Court: Let them go in evidence.” Exception by plaintiff and bill sealed. “A. Yes, sir.” [2]</p> <p>Plaintiff’s points were as follows:</p> <p>“1. If the defendants have any lien upon the goods and chattels levied upon for wages due them, such lien can only be asserted or determined upon the distribution of the assigned estate of William Clegg, Jr., and cannot be asserted in this case.” Refused. [4]</p> <p>“2. The defendants cannot have a verdict merely upon the ground that their claim is for wages. They stand upon the ground of ordinary judgment creditors.” Refused. [5]</p> <p>Binding instructions for defendants were given. [3]</p> <p>Yerdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1, 2) rulings; (3-5) instructions, quoting bills of exceptions and evidence and instructions.</p>

<p>Appeal, No. 128, July T., 1893, by plaintiffs, Robert Howarth et al., trading as Robert Howarth & Son, subcontractors, from judgment of C. P. Delaware Co., Sept. T., 1889, No. 23, on verdict for defendants.</p> <p>Sci. fa. sur mechanic’s lieu. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was binding instruction for defendant, quoting it.</p>

Appeals, Nos. 90 and 395, Jan. T., 1894, by defendant, Julius B. Luckenbach, and J. Samuel Krause, executor of George Luckenbach, deceased, from judgment of C. P. Northampton Co., Feb. T., 1892, No. 43, on verdict for'plaintiffs, Maria B. Bender and Edwin R. Luckenbach. Ejectment to enforce purchase money of real estate. The facts appear by the opinion of the Supreme Court.

Appeal, No. 305, Jan. T., 1894, by defendant, Theodore Vetter, from order of C. P. No. 1, Phila. Co., Dec. T., 1893, No. 623, discharging rule to open judgment in favor of plaintiff, Alfred C. Gibson. Rule to open judgment entered on ejectment clause in lease. Defendant, in his petition for rule to open judgment, averred : “ That he did sign a lease dated Nov. 20, 1889, to commence from Dec. 1, 1889, for two years, a copy of which is filed in this proceeding.

<p>Negligence — Railroads—Grossing—Watchman—Fright of horse — Sudden peril — Nonsuit.</p> <p>It is not negligence for a watchman at a railroad crossing to run in front of a horse and carriage, approaching on a highway, to arrest the progress of the carriage and to prevent its inevitable destruction and the probable death of its occupants by an approaching train.</p> <p>In such a case if the horse takes fright, and in turning throws the occupants from the carriage and injures them, they cannot recover damages from the railroad company.</p> <p>In an action to recover damages for personal injuries, it appeared that plaintiff, a married woman, with another woman, approached a railroad crossing in a small carriage drawn by one horse. The husbands of the women were driving in an open buggy in advance of their wives. The men crossed the track, and the horse in the other carriage was approaching very close to it, when the flagman ran out and waved his lantern in front of the horse, thereby frightening it, and causing it to overturn the carriage, and injure one of the occupants. The husbands and the two women testified that they neither saw nor heard nor had any knowledge of an approaching train. The women testified that the flagman waved for them to cross. Two witnesses for plaintiff and twelve witnesses for defendant testified that a train was approaching, and that the carriage would have been run over if the flagman had not stopped the progress of the horse. Held, that it was not error to withdraw the case from the jury.</p> <p>An act done upon a sudden emergency when life is apparently in peril is not negligent even though it be mistaken.</p> <p>Mr. Chief Justice Sterrett dissents.</p>

<p>Appeal, No. 60, July T., 1893, by defendants, W. B. Ivishbaugh et al., trading as W. B. Kishbaugh & Co., and Geo. W. Coslett et al., from order of C. P. Luzerne Co., May T., 1892, No. 197, making absolute rule to strike off appeal from award of arbitrators.</p> <p>Rule to strike off appeal from award of arbitrators in replevin.</p> <p>From the record it appeared that, on March 23, 1892, plaintiffs issued a writ of replevin against defendants, and one of the defendants, George W. Coslett, gave bond and retained the property. Plaintiffs subsequently, after declaration filed, took out a rule of compulsory arbitration and the arbitrators filed their award on Nov. 16,1892, in favor of plaintiffs. On Dec. 5, 1892, Coslett made an application to the court of common pleas to be allowed to take an appeal in forma pauperis, and a rule was granted. Subsequently the court discharged the rule, making the following order: “ Now, Jan. 7, 1892, the rule is discharged and Geo.. W. Coslett is allowed three days from this date in which to perfect his appeal.” On Jan. 10, 1893, Coslett took an appeal from the award of arbitrators. He paid all the costs to the prothonotary, excepting $8.39, fees of D. J. Gallagher, constable, which were paid directly to the constable. The following receipt for these fees appeared upon the record: “ Jan. 10, 1893. Received from Geo. W. Coslett my fees in full for serving 1st rule and subp. D. J. Gallagher.”</p> <p>Plaintiffs took a rule to strike off the appeal. The court made the rule absolute, in the following opinion, by Woodward, J.:</p> <p>“ The rule in this case is made absolute. See Dall v. Norris, 2 Pa. C. C. R. 666; Morris v. Sickler, 3 Kulp, 167; Walker et al. v. Graham, 74 Pa. 35.”</p> <p>Frror assigned was above order.</p>

<p>Constitutional law — Taxation—Uniformity of laws — Local ancl special legislation — Act of June 25, 1885.</p> <p>The act of June 25, 1885, P. L. 187, entitled, “ An act relating to the collection of taxes in the several boroughs and townships of this commonwealth,” does not violate article 3, §7, of the constitution, relating to local and special legislation, or article 9, § 1, requiring uniformity in the levy and collection of taxes. Evans v. Phillipi, 117 Pa. 226, and Bennett v. Hunt, 148 Pa. 257, applied.</p> <p>Mandamus — Tax collector — Public officers.</p> <p>Mandamus is the proper remedy on the part of a person elected collector of taxes under the act of June 25, 1885, P. L. 187, to compel the county commissioners to deliver to him the tax duplicates which they withhold from him on the ground that the act is unconstitutional, and that they had appointed another person as collector under the former legislation on the subject.</p>

<p>Appeal, No. 66, Jan T., 1894, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1893, No. 302, on case stated, in favor of plaintiff, James Quinn.</p> <p>Case stated. Before Sadler, P. J.</p> <p>The material portions of the case stated, after reciting the act of Jan. 28, 1873, authorizing the establishment of a board of health in the borough of Carlisle, are as follows:</p> <p>“ At a meeting of the said board of health held on April 7, 1893, the plaintiff, James Quinn, was regularly appointed messenger to the said board, and his salary fixed at $100 per year. The services which the plaintiff performs are necessary to enable the board of health to carry into effect the provisions of the aforesaid act, and $100 per year is a just and reasonable compensation for the services performed.</p> <p>“ On August 17, 1893, the plaintiff presented his bill to the amount of $8.33 for services rendered as messenger to said board of health during the month of July, 1893, which bill was audited, adjusted and approved by the said board, and a requisition made upon the county commissioners for the amount of said bill. The county commissioners refused, and still refuse, to draw or grant an order for the payment of the aforesaid requisition, although said requisition is regularly drawn in conformity to the provisions of the 3d section of the aforesaid act.</p> <p>“ The plaintiff’s salary for the month of July, 1893, is still due and owing.</p> <p>“ Prior to the time when the commissioners refused to pay the plaintiff’s claim, they paid all the debts contracted by the said board of health, when properly audited and adjusted. Said claims or debts have been paid out of the general funds of the county. No special tax has ever been assessed to pay the expenses incurred by the said board of health. The commissioners have appropriated on an average three hundred dollars per alnnum to pay the expenses of said board of health.</p> <p>“ The reasons assigned by the county commissioners for their refusal to pay the plaintiff’s claim, are :</p> <p>“ 1st. That the act of the 28th of January, 1873, entitled ‘ An act authorizing the town. council of the borough of Car-lisle to establish a board of health,” is in violation of the 7th section of article 11, of the constitution of Pennsylvania of 1790, as amended in 1838, with the subsequent amendments adopted in 1850, 1857 and 1864, and therefore unconstitutional.</p> <p>“ 2d. That the provisions of the local act of the 28th of January, 1873, being inconsistent and contrary to the provisions of a general act passed on the 11th day of May, 1893, entitled ‘ An act to enable borough councils to establish boards of health,’ the 8th section of which provides that ‘ all acts or parts of acts inconsistent with or contrary to the provisions of this act are hereby repealed,’ the general act repeals the local act of January 28,1873.</p> <p>" If the court be of the opinion that the act of the 28th of January, 1873, entitled ‘ An act authorizing the town council of the borough of Carlisle to establish a board of health,’ is constitutional, and is not repealed by the act of 11th of May, 1893, entitled 'An act to enable borough councils to establish boards of health,’ then judgment to be entered for the plaintiff for the amount of $8.33, but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.”</p> <p>The court, in an opinion by Sadler, P. J., entered judgment for plaintiff on the case stated. Defendant appealed.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeal, No. 498, Jan. T., 1894, by defendant, Henry Johnson, from judgment of O. & T. Lehigh Co., on verdict for Commonwealth.</p> <p>Indictment for murder.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were as follows:</p> <p>1. The court erred in admitting the testimony of Howard F. Kramer, relating to statements made by the defendant to him, after the said Kramer, coroner and committing magistrate, had said to him, “ If you produce your child, I will let you go free; if not, I must hold you — must hold you as a witness.”</p> <p>2. The court erred in admitting the testimony of Kramer, the coroner, as to the statements made by the defendant, whilst he was in legal custody and under the pressure of persuasion or threats, and whilst the defendant was in the hands of the chief of police, who had taken him to the coroner.</p> <p>3. The court erred in admitting the testimony of Henry S. Smith, relating to statements made by the defendant to him, after the defendant had the aforesaid conversation with the coroner, and after he was imprisoned in the county jail by order of the said coroner.</p> <p>4. The court erred in admitting the testimony of George F. Zimmerman, relating to statements made by the defendant to him, after the defendant had the conversation with the coroner, and after he was imprisoned by order of the coroner.</p> <p>5. The court erred in admitting the testimony of Tilghman H. Deshler, relating to statements made by the defendant to Henry S. Smith in the witness’s hearing, after the conversation of the defendant with the coroner, and after the defendant was imprisoned by the order of the coroner.</p> <p>6. The verdict of the jury is illogical from the testimony, as it bases an inference upon an inference.</p> <p>7. The finding of the fact of the corpus delicti by the jury was inferential, as there was no mark of violence on the body of the child, and as the proof was that the child might have been in the water not less than three nor more than eight days, and as the body was not found until six days after the child was last seen with the defendant, and because the presumption in cases of drowning, without any other evidence, is always in favor of accident or suicide and for the innocence and not the guilt of the defendant.</p> <p>8. The guilt of the defendant must have been inferential in the minds of the jury, because the corpus delicti was inferential, and because the testimony showed that the defendant was no nearer than a mile from the place where the drowning occurred, and because there was no other evidence of the defendant’s guilt except statements made by him of his disposition of his child and its whereabouts (which statements were improperly admitted), and from which testimony as to the corpus delicti and the statements, the jury must have arrived at the defendant’s guilt, thus basing an inference upon an inference.</p> <p>9. The court erred in admitting the testimony of John W. Sepp, against the objection of the defendant, as to complaint made by Irene Johnson against Harry Johnson on October-3, 1890, for desertion and for the nonsupport of herself and her child.</p>

<p>Appeal, No. 12, Jan. T., 1894, by defendant, Alonzo Bradner, from order of C. P. Warren Co., Sept. T., 1892, No. 5, entering judgment in favor of plaintiff, Horace Wing.</p> <p>Foreign attachment..</p> <p>From the record it appeared that on January 14,1885, plaintiff recovered a judgment against defendant in New York. A copy of the record of this judgment was filed with plaintiff’s statement in the present case, and as part thereof. On June 3, 1884, Alonzo Bradner made an assignment for the benefit of creditors. This assignment was recorded in New York and also in Warren county, Pennsylvania. Both plaintiff and defendant were residents of New York. Defendant owned real estate in Warren county, Pennsylvania.</p> <p>Defendant moved to dissolve the attachment, filing the following affidavit in support of the motion:</p> <p>“ Alonzo Bradner being duly sworn saith that both parties, plaintiff and defendant in this case, resided in the county of Livingston, state of New York, at the time this attachment was issued, and still reside there. That the plaintiff had actual notice of the assignment by myself for the benefit of my creditors hereinafter referred to. That the said assignment and supplement thereto was recorded in the county of Livingston on the 4th day of June, 1884, and on the 80th day of June, 1884, and was recorded in Warren county on the 28th day of December, 1892, and on the 28th day of December, 1892, and the record of said assignment is made part of this affidavit.”</p> <p>On March 16, 1893, a rule was granted on plaintiff for security for costs, which was discharged Sept. 8, 1893.</p> <p>On March 31, 1893, plaintiff moved the court to discharge the rule to dissolve the attachment. Pending this rule defendant filed an affidavit of defence setting forth:</p> <p>1st. That the action is commenced by a foreign attachment and no affidavit of defence is required.</p> <p>2d. That both the plaintiff and the defendant resided in the state of New York at the time this action was commenced, and the plaintiff cannot sustain an action of foreign attachment where an assignment for the benefit of creditors which was made in the state of New York, prior to the attachment, is in controversy.</p> <p>3d. The statement of the claim as filed by the plaintiff does not contain the certificate of a judge, chief justice or presiding magistrate that the attestation of the clerk is in due form as required by the act of Congress.</p> <p>Noyes, P. J., filed the following opinions:</p> <p>“ The rule to show cause why the attachment should not be dissolved was improvidently granted and must be stricken off. The affidavit upon which it was obtained does not deny the defendant’s ownership of the land attached- at the time the attachment was served, nor aver any facts inconsistent therewith. Even if it did distinctly aver that the title was not in the defendant but in the assignee for the benefit of creditors, no ground for dissolving the attachment at the instance of the defendant would be disclosed. The assignee has not intervened and would not be bound by any decision as to the title which we might make in the present state of the record. Nothing is alleged against the plaintiff’s right to his writ, nor the regularity of its issue. If he had laid his attachment upon property which is not subject to attachment, the question must be raised by the party injured before we can be called upon to determine it. Rule absolute.”</p> <p>“ Rule for judgment for want of a sufficient affidavit of defence.</p> <p>“ Concurring with the common pleas of Phila. and other counties, we are of the opinion that under the procedure act of 1887 an affidavit of defence is required in an action of assumpsit commenced by foreign attachment, when the defendant has entered a general appearance, and the plaintiff proceeds under that act to obtain it. That the procedure in such an action is regulated by the act is clear, and there is no obstacle to its application in any other law.</p> <p>“ Rule absolute and judgment directed to be entered; amount to be liquidated by the prothonotary.”</p> <p>Errors assigned were (1) making absolute rule to strike off rule to show cause why the attachment should not be dissolved; (2) making absolute rule for judgment for want of a sufficient affidavit of defence; (3) discharge of rule on plaintiff for security for costs.</p>

<p>Natural gas companies — “ Land held in fee ” — Act of April 7,1870— Execution — Mortgage.</p> <p>A right to take natural gas from land, and rights of way and appliances required in obtaining the gas, and transporting it to consumers, is not “ land held in fee,” within the meaning of the act of April 7, 1870, P. L. 58, which provides a special fi. fa. for the sale of the franchises, rights and property (excepting lands held in fee) of an insolvent corporation.</p> <p>The exception in the act of April 7,1870, P. L. 58, is limited to the land which the corporation holds in fee and which is not dedicated to corporate purposes or essential to the exercise of the corporate franchises. It was the purpose of the act to allow the creditors of the corporation to sell its franchises and property dedicated and essential to the purposes for which it was chartered, and not to disintegrate such property and thus defeat such purposes and prevent the performance of the duties which the corporation owes to the public. By Mr. Justice McCollum.</p> <p>A natural gas company owning the natural gas underlying a tract of land, and the rights and privileges necessary or useful in the production 'or transportation of the same therefrom, executed a mortgage for the unpaid balance of the purchase money of the same. The mortgagee obtained judgment upon a note accompanying the mortgage and subsequently secured control of two junior judgments. On one of these it issued a special execution under the act of April 7,1870, and levied and advertised all the property, franchises and rights of the gas company (except lands held in fee), subject to any mortgage existing upon it. The mortgagee purchased the same at the sheriff’s sale. Held, that the mortgagee was not entitled to participate with other creditors in the fund realized by the sale.</p>

Appeal, No. 63, Oct. T., 1893, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1882, No. 253, on verdict for plaintiff,… Held: and the following resolution adopted: “Resolved, that the various sums of money advanced by the stockholders to purchase charter, etc., as set forth in the writing appended hereto, be repaid by order drawn therefor by the president, countersigned by the secretary and treasurer, when the amount thereof shall be in hand from the…

Appeals, Nos. 141, 142, 143, 144, 145 and 146, by defendants, Joseph Garland et al., from judgment of C. P. Delaware Co., June T., 1893, Nos. 11, 13, 14, 15, 16, on verdict for plaintiff. Scire facias sur municipal lien. At the trial it appeared that defendants’ land consisted of a tract of fifteen acres in the borough of South Chester. Lamokin street bounded the property on the east, and Flower street on the west.

<p>Execution — Lien—Priority.</p> <p>The mere fact that an execution creditor issues a pluries fi. fa. after having directed that a fi. fa. and an alias fi. fa. should be returned unexecuted, is not sufficient to sustain a finding that the pluries fi. fa. was issued for the purpose of lien only, and not to enforce the collection of the debt.</p> <p>In such a case where there is no evidence that the execution creditor interfered by word or act with the due execution of the pluries fi. fa., the fact that no levy rvas made under it until other executions were in the sheriff’s hands will not destroy the priority of its lien.</p> <p>Execution — Levy—Sheriff's sale — Distribution.</p> <p>In the distribution among execution creditors of a sum of money realized by a sale of personal property, the money must be appropriated to the writs which were levied on it or the property to the exclusion of the writs which were not so levied.</p> <p>Execution — Agreement between execution creditor and defendant.</p> <p>An agreement between an execution creditor who has issued execution and the defendant, by which the writ is returned levied, and the defendant is allowed eighteen months in which to make payments from time to time, postpones the lien of the writ on the property to the writs of other judgment creditors, who subsequentlj' issue execution.</p>

Appeal, No. 120, Jan. T., 1894, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1893, No. 155, striking off judgment against defendant, Edward Booth. Rule to strike off judgment. From the record and depositions, it appeared that, on May 20, 1893, plaintiff loaned to defendant $3,000 to enable him to carry on a retail liquor business. Defendant gave to plaintiff a judgment note to secure the debt.

Appeal, No. 281, Jan. T., 1894, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1893, No. 472, sustaining demurrer to bill. Demurrer to bill in equity for injunction. The facts appear by the opinion of the Supreme Court. The court sustained the demurrer and dismissed the bill, in an opinion by Arnold, J., 3 Dist. R. 151. Error assigned was above decree.

Appeal and certiorari, No. 318, Jan. T., 1894, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1893, No. 839, quashing warrant of arrest against defendant. Warrant of arrest.

Appeal, No. 422, Jan. T., 1894, by Charles W. Miller, assignee of John Raup, judgment creditor, from order of C. P. Columbia Co., Feb. T\, 1893, No. 50, distributing fund raised by sheriff’s sale of real estate of Wm. Raup, at suit of Catharine Zimmerman et al., heirs of John Stiteler, deceased. Exceptions to report of Charles G. Barkley, Esq., auditor. The facts appear h}*- the opinion of the Supreme Court.

<p>Deed — Reservation—Separation of surface from minerals.</p> <p>In 1801, Thomas Wright executed a deed for land underlaid with coal. The deed contained the following clause: “The said Thomas reserves for himself, his heirs and assignees, a free toleration of getting coal for their own use without hindrance or denial.” Held, that the grantee in the deed took title to the coal subject to the privilege in the grantor, his heirs and assignees, of supplying their personal needs for fuel from the coal granted by the deed.</p> <p>Adverse possession — Separation of surface and mineral.</p> <p>Until a severance takes place between the surface and an underlying estate, the owner’s title reaches from the center to the surface, and from the surface to the heavens; and with a grant of the land or an acquisition of title by an adverse holding the entire estate of the former owner passes. When a severance takes place and the holder of a stratum of coal or other mineral records his title or enters into possession of his subsurface estate, he is not affected by the state of the title to, or the possession of, the surface.</p>

Appeal, No. 286, Jan. T., 1894, by plaintiff, from order of C. P. Elk Co., May T., 1892, No. 169, refusing to take off judgment of compulsory nonsuit. Trespass for levying logs, etc. Before Mayer, P. J. The facts appear by the opinion of the Supreme Court. The sheriff’s return shows that the property levied upon was among other things hemlock logs on skids and in pond.

Bill in equity No. 10, July T., 1894, by Francis M. Brooke, Jesse Lea and William L. Supplee, plaintiffs, against the city of Philadelphia, Edwin S. Stuart, Mayor, and Thomas M. Thompson, City Controller, defendants. Bill to enjoin issuance of certificates of indebtedness. The facts appear by the opinion of the Supreme Court. The case was heard on bill and answer.

Appeal, No. 272, Jan. T., 1894, by defendant, from judgment of C. P. Union Co., March T., 1898, No. 75, on verdict for plaintiff. Assumpsit for farm work. Before McClure, P. J. The facts appear by the opinion of the Supreme Court. Binding instructions for defendant were refused. Verdict and judgment for plaintiff for $40.45. Errors assigned were instructions, quoting them.

Appeal, No. 54, July T., 1894, by plaintiff, from order of C. P. Montgomery Co., March T., 1894, No. 116, making absolute rule to set aside execution. Rule to set aside execution. The facts appear by the opinion of the Supreme Court.

Appeal, No. 468, Jan. T., 1894, by defendant, from judgment of O. & T. Schuylkill Co., Sept. T., 1893, No. 750, on verdict for Commonwealth. Indictment for murder.

Petition by Lyman Korman for mandamus against Hon. John B. McPherson. The petition for mandamus averred substantially as follows: In December, 1893, the case of Lyman Korman v. A. G. Morris was tried in the common pleas of Centre county, before Judge McPherson of the 12th district, specially presiding, and the two associate judges of Centre county. Judge McPherson was called to preside by Judge Furst under the provisions of the act of 1887, P. L. 14.

<p>Appeal, No. 278, Oct. T., 1893, by plaintiff, John W. Waters, from order of C. P. No. 3, Allegheny Co., Nov. T., 1892, No. 169, discharging rule for judgment for want of sufficient affidavit of defence against defendants, Anna Wolf, executrix of Nicholas Wolf, owner, and Thomas White, contractor.</p> <p>Rule for judgment for want of sufficient affidavit of defence on sci. fa. sur mechanic’s lien entered by subcontractor.</p> <p>The affidavit of defence alleged that the building was erected under contracts made between tbe owner and contractor, which contained stipulations providing that “ Before the payments are made all releases on the parts of work finished shall have been signed by the contractors furnishing material and labor on said building. Tbe contractor agrees that no liens shall be filed against said works, or on account of the said contractor; neither shall there be any legal or lawful claims against tbe contractor, in any manner, from any source whatever, for work or materials furnished on said works.”</p> <p>A subsequent clause in the contract was, in part, as follows : “ The proprietor will not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing said works.”</p> <p>Rule for judgment discharged. Plaintiff appealed.</p> <p>Error assigned was order refusing judgment, quoting it.</p>

<p>Will — Life estate — Remainder—Representation.</p> <p>A clause in a will providing' for representation in case of the death of children of the testatrix to whom a bequest in remainder is made, will be construed to apply to other bequests than the one in immediate connection with which it is used, when all the bequests are made in a single'senteuce and a careful consideration of the whole will shows that this construction will best effectuate the intention of the testatrix.</p> <p>Testatrix, after giving legacies to her sons and daughters, provided that a legacy given to her son James for life should, upon his death, go to his surviving brothers and sisters “ and the children of any that may be dead, in the proportion of the respective legacies to my said children in this will contained.” Immediately following this provision and inclosed in brackets is the clause “ (the children or other descendants if any of my said children that may be dead to stand in the place and receive the same amount that their father or mother would have received if living).” This is followed by a repetition of the bequest to James and by bequests to three daughters, Rachel, Ann and Louisa, with power of appointment to their children and grandchildren, and limitation over on failure to appoint. Then follows this provision: “ And it is my will that if any of my said children should die leaving no lineal heir or descendant, that the legacy in this will bequeathed to such child shall, upon his or her death without lineal heir aforesaid, vest in his or her surviving brothers and sisters (named as legatees in this will) in the proportions of the legacies to them in this will contained respectively.” Held that the parenthetic and substitutionary clause was applicable to and explanatory of the whole sentence instead of being restricted to one of the legacies, and the share of a deceased daughter passed to surviving brothers and sisters and the children of deceased brothers and sisters.</p> <p>Trustee— Commissions.</p> <p>A trustee, who, acting in good faith and with the consent of those whom he believed, not unreasonably, to be all who had an interest in the fund, has blended the trust moneys with his own, is not necessarily to be deprived of his commissions, even although his misconstruction of the will has put claimants to litigation to establish their rights.</p> <p>Trustee — Money received by cotrustee — Surcharge.</p> <p>Where a trustee has acted in good faith, and as directed by the will which created the trust, his responsibility is clearly limited to the part of the trust fund which he actually receives, and he is not chargeable with the moneys received and held by his cotrustees.</p>

<p>Appeal, No. 413, Jan. T., 1893, by defendants, John P. Duncan and Daniel McElwee, trading as Duncan & McElwee, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1891, No. 1106, on verdict for plaintiff, John W. Peirson.</p> <p>Assumpsit to recover damages for breach of contract to deliver pelts. Before Biddle, J.</p> <p>On the trial it appeared that for pelts delivered from Aug. 15, to Sept. 4, 1891, plaintiff owed $940, which he paid on Oct. 5, 1891, and on Oct. 7th another lot of pelts was delivered. Between Sept. 4th and Oct. 7th no pelts appear to have been delivered.</p> <p>When plaintiff was on the stand, he was asked:</p> <p>“ Q. You have spoken of a trade understanding that there was to be thirty day's allowed for the payment. What arrangement or what understanding was there between you and Duncan & McElwee prior to July, 1891, as to the thousands of dozens of hides you say' you bought from them ? ” Objected to, for the reason the plaintiff is seeking to recover under the contract which he alleges was made in July, 1891.</p> <p>The Court: I understand that. But there was nothing said about the terms of payment then. Exception to defendant. [1]</p> <p>The Witness: “I have alway's bought them on thirty day's. Thirty' days was the usual trade time; nothing less than thirty day's. If y'ou go into a New York house and buy a lot of pelts, when you go out and say ‘usual terms,’ that means thirty day's. I had been dealing with Duncan & McElwee for y'ears, and they trusted me three months, may' be four months. They' were perfectly satisfied if I paid them in thirty' day's. Now, if they had wanted any different terms at the time this contract was made and would have said so, I would have tried to meet the case, or else I would have been a defaulter.”</p> <p>The court charged as follows :</p> <p>“ In this case the plaintiff contends that at a certain time he was receiving certain pelts from his brother. He was getting all that his brother made; but, inasmuch as his brother’s were unassorted, he was obliged to take a great many skins that were of higher value than he wished; that, in consequence of that, he suggested to the defendants in this case that if they would take all the skins that he had been taking off his brother, and let him have this lower grade of skins and what other skins he wanted, it would be mutually advantageous to both parties; that in consequence of that Mr. Duncan came to his office, where he had the agreement with his brother to sell to Mr. Duncan, and Mr. Duncan agreed to take all the skins that his brother made, at three dollars a dozen. Mr. Peirson then said that he and Mr. Duncan then discussed what skins he was to get and the price he was to give for them, and that it was there agreed between them that' the defendants were to furnish him one hundred and twenty dozens a week, and that the price paid for these was to be two dollars and fifty cents for one quality and three dollars and fifty cents for the higher quality; that he was to be furnished with the lower class as far as they would go, and if they could not make up the one hundred and twenty dozens by furnishing the two dollars and fifty cents skins they were allowed to make up the number by the three dollars and fifty cents skins, so that the whole amount he should get of one or the other of those was to be one hundred and twenty dozens a week; that in consequence of that for a certain length of time they went on and furnished him according to the contract.</p> <p>“ At a certain date, however, in the fall of 1891, they refused to supply him as they had been doing. He then went into the market and endeavored to procure from other sources these skins at the same price. He found, however, that that was impossible ; that the skins had been engaged; that the season was past apparently when a man could make a contract for skins, and that he could not go into the market on that date and get any amount of them at all. He was therefore obliged to give up making these skins in the way in which he had intended, and he therefore brings this suit before you for these damages ; and [he says that the damages to which he is entitled is the amount which he would have received if these defendants had furnished him these goods according to their contract; and he has given his estimate and stated the details to you by which lie claims that he would have made one dollar and fifty-nine cents a dozen if he had been furnished as was agreed.] [2]</p> <p>“ Now, the defendant in this case, Mr. Duncan, denies positively that any such arrangement was made at all. He does agree that he went to see Mr. John Peirson, and that at his office he signed this agreement with his brother, Charles Peirson, to take all those skins at three dollars; but he testifies positively that he made no arrangement at all after that. He says : ‘ Well, I made no arrangement with Mr. Peirson at all. They were made with his brother, C. C. Peirson. I made a contract with him for six months to pay him three dollars a dozen and one dollar and fifty cents a dozen for the common stock. I did not make aiyr arrangement with John Peirson at all. He came and told me that his brother’s pelts were for sale. Of course, I made arrangements with C. C. Peirson, and I signed the contract in John W. Peirson’s office. He never said a word to me about the price, or the number of dozens or anything of the sort, or the goods he was to receive. We furnished him the goods until he would not pay us any longer.’</p> <p>“ So that, as I say, Mr. Duncan denies positively that any such arrangement whatever took place ; and further takes the defence that, even if this agreement was made, as it is admitted there was nothing said by either party about the price at the time the arrangement was made, he would be entitled to cash. That would be true if you find that there was nothing which would modify that view.</p> <p>“ [Mr. Peirson alleges, however, that he had been dealing with this man for eight or ten years, and that this was the course of dealing between them, and therefore it was quite unnecessary that he should say anything about the terms of the payments ; and he also has brought Mr. Stern and another gentleman here, who swear that that was the custom of the trade —thirty days — -that if you paid within thirty days that was satisfactory, and therefore that Mr. Peirson had complied in every respect with what was the real understanding in this case.] [3]</p> <p>“ It appears also that there is a bill which Mr. Peirson admits that he owed these parties. He refused to pay it at the time. Pie paid up to a certain date $940, more or less, and at that time he said he would not pay until he saw whether they made the next delivery on the 11th of September; and they not having made that delivery, that then he refused to pay, and I suppose, anticipating this defence, preferred, if he owed anything, that it should be deducted out of what he alleged they owed him, and he is therefore willing in this case, if you find that the plaintiff is entitled to damages, that you should deduct from the damages the amount which you think the defendant is entitled to — $145—and which he admits to be due.”</p> <p>Defendants’ point was among others as follows :</p> <p>“1. It being uncontradicted that, at the time of the payment of the $940, the plaintiff was then over thirty days in arrears for pelts, already delivered, the defendants were not obliged to further deliver pelts, and your verdict cannot be for the plaintiff.” Refused. [4]</p> <p>Verdict and judgment for plaintiff for $2,011.38.</p> <p>Errors assigned were (1) ruling on evidence, quoting bill of exceptions and evidence; (2-4) above instructions, quoting them ; (5) that the charge, “ as a whole, failed to give the jury instructions as to their duty in the case, and left them in ignorance of the law applicable thereto ; ” and (6) that the charge “ wholly failed to give the jury any instructions as to the measure of damages.”</p>

Appeals, Nos. 170 and 171, July T., 1893, by defendants, Owen L. Broadbent and wife, owners, and John I. McDuffee, contractor; and by John I. McDuffee, owner and contractor, and Jennie Keaggy, intervening owner, from judgments of C. P. No. 4, Phila.

Appeal, No. 160, July T., 1893, by defendant, J. D. Johnson Co., terre tenant, from judgment of C. P. No. 1, Phila. Co., March T., 1892, No. 63, M. L. D., for want of sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence, in sci. fa. sur apportioned mechanic’s claim.

<p>Telegraph Co. — Liability—Affidavit of defence — Averment of contract.</p> <p>Where a telegraph company, when sued for damages for failure to send a message, relies upon the contract on the telegraph blank limiting its responsibility to its own lines, its affidavit of defence must give the facts as to its own handling of the message, the time at which and place to which it was sent, etc.; an affidavit that it transmitted the message promptly and correctly over its own lines to the terminus thereof, and delivered it for transmission to another company, naming but not further describing this company, and that the error, if any, occurred beyond its own lines, is insufficient.</p> <p>Stipulation as to time when claim for damages must be presented — Exception by reason of distance.</p> <p>The stipulation in the contract of a telegraph company contained on its blanks, that claims for damages must be presented in writing within sixty days, is ordinarily reasonable. But in exceptional eases, as that of a message to be transmitted 15,000 miles and to which no telegraphic reply would naturally be sent, the limitation is unreasonable and will not be enforced. Wolf v. W. U. Tel. Co., 62 Pa. 83, explained.</p>

Appeal, No. 456, Jan. T., 1893, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., Sept. T., 1891, No. 728, striking off mechanic’s lien. Rule to strike off mechanic’s lien. The contract between the owners, defendants, and the contractor, the plaintiff, contained among others the following stipulations : “ 8.

Appeal, No. 119, Jan. T., 1894, by Henry T. Atkinson, assignee of Thomas Finley, from order of C. P. No. 4, Phila. Co., June T., 1893, No. 682, discharging rule for judgment for want of sufficient affidavit of defence on sci. fa. sur mortgage against Frank R. Walton and wife. Rule for judgment for want of sufficient affidavit of defence on sci. fa', sur mortgage. The facts appear by the opinion of the Supreme Court. Error assigned was discharge of rule.

Appeal, No. 80, Jan. T., 1894, by defendant, from judgment of C. P. Montgomery Co., June T., 1891, No. 5, on feigned issue, in favor of plaintiff. Feigned issue to determine ownership of proceeds of life insurance policy, paid into court. Before Weand, J. The facts appear by the opinion of the Supreme Court.

<p>Divorce — Willful and malicious desertion.</p> <p>Where a wife leaves her husband’s house under the provocation of a blow, in the mere spirit of resentment, not intending to permanently desert him, and soon after returns, and the husband, in anticipation of her return, locks the doors against her, her absence thereafter will not be a willful and malicious desertion such as to entitle the husband to a divorce therefor.</p> <p>Gruel and barbarous treatment — Defence to desertion.</p> <p>Where the defence to an action for divorce for desertion is cruel and barbarous treatment by the husband, proof of a single blow given in anger is not ordinarily sufficient. If there is evidence of other acts of violence and threats, the burden is on the wife, the defendant, to prove that they occurred before the separation. “ If they were after she left him, clearly they did not prompt her to that act, whatever bearing they might have on the question as to whether a desertion, at first causeless, after-wards, by reason of his conduct, ceased to be willful.” By Me. Justice Dean.</p>

<p>Will — Charity—Beal estate — Alienability—Visitorial powers — Act, 1853.</p> <p>A testatrix devised a farm of 185 acres, called “ The Mount,” with all the personal property thereon, for a home for disabled clergymen, to be incorporated and thereat established, and gave $100,000 to provide some means for its support. She further directed “ that no part of the said estate and property called ‘ The Mount,’ and devised as aforesaid, shall be sold or disposed of, incumbered or applied to any other use or purpose than as a home for disabled clergymen of the Presbyterian faith as above specified.” On an application by the trustees to sell a small portion of the farm remote from the buildings occupied as the home, Held:</p> <p>(1) That nothing short of a plain, unequivocal direction that no part of the land shall be parted with for any purpose whatever, ought to be held sufficient to restrain the managers from doing that which the interests of the charity under their control require of them.</p> <p>(2) That the intention of the testatrix was to forbid the diversion of any part of her gift to other purposes than those to which she had devoted it, which intention might be best followed by allowing a sale.</p> <p>(3) That the testatrix having created no remainder or reversion, the charity took an estate in fee simple and the managers were answerable to the commonwealth only, and to her they might apply for direction if in doubt about their powers and duties; which direction, formerly given by special statute, is now given through the orphans’ court, under the Price act; and that the consent to the sale of that court was the consent of the sovereign, in the exercise of visitorial powers, and enabled the managers to malee a good title to the land.</p>

Appeal, No. 202, Jan. T., 1894, by defendant, from judgment of C. P. Montgomery Co., Dec. T., 1893, No. 68, for plaintiff, on case stated. Case stated. Before Swartz, P. J. After the decree directing the sale of the real estate in question made by the orphans’ court, from which the appeal in the preceding case was taken, this case stated was agreed upon.

<p>Appeal, No. 180, July T., 1893, by plaintiffs, Thomas Cummings and Clara C. Barrington, from judgment of C. P. Delaware Co., June T., 1891, No. 149, on verdict for defendant, Elizabeth M. Glass.</p> <p>Ejectment for undivided two fifths of property, known as “Sea Drift,” at Lin wood. Before Clayton, P. J.</p> <p>On the trial, it appeared that plaintiffs •claimed as residuary devisees of A. Boyd Cummings, deceased; and defendant claimed under a deed from Cummings to Alexander F. Glass, her deceased husband. Cummings was a bachelor and lived with the Glass family, first at a hotel kept by Glass, and after-wards in private houses. Glass died in 1881, and Mr. Cummings continued to reside with Mrs. Glass and her family until his death in 1891. The deed under which defendant claimed was unrecorded. Mr. Cummings purchased the premises in question in 1864, and the family of Glass, accompanied by Mr. Cummings, made it their summer home. The evidence of delivery of the deed is given in the opinion of the Supreme Court.</p> <p>Kate Ubil, a witness for the defendant, testified, under objection, that Mrs. Glass was always at the head of the household at Linwood, and that the household expenses there were paid by Mrs. Glass and Mrs. Buehler, all of them together. [2] Mary Cummings, defendant’s witness, testified, under objection and exception, that Mr. Cummings said to her that he would live with Mrs. Glass and her family as long as he lived, to do whatever he could for them. [5]</p> <p>William H. Priest, defendant’s witness, testified, under objection and exception, that in 1867 or 1868 part of the property was put in grain by him for Mr. Glass on shares. [6] Defendant, under objection and exception, gave in evidence Cummings’s check books, showing payment of board to Mrs. Glass and interest on a $5,000 note. [1]</p> <p>Evidence was also given by defendant, under objection and exception, that $5,000 worth of bonds registered in the name of Alexander F. Glass were found among Cummings’s papers after his death. [9] ■</p> <p>The court charged in part as follows :</p> <p>“ The case now about being submitted to you is by no means a clear one. The evidence is somewhat conflicting, and not entirely satisfactory. Whatever difficulties you may encounter you will have to overcome as best you can, but the case is to be decided according to the weight of the evidence. It is not to be decided by guess work or by any sympathy you may have in the cause. You are to decide it by the evidence.</p> <p>“ It appears that Mr. Cummings at one time, many years ago, purchased this Linwood property. For some reason he did not record his deed, and about two years after the purchase he made a deed for it regular in form to Mr. Glass, and the single question around which all the testimony in the case and all the evidence that has been offered must center is: Was that deed ever delivered ? The deed, I say, was regular in form, written upon parchment, signed and sealed; but however regular a deed may be in form, in law it is not a deed until it is delivered; whenever it is delivered the title passes, and the destruction of the deed after that will not revest the title. The fact that a deed that has been once delivered comes back to the possession of the grantor, will not reconvey the title to the grantor; it must be by deed, by will, or by descent that it comes back.</p> <p>“The only two persons that could explain the mysteries surrounding this deed to your satisfaction are dead; perhaps, a few words from Mr. Cummings or from Mr. Glass would make all the difficulty perfectly clear. Their mouths are sealed; they cannot speak; but Mr. Cummings has left a deed behind him, which does speak; and if it ever was delivered, the language is unmistakable ; it conveys the title as therein described. I suppose you will certainly conclude that when that deed was made it explains just what was intended to be explained; it could not have been made for the mere pleasure of writing it and preserving it; it was made for a purpose. [If you are satisfied that Mr. Cummings knew of the existence of the deed, you would be safe in arriving at the conclusion that he had some object in preserving it; an object in making it and an object in preserving it. What that object was does not clearly appear.] [11]</p> <p>“ Now, gentlemen, as I stated, a moment ago, the whole question, the important question, the question around which all this testimony centers is, was this deed ever delivered?</p> <p>“ The delivery of a deed means either handing it to the grantee, recording it, or leaving it with some person for him, or leaving it where he can get it. To sign, seal and execute a deed and throw it upon a table where the grantee can pick it up is a delivery. There is no particular form of delivery. The deed must pass from the control of the man who makes it and be in such a position as to be in the control of the man to whom it is made, and that is a delivery.</p> <p>“ The plaintiff here claims as residuary legatee under the will of Mr. Cummings. The defendant claims this property under this disputed deed. If, gentlemen, you come to the conclusion, giving due weight to all the testimony, that Mr. Cummings, during the lifetime of Mr. Glass, either gave that deed to him or gave it to somebody for him, then the mere fact that the deed afterwards came back into his possession would not be sufficient to revest the title. [If you come to the conclusion that there was some condition connected with the delivery of this deed, and that it was never delivered to Mr. Glass personally, but that it was delivered to his daughter, Mrs. Buehler, as an escrow, still, if that condition was complied with, the title would pass. We don’t know what the condition was. It might have been that it was not to be delivered until after his death; it may be that it was never to be delivered. We don’t know.] [12] But as I said a moment ago, the deed itself is strong evidence in the cause. [The great question will be, was the deed delivered during the lifetime of Mr. Glass, as testified to by Miss Ubil,] [IB] [and if you should come to the conclusion that it was not properly delivered then, then the next great question will be, did Mr. Cummings, when he came to die, knowingthafc that deed was in existence, did he put it in that fire-proof with the intention well defined of absolutely parting with its custody, of never taking it himself again, and of placing it there so that Mrs. Glass could get it, with the intention that she should get it and with the intention that it should pass title to her.] [14] [That is the second question. If you should come to the conclusion that he did, that he put it in that fire-proof in her house with the intention that she should find it, knowing that she had the key, and that she should take possession of it, that would be a sufficient delivery.] ” [15]</p> <p>Plaintiffs’ points were among others as follows :</p> <p>“ 2. Payment of the consideration money in a deed of bargain and sale is necessary to transfer the use and to render the deed operative. The burden of showing payment of the consideration is, in this case, on the defendant, and she has offered no evidence to show that the consideration was ever paid. Answer: I cannot affirm that point, gentlemen, as written. The receipt of the deed, is some evidence, not conclusive, but some evidence. The evidence, however, of the payment of this consideration is very meager and very unsatisfactory; but if the deed was delivered, that makes no difference^ The title would pass without the payment of the consideration. If the deed was delivered with the receipt for the consideration money upon it, the consideration would have to be recovered in another form of action, but the title would pass. I, therefore, say, if the deed was delivered, I decline to affirm this point. If the deed never was delivered the point as presented is affirmed.” [16]</p> <p>“ 6. Under the evidence in this case a gift of the land in question to be effectual must be shown to have been executed in the lifetime of both A. Boyd Cummings and Alexander E. Glass by the delivery of the deed. Anstver: I decline to so charge you. I charge 3'ou that a delivery to his devisee after Mr. Glass’s death with an intention to pass the title would be good, and would pass the title to Mrs. Glass, if Mr. Cummings so intended when he delivered it.” [17]</p> <p>“ 9. Even if the jury find that the fire-proof at 910 Pine street was used in common by Mr. Cummings and Mrs. Glass, the mere placing of the deed therein by Mr. Cummings would not amount to a delivery of the deed ; if the safe was used by Mr. Cummings for his own property at all, no presumption that he intended to give an3>- property to Mrs. Glass could possibly arise from his merely placing it there, just as no presumption could arise that Mrs. Glass intended to give to Mr. Cummings a jewel, a bond, or a roll of money if she had happened to leave such an article in the safe. Answer: Well, gentlemen, this point is rather argumentative ; if Mrs. Glass had put a roll of money, a piece of jewelry, or any other piece of her property in an envelope and indorsed it ‘ for Mr. Cummings ’ and put it in the fire-proof, where thej' both had access, it would be some evidence that she intended to give it to him ; that it was his ; so, if a deed was put in this fire-proof in her name or her husband’s name, her devisor’s name, it might be some evidence of an intention that she would get it; it certainly is some evidence— it would not be conclusive evidence ; I affirm, therefore, this point, unless you find from all the evidence an intention on the part of Mr. Cummings to deliver the deed by that act; if you find his purpose in placing this deed in the fire-proof, to which both had a key and to which both had access, was that it should come to her hands, that would be a sufficient delivery, but there must be evidence of the intention ; it may be gathered from all the evidence in the case, you may find from the very fact that she had a key to the fire-proof, and that the deed was in her husband’s name, and she was the devisee of her husband, and the other evidence .in the case, you may find that such was his intention ; I say the evidence is at best but slight.” [18]</p> <p>“ 10. The bequest of the fire-proof by Mr. Cummings to Mrs. Glass, with the rest of the furniture of the Pine street house, can have no bearing on the question of his delivery of the deed ; the bequest of the fire-proof did not carry the contents, and in any event it would not take effect till after Mr. Cummings’s death, at which time it was too late for any delivery of the deed to be effected. Answer: He could not certainly deliver the deed after he was dead, and unless you find he put it there for the purpose of losing all control over it and for the purpose of putting it under her power and control, the point is affirmed, but if you find his object in putting it there was to part with his possession of that deed and to put it where she could get it, it being a deed to her husband, and she being her husband’s devisee, it has some bearing upon the point of delivery. I cannot see that it has any bearing upon any other question.” [19]</p> <p>“ 11. Even if the jury believe the testimony of Miss Catharine Ubil, that Mr. Cummings received a package of papers from Mrs. Buehler at the time the latter was dying, they cannot infer that the deed in question, nor in fact any of the Linwood title papers, were in the package, for this would be mere guess work. Answer: That part of this point I cannot affirm. The question will be for the jury. My recollection of Miss Ubil’s testimony is that the envelope that contained these title papers in her judgment and belief is the same that she saw delivered to Mr. Cummings, and I think she said she saw the same envelope afterwards in the fire-proof; but that I am not sure of; you will remember. There is, therefore, some evidence that this deed might have been in that package, but, of course, the weight of that evidence is entirely for you.”</p> <p>The balance of the point was as follows :</p> <p>“ The burden is upon the party offering this proof to show positively what papers Mr. Cummings so received, and in the absence of any such evidence it would be wholly unjustifiable for the jury to draw any inference unfavorable to Mr. Cummings’s ownership of the property from any word or act of his or his omission to speak at this time, for the obvious reason that such inference would be predicated upon the facts that not only was the deed in question in the package, but that Mr. Cummings knew it, of neither of which is there a particle of proof. Answer: I can’t say, gentlemen, that there is not a particle of proof. I leave the question with you. You have heard Miss Ubil’s testimony, and if you come to the conclusion that the package of papers which was delivered by the dying woman to Mr. Cummings contained this deed, it would be some evidence that there had been a previous delivery. Then the fact that it came back to Mr. Cummings’s possession would not revest the title. If he ever delivered that deed, nothing would revest the title in him but another conveyance or some lawful devise.” [20] “ 14. Placing an undelivered voluntary deed in such a place that it may fall into the hands of the grantee, or his heirs, or his devisees after the grantor’s death, would not pass the title. If the alleged grantor retains the title and the full dominion over the property till the end of his life, it falls upon his heirs or the devisees named in his will at the moment of his death, no matter what intention he may have had to the contrary. Answer: Well, gentlemen, I will affirm that point; unless the placing of the deed in such a place was in fact that he intended it to fall into the hands of the grantee it would be a delivery, but if he did not so intend it, it would not be.” [21]</p> <p>“ 18. There is no evidence of a delivery in escrow, and such a delivery cannot be presumed in the absence of evidence. Ansioer: I decline to affirm that point. But I say to you that there is very little evidence of a delivery in escrow. I should describe to you what an escrow is. It is where a man makes a deed and hands it to another to be delivered to the grantée upon the performance of some condition; that is a delivery in escrow. The title is held, it is suspended; when the condition is performed the title reverts back to the date of the deed. There is very little evidence here of a delivery in escrow. We don’t know what the delivery to Glass was, nor that there ever was one. A delivery to him would not be an escrow. If it was delivered to Mrs. Buehler, and there was some understanding as to when it should be delivered, and that it should not be delivered until after his death, or some other event, that would be a delivery in escrow. But I say the evidence is very slight, indeed, as to a delivery in escrow. That is all, I think, necessary to say upon that subject. I will not say there is no evidence of a delivery in escrow.” [22]</p> <p>“ 19. Delivery of a deed is generally a question for the jury, but, when, as in this case, there is no sufficient evidence upon which a delivery can be inferred, it is the duty of the court to take the question from the jury, and you are accordingly directed to find a verdict for the plaintiffs for the undivided two fifths of the land, which they claim. Answer: I decline to so charge you. The question is for you.” [23]</p> <p>“ 20. Under all the evidence, your verdict must be for the plaintiffs for the two fifths of the land. Answer: I decline to so charge you. I say, under all the evidence, you may find either for the plaintiffs or for the defendant. If you are satisfied, under all the evidence, that there was a delivery to Mr. Glass in his lifetime; if you are satisfied, under all the evidence, that there was a delivery to Mrs. Buehler for the benefit of Mr. Glass’s heirs or for the benefit of Mr. Glass’s devisee, his widow, or if you are satisfied that Mr. Cummings put the deed in the fire-proof for the purpose of parting with all control over it, and with the intention that Mrs. Glass should get it, you may find for the defendant. If you are not satisfied upon these points, and do not believe from the evidence that there ever was a delivery to Mr. Glass or Mrs. Buehler, or that the deed was not put in the fire-proof for the purpose of a delivery to Mrs. Glass, then your verdict should be for the plaintiffs for two undivided fifths.” [24]</p> <p>Defendant’s points were among others as follows:</p> <p>“ 2. If the jury are satisfied from the evidence of Kate Ubil that the deed in question was in the possession of Mrs. Buehler, the daughter of Alexander F. GLass, in 1881 or 1882, after the death of Mr. Glass, and that Mrs. Buehler was the custodian of the papers of her deceased father, they may find that the deed was delivered to Mr. Glass by Mr. Cummings prior to .the .death of Mr. Glass, or delivered by Mr. Cummings to Mrs. Glass or Mrs. Buehler for her after the death of Mr. Glass, and in either event their verdict should be for the defendant. Answer: That point is affirmed if you find the facts as therein stated.” [25]</p> <p>“ 4. If the jury are satisfied from the evidence of John Baird that Mr. Cummings, in arranging his affairs shortly before his death, placed the deed in the safe 'at the residence of Mrs. Glass, so that it would come to her hands after his death, this would be a sufficient delivery in law, and their verdict should be for the defendant. Answer: Gentlemen, if from all the evidence the jury are satisfied that Mr. Cummings placed this deed in the fire-proof in Mrs. Glass’s house, knowing that she had a key and had the common use of the safe; and if he absolutely intended then to part with all control over the deed and thereby to deliver it, this would be a sufficient delivery in law, and this point would be affirmed. I n^ express some doubt whether a delivery after his death or placing it in the fire-proof, if his intention was that she should not have it until after his death, would be sufficient; I must express some doubt on that subject; but if he put it in the fire-proof, never intending to take the deed back, if he intended that she should open the fire-proof the next day, and she should take it, that would be a good delivery. If his intention was that the title should not pass until after his death, I am not prepared to saj- the title would not pass by such a delivery; but for the purpose of this case I must decline to affirm that proposition.” [26]</p> <p>The jury having come back, requested further instructions on the following question: “ Q. If the jmy find from the evidence that the deed was in the hands of Miss Ubil during the life of Mrs. Bnehler, is that to be considered a delivery of the deed to the Glass family ? Answer: That is evidence of the delivery of the deed to the Glass family, and rinexplained it would be sufficient, but the whole evidence is to be considered by you. If there is any other evidence in the case that would tend to explain that delivery, you may consider it.” [27]</p> <p>Errors assigned were, (3,4,7,8,10) rulings on evidence stated in opinion of Supreme Court; (1, 2, 5, 6, 9) above rulings on evidence; (11-27) instructions in brackets; quoting bills of exceptions, evidence and instructions.</p>

<p>Mechamos’ liens — Act of June 8, 1891 — Constitutional law.</p> <p>The act of June 8, 1891, P. L. 225, in regard to the lien of subcontractors, is unconstitutional: Waters v. Wolf, ante, page 158, followed.</p> <p>Mr. Justice Mitchell dissents.</p>

Appeal, No. 46, Jan. T., 1894, by plaintiff, Frederick Lauer, assignee of George Lauer, to use, etc., from order of C. P. Schuylkill Co., May T., 1888, No. 248, entering judgment against M. M. Ketner, alone, on verdict against M. M. Ketner and Ann M. Ketner, his wife. Sci. fa. to revive judgment.

Appeal, No. 302, Jan. T., 1894, by defendant, John Krell, from order of C. P. Schuylkill Co., July T., 1889, No. 47, Execution Docket, amending sheriff’s return to alias vend. ex. issued on judgment of Solomon Lowenstein, for use of C. J. Shindel, now to use of L. W. Weissinger. Petition to amend sheriff’s return. Before Weld man, J. The facts appear by the opinion of the Supreme Court. Error assigned was allowance of amendment.

Appeal, No. 322, Jan. T., 1894, by plaintiffs, Susanna Gockley and her husband, John Gockley, from judgment of C. P. Lebanon Co., Sept. T., 1890, No. 185, on verdict for plaintiffs and against defendant, Thomas V. Miller, Sheriff, for part only of plaintiffs’ claim. Trespass against sheriff for damages for sale, as property of husband, of property claimed by wife.

Appeal, No. 292, Jan. T., 1894, by plaintiff, from judgment of C. P. Delaware Co., Dee. T., 1892, No. 9, on verdict for defendant. Trespass for maintaining water pipe under sidewalk.

<p>Appeal, No. 231, Jan. T., 1894, by plaintiffs, Chas. W. Cushman et al., from decree of C. P. Delaware Co., June T., 1893, No. 1, in equity, sustaining demurrer to bill in equity.</p> <p>Bill in equity for injunction. Before Clayton, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were (1) action of court in sustaining demurrer ; (2, 3) dismissal of bill, quoting decree.</p>

<p>Partnership — Firm assets — Individual debts.</p> <p>A partner cannot pay his individual debt with firm assets except with the consent of all the partners; but an express agreement is not required.</p> <p>Where a lawyer sent his bill to a firm and included therein services to the individual members of the firm, one of whom thereupon expressly agreed that the lawyer, instead of insisting on cash, should take out his whole claim in materials and work to be furnished by the firm; and such materials and work were accordingly furnished from time to time for a period of eight years, the firm calling for no payment on what was owed them, and making no payment on what they owed: Held, that as both partners knew that the firm and each of the partners owed the lawyer money which they had not paid, and which he had not again asked for, and knew, and were bound to know from the presentation of his bill, that he was treating all his services on the same basis, and looking to the firm for the payment of the whole, the inference was irresistible that both partners knew and agreed to the arrangement by which all the debts on each side were to be treated as mutual and set off against each other.</p> <p> Failure of referee to find foot. </p> <p>Where a referee has refused to find a fact either way, the Supreme Court is at liberty, though not required, to look into the evidence and find the fact themselves.</p> <p>Practice, Supreme Court — Referee—Findings of fad — Review.</p> <p>The Supreme Court will not review a referee’s findings of fact.</p>

<p>Appeal, No. 308, Jan. T., 1894, by defendants, from judgment of C. P. Lackawanna Co., Nov. T., 1890, No. 149, on verdict for plaintiff.</p> <p>Issue in trespass on appeal from award of land damages by street viewers. Before P. P. Smith, J.</p> <p>From the record it appeared that, an ordinance having been passed for the widening of West Lackawanna avenue and a bond filed, plaintiff presented a petition for the appointment of viewers to assess his damages and benefits, stating that the city liad entered upon his property. The court appointed three viewers, who awarded plaintiff $632.50. From this award he appealed, and the court directed that the case should be put at issue as in an action of trespass. To a declaration filed defendant pleaded “ not guilty.”</p> <p>The court charged in part as follows:</p> <p>“Michael Larkin, the plaintiff in this proceeding, seeks to recover compensation from the'city of Scranton, the defendant, for damages which he alleges he has suffered by reason of the .city having taken a part of his real estate for public purposes.</p> <p>“ The fact that Mr. Larkin owned a lot of land fronting on West Lackawanna avenue, in this city, having 75 feet frontage on that avenue, and that a strip of 12 feet along that avenue was taken by the city, for public purposes, is admitted. It is taken by virtue of the power of eminent domain, vested in the city, and to be exercised by the city -when the public needs require it. [That strip of land, containing 900 feet, is taken absolutely from Mr. Larkin; the title to it taken from him, and vested in the city of Scranton by virtue of this proceeding for all time.] [1]</p> <p>“You are to inquire in this proceeding what damages Mr. Larkin may have suffered by reason of the taking of his property. In doing so it is your duty to consider the facts in the case, as disclosed by the testimony, and to determine what amount of damage he has received. You must consider also what, if any benefits he may have derived from the construction of this public improvement in front of his premises. . . .</p> <p>“ In arriving at a conclusion, you have a right to consider the condition of the property at the time of the taking, which I think the ordinance fixes as the 15th of October, 1890. You are to consider the condition of Mr. Larkin’s property at that time, its value ; also what was done to it by the city in widening the street at that point; what damage, if any, was done the property, and what that damage amounted to. The value of the property taken from him is an element for you to consider, this 75 feet of land extending along the side of this public highway, and you may recall the testimony of several witnesses as to the importance of that highway, and the probable amount of travel upon it, and the corresponding value of the property contiguous to it. You then will consider, from the evidence in the case, what benefits have been bestowed upon Mr. Larkin’s property by reason of this improvement, if it has been benefited, and whether it has or not is a question entirely for you; and to the extent that you may find his property has been benefited, you should offset that benefit against the amount of damages which he may have suffered. You are to determine the difference between what the property was worth immediately before and immediately after the taking, and in doing so you are to-consider all the circumstances which have been disclosed to you by the evidence in the case.</p> <p>■ “ [There is testimony uncontradicted that there was a stone structure there, used by Mr. Larkin and his sons in their trade; that a part of it was cut away. The city engineer testifies himself that he fixed the line which severed a part of that building, and took the ground upon which it was into the city limits. You have also the right to consider the condition of the property in the rear of that building, in determining what it would require to place it in such a convenient position as it was before, and that consideration may be entirely independent of the question of the value of the property, which the city admits it has taken for public purposes.] ” [2]</p> <p>Defendant’s second point was among others as follows :</p> <p>“ 2. The damages and benefits from the widening of West Lackawanna avenue, not having been first ascertained by viewers appointed in accordance with the provisions of the act of May 23, 1889, article 14, the court has no jurisdiction of this appeal, and the verdict must be for the defendant. Answer: I refuse this point and submit the case to you, to determine, from all the evidence, whether the plaintiff has suffered damages by reason of this taking, and if so, to what extent, and you will so find by your verdict.” [3]</p> <p>Verdict and judgment for plaintiff for $1,400.</p> <p>Errors assigned were (1-3) instructions, quoting them.</p>

<p>Appeal, No. 350, Jan. T., 1893, by defendant, from judgment of C. P. Berks Co., Aug. T., 1890, No. 101, on verdict for plaintiff.</p> <p>Assumpsit for professional services. Before Endlich, J.</p> <p>The facts appear by the opinion of the court below.</p> <p>On the trial, Charles H. Schaeffer, Esq., a witness for plaintiff, was allowed to testify, under objection and exception, as to. the value of the services. [1]</p> <p>The court charged in part as follows:</p> <p>“The questions for your determination are: (1) Has the plaintiff shown that in 1883 a new contract was made between these parties, which they intended to be the basis of all future services and compensation ? If he has not so shown, you will return your verdict for defendant. If he has, and only then, you will inquire: (2) What sum fairly represents the value of plaintiff’s services rendered after 1882 in obtaining the credit of 120,823.50?” [6]</p> <p>The plaintiff’s points were, among others, as follows:</p> <p>“ 3. If the jury believe, from the evidence, that, by reason of any contract or agreement entered into between the plaintiff and the county commissioners, after the first Monday of January, 1883, he undertook, with their knowledge, approval, and consent, the collection of a claim of the county of Lancaster against the commonwealth, and, by his labors, rendered subsequently to that date, secured the collection of said claim, the verdict must be for the plaintiff for such amount as the jury believe from the evidence his services were worth to the county of Lancaster, with interest from June 20,1887.” Affirmed. [2]</p> <p>“ 4. If the jury believe that, after the expiration of plaintiff’s term of office as solicitor for the county of Lancaster, a new agreement was entered into between him and the county commissioners, and that the services rendered by him for which he seeks compensation were rendered exclusively under the new agreement, the verdict of the jury must be in his favor for such a sum as under the evidence will properly compensate him for such service, with interest from June 20,1887.” Affirmed. [3] Defendant’s points were among others as follows:</p> <p>“2. There is no testimony in the case of a contract between plaintiff and the defendant other than that of June 28, 1882, and all the services rendered by the plaintiff must be regarded as having been rendered under said contract.” Reserved. [4] 3. Request for binding instructions. Refused. [5]</p> <p>Verdict for plaintiff for $6,923.56. Defendant moved for a new trial and for judgment n. o. v. Rules to show cause were granted and subsequently discharged in an opinion in part as follows, by Endlich, J.:</p> <p>“ Was there any evidence, proper for submission to the juiy, in support of the plaintiff’s principal contention ? The plaintiff, on June 28,1882, while solicitor for the county of Lancaster, had been employed by resolution of its board of commissioners, to obtain from the commonwealth, in favor of said county, a credit settlement for overpaid taxes, upon a stipulated contingency of 25 per cent to cover his own compensation and all expenses. In November, 1882, the, claim was rejected, and, on the first Monday of January, 1883, the plaintiff’s term of office expired. After June 13, 1883, he, in conjunction with Mr. Hensel, again endeavored to obtain a settlement. • These efforts were successful. On May 1, 1884, a credit was allowed to the county of $2,560. The plaintiff rendered his bill to it for 25 per cent of that amount, ‘as per resolution of the board,’ and received $640. On June 18,1887. a further credit was settled in favor of the county for $20,823.50. The plaintiff demanded payment to him Of 25 per cent of this amount, but was refused. He thereupon brought suit against the county, based upon the contract evidenced by the resolution of June 28, 1882. The trial took place in Chester county, resulting in a verdict for plaintiff for the full amount of his claim with interest. Judgment entered thereupon was, however, reversed by the Supreme Court, on the ground (1) that, the prosecution of the claim of the county against the state being within the sphere of the county solicitor’s duty, for the performance of which a fixed salary was appointed by law, a contract between him and the county for additional compensation for such services was void and illegal, and incapable of ratification after the expiration of his term of office; and (2) that there was no pretence of any new agreement subsequently made, on which, under the pleadings and evidence, the recovery could be sustained: Lancaster Co. v. Fulton, 128 Pa. 48. Thereupon the plaintiff brought this suit to recover a reasonable .compensation for services rendered to defendant, at its instance, request and employment, subsequently to the first Monday in January, 1883, in obtaining a credit settlement of $20,823.50 from the commonwealth in favor of said county, alleging an assumption on the part of the latter to pay him for said services the sum of $5,205.87]?. This assumption he has sought to establish, at this trial, by evidence that, on June 13, 1883, the then county commissioners made a new contract with him, whereby he was to secure the services of Mr. Hensel, as eounsel for the county, in conjunction with him, to renew and push the claim rejected in November, 1882, and in the contingency of success to receive 25 per cent upon the amount of the settlement to be allowed, out of which he was to pay all expenses and compensate Mr. Hensel.</p> <p>“ Upon the proof of this new contract, as a new contract, it was agreed, on both sides, depended his right to recover. As to the amount, which, in the event of that right being made out, would be a fair compensation, the evidence, all on the side of the plaintiff, indicated an allowance of 25 per cent as reasonable and proper. The ease was submitted to the jury under a charge by no means favorable to the plaintiff, a point submitted by defendant as to the existence of any evidence of a contract other than that of June 28, 1882, being reserved under the authority of Chandler v. Ins. Co., 88 Pa. 223; Koons v. Telegr. Co., 102 Pa. 164. The verdict, defective as to form, but unmistakable as to its intent, and accordingly moulded by tbe court, in the exercise of a power which is not now questioned, gave to the plaintiff a sum equal to 25 per cent upon the amount credited to the county on June 18,1887, with interest from that date. . . .</p> <p>“ The present case is a purely legal one. The issue as to whether the contract of June 28, 1882, was terminated, abandoned, and a new contract entered into, is not one to which the equitable rules concerning evidence to vary, add to, or alter a written agreement apply: Holloway v. Frick, 149 Pa. 178. The evidence adduced on the affirmative of that issue is partly circumstantial and partly direct. In so far as it is the latter, it consists of the testimony of the plaintiff himself. He affirms the fact of a meeting between himself and the.board of commissioners on June 13,1883, and narrates what took place. He says that he stated to them what he had done during the previous year, and that he had not been successful, that he had failed. This declaration, if it was made by him as testified, was capable of being regarded as a surrender of his employment under the resolution of June 28, 1882, and the commissioners were at liberty to consider their relation with the plaintiff under the contract evidenced by that resolution at an end, even supposing it to have been a legally binding one. ‘ I then told them,’ he continues, ‘ that I desired to take in associate counsel; I told them, that if they would agree to it, I would associate Mr. Hensel with me in the prosecution of the claim against the commonwealth.’ That is to say, if the former part of his statement is to be understood as a declaration that his efforts were exhausted, his employment terminated, he nevertheless desired to be re-engaged on condition that Mr. Hensel be secured to co-operate with him. ‘ They were favorable,’ he says, ‘ to the proposition, and asked upon what terms the services of Mr. Hensel could be procured. I said to them: “You pay me 25 per cent of the amount collected from the commonwealth, and I will compensate Mr. Hensel; this to be in full for all costs and expenses, as well as all fees.” They agreed to do it and authorized me to go ahead,’ etc. If this is true, and the true construction of what precedes it is as above indicated, then we have here an unequivocal assertion of the making of a new contract, upon specified terms, on June 18,1883. What was said and done, what was intended by what was said and done, are questions of fact for the jury: Forrest v. Nelson, 108 Pa. 481, 488; Maynes v. Atwater, 88 Pa. 496, 499.</p> <p>“ But there is more than this. Being asked by defendant’s counsel concerning the payment of $640 on May 1, 1884: ‘Was that paid to you in pursuance of your contract of June 28, 1882,’ the plaintiff says: ‘I suppose it was paid to me in pursuance — I know it was paid to me in pursuance of an agreement that we had, that they made with me by which I was to retain Mr. Hensel,’ etc. ‘Q. Was it obtained from them under your contract of June 28, 1882? A. I say no, it was not.’ Defendant’s counsel contend that this goes for naught, being the expression of a mere opinion. I think not. In Bank v. Kennedy, 17 Wall. 19, it was held competent to ask a witness who was a party to a transaction, and was present and was cognizant of the circumstances, on whose behalf a payment was made, whether it was made in consequence of a request, and what was its purpose and intent; and in Brunner v. T. & T. Co., 151 Pa. 447, our Supreme Court reversed because of the exclusion of an interrogatory as to the purpose with which an act was done by the deponent, and whether it was done in pursuance and in the line of his employment, which was ‘ the precise point to be settled.’ But, no matter whether this testimony would have been competent in chief or not, the questions which elicited it and which were so framed as to invite it, to be incapable of any other style of answer, were put upon cross-examination by defendant’s counsel. An objection like this, therefore, comes with ill grace and is erntitled to no consideration. Further on in his cross-examination; the plaintiff, in answer to a question whether there was a new agreement in May, 1883, says: ‘No, sir; June 13, 1883, there was an agreement made, by which I was to employ Mr. Hensel.’ Again, referring to a period subsequent to the trial in Chester county, during which plaintiff explains he did not happen to think of the transaction of June 13, 1883, he says: ‘I then recollected that we did really have a new agreement, that of June 13, 1883;’ and, in answer to the question, ‘What else had you in your mind as the basis of your claim ’— ‘. . . . the fact that on June 13, 1883, they entered into an additional agreement, another agreement, by which,’ etc., concerning the transaction of the same day: ‘ The county commissioners agreed with me that I should retain Mf. Hensel and they would pay me 25 per cent.’ It is needless to multiply extracts from his testimony, more or less pointedly asserting the conclusion of a new contract on June 13, 1883.</p> <p>“Among the circumstances which corroborate him, one, at least, is worthy of special mention. The plaintiff, it is very clear, had no idea that the contract of June 28, 1882, was invalid, either as a contract for extra compensation or as a contract for a percentage. Apart from its invalidity, he had, under it, a perfect right to employ in his aid any lawyer or set of lawyers in Lancaster or elsewhere. He was assured a commission of 25 per cent in full of his services and all expenses. It was a matter of no concern to the county of Lancaster whether he should alone do the work and alone enjoy the reward, or whether, out of the commission secured him, he should pay any one else to do the work for him. Why, then, if that contract continued in force, is he found to go before the board and ask authority to employ Mr. Hensel, without asking for any increase of compensation ? It is said that mere policy and courtesy towards his clients would have prompted him to inform the latter of his intention to associate other counsel with himself. But that is not what he did, if his testimony is to be believed. He asked them for a distinct agreement, binding upon himself as well as upon them, and obtained it. It is certainly not permissible to resist an obvious natural inference from the act of a party to the point of treating the same as a silly, unnatural work of supererogation. Viewed in connection with his previous statement to the commissioners that his efforts had failed, the claim been rejected, the natural inference from the act of the plaintiff now under discussion is, that he intended to be done with the old employment, and to start upon a new one in conjunction with Mr. Hensel. The natural inference from the fact that the commissioners inquired into the matter of compensation is that they so understood the situation; otherwise, if the old contract was to continue, they were not concerned upon that subject.</p> <p>“ In the light of Holloway v. Frick, supra, it may be questionable whether proof of the contract of June 28, 1882, raised any legal presumption that the relation between the parties continued to the end to be based upon it. Granted, however’, that there was such a presumption — that the burden of overcoming it rested upon the plaintiff — that the evidence adduced for that purpose was to be ‘ viewed with a considerable degree of suspicion:’ Hunter v. Nolf, 71 Pa. 282, quoted in Lancaster Co. v. Fulton, 128 Id. 48, 61 — and that, therefore, no inference in plaintiff’s favor can be reasonably drawn from testimony in any way consistent with that presumption; yet it needs no citation of authority to show, that, in order to determine the question of such consistency or inconsistency, the evidence in support of the plaintiff’s contention must be looked at as a whole, not in detached portions. The question is, Does it, as a whole, consist with or oppose the presumption ? — not, Does this or that portion of it, omitting the rest, do the one or the other? Applying this test, it is idle to say that the testimony adverted to, taken, as it must be, for true, does not tend to refute the presumption mentioned. True, there was (a) direct testimony to the contrary; there were (b) circumstances developed whose apparent tendency was, in my opinion at the time, very strongly adverse to the plaintiff’s theory; and there was (e) evidence of previous statements and affidavits of the plaintiff himself, which, to say the least, required explanation.</p> <p>“ (a) The direct testimony consisted of the denial by two of the county commissioners of the plaintiff’s account of what took place on June 13, 1883. The third commissioner, who, according to the plaintiff’s story, would have been the most interested witness, was absent, nor was it shown that he was subpoenaed, or that any effort was made during the trial to procure his attendance. „</p> <p>“ (b) The most significant circumstantial evidence opposing the plaintiff’s story consisted of the fact, that, between November, 1882, and June 13, 1883, he had not ceased busying himself with the matter of the county’s claim against the commonwealth ; of the wording of his bill of May 1, 1884; and of the similarity between the old contract and the new.</p> <p>“ (o') The fact that the first suit was brought by the plaintiff distinctly upon the resolution of June 28,1882, that in his affidavit of claim he set it forth as his cause of action, that on the trial in Chester county, as is pointed out by Mr. Justice Sterrett in Lancaster Co. v. Fulton, supra, at p. 63, he testified that all he had done was in pursuance of and under that contract — all justly went to discredit his contention upon this trial. “Yet each of the matters referred to under these heads taken singly, and all of them collectively, were clearly matters for the consideration of the jury, together with the explanations offered by the plaintiff, in determining his credibility, the weight and effect of the circumstances corroborating his story, and the real truth of the case. So manifest is this, upon the most elementary principles, that I need refer particularly to but two items, to which defendant’s counsel assigned a peculiar, and novel significance.</p> <p>“ That a substantial identity between the subject-matter, purpose, and terms of a prior contract, illegal and incapable of ratification, and those of a subsequent one alleged to be independent of and distinct from the former, is a suspicious circumstance and ought to be considered by the jury as a fact militating against him on whom rests the burden of proof, cannot be doubted: Hunter v. Nolf, 71 Pa. 282; Lancaster Co. v. Fulton, supra, p. 61. That there cannot, as a matter of law, be a new, independent contract between the same parties, touching the same subject, having in view the accomplishment of the same ultimate object, and stipulating for the same compensation, is a proposition for which no warrant has been shown in judicial decisions or in common sense. Moreover, whilst I was of a different opinion at the trial, I think it would be difficult to establish such an identity between the contract of June 28, 1882, and that testified to as having been made on June 13, 1883. Two contracts cannot be identical in terms where the consideration is different, where the parties contract in different capacities, and where the stipulated payment is different. The consideration for the compensation in the contract of June 28,1882, was a service to be rendered by the plaintiff which he was bound to render without compensation, and therefore no consideration. The consideration in the contract of June 13, 1883, was (a) the rendition of services which he was under no duty to render, and (6) the procuring, at his expense, for the benefit of the county, of the services of another gentleman who was not bound to render them gratuitously. The capacity in which the plaintiff became a party to the contract of June 28, 1882, of which he could not divest himself in dealing with the county, and which, therefore, rendered the relation attempted to be assumed by him by virtue of the contract illegal and the basis of no valid claim, was that of county solicitor. The capacity in which he became a partjr to the contract of June 13, 1883, was that simply of an attorney at law, an employment of whom by the county, with the incident of liability to compensation, was altogether lawful: Chester Co. v. Barber, 97 Pa. 455. The reward stipulated in the contract of June 28, 1882, was 25 per cent payable to the plaintiff. He might, it is true, have employed assistance. But the county knew him only in the matter. Under the contract of June 13, 1883, he was obliged to procure the services of Mr. Hensel. The county virtually engaged both of these gentlemen, merely leaving the details of the arrangement with Mr. Hensel to the plaintiff. A reward of 25 per cent was agreed upon as compensation for both of them, to be paid, in the first instance, to the plaintiff. No one will doubt that, in the practical result to the plaintiff, the terms of this arrangement will be found to differ from what was contemplated by the contract of 1882. But, apart from that, a promise to pay a certain sum to one person is not the same thing as a promise to pay the same sum to two persons. Thus, as the case is now presented, there is not that analogy between its appearance and Hunter v. Nolf, supra, which was pointed out by Mr. Justice Sterrett in Lancaster Co. v. Fulton, supra, under the facts then developed. In Hunter v. Nolf, not only were the parties literally the same,’ and the terms identical, in the original illegal and in the alleged new contracts, but the consideration upon which both were based, and which gave rise to the illegality, continued the same. I cannot, therefore, look upon that case as applicable to the present one to the extent of forbidding, as a matter of law, tire treatment of the contract of June 13, 1883, as something new, different from and independent of that of June 28, 1882, and untainted by its weakness. The question whether or not it was such was one of fact for the jury.</p> <p>“ Neither can the plaintiff’s statements in the former case conclude him, or, as a matter of law, throw out his contrary testimony in this one. It is a mistake to treat those statements as part of his testimony at the trial of the latter, or as rendering that testimony inconsistent or contradictory. If there were any such confusions pointed out in what he swore to at this trial, it would have been the province of the jury to settle the doubt arising therefrom: Kohler v. R. R. Co., 135 Pa. 346, 357. A fortiori must this be so where the doubt arises from contradictory statements made upon previous occasions, not repeated at this trial, but admitted as having been made, and attempted to be explained. It was decided in Callan v. Lukens, 89 Pa. 134, that a supplemental affidavit of defence is not insufficient simply because it sets up a new and different defence from that made in the original affidavit, however suspicious such a performance may be. Now, it is an elementary rule concerning affidavits of defence, that, in order to be sufficient, they must show a defence which is permissible and which a jury may consider : Hendel v. R. F. A. Ass’n, 2 Dist. R. 116, and cases there cited. It follows that testimony in support of an allegation inconsistent with one previously made is nevertheless proper for submission to the jury, the discrediting effect of the former version being a matter for its determination.</p> <p>“ I am thus led to the conclusion that the principal question submitted to the jury was in the case, and that it could not have been withdrawn from the jury by the court without invading the province of the former. There was, therefore, a basis for an inference favorable to the plaintiff’s contention. It may have been a pretty narrow one. I am disposed, on a review of the testimony, to think it was ample. But, whether it was a sufficient basis was for the jury, and its conclusion being eonscionable, the verdict cannot be ignored or disturbed upon the ground of insufficiency of the evidence upon the question under discussion: Brunner v. T. & T. Co., per Williams, J.</p> <p>“ 2. Were the questions to be decided by the jury properly submitted ? The time has gone by, in this state, when a charge might be convicted of error by selecting detached phrases or sentences and subjecting them to a subtle criticism: Smith v. Meldren, 107 Pa. 348, 352; Nevling v. Com., 98 Pa. 322, 335; Totten v. Hicks, 3 Kulp, 60. Taking this charge as.a whole, it may well be that, had the result been unfavorable to the plaintiff, he would have had good cause of complaint. But no error has been pointed out prejudicial to the defendant. There is nothing in the allegation that the charge authorized the jury to compensate the plaintiff for services rendered before June 13, 1883; that they must be supposed to have done so; that those services having been rendered under the contract of J une 28, 1882, and incapable of compensation, the claim for them was illegal; that this, claim being part and parcel of the entire demand, its illegality, under Spaulding v. Ewing, 149 Pa. 375, tainted the whole, etc. It would be more wearisome than difficult to point out the irrelevancy of this decision to the present case. It is sufficient to say that the jury, having been told that the claim was for services rendered subsequently to the expiration of plaintiff’s term of office, which ended on.the second Monday of January, 1883, was distinctly instructed that all services were to be taken to have been rendered under the contract of June 28, 1882, and irrecoverable, unless and until' a new contract was shown, and that there was no evidence of such except what was alleged to have occurred on June 13, 1883. Moreover, it was testified that all the valuable services were rendered and all the effective work done after that date.”</p> <p>Errors assigned were (1) above ruling on evidence ; (2-6) instructions as above ; (7, 8) not entering judgment for defendant n. p. v.; quoting rulings and instructions.</p>

<p>Appeal, No. 20, Jan. TV, 1894, by plaintiff, Annetta K. Lerch, from judgment of C. P. Berks Co., Feb. T., 1892, No. 51, on verdict for defendants, Geo. W. Bard, Samuel H. Kutz and Regina Boyer, trading as the American Plumbago Mining Co.</p> <p>Assumpsit on promissory note. Before Endlich, J.</p> <p>The facts appear' by the opinion of the Supreme Court.</p> <p>Plaintiff’s points were as follows:</p> <p>“1. Under the defendants’ articles of copartnership, William P. Bard was invested with power to borrow for the copartnership such moneys as were necessary for the carrying on of the business thereof, and was empowered, moreover, to give notes for the money so borrowed, and to sign the copartnership name to such notes.” Refused. [1]</p> <p>“ 2. The jury may find from the written agreement, together with the parties’ course of dealing thereunder, that it was the intent of the parties to invest William P. Bard, their manager, with power at his discretion to borrow money for the copartnership and to give the copartnership note therefor.” Refused. [2]</p> <p>“ 3. If the jury believe that William P. Bard signed the note in question, placed it among the plaintiff’s papers in an envelope indorsed with the plaintiff’s name, told her that he held the paper for her, and that she could come and get it when she pleased, and if they believe that it was the intention of William P. Bard that the said note should be regarded as having passed from his hands and into the custody of the plaintiff, it will be the duty of the jury to regard the note as having been duly delivered to the plaintiff with the same force and effect as if it had been physically placed in her hands.” Refused. [3]</p> <p>“ 4. If the jury believe that William P. Bard in good faith borrowed the said sum of three thousand dollars for the defendants’ copartnership, that he signed the note in suit therefor, and placed the same in the plaintiff’s envelope which was indorsed with her name, and which contained her papers, that it was his intent that the note should be considered delivered to the plaintiff, and if they believe that under the terms of the agreement and the parties’ course of dealing thereunder, William P. Bard was empowered at his discretion to borrow money for the firm, and give the firm’s notes therefor, the verdict should be for the plaintiff, notwithstanding the defendants’ manager after getting the money may have misappropriated it.” Refused. [4]</p> <p>Binding instructions for defendants were given. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p>Contract — Sale—Place of sale.</p> <p>If no place be designated by the contract, the place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier who for the purpose of delivery represents him.</p> <p>Lex loci contractus — Fraudulent insolvency — Sale—Title.</p> <p>A resident of Maryland, being in Pennsylvania, sold goods then in Maryland to a resident of Pennsylvania. Subsequently the terms of sale were modified by letters written from their respective states. Held, that the contract was a Maryland contract and was governed by the law of that state and a sale to one who knows himself to be insolvent passes no title.</p> <p>Fvidence — Declarations of defendant in execution.</p> <p>In order to prove that a purchaser knew that he was insolvent when he made a purchase, declarations as to his prior insolvency made by him after his goods were levied upon, are admissible.</p>

<p>Appeal, No. 83, Oct. T., 1894, by defendant, for judgment of O. & T. Allegheny Co., Sept. T., 1893, No. 11, on verdict of guilty of murder of the first degree.</p> <p>Indictment for murder. Before Slagle and Collier, JJ.</p> <p>On the trial the evidence tended to establish the following facts : Defendant’s wife and two children were found' dead in their house in the morning after a quarrel between defendant and his wife the evening before. All of those murdered had received several wounds upon the head, apparently inflicted with some heavy, blunt instrument. A fire had been started under the bed.</p> <p>When defendant was being taken from the coroner’s office to the jail he said to the officer: “ I could not help it, she made me do it.”</p> <p>The court excluded the following offer of testimony (it having previously been shown that Frank Kellner, Sr., lived in the house next to that of defendant), viz.: “ That the said ITrank Kellner, Sr., is of insane mind; that he said Mrs. Catherine Schmous was a ‘ devil,’ and he had threatened to kill her on many occasions; that the said Kellner had a habit of burning everything he got his hands on; that the said Kellner had a habit of taking the keys from the doors of the house, as well as from other neighbors ; that after this occurrence, he, the said Kellner, has said ‘ the devil is out of the road now; ’ that the said Kellner often slept out of the house at night, occupying his time at all hours of the night by driving nails in posts, and would say, in so doing, that he had ‘ killed another devil.’ ” [5]</p> <p>The court, after defining murder, charged as follows, by Slagle, J.:</p> <p>“ There is no suggestion in the evidence that this murder [killing ?] was lawful, and therefore the presumption of malicious killing arises, and the presumption that the crime was murder.</p> <p>“ 1. Nor is there any evidence which would tend to reduce the crime below that grade, and therefore in this case the killing was undoubtedly murder, and it is not necessary for me to describe any of the lesser offences. But the presumption arising from an unlawful killing rises no higher than that of murder at common law, or murder in the second degree under our statutes, and in order to find the higher grade, that is, murder in the first degree, it is necessary that the commonwealth should show, or it should appear in the evidence, that it came within the description of murder in the first degree as given by the statutes.</p> <p>“ It is true that in this case there was evidence of an attempt at arson, but probably the murder was not the result of the arson, but the arson was an attempt to cover up the murder. That would appear to be indicated by the testimony, and therefore probably it would not be brought within the description of murder in the first degree by reason of the attempt to perpetrate arson ; nor is there any other of these high crimes which appear by the evidence to have been committed at this time, the result of which was this killing. If this defendant was guilty of murder in the first degree (if he was guilty at all), it would be that kind, willful, deliberate and premeditated killing, and this, as I have said, the commonwealth must show. In other words, they must' produce evidence that the killing was willful, deliberate and premeditated in order to justify a verdict of murder of the first degree, but this need not be by express or positive testimony. Like every other fact -in the trial of this cause, like every other inference from facts, it may be shown by circumstantial evidence, by the circumstances surrounding the case, and in the majority of cases of murder in the first degree, it can only be shown by the surrounding circumstances.</p> <p>“ Now, in order to bring the ease within this clause of the act, it has been said by one of our judges, following the same idea: ‘ It therefore lies on the commonwealth to satisfy the jury of those facts and circumstances which indicate the deliberate intention to kill, and the cool depravity of heart and conscious purpose which constitute, as before stated, the crime of murder in the first degree.’ And he further describes this class of murder in the first degree as follows: ‘ Many cases have been decided under this clause, in all of which it has been held that the intention to kill is the essence of the offence. Therefore, if an intention to kill exists, it is willful; if this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate ; and if sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design into execution, it is premeditated. The law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances in the evidence.’</p> <p>“ Só that in this case, as I have said, the evidence tending to show this willful, premeditated intention, is entirely circumstantial. It may be gathered from the character of the killing; all the surroundings ; the kind of weapons used; the number of blows struck. A person might strike a single blow without having any intention to kill, or follow it up with a number of blows, which would be indicative of the intention. Where two or more persons are killed at the same time, that would be a strengthening of the fact. They could not all be killed at once, from an impulse, but it must have taken some time; one following the other. There is no evidence to show which one of these persons was killed first. The fact that there were three killed by numerous blows upon each, with a ferocity which is unusual, and would not exist except where there is an intention to kill, would strongly indicate a willful, deliberate and premeditated intention to kill, and would justify your finding the party who committed that crime guilty of murder in the first degree. This is all that I need say to you as to the nature of the offence.</p> <p>“ The main question here, and the one which has been fought in the trial of this case, is not so much the fact of this being a murder, — an evident murder of the first degree, — but the question of whether or not the prisoner at the bar is the person who perpetrated that crime. Now, as to this, the testimony has been ■gone over very fully by counsel on either side, and therefore it is not necessary for me to undertake to recite it to you again.. Here again, we have to a certain extent a question resting upon •circumstantial evidence. The commonwealth claims that it has fixed this crime upon the prisoner at the bar by evidence of a circumstantial character which is undoubted. There has been, at times, great discussion among lawyers and judges as to the force of circumstantial evidence. In some cases, they have said circumstantial evidence is more satisfactory than direct evidence, because it is more difficult to plan a series of circumstances tending to show guilt than it is to swear directly to the fact, and it is not so liable to the perpetration of perjury.</p> <p>“ On the other hand, it has been said it has less weight than positive proof, and there are reasons for both sides. The fact is that the two classes of testimony are equally reliable, equally liable to error. In .one case, a man may swear positively to the fact, and be perfectly honest in so doing, and still be mistaken. He may be mistaken as to the identity of the person, may be unable to see clearly. Or, he may be false and prefer an improper charge against a person. The same may be said of circumstantial evidence. The witnesses may imagine those things which are false, or draw improper inferences, and they are all, like everything human, liable to err, but that is no reason why they should be disregarded.</p> <p>“2. You have heard on the part of counsel for the defence a number of cases which he read to you where mistakes were made by confession, whereas the law books, notwithstanding all these mistakes, say that it is the strongest evidence that can be produced. Where the witnesses are reliable and the party, without any influence being brought upon him, confesses his guilt, there can be nothing more satisfactory to the jury. At the same time, as he showed you, even confessions can be mistaken, yet that is no reason why you should disregard an admission of guilt. So, positive evidence has been incorrect or mistaken, and people have been punished unjustly for that reason ; still, that is no reason why you should disregard all positive evidence. The same rule applies to circumstantial evidence.. This case especially, one of this magnitude, one of so much horror, naturally raises a feeling in the minds of the persons to-whom it is related that they should very carefully weigh the testimony, and the rule of law upon that point is this: That-the circumstantial evidence must tend to fix the crime upon the party charged to such an extent as to exclude any other reasonable hypothesis than his guilt, and, as I have said, where the circumstances also satisfy you that he was the party who-committed the offense.</p> <p>“ 3. In this connection, the counsel for the defense having read those cases on the subject of circumstantial evidence and of confessions, I wish to read to you a few words from the-opinion of Chief Justice Gibson in a case in which the same-sort of a plea was made, and especially as it gives the idea more fully than I have given it to you probably, of the effect of circumstantial evidence [Harman v. Com., 4 Pa. 269] :</p> <p>“ ‘ 4. The only difference between positive and circumstantial evidence is that the former is more immediate and has fewer links in the chain of connection between the premises and conclusion, but there may be perjury in both. A man may as well ■swear falsely to an absolute knowledge of a fact as to a number of facts, by which, if true, the question of innocence or guilt is solved. No human testimony is superior to doubt. The machinery of criminal justice, like every other production of man, is necessarily imperfect, but you are not therefore to stop its wheels. Because men have been scalded to death, or torn to pieces by the bursting of boilers, or mangled by wheels on a railroad, you are not to lay aside the steam engine. Innocent men have doubtless been convicted and executed on circumstantial evidence; but innocent men have sometimes been convicted and executed on what is called positive proof. What then ? Such convictions are accidents which must be encountered, and the innocent victims of them have perished for the common good as much as soldiers who have perished in battle. All evidence is more or less circumstantial, the difference being only in the degree, and it is sufficient for the purpose when it excludes disbelief, — that is, actual and not technical disbelief, for he who is to pass on the question is not at liberty to disbelieve as a juror while he believes as a man. It is enough that his conscience is clear. Certain eases of circumstantial proofs to be found in the books, iti which innocent persons were convicted, have been pressed on your attention. These, however, are few in number and they occurred in a period of some hundreds of years, in a country whose criminal code made a great variety of offenses capital. The wonder is that there have not been more. They are constantly resorted to in capital trials to-frighten juries into a belief that there should be no conviction on merely circumstantial evidence. But the law exacts a conviction whenever there is legal evidence to show the prisoner’s guilt beyond a reasonable doubt, and circumstantial evidence is legal evidence. If the evidence in this case convinces you that the prisoner killed her child, although there has been no eyewitness of the fact, you are bound to find her guilty.’</p> <p>“ And that is equally applicable to this case. As I said, I do not propose to go over all the testimony. You have the evidence to the fact that the prisoner at the bar was in this-house at the time of the commission of the offence; that it was therefore within his power to commit the offence; you have the circumstances attending the discovery of the crime; what, was done by him and by others; the condition of tbe bodies; their location in the house; the circumstances of their life together, etc., and all of these either tend one way or the other —to establish the fact of his having committed the offence, or-to exonerate him, and you will give' full weight to all the evidence, and if, upon full consideration, you are not satisfied beyond any reasonable hypothesis of his innocence, you should find him guilty. If you are led irresistibly to the conclusion that it was he who committed the offence, you should find him-guilty.”</p> <p>Defendant’s points were as follows:</p> <p>“1. Where the commonwealth asks a conviction upon circumstantial evidence, such, evidence must point with steady and unerring aim to the guilt of the accused, beyond all reasonable doubt, and must be inconsistent with and irreconcilable to any reasonable hypothesis of his innocence before the jury can convict him.” Affirmed.</p> <p>“ 2. To convict on circumstantial evidence, each fact in the chain ought to be proved by distinct, independent and competent testimony; each should be consistent with the other, and with the main fact sought to be established; the inferences to 'be drawn should be natural and reasonable, and to a moral certainty, certain ones; and the hypothesis of guilt must be such ■as to exclude every reasonable or fair theory of innocence.” Affirmed.</p> <p>“ 3. The burden of proving every element of any offence ■charged is upon the commonwealth, and never shifts or changes.” Affirmed.</p> <p>“ 4. If the jury, after a calm, full and passionless consideration of all the evidence submitted, have a reasonable doubt of ■defendant’s guilt, it is their duty to give the prisoner the ben■efit of that doubt and acquit him.” Affirmed.</p> <p>“ 5. If, after a full and careful consideration of all the evidence submitted, the jury have a reasonable doubt of any matter essential to constitute the crime charged, that reasonable •doubt belongs to the prisoner, and he should be acquitted.” Affirmed.</p> <p>“ 6. A reasonable doubt may be compared to that state of mind in a reasonable man, who, in the transaction of any of the affairs of ordinary life, is driven to pause, hesitate and ■doubt before coming to a conclusion. Answer: This is refused, because any reasonable man pauses, hesitates and doubts before coming to a conclusion upon any matter of importance. Whatever hesitation you may feel or doubts you may have at first sight, if, after a calm, careful and full consideration of all the evidence, your minds settle to a clear and firm conviction ■of guilt, that is all the law requires. If, after such consideration of the evidence, a reasonable doubt still remains, the defendant is entitled to the benefit of such doubt and should be ■acquitted. The reasonable doubt must, however, be serious and substantial; not a mere possibility of a doubt; or, in the language of Judge Agne'W: ‘In deciding upon the case, or upon any material part of it, it is the duty of the jury to give the prisoner the benefit of any reasonable doubt arising out of the evidence which prevents them from coming to a satisfactory conclusion, but this doubt must fairly arise out of the evidence, and not be merely fancied or conjured up. A jury must not raise a mere fanciful or ingenious doubt to escape the •consequences of an unpleasant verdict. It must be an honest ■doubt — such a difficulty as fairly strikes a conscientious mind and clouds the judgment. If the mind be fairly satisfied of a fact, on the evidence, as much so as would induce a man of reasonable firmness and judgment to take the fact as true and to-act upon it in a matter of importance to himself, it would be sufficient to rest a verdict upon it.”</p> <p>“ 7. The defendant is entitled to the benefit of any reasonable doubt that may exist in the mind of any one of the jurors-who try him, after a calm, full and passionless consideration of all the evidence submitted. Answer: This is affirmed, because-the law requires the concurrence of the entire jury in a verdict, and each one. must be convinced beyond a reasonable doubt in-order to find the defendant guilty.”</p> <p>“ 8. It is the duty of any one of the jurors in whose mind, after a careful consideration with his fellow jurors of all the evidence, a reasonable doubt exists as to any essential element of the crime charged, to refuse to convict the defendant.” Affirmed.</p> <p>“ 9. It is the duty of a majority of a jury to yield to a verdict of acquittal, rather than that the conscience of a minority of the jury be violated by acquiescing in a verdict of guilty. Answer: This is refused. Each juror is bound to act in accordance with his own conscience, and one who is convinced of the-defendant’s guilt beyond a reasonable doubt is bound to act upon that conviction. It is the duty of each to consider the-views of the others and endeavor to reconcile their opinions in-accordance with the truth of the case.”</p> <p>“ 10. Evidence of good character is to be regarded as a substantial fact, like any other tending to establish the defendant’s-innocence, and ought to be so regarded by the court and jury.” Affirmed.</p> <p>“ 11. Evidence of good character is not a mere make-weight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal.” Affirmed.</p> <p>“ 12. A failure on the part of the commonwealth to produce a competent witness who was present in the house at the time of the commission of the crime, and had the means of observing all that took place, is a strong inference against the theory set up by the prosecution, and such failure virtually amounts to substantive testimony of the truth of the defendants evidence, denying the crime. Answer: This is refused. It is not a correct statement of the law. But in this case there is no indication in the testimony that any such witness was available to the commonwealth unless it be in the statement of the defendant to the effect that his son, seven or eight years of age, was present and awakened him out of his sleep, and that witness wa's as available to the defence as to the prosecution.” [2]</p> <p>Verdict, guilty of murder of the first degree and judgment thereon.</p> <p>Defendant thereupon appealed.</p> <p>Frrors assigned, were (1) the action of the court in overruling motion in arrest of judgment, for reasons stated in opinion of the Supreme Court, quoting them; (2) answer to 12th point, quoting point and answer; (8) in overruling motion in arrest of judgment when defendant at bar for sentence plead insanity and offered corroborative affidavits by doctors to the effect that defendant’s mental condition approached imbecility or dementia and that he could not appreciate the meaning of a death sentence; (4) “ the court erred in charging the jury as indicated in charge numbers 1, 2, 8 and 4; ” (5) ruling on evidence, quoting offer but not bill of exceptions.</p>

<p>Appeal, No. 140, July T., 1898, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1891, No. 21, on verdict for plaintiff.</p> <p>Ejectment for breach of condition.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant proposed to prove that a liquor license was petitioned for in the year 1879, in the month of January, to the court of quarter sessions, and that in the said month said court granted defendant a liquor license to sell spirituous liquors in lot No. 62, situate on the north side of West Ridge street, Lansford, Pa.; that no notice of any violation of any clause in the deed of April 27, 1870, by defendant, was given until July 18, 1891, and that a liquor license has been granted continuously ever since; that permanent and valuable improvements have been made on said premises, without any notice by the said plaintiff of any forfeiture of the title. Objected to as incompetent, immaterial, and irrelevant by plaintiff. Objection sustained and exception by defendant. [1]</p> <p>Defendant offered to amend this offer by adding that plaintiff employed counsel to object to the license and that plaintiff’s real estate agent, who appears on the deed, knew of the violation of the condition. Objection sustained and exception.</p> <p>Binding instruction for plaintiff was given. [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) ruling and instruction, quoting them.</p>

Appeal, No. 107, Jan. T., 1893, by defendant, John G. Scheible, from judgment of C. P. Franklin Co., April T., 1892, No. 35, on verdict for plaintiff, Helena Allison, whose administrator, Walter K. Sharpe, was substituted before judgment. Trespass for flooding plaintiff’s premises. The facts appear by the opinion of the Supreme Court.

Appeal, No. 92, Jan. T., 1894, by defendant, from judgment of C. P. Northampton Co., Oct. T., 1892, No. 86, on verdict for plaintiff. Assumpsit for annuity charged on land, the pleadings setting out the facts as below.

<p>Appeal, No. 169, Jan. T., 1894, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1898, No. 33, on verdict for plaintiff.</p> <p>Assumpsit on policy of fire insurance.</p> <p>The insurance covered bottling apparatus, stock and furniture. Plaintiff testified that all his papers had been destroyed by fire, that he had purchased his machinery from a man named Gray, but he did not know his whereabouts, and that he manufactured nearly all his extracts and goods from substances which he purchased for cash. He further testified that he made no effort to get duplicates of vouchers. Defendants were notified of the loss in August, 1893, and demanded certified copies of vouchers, Sept. 28, 1893, under the terms of the policy, recited in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“ [If he did not know how to obtain the duplicate copies of the bills, or did not remember where the goods were purchased, then, of course, there could be no compliance with the terms, and he would be excused. If you believe his testimony, that he did not remember where the goods were purchased, then the noncompliance with this condition will not affect his right to recover for any loss that he sustained.] [2] [If he concealed the knowledge of where his goods were purchased, or if he, knowing where he got his goods, refused to make an effort to get duplicate copies of those bills, then it would be a violation of this condition, which would defeat his right to recover by your verdict.]” [3]</p> <p>Defendant’s sixth point was as follows :</p> <p>“ 6. The court should direct a verdict for defendant. Answer : This point is denied.” [1]</p> <p>Errors assigned, were (1-3) instructions, quoting them.</p>

<p>Appeals, Nos. 343, 344, Jan. T., 1894, by defendant, from judgment of C. P. Northampton Co., June T., 1893, No. 1, on verdict for plaintiffs.</p> <p>Feigned issue to determine (1) whether the judgment upon which the execution was issued and the fund in court realized was given for a bona fide consideration, and (2) whether it was given and used for the purpose of defrauding plaintiffs, creditors of Joseph E. Gross, the execution defendant.</p> <p>On the trial, before Reeder, J., there was evidence to the ■effect that Francis Zierfuss loaned money to start Joseph E. Gross in business. The latter became indebted to plaintiffs in the sum of $1,700. He subsequently confessed judgment to Francis Zierfuss for $4,358, which the latter assigned to his wife, the appellant, who issued execution and realized some $2,000, afterwards deposited in court to await the determination of this issue. Defendant’s evidence was to the effect that Zierfuss advanced Gross some $3,700 and agreed verbally to become surety for Gross to an amount equal to the balance; that the assignment to the wife was for money borrowed from her. Plaintiffs gave evidence, recited in the opinion of the Supreme ■Court, to contradict defendant’s evidence.</p> <p>Abraham Levy, one of the plaintiffs, was asked: “ Q. What ■did Joseph Gross say in that conversation before the purchase of the goods, with reference to his ability to pay, and his capital ? ” By Mr. Cope: This question is objected to on the ■ground that it is incompetent and irrelevant, being res inter alios acta, and that it is incumbent upon the plaintiff first to show suspicious circumstances in connection with the condition •of the judgment in question and the testimony would only be ■competent after the plaintiffs had first laid a sufficient ground therefor. By the Court: You propose to follow up this testimony to show that Mrs. Zierfuss was a party to the fraud ? By Mr. Kirkpatrick: Yes. By the Court: The objection is overruled, defendants except and bill sealed. Of course, unless it is followed up by showing that Mrs. Zierfuss was a party to the fraud this evidence would be incompetent and will not be submitted to the jury unless it is followed up by such proof. “A. I asked him the amount of money he was going to start with. By Mr. Kirkpatrick: Q. Had you asked him whether he was going to start in business ? A. Yes ; he told me he had $1,800 of his own money and that his father-in-law owed him $500, and that he would get it at New Year’s time.” [1]</p> <p>The court charged in part as-follows:</p> <p>“ [The question by which you will determine yoür verdict is, was this judgment given in consequence of a fraudulent arrangement between Francis Zierfuss and Joseph E. Gross, for the purpose of defrauding Gross’s creditors generally,] [1] or for the purpose of defrauding specifically these two plaintiffs in this action, or was it given in good faith for an existing indebtedness. . . .</p> <p>“ The only view that you can take of it in rendering your verdict is, whether it was a scheme concocted by Francis Zierfuss and Joseph E. Gross, to which Huida Zierfuss became a party, and, in accordance with that scheme, whether she has given a correct account of what transpired between her and her husband- — -what was the true character of the transaction— or whether she has given a false statement of that affair, in connection with a conspiracy of fraud between Joseph E. Gross- and her husband, to which she became a party.</p> <p>“ [This brings you to the consideration as to whether there-was any fraudulent understanding between Francis Zierfuss and Joseph E. Gross. If there was none, then Huida Zierfuss would be entitled to your verdict; if there was, then the plaintiffs are entitled to your verdict. For the purpose of determining whether there was any such fraud between FrancisZierfuss and Joseph E. Gross, the defendant in the execution, you have a right to take into consideration all the testimony, commencing with the statements made by Joseph E. Gross at the time he purchased these goods, that he had money of his-own, and that he borrowed no capital, and the statement which was afterward repeated in their presence, according to the testimony of Lewis Sulke and Lewis Levy, that' he was indebted in amounts aggregating in the neighborhood of $2,600 or $2,700, and owed no money for borrowed capital. No matter what Joseph E. Gross may have said to either Lewis Sulke, who was acting for one of the plaintiffs, S. & J. Werner, or to-Abraham Levy, who was a member of the firm of A. Levy & Co., it can have no bearing in your minds in the consideration of your verdict, unless you believe Francis Zierfuss was a party to that fraud — knew either at the time or subsequently that he-had made such declarations, participated in them, and fraudulently agreed that this judgment should be confessed in order to defeat the creditors of Joseph E. Gross. If you believe that Francis Zierfuss had such knowledge, then they are proper-subjects for consideration in your verdict;] [2] if you do not believe that Francis Zierfuss had any subsequent knowledge of any such declarations having been made, or if he was not a party to such declaration, then of course they would have no consideration in your verdict. . . .</p> <p>“ [Even though Francis Zierfuss may have loaned Joseph E. Gross these amounts of money he testifies to, even though there may have been an honest indebtedness for cash advanced to Joseph E. Gross to the amount of $3,700 by Francis Zierfuss, yet, if at the time he took this judgment, he took the judgment for the purpose of assisting Joseph E. Gross to defraud or hinder his other creditors, it was a fraudulent judgment, and would be void, and the plaintiffs would be entitled to your verdict.</p> <p>“ I want you to mark the distinction I propose making in the law, because it is rather a nice distinction, and sometimes difficult to a layman. A man has a right to give another man a judgment for moneys which he has had of that man; a man has a right to take a judgment for his protection. If either one of you should loan me large amounts of money, and you saw that failure on my part was inevitable, you would have the right to take a judgment from me, and I would have the right to protect you by giving you a judgment. The effect of that judgment would be, of course, to hinder any other creditors and prevent their getting their money, but I would have the right to do that, and you would have the right to take the judgment; but where a judgment is confessed, not for the purpose of protecting me, but where the intention is to defeat the other creditors, and not for the protection of my debt, there the judgment would be void.</p> <p>“ So, if you believe that this money was honestly loaned and honestly due from Joseph E. Gross to Francis Zierfuss and the judgment was confessed by Joseph E. Gross to Francis Zierfuss, and was confessed by reason of that arrangement between them that the judgment should be so confessed and execution issued upon the judgment, if that arrangement was made for the purpose of securing Francis Zierfuss’s debt, it would be a good judgment. If it was given for the purpose of defeating and defrauding Joseph Gross’s other creditors, and that was the intention of the giving of the judgment, it would be a void judgment, and it would be void in the hands of anybody else for whom Francis Zierfuss acted as agent, and whose business he had charge of — so in that case it would be void to Huida Zierfuss in the one instance, and it would be good in the other.] [3] .... ”</p> <p>Defendant’s points were as follows :</p> <p>“ 1. The plaintiffs having failed to connect Huida Zierfuss, the execution creditor, with the alleged fraudulent acts of Joseph E. Gross to defraud A. Levy & Co., and S. & J. Werner by representing to them that he had from $2,000 to $2,500 in cash; that it was all his own money; that he owed nothing for borrowed money, they have not shown such a state of facts as would make any declarations of the said Joseph E. Gross, in the absence of Huida Zierfuss, prior to the giving of the judgment note in question, competent, and therefore the court should take the question from the jury and submit to them only the question whether or not there was a good and valid consideration for said judgment note, and whether it was intended to hinder, delay, or defraud the creditors of Joseph E. Gross. Answer: That point I do not affirm. I deny the point as qualified by what I said in regard to the law in my general charge.” [4]</p> <p>“ 2. Under the pleadings in this case, the only question for the jury is whether or not this judgment note was given for a good and valid consideration, and whether or not it was intended to hinder, delay and defraud the creditors of Joseph E. Gross, and as all the evidence as to alleged fraudulent acts of Joseph E. Gross have no connection with the consideration for the judgment note, nor the giving of the judgment note, it can throw no light upon the question now at issue, and therefore the court should take this question from the jury.” Refused. [5]</p> <p>“ 3. As it is admitted that Joseph E. Gross gave S. & J. Werner promissory notes, indorsed by Frank Zierfuss, for the amount of their claim, and it not being contradicted that the first of said notes fell due sometime in May, 1893, which was about a month after the proceedings under the Fraudulent Debtor’s Act were begun by said S. & J. Werner, and it being admitted that said notes were never surrendered to Joseph E. Gross, it is for the jury to say whether or not the said S. & J. Werner thereby agreed to extend the time of payment of their claim, and if the jury should find that there was such an extension of time, then as to S. & J. Werner’s claim, the proceedings upon which this issue is based were begun before the debt was due, and therefore the said S. & J. Werner have no standing in court.” Refused. [6]</p> <p>Errors assigned were (1-6) instructions; (7) ruling ; quoting instructions, bill of exception and evidence.</p>

<p>Appeal, No. 383, Jan. T., 1894, by John L. Leary et al., grandchildren of Gen. Peter Ihrie, from decree of O. C. Northampton Co., dismissing exceptions to report of auditor distributing estate of Eliza M. Ihrie, deceased.</p> <p>Distribution of decedent’s estate. -</p> <p>Testatrix’s will was as follows:</p> <p>“ Easton 15th of August 1881</p> <p>“ This is my last Will & Testament. I will & bequeath after all my debts are paid, that $800 be put upon interest by the Trustees of the Easton Cemetery and the interest to be kept to repair the monument & fence around the plot of my husbands the trustees are bound to keep the plot in order, for the ten plots given by the heirs of Peter Ihrie to the Cemetery.</p> <p>“ I give & bequeath all the stocks & bonds which I shall hold at the time of my death that I received from my husbands estate and they only, with the exception of some Gov. Bonds which have been converted into some trust registered Bonds for insuring lives &c &c which are five thousand and three thousand of Phila & Erie registered Bonds which make $8000 dollars — I wish all of these Stocks & Bonds to be divided into four portions — viz one share to the children of Elizabeth Leary-daughter of Peter Ihrie share and share alike one share to Ross R Ihrie if dec to his children share alike one share to the children of Anne L Atlee daughter of Peter Ihrie dec, share & share alike, one share to Caroline Runkle daughter of Peter Ihrie, to be held in trust for her if she lias children then she has the principle, if not after her death it must be divided into three portions, one portion to Elizabeth Ihrie deceased children one to Ross Ihrie children one share to Anne L Atlee children. I give to my Brother Stokes $1500 dollars. I give to Lizzie Elsegood three hundred dollars three hundred to Alice Poree the remainder of my property to my sister during her life and I give five hundred to Fanny Williams- five hundred to Rachael Stokes if not living to Henry Williams & Jesse Williams equal share five thousand to my brother these are after my sisters death, five hundred to Azile Hill three thousand to Alice Poree, the five thousand that I give to my is to go to the single women & Widows Asylum to the old Mens Asylum $1000 my diamond ear rings to be sold after my sisters death my solitare ring to Maggie Atlee after my sisters death my India shall to be sold my cluster diamond cluster finger ring to Carrie Runkle after her death to one of my grand daughters whichever she prefers my diamond & get set to my sister then to Carrie Runkle then to Camilla Skinner my pearl & get sett to Addie Bateman also my scarabea set cameo sett to Camilla Hill my garnet sett to Carrie Ihrie my stone cameo sett to Maggie Atlee my pearl lavender dress to Maggie my velvet dress to Lillie Haines my large gold Bracelet to Lillie my crape shall to Lillie my dresses to my friends one to Eliza H. Elsegood some to Alice Poree, 500 dollars to Caroline Poree my Bocatel Curtains to Lillie Haines & sister Maggie and lace parlor curtains too after my sister-death some dress & laces to Ross daughters and Dr Leary daughters and the linnen to be divided among the grand children after my sisters death, the residue of my estate is to be divided between my husbands grand children and the children of Ferdinand Poree.</p> <p>“ This is my last will signed by me this 15 day of August 1881.</p> <p>“ Eliza M Ihrie [seal.]</p> <p>“ I leave my Brother Stokes L Roberts and my sister Albina N Roberts my executors.”</p> <p>Edward J. Fox, Esq., was appointed auditor to distribute. He divided the residuary estate per capita, holding that “ between ” meant “ among,” citing Cent. Diet., “ Between,” “Among” and “Divide;” Webster Dict., “Between;” Hicks’s Est., 134 Pa. 507; Yohe v. Barnet, 3 W. & S. 81; McNeilledge v. Galbraith, 8 S. & R. 42; McNeilledge v. Barclay, 11 S. & R. 102; Bender’s Ap., 3 Gr. 210; Loring v. Coolidge, 99 Mass. 191; Farmer v. Kimball, 46 N. H. 435; Blackler v. Webb, 2 P. Wms. 383; Northey v. Strange, 1 P. Wms. 340; Lady Lincoln v. Pelham, 10 Ves. 166.</p> <p>Exceptions by the Poree children, to such distribution, were sustained by the court, in an opinion by Schuyler, P. J.</p> <p>Errors assigned were sustaining exceptions, quoting them.</p>

<p>Appeal, No. 41, Oct. T., 1894, by-James Howard et al., complainants, taxpayers, from decree of Q. S. Allegheny Co., Sept. T., 1893, No. 14, refusing prayers of complainants.</p> <p>Prayer for supervision of corporate action.</p> <p>The complaint of appellants, taxpayers, averred :</p> <p>“ That prior to 1889 the borough of Millvale was without any supply of water and protection from fire. Frequently prior to that time the matter had been discussed among the residents and in the town council of the borough as to the ability of said borough to construct a waterworks system, and estimates of the cost thereof had been obtained and a system had been suggested by which the borough should pipe the town, and the water should be supplied by private manufacturers, but the town council considered that it would be burdensome upon the taxpayers of the borough, and that it would be unadvisable to attempt any such arrangements.</p> <p>“ Certain residents of the borough who were property owners and interested in the development and prosperity of the community, being satisfied that it was impossible for the residents to procure from the borough the supply of water and protection from fire which they needed, and after the town council had determined not to act in this matter, organized the Bennett Water Company, and in September, 1889, entered into a contract with said borough, as appears by the ordinance thereof marked “ Exhibit A,” attached to and made part hereof, by which it was agreed said company should furnish water to said borough for the term of twénty years, and said borough should pay therefor at the rate of forty dollars per plug, and by which the charge to private consumers should not exceed the rate set forth in said ordinance.</p> <p>“ The said water company then proceeded with the construction of a water plant and completed the same in the fall of 1890, since which time said company has been supplying said borough and the residents thereof and certain of the adjacent territory with water, and said borough has been paying the annual rent for water in accordance with the contract contained in said ordinance.</p> <p>“ [During the year of 1892, certain of the residents of the borough, on account of private grievances against some of the stockholders of said water company, began the agitation of a scheme to compel the water company to turn its plant over to the borough by threatening if the company refused to do so to construct a new waterworks by the borough, and thereby drive the Bennett Water Company out of business, and practically wreck its plant.] [1]</p> <p>“ [Local political influence sufficient to procure the passage of] [2] an ordinance for an election to increase the debt of the borough was secured, and an election was held in said borough on June 6, 1893, in pursuance of said ordinance adopted on May 1, 1893, which ordinance begins with the following preamble : ‘ Whereas, petitions have been presented to council praying for street improvements,’ and in the body of said ordinance specified that said increase of the debt was ‘ For the purpose of public improvement upon the streets of said borough, as well as for the erection or purchase of waterworks and electric light plant.’ ”</p> <p>“ [Few of the streets of said borough are paved, and for many years continual complaints have been made regarding the condition of the unpaved streets. The improvement of said streets was therefore placed, first in said ordinance, and prior to the election held in pursuance thereof the persons who had been active in the agitation of the matters, busied themselves inducing voters to vote for the increase of the debt, using the argument that the works of the Bennett Water Company could be purchased for $40,000, and that the remaining $40,000 could be used in the improvement of the street and electric lighting.] [3]</p> <p>“ [Under this impression as to the use council would make of the funds to be raised by said increase in debt and issue of bonds, a majority of the persons voting at said election voted for said increase of debt.] [4]</p> <p>“ [That the most active person in advocating the increase of debt aforesaid was the burgess of said borough, one Samuel Eades, who while pretending to negotiate for the purchase of the plant of the Bennett Water Company, was scheming for reasons of his own to erect a new waterworks, and during all the meetings of the town council of said borough after said election on said increase of debt, said Eades, in violation of law, not only sat on said council, but voted in and presided over the meeting, and said town council is and has been in its deliberations, under the power and control of said Eades, and certain members thereof have been acting in obedience to his orders.] [5]</p> <p>“ That after said election of June 6,1893, the Bennett Water Compaity and the Millvale Electric Light, Heat and Power Company, both of which are operated together and managed by the same officers, although the stockholders were not identical, were invited to submit proposals for the sale of their plants to the borough, and, in accordance with said invitation, the proposal [for the sale], attached hereto and made part hereof, dated June 26, 1893, was submitted to council. No action was taken on this proposition, but the council proceeded and advertised for bids for a new waterworks, and opened bids therefor on August 14, 1893, but postponed action thereon until August 16, 1893.</p> <p>“ About this time, it becoming apparent that the $80,000 increase in debt was not to be expended for the purpose for which it had been voted, the citizens began expressing their disapprobation of the course the town council, under the orders of the burgess, was pursuing, and at the meeting of council of August 16, 1893, the communications from citizens attached hereto and marked Exhibits C and D, and made part hereof, were presented to said council. At this same meeting the proposition marked Exhibit E, attached hereto and made part hereof, was also presented to said council, but the said burgess, being unlawfully acting as the presiding officer of said council, refused to allow any of said communications to be read to the council, or to allow any of the councilmen to be informed of the contents thereof, although certain of said council protested against such action, and insisted upon said communications being read.</p> <p>“Exhibit E was a proposal of the Bennett Water Company and the Electric Light Company to pay all the indebtedness of both said companies over $67,000, the debts of said companies being then something over $71,000, and, subject to the said debt of $67,000, to present said plants to the borough, the offer being, so far as it related to the water plant, an offer to present the water plant to the borough, upon the borough assuming the debts of said company to the amount of $61,500.</p> <p>“ That although said town council had not passed any ordinance or resolution authorizing the construction of a waterworks by said borough, the council, immediately after the refusal of said burgess to allow it to hear said proposal, upon an'informal motion, agreed to let the contract for the erection of a waterworks to Chanley Brothers & Company, of Beaver Falls, the council reserving the right to select the style of pump to be used in said works, and at a subsequent meeting presided ovér by said burgess, the said council selected the pump of Wilson, Snyder & Company, at a cost of $2,000 over other bidders. The bid of said Wilson, Snyder & Company was not the lowest and best bid for said pump, [but the selection of said pump was secured through the influence of said burgess Eades and one Jacob Schinneller, the engineer on the part of the borough in charge of the construction of said works, and who was friendly to the Wilson-Snyder Company, and used his influence in their interest, and to whom, at the same meeting, the council of said borough paid on account of his services in the matter, the sum of one thousand dollars.] [6]</p> <p>“ Complainants aver that none of said meetings of said council at which the construction of said waterworks was considered or action taken thereon, were legally organized meetings, the said burgess of said borough having at all of them voted and presided over them, in violation of the act of May 23, 1893, and spoken upon the questions considered, and influenced and controlled the council in its action.</p> <p>“ Complainants aver that no resolution nor ordinance was ever passed, authorizing the construction of said works, nor was any ordinance ever passed relating thereto, nor was there ever any resolution or ordinance presented to the burgess of said borough for his approval or disapproval, in accordance with said act of May 23, 1893, and that the contract signed on the part of the borough by said Eades as burgess, with said Chanley Brothers & Company, is without authority and illegal.</p> <p>“ Complainants show that after the election upon the increase of said indebtedness, the said town council at an illegally organized meeting thereof, on August 3, 1893, by said burgess presiding thereover, and voting and speaking therein, passed an ordinance marked Exhibit F, attached hereto, and made part hereof, authorizing the issue of •$80,000 of bonds, and have agreed with the Pittsburg Trust Company to issue the same to the Pittsburg Trust Company and make the same payable to the said trust company at one per cent below par, and on August 16, 1893, at alike illegally organized meeting, endeavored to amend said ordinances by changing said bonds at the request of said trust company from negotiable coupon bonds to bonds to be registered by said trust company, and to change the dates of maturity, the number, denomination and so forth, of said bonds.</p> <p>“ That neither the said ordinance nor the resolution agreeing to sell the said bonds at less than par have ever been presented to the burgess for his approval or disapproval, as required by the act of May 23, 1893.</p> <p>“ Complainants further show that, under the law, the utmost limit of the taxing power of said borough for borough purposes is ten mills on the dollar on the assessed valuation for county purposes. That the tax assessed for the present year is ten mills on the dollar, and that the tax assessed for the last two preceding years for said purposes was ten mills on the dollar, and, by the most conservative estimate, a like tax of ten mills on the dollar will be required for the fixed charges aiM ordinary expenses of said borough, for some years to come.</p> <p>“ That by said oi'dinance authorizing said issue of said $80,000 of bonds, a tax of $6,400 is levied and assessed annually during the existence of said debt, to wit, until 1913, to provide for the payment of the debt and interest secured by said bonds, which, upon the valuation of said borough, to wit: $1,744,870, will require a levy of three and two thirds mills on the dollar over and in excess of said ten mills, and in violation of the law limiting the tax power of said borough.</p> <p>“ Complainants show that the borough of Millvale is located along the Allegheny river and in the Girty’s Run Valley, and because of the hilly topography its streets and highways are, and always have been, expensive to construct and maintain. That it has somewhat over seven miles of highways, of which only about one mile of the most level and least expensive to construct and maintain is paved, leaving yet to pave over six miles of its most expensive highways to improve and maintain.</p> <p>“ That the present bonded indebtedness of said borough is $23,500, and if said indebtedness is increased by $80,000 it will burden said borough with a debt within less than $19,000 of the constitutional limit of its indebtedness, and with the greater part of its streets unimproved and without public sewerage system, except one alley -of about four hundred feet.</p> <p>“ Complainants show that Girty’s Run aforesaid is the main artery for conducting the drainage from said borough and the surrounding territory, which has a population of in the neighborhood of eight to ten thousand people, to the Allegheny river, including six or seven slaughter houses and several dairies. That in the dry season the stench arising from said stream is noxious and unhealthful. That the location by said borough of the pumping station for said waterworks is a short distance down stream from where said Girty’s Run empties into the Allegheny river, and the water taken from the river at said point is necessarily contaminated by the poisonous substances delivered by said Girty’s Run into the river, and will be dangerous and injurious to the health of the public using the same, whereas the pumping station cf the Bennett Water Company is located on the Allegheny river above the mouth of Girty’s Run, and the water furnished by said company is free from contamination by said stream.</p> <p>“ Complainants believe and aver that the proposed action of the said borough in issuing said bonds and in erecting said waterworks is unwise, and is an extravagant, improper and illegal expenditure of public money, and they therefore pray your honorable court to exercise the supervisory power conferred upon it by law, and to declare : (1) The proposed issue of said bonds in the sum of $80,000 to be illegal. (2) That the action of said burgess in presiding over and voting in the meetings of said town council is illegal. (3) That the meetings of said council with said burgess presiding thereover have been illegally organized. (4) That the contract entered, into with Chanley Brothers & Company, by said burgess on the part of said borough, is illegal and void: (a) Because no ordinance or resolution has ever been passed deciding upon the erection of a waterworks. (5) Because no ordinance has ever been passed authorizing the erection of a waterworks or relating thereto, (c) Because no ordinance has ever been passed appropriating money to pay for said waterworks, (ti) Because no resolution pertaining to any matter connected with said waterworks or contract therefor has ever been presented to the burgess for his approval or disapproval. (5) That the payment of the sum of one thousand dollars to Jacob Schinneller is without consideration and is illegal. (6) That the erection of said plant is unnecessary and improper, and an extravagant and improper expenditure of public money.”</p> <p>The court on motion struck out the portions of the complaint in brackets.</p> <p>The answer of the borough of Millvale, filed Oct. 28, 1893, admitted contract of borough with the Bennett Water Co. Admitted supply of water by Bennett Water Co. and payment of annual rental by the borough. Admitted ordinance of May 1, 1893, providing for an election to increase debt. Admitted invitations to water and light companies to submit proposals for selling of plants, and averred that action was taken thereon by resolutions by councils. Denied that there was ever any effort to spend the $80,000 for any purpose other than for which it was voted, and set forth as reasons for refusal to purchase plant of the Bennett Water Co. that the price asked was exorbitant, and funds of borough insufficient to complete plant. Denied that no ordinance or resolution was passed authorizing the construction of waterworks, and stated that council’s action in the matter was ratified by ordinance-of Oct. 3, 1893.</p> <p>“ The bid of Ghanley Brothers & Co., to whom the contract was awarded in August, 1893, was for the erection of the entire work, and was for $61,500, including the ‘ Hall ’ pump, or $63,500, including either the ‘ Gordon ’ pump or the ‘ Wilson-Snyder ’ pump. The only other bid for the entire plant was considerably in excess of this sum, and the responsible bids by those bidding on parts of the work only aggregated the sum of more than $63,500, so that Chanley Brothers & Co. were the lowest bidders. Council awarded the contract accordingly, reserving the right to determine at a future meeting the pump to be used, which was determined on Aug. 21, 1893, after a full investigation of the merits of the respective pumps, in favor of the ‘ Wilson-Snyder ’ pump, for which bid one price had been offered.</p> <p>“ Respondent further answering says that council had proceeded throughout in its negotiations with the Bennett Water Company and the Millvale Pleat, Light and Power Company with the utmost good faith, that it was ready and willing, up to the date of awarding the contract, to purchase said works at a fair valuation, but that said companies failed to meet them in the same spirit, asserting that no one could be found to purchase the bonds of the borough, and that therefore no new works could be built; but that when it was communicated to them on August 15th that the bonds had been sold, their attorney forthwith verbally informed the purchasers of the bonds that legal action would be instituted to restrain the borough from issuing them. Upon being informed of this action, although it had been intended to execute the contract for the erection of the waterworks on August 21st, notice was given to the attorney of said companies that the proposed execution of said contract would be delayed for one week, that legal action, if any were intended, might be instituted before the borough would have entered into any contract relations in the matter, or any money be expended upon said works. No such action being instituted, council executed the said contract on Aug. 29, 1893, nor were any such proceedings begun until Sept. 23, 1893, when the bill in equity was filed in the court of common pleas No. 2, in which a preliminary injunction was prayed for, which upon hearing was refused, and upon September 30th the complaint in this case was filed. Prior to the meeting of council on September 6, 1893, at which the communications attached to complaint were received, the contract was signed and the contractor had placed his orders for the supply of material, and had sublet work to the extent of about $50,000. And that prior to the filing of the aforesaid bill and complaint, the liabilities on account of said contract were about $40,000. That since said date, liabilities have been increased by about three thousand dollars, being for labor done, and that the work of erection is now about one half completed.”</p> <p>The answer further averred that meetings of council were legally organized. Denied allegations in unnumbered paragraph 14 of the complaint. Admitted passage of ordinances for $80,000 bond issue, but denied that the bonds were to be sold at less than par value. Averred that all ordinances which were passed were published, and recorded and signed by the burgess. Averred the taxing power of borough to be more than ten mills, and that the taxes would not be increased the following year. Admitted condition of debt of borough, but denied that no public sewerage system had ever been adopted, and denied that the creation of the debt of $80,000 will increase the taxation. Denied that the supply of the proposed waterworks will be contaminated by the water from Grirty’s Run. Alleged bond issue and erection of waterworks as wise and proper, and presented argument based upon alleged calculations in support of the allegation. Denied issue of bonds and construction of waterworks were illegal, unwise, extravagant or improper expenditure of public money, or that any injui'y or grievance had been caused thereby.</p> <p>The ordinance, Exhibit “ A ” of the complaint, provided in part as follows :</p> <p>“ Sec. 2. For and in consideration of the mutual covenants contained in this ordinance, the Bennett Water Company shall from time to time, and at all times hereafter, for and during the period of 20 years from the completion of the said works and the acceptance of the same by the said borough, as hereinafter provided, supply and provide the borough of Millvale and the inhabitants thereof with an ample supply” of pure water.</p> <p>The ordinance of Oct. 3, 1893, was as follows:</p> <p>“ Section 1. The erection of a waterworks to provide a supply of water for the inhabitants of said borough of Millvale is hereby directed; said works to be constructed in accordance with the plans and specifications prepared by Jacob Schinneller, C. E., and now on file in the office of the borough clerk; said plans and specifications being approved by the said burgess and town council at a meeting held August 3,1893, and being indorsed, ‘ Samuel Eades, Burgess, August 3, 1893.’</p> <p>“Sec. 2. Of the sum of $80,000 realized or to be realized from an issue of bonds, as authorized by the electors of said borough at an election held June 6,1893, as required by law, and as directed by an ordinance passed August 3, 1893, as amended by an ordinance passed August 29, 1893, the sum of $65,000, or so much of said sum as may be necessary, is hereby appropriated for the construction of said waterworks.</p> <p>“Sec. 3. All acts, contracts or other things whatsoever, heretofore done or made in pursuance of any resolution or vote of the said burgess and town council, having for its subject-matter the erection of waterworks, as hereinbefore provided, is hereby confirmed and ratified as fully as if done or made after the passage of this ordinance and in virtue thereof.</p> <p>“ Sec. 4. All ordinances or parts of ordinances inconsistent with the provisions of this ordinance be and the same are hereby repealed in so far as they conflict herewith.”</p> <p>The borough of Millvale wms incorporated by act of Feb. 13, 1868, P. L. 150, and the act incorporating the borough of Birmingham and its various supplements were extended to the borough of Millvale. By act of March 18, 1869, P. L. 422, all acts applying to the borough of East Birmingham were extended to the borough of Millvale. By act of April 28, 1854, P. L. 513, the ordinances of the borough of Birmingham were required to be recorded.</p> <p>The act of March 12, 1873, P. L. 263, was entitled “ An act authorizing the assessment, levying and collection of additional taxes in the borough of Millvale, in the county of Allegheny,” and was as follows :</p> <p>“ Section 1. Be it enacted, etc., That the burgess and councils of the borough of Millvale, in the county of Allegheny, be and they are hereby authorized and empowered to levy and assess, and apportion, appropriate and Collect, annually, for borough purposes, a tax, not exceeding ten mills on the dollar of the .valuation assessed for county purposes, as now is or may be provided by law, on all property, offices, trades, professions, and purposes, made liable by the laws of this commonwealth for county rates and levies, and shall be taxable after the same manner, by the said burgess and town council for borough purposes.</p> <p>“ Sec. 2. All laws and parts of laws inconsistent herewith, be and the same are hereby repealed.”</p> <p>The court below dismissed the complaint in the following opinion, by Slagle, J.:</p> <p>“ The power conferred upon the courts of quarter sessions by the act of April 3, 1851, sec. 27, to control the action of borough authorities was doubtless intended to avoid the slow process of suits in equity. This and the importance of the interests involved in the matters complained of in this case demand a speedy, decision by the court. The press of other cases requiring prompt attention prevents the preparation of a full opinion upon the questions raised. We can do no more than briefly state conclusions.</p> <p>“ It is conceded that the proposed indebtedness of $80,000 is within the constitutional limitation of seven per centum of the assessed valuation. That the proceedings for an election and the election itself were in accordance with law, and the election resulted in favor of the increase of indebtedness by 430 votes in favor and 86 votes against. Nor is it disputed that the purposes of the loan are within the corporate powers.</p> <p>“It is contended, however, that the action should be restrained because the voters were induced to vote in favor of the increase of indebtedness by a desire to obtain improvement of streets, which was placed as the first object and held out as the main purpose.</p> <p>“We do not think this the proper subject of inquiry by the courts, but we cannot conceive that any considerable number would be so deceived if they had exercised their judgment as to the relative cost of waterworks, electric light and street grading.</p> <p>“ It is further alleged that the issue of $80,000 of bonds is illegal because it would involve taxation beyond the amount authorized by law. This does not clearly appear. Because the ordinary expenses and existing debt have heretofore required the full levy of ten mills, it does not follow that it will require that amount in the future, especially if the waterworks produces a revenue, which may reasonably be expected. But aside from this, we are of opinion that the authority to increase the indebtedness involves the right to levy a tax sufficient to pay it, in addition to that already authorized for ordinary purposes : Hamilton v. Pittsburg, 34 Pa. 496; Armstrong v. Allegheny Co., 40 Pa. 348; Lehigh Coal Co.’s Appeal, 112 Pa. 369.</p> <p>“ If we have the power to interfere on the ground that in our judgment the measure is ill-advised it would require a strong-case to justify interference in a matter submitted to a vote of the people and approved by so large a majority.</p> <p>“ But we are asked to restrain the erection of waterworks, because the action of councils is not in accordance with law. The grounds of the objection are that the councils were not properly organized, the burgess presiding, and that the erection of works, appropriating money therefor, and letting of contracts were not provided for by ordinance duty adopted, signed and recorded.</p> <p>“ Every act of a municipal corporation need not be by ordinance. Those of a legislative or permanent character must be ordained. Merely executive action may be performed b3r councils as a body, or by committees duty appointed for the purpose. Of course all executive action must have proper authorization in the general law or special enactment. But when the mode of acting is not specified it may be done in any proper mode. Nor is municipal action to be very strictly criticised. It is sufficient if the law has been substantially followed.</p> <p>“ On May 1, 1893, an ordinance was duty adopted providing for an election for increase of indebtedness which recites that ‘ it is deemed proper that the borough should become the owner of its own waterworks,’ and on August 3d another ordinance was passed which recites, whereas §80,000 in addition to the revenues of the borough will be required to pay for the purchase or erection of waterworks, etc., providing the issue and sale of bonds authorized by the people.</p> <p>“ In the meantime there had been communications and negotiations with the officers of the Bennett Water Company and the Electric Light Company to purchase their plants. They had also employed an engineer to prepare a plan and estimates of waterworks. On the same day they authorized advertisements for bids for erection of the works and purchase of the bonds. On August 16th, they awarded the contract for erection of waterworks to Chanley Brothers. All of this was done at regular or called meetings of council on motion or resolutions which were not signed, published or recorded as ordinances.</p> <p>“ Some of these matters are purely executive in their character, such as the negotiations for purchase with the water or light companies, the procuring of plans and specifications which were necessary to the exercise of a proper judgment. The decision as to the erection of waterworks and to make a contract for this erection possibly required more formal action. They were within the purpose of the action of council and citizens authorizing the loan, but the execution of the purpose and the mode of execution was still with councils. It would have been proper for them to formally provide for the erection of the works by ordinance duly adopted. This was not done until October 3, 1893, when an ordinance was passed providing for the erection of waterworks, ajjpropriating $65,000 for that purpose and ratifying all that had previously been done in relation to the matter. The complainants contend that this was inefficient, that the action taken was invalid and could not be ratified.</p> <p>“ The general rule is that any act which was irregularly done may be ratified and the party who had the power to do it given authority, in the mode in which it might have been done in the first instance if that is still practicable.</p> <p>“ The authorities cited by complainants are cases in which the party attempting ratification had no power whatever or could only exercise it upon certain conditions precedent. The conditions not existing, there was no power, and the act of ratification was void for the same cause. It has never been doubted that ‘ A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the corporate power: ’ Dillon, see. 385. If an ordinance was necessary in doing of any of the acts as to letting of the contracts in this case, the council had power to adopt it before the contract was made ; that was all that was necessary to make the acts good. It was therefore a mere irregularity which may be cured now by doing that which might have been done before.</p> <p>“ There could be no question of this if it were not for the provision of the law which provides that ordinances shall not go into effect until ten days after they have been recorded. It is claimed by counsel for respondents that this act is not applicable.to Millvale borough. We do not agree with him. The act to which we are referred is not in conflict with the act of 1851 or the act of 1849. But we do not regard this provision as a limitation of power; it is not a prerequisite to the exercise of power, and therefore does not prevent ratification by ordinance duly passed of acts which would have been legal and proper if done in pursuance of an ordinance previously adopted.</p> <p>“ It is also claimed that the action of council should be restrained because the waterworks are so located as to be dangerous to the health of the community and therefore a worse than useless expenditure of public money. The testimony does not support this contention. The opinions of the witnesses differ essentially. If it is the subject of judicial control the danger is not so clearly established as to justify our interference.</p> <p>“ Whether or not the borough officers have acted justly and fairly with the Bennett Water Company we need not inquire. Their legal rights have not been infringed, (Lehigh Water Co.’s Appeal, 102 Pa. 515,) and those are all we can protect.”</p> <p>-Errors assigned were the action of the court (1-6) in striking from the complaint the portions in brackets; (7) decree; quoting decree and portions of complaint stricken out.</p>

Appeal, No. 219, Jan. T., 1894, by defendant, Nelson Vanderpool, from order of C. P. Bradford Co., May T., 1891, No. 98, discharging a rule to open judgment. Rule to open judgment. Before Peck, P. J. The record showed that the judgment had been entered against defendant for want of a sufficient affidavit of defence on Sept. 7,1891.

Appeal, No. 312, Jan. T., 1894, by-plaintiff, from judgment of C. P. Susquehanna Co., Aug. T., 1885, No. 406, on verdict for defendants. Ejectment for tract of land in Auburn township. The facts appear by the opinion of the Supreme Court.

Appeal, No. 355, Jan. T., 1894, by plaintiffs, from judgment of C. P. Clinton Co., April T., 1891, No. 30, on verdict for. defendant. Ejectment for lot of land in Renovo. The facts appear by the opinion of the Supreme Court.

Appeal, No. 373, Jan. T., 1894, by plaintiff, H. B. Melick, from judgment of C. P. Lycoming Co., Dec. T., 1892, No. 401, in favor of defendant on case stated.

<p>Road law — Damages—Opening of streets.</p> <p>The Supreme-Court will not reverse a judgment on a verdict in favor of a city in a road case, where it appears that the land for which damages! is claimed was the bed of a street, and that the owner, pi-ior to opening of the street but after it had been placed on the city plan, conveyed the land on both sides of the street, calling for the sides of the street as a boundary.</p> <p>In such a case it is proper for the court to submit to the jury the question, what is the value of the land subject to the right of way of plaintiff’s grantees, and to the right of the city to open the street.</p> <p>It is immaterial that shortly before the street was opened, another street was opened up to the section of the first street owned by plaintiff.</p>

<p>Contract — Coal lease — Bent.</p> <p>By an 'instrument in writing defendant’s assignor covenanted to pay a certain sum each year in the nature of rent for coal leased to him. It was provided, however, that if the lessee could not produce, from causes beyond his control, the quantity of coal required at a certain rate t'o produce the total amount of rent, he should be exonerated from the payment of rent on all coal other than the quantity actually mined during the year. The instrument also provided for a sale to the lessee of certain buildings and fixtures for a sum specified. The lessee further covenanted to pay the lessor “ as and by way of rent in each and every month the sum of two hundred dollars for the use of the miners’ houses.” Defendant took an assignment of the lease and agreed to perform all its covenants. Subsequently the lessor conveyed his reversion to another person. The evidence showed that for several years the mine was flooded and that defendant was prevented from mining by causes beyond his control. Held, that defendant was bound to pay plaintiff, the original lessor, the value of the buildings and fixtures, and also the rent of the houses daring the continuance of the term.</p> <p>In the above case the covenants to mine and pay rent for houses were not dependent upon each other, and the only exemption from liability was for coal not actually mined for causes beyond the control of the lessee.</p>

<p>Contract — Reorganization of corporation — Debts—Fixtures.</p> <p>The property of a corporation covered by a mortgage was sold under foreclosure proceedings. The purchasers organized a new company and took possession of all of the assets of the old company, agreeing to pay a certain amount for the personal property, and to account for the book debts which they should collect. There was no agreement to guai-antee the collection of these debts. Held, that the new company was not liable for any deficiency in the book accounts which they were unable to collect.</p> <p>In the above case, after the appraisement of the personal property had been made, it appeared that certain tools included in it were really fixtures, covered by the mortgage. Held, that the new company was entitled to have the value of such tools deducted from the appraisement of the personal property which they had agreed to pay.</p>

Appeal, No. 194, Jan. T., 1894, by defendant, William Russel, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1890, No. 719, on verdict for plaintiff. Assumpsit on promissory note. At the trial it appeared that the loan represented by the note was made to William B. Smith, payee, one of the firm of Smith & Russel, upon the understanding that the money was to be used in paying wages due by the firm.

Appeal, No. 228, Jan. T., 1894, by defendant, C. Wesley Ruffell, from judgment of C. P. No. 4, Phila. Co., in favor of plaintiff, Charles Davey, on case stated. Case stated.

Appeal, No. 330, Jan. T., 1894, by Leura E. Jenkins, from order of C. P. No. 2, Phila. Co., Dec. T., 1878, No. 228, M. L. D., discharging rule to strike off judgment. Rule to strike off judgment. The facts appear by the opinion of the Supreme Court. Errors assigned were (1) entry of judgment of Nov. 22, 1884; (2) refusal to strike off said judgment; (3) refusal to quash subsequent proceedings.

<p>Appeal, No. 370, Jan. T., 1894, by defendant, from order of C. P. No. 1, Phila. Co., Dee. T., 1893, No. 462, 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 purchase money of real estate.</p> <p>From the record it appeared that, on June 2, 1893, plaintiff and defendant, Thomas Batley and Robert H. Foerderer, entered into an agreement under seal by which the former agreed to sell and convey, and the latter to purchase, a lot of ground on the east side of Thirty-third street, 68 feet northward from the north side of Diamond street, containing in front 374 feet, and extending in length or depth eastward of that width 140 feet to a thirty feet wide' street, for the price or sum of $77,916.66, $1,000 to be paid upon the signing of the agreement, and the balance at the time of settlement, whicli was to be made within thirty days of the date thereof. It was stipulated that the title was to be “ good and marketable and clear of all incumbrances.” It was further provided:</p> <p>“The said Robert H. Foerderer is hereby restricted to erect dwellings on the herein described lot of ground, each to cost not less than $12,000. ... It is hereby understood and agreed that the northernmost and southernmost of said dwellings to face the lots of ground on the north and on the south respectively. It is hereby further understood and agreed that the said Robert H. Foerderer shall and will erect only four dwellings on the herein described lot of ground, each lot of ground appurtenant thereto to contain not less than a frontage o£ seventy feet. The said Robert H. Foerderer hereby agrees to build, erect and finish the dwelling to be occupied by himself within one year from the date hereof, the remainder of said lot to be beautified by a lawn.”</p> <p>The $1,000 was paid on account, at the date of the agreement. On July 6, 1893, $25,000 additional were paid on account, leaving owing $51,916.66. In the receipt for this money it was stated: “ The deed for the said lot to be held in escrow by the Industrial Trust, Title & Savings Company. The title to said lot to be perfected within sixty days from the date hereof, or otherwise, as may be agreed upon at that time. Settlement to be adjusted as of July 5, 1893.”</p> <p>A portion of the premises thus agreed to be conveyed was derived, through intermediate conveyances, from the city of Philadelphia, which had conveyed the same, as part of a large lot, on July 6, 1888, to one Richard M. Hartley by a deed expressed to be under the following condition: “ Under and subject to the condition that no mill, factory, brewery or distillery shall be erected on said several lots of ground, or any part or parcel thereof.”</p> <p>Plaintiff’s statement averred that on or about July 6, 1893, appellee had demanded payment of the balance of the purchase money due; that said $25,000 had been then paid on account and the above receipt had then been given ; that the title to the lot had been perfected within sixty days from July 6,1893 ; that fourteen certain yearly ground-rent charges thereon, within that time, had been duly extinguished, by writing delivered by the ground-rent owner to the Industrial Trust, Title & Savings Company; that by that time a certain mortgage of the premises, amounting to $66,600, had been reduced by payment on account to the sum of $42,683.34, which was to be paid, upon settlement, out of the purchase money ; and that the deed from appellee to appellant, for the lot, was held in escrow by the Industrial Trust, Title & Savings Company.</p> <p>The affidavit of defence set up the inability to deliver a title “good and marketable and clear of all incumbrances,” because of the above recited condition in the deed from the city to Hartley. It denied that a deed had ever been tendered such as was required by the contract, on July 6, 1893, or at any other time; that the mortgage and the fourteen ground rents had been satisfied and extinguished of record; that appellant knew of any instrument extinguishing the ground rents having ever been executed and delivered and held by the Industrial Trust, Title & Savings Company, or of any arrangement by which the mortgage money was to be paid out of the purchase money.</p> <p>Rule for judgment absolute.</p> <p>Errors assigned were (1) in not discharging rule; (2) in entering judgment, quoting order.</p>

<p>Waste — Remainderman—Action.</p> <p>The remedy for a remainderman on whose inheritance waste is being committed, is not in tresjjass, but in case, for the recovery of damages for the injury done to the freehold.</p> <p>Damages — Timber—Act of March 29, 1824.</p> <p>The act of March 29, 1824, 8 Sm. L. 283, providing for treble damages-for the unlawful cutting of timber, does not ajjply to a proceeding by a remainderman against the life tenant, and does not give a new action to the owner of timber which has been cut without his consent. It merely gives a new measure of damages in the common law actions of trespass and trover. Where these actions will not lie, the new measure of damages cannot be applied.</p> <p>Life estate — Tax sale— Title — Actions— Amendment — Practice.</p> <p>The act of redeeming land from a tax sale operates to set aside or annul the sale, and leaves the title precisely as though the sale had not been made. If the land is subject to a life estate, the life estate is revested in the life tenant, and the remainder in the remainderman.</p> <p>A father had a life estate in laud of which his minor daughter owned the fee. The land was sold for taxes, and purchased by the minor’s grandfather, who held it for a time and then sold it. The purchaser stripped the land of its timber. The guardian then redeemed the land, whereupon the purchaser took a conveyance of the father’s life estate. The guardian brought an action of trespass against the purchaser for the waste committed. Held, (1) that an action of trespass would not lie; (2) that the redemption did not carry both estates to the guardian when he redeemed the land; (3) that the judgment in the action of trespass should be reversed, but that the plaintiff should not be turned out of court, but should be permitted in the court below to so amend the form of action and the statement as to permit a trial of the case upon the merits.</p> <p>Judgment— Treble damages — Tknber—Opening judgment — Practice.</p> <p>In an action of trespass to recover damages for cutting timber, where a judgment has been entered upon the verdict at the instance of the plaintiff, the time for trebling the damages has then passed. The judgment may be set aside, on application, to permit the court to treble the damages, but while it remains in full force the damages are settled'by it.</p>

<p>School law — Vaccination of pupils — Discretion of directors.</p> <p>School directors may in the exercise of a sound discretion exclude from the public schools pupils who have not been vaccinated.</p> <p>Whether a resolution excluding from the schools pupils who have not been vaccinated, is a reasonable one, is to be judged of in the first instance by the school directors. In the present state of medical knowledge and of concurring opinion of those having charge of the public health, the courts will* not say that such a resolution is an abuse of official discretion.</p>

<p>Will — Construction—Devise—Mineral lands.</p> <p>Testator who owned land underlaid with coal gave by his will to his daughter Agnes “ the farm on which she now resides which is to be her share of my estate,” and immediately added these words “ should the coal be opened on said land or sold in a body, she my daughter Agnes to have equal share with the other heirs.” To his son Gallitzin he gave in like manner the farm on which he lived, adding, “ the mineral right to be reserved. He to pay out of his share of mineral right his note and store account due F. J. Christy.” To his other six children he gave “ an equal share with the other heirs of my whole estate.” Held, that these six children should share equally in the surface, excluding the farms devised to Agnes and Gallitzin, and that all of the eight children should share equally in the minerals under the whole of testator’s lands.</p> <p>Trust and trustee — Purchase of title — Laches—Account.</p> <p>Where lands belonging to heirs are purchased in trust for the heirs by one of them, under an agreement that they should pay their share of the purchase money, the trust will not be defeated by delay of several years to pay the purchase money when no demand has been made for it, or by neglect to enforce the trust by an account.</p>

<p>Water — Pollution of stream by sewage.</p> <p>A city constructed a system of sewers the contents of which emptie into a stream, polluting it. The bed of the stream was of limestone rock, through the fissures of which the water found a well defined passage and fed two springs near plaintiff’s farm buildings. The springs were rendered unfit for use. Plaintiff was also unable to obtain pure water by digging wells, as the whole underground supply was polluted. Held, that plaintiff was entitled to recover damages from the city.</p>

<p>Hoad law — Nuisance—Obstructing street — Act of April 3, 1867.</p> <p>The mere plotting oí a street vests in the public no right of user; proceedings to open are necessary before a plotted street becomes an actual highway.</p> <p>A person cannot be convicted on an indictment for obstructing an alley in the city of Altoona, where it appears that, although the alley was on the plan annexed to the report made by commissioners under the act of April 3, 1867, P. L. 705, incorporating the city, the alley was never actually opened.</p> <p>The act was not intended to take the opening of streets out of the hands of the city government, or to divest the court of quarter sessions of its jurisdiction, but to provide the city with a general plan upon which it could work in the care of existing streets, and in the opening of new ones.</p> <p>The report of the commissioners was notice of an intention to appropriate the land covered by the plotted streets for use as highways whenever that should become necessary, but it did not presently disturb the owner’s possession, or confer a right of user on the public.</p>

<p>Appeal, No. 179, Jan. T., 1894, by defendants, from decree of G.' P. Cumberland Co., Sept. T., 1891, No. 2, on bill in equity in favor of plaintiff, William F. Searight, assignee of G. A. Searight.</p> <p>Bill in equity for an account.</p> <p>The bill prayed for an account of certain stock deposited as collateral for the payment of a promissory note made by G. A. Searight. The case was referred to Edward B. Watts, Esq., as master, who recommended a decree in favor of plaintiff. Exceptions to the master’s report were dismissed by the court, in the following opinion, by Stewart, P. J., 39th district, specially presiding:</p> <p>“This case has proceeded too far, with the defendant’s acquiescence, to be defeated now by an objection to the forum in which it was begun. Instead of a demurrer, there was an answer to the bill, followed by a reference to the master and the taking of testimony. Only at the argument was the question of jurisdiction raised. If the case were one clearly not cognizable in equity, or one in which equity forms were inadequate for the purposes of justice, we would feel bound to arrest it even at this late stage ; but no such conditions are presented. At most it is only questionable whether the bill discloses a case for which no adequate remedy at law exists. It leaves much to be supplied by inference that should have been explicitly stated. Had the question been raised on a demurrer at the proper time we would have had nothing before us but the bill, and we might have declined to draw the inferences which were needed to establish the plaintiff’s right to affirmative relief in equity; but with the testimony all taken and before us, the facts as then disclosed are to be considered in connection with the averments of the bill when the jurisdiction is questioned, and these certainly go far towards supplying what might have been regarded as fatal omissions in the bill itself. It is possible that in a common law action the plaintiff could have accomplished all that this equity proceeding will afford, but at the same time it is manifest that the defendant forfeits no advantage in the latter which would have availed it in the former. There is then neither rule nor reason requiring us to entertain this objection which is now urged by the defendant to the jurisdiction.</p> <p>“The master’s findings of facts are abundantly sustained by the evidence, and they are presented in such a clear and orderly sequence that the history of the case is made easily intelligible. The controlling facts, however, are few, and with respect to these there is no dispute.</p> <p>“ The Carlisle Deposit Bank was the holder of two notes drawn by G. A. Searight, one for $16,000, indorsed by F. W. Searight and George P. Searight, and one for a balance of $2,169.17, indorsed by F. W. Searight. As collateral for this indebtedness, G. A. Searight, on Jan. 24, 1887, placed with the bank some 1263 shares in the capital stock of The Searight Cattle Co. Some time after the maturity of these notes it was arranged between the indorsers, F. W. Searight and George P. Searight, the bank and Joseph A. Stuart, that the indorsers should lift the notes, by giving their own notes for the amount with Joseph A. Stuart as indorser thereon, Stuart consenting to become indorser on condition that, in addition to certain other security he was to receive, the 1263 shares of stock in the Cattle Company, originally placed by G. A. Searight, should remain pledged. Pursuant to this arrangement, on the 6th of April, 1887, F. W. Searight and George P. Searight delivered to the bank two notes drawn by themselves and indorsed by Joseph A. Stuart, each for $9,678.99 and payable Jan. 1, 1888. Thereupon the bank marked the G. A. Searight notes as paid by the indorsers and delivered their own, but retained the cattle stock in accordance with the arrangement it had made to have it as collateral for the substituted notes. G. A. Searight, who was the owner of the stock, and who had originally pledged it, was a stranger to all these late transactions. He was absent at the time, in Texas, and had no knowledge of what was being done with respect to the notes or stock.</p> <p>“ Subsequently, on the 13th of May, 1887, in a settleriient of accounts between G. A. Searight, F. W. Searight and Geo. P. Searight, who together had been largely interested in the cattle business at Austin, Texas, F. W. and Geo. P. Searight presented against G. A. Searight the two notes of his upon which they were indorsers and which they had lifted from the Carlisle Deposit Bank, and in the settlement received credit therefor. They marked the notes paid and surrendered them to G. A. Searight. The bona fides of this settlement, so far at least as G. A. Searight was concerned therein, has not been assailed. He paid these notes in full to his indorsers, who had lifted them; prima facie, he was thereupon entitled to receive back the collatei'al which he had pledged therefor. Upon this collateral, and under the terms of its original hypothecation, the bank, in January, 1889, received a dividend of $4,495.32, resulting from the sale of the property of the Searight Cattle Company. This money it applied as a credit upon the notes of F. W. and Geo. P. Searight, indorsed by Stuart, with which the notes of G. A. Searight had been lifted. That this appropriation was in accordance with the understanding between the bank and the parties to the new notes is not disputed, but G. A. Searight refuses to acquiesce therein, and now through his assignee demands that the bank shall be made to account for the stock which he hypothecated, and all moneys received by it on account thereon. And why shall such demand be refused? Upon the payment of the notes drawn by him the interest of the bank in the collateral ceased, and therefore the indorsers were alone entitled to whatever indemnity it afforded. It remained for their protection to whatever extent it was originally pledged. But their payment of the notes did not make them owners of the stock. Their interest in it remained collateral, and was a subject to be determined just as the bank’s was, viz: By payment of the debt for which it was pledged. They had no right to use it for any purpose not authorized' by the original hypothecation. Grant it, that the indorsers having lifted the notes had an interest in the cob lateral which was itself susceptible of being pledged, yet that interest was inseparable from the original debt- It existed only in and through the debt for which those notes were given, and was determinable with it. It being paid by the debtor to whoever held the notes, there could be no outstanding interest in the collateral in any one except as assigned by its real owner. It was a serious misconception of the law relating to securities to suppose that either the bank or the indorsers, or both together, could, by act of theirs, unauthorized by the owner of the stock, rehypothecate it for a different indebtedness. See the result, were the transaction sustained. G. A. Searight pays to his indorsers the full amount of the notes which they lifted and ■ which stood to their use; the stock which he pledged for the securing of these notes is afterwards applied in payment of notes which the indorser gave to enable them to lift the original notes, and thus G. A. Searight is made to pay the same debt twice over, once to his indorsers and then again to the bank. To state the result is to condemn it as repugnant to every sense of justice and every principle of law.</p> <p>“ It will not do to say that G. A. Searight ought not to have paid the notes to the indorsers. They had lifted the notes, and were the holders by assignment from the bank. I have looked in vain for anything in the testimony which connects G. A. Searight with the lifting of these notes by the indorsers; not that they could take advantage of any such circumstances, for, having been paid the notes, they can have no standing in this present contention, but with a view to determine the right of Joseph A. Stuart and what, if any, equities the bank might have through him. There is absolutely nothing to show that he ever consented to a rehypothecation of his stock, and nothing to show any knowledge on his part of the transaction. It is a fact that the bank received the dividend on his stock in January, 1889, and that this was then known to Geo. A. Sea-right. It is also true that he made no demand for his money or stock until shortly before the bringing of the present suit. This conduct under other circumstances might be of significance as indicating an acquiescence on his part, but in the absence of any evidence, that he had any knowledge of what had been done, and in face of the admitted fact that on the 13th day of May, 1887, he actually paid to the holders of the notes their full value, it can have but little if any weight. Why he allowed the bank to retain his money and securities so long after he had met his engagements, we don’t know, or the evidence does not explain it; but to conclude that it was because he knew of the rehypothecation or assented to it, would be the grossest sort of injustice and in utter disregard of the simplest rules of evidence.</p> <p>“ We are unable to see any merit in the defence set up; G. A. Searight, having in good faith paid the notes for which his stock was pledged, and never having consented to any rehypothecation of it, is entitled to the relief prayed for.”</p> <p>A decree was entered accordingly. Defendant appealed.</p> <p>Hrror assigned was above decree, quoting it.</p>

<p>Appeal, No. 169, July T., 1893, by defendants, from judgment of C. P. Union Co., Dec. T., 1888, No. 66, on verdict for plaintiff.</p> <p>Ejectment against tenants in possession for undivided one half of tract of land in Kelly township, known as the “ Clingan Farm.” Before McClubb, P. J.</p> <p>The evidence on behalf of defendant was summed up in the third assignment of error as follows:</p> <p>“That John L. Lewis died on May 20, 1869, leaving to survive him, five children : Thomas S. Lewis, the plaintiff; and Mrs. Rebecca Lamb, Mrs. Deborah Harris, Miss Sarah J. Lewis, Mrs. Martha E. Zeigler, his daughters, the defendants.</p> <p>“ That about the year 1841, John L. Lewis, the father, purchased a tract of land in Centre county, of about 600 acres, and moving to that place, at that early date, being then a man of over 60 years of age, proceeded to make provision for his family. He had at that time another son, named Reese. He divided the land into three parts — one end of 150 acres for Thomas, the other end for Reese of 150 acres, the center portion for himself and daughters. Houses and barns were erected on the premises, the whole family working together, the means coming from the father. Both Reese and Thomas were unmarried. The enjoyment of the one part was given to Thomas, although no deed was executed to him or to Reese, the father remarking that they would get them in time. Reese died unmarried and without issue. John L. Lewis sold Reese’s part and the central part, realizing about the sum of $12,000 to $15,000, and as there were about 20 acres adjoining Thomas, which the purchaser did not want, it was thrown over into Thomas’s farm, making it about 173 acres, 30 perches, and is known in this proceeding as the ‘ Centre county farm.’</p> <p>“ In 1855 he purchased what is known as the Homestead, at Lewisburg, and removed there.</p> <p>“ In 1855 he purchased what is known as the Clingan farm, (the undivided half of which is the subject of this action), for $2,565.29, paid for it, and in pursuance of his plan of settlement, had the deed made to himself and Thomas, as tenants in common.</p> <p>“ In 1858 he purchased a property known as the Boarding House, taking title in himself.</p> <p>“ In Nov., 1860, he purchased the Kelly farm for $6,596, paying for it himself, except a dower remaining in the land of $1,800, that is $4,596, taking title in Thomas S. Lewis.</p> <p>“The Kelly and the Clingan adjoined. Possession was given of the Kelly in the spring of 1861. John L. Lewis and Thomas made an amicable straightening of lines between the two places, by which part of the Kelly was thrown into the Clingan and part of the Clingan into the Kelly. Thomas, in the spring of 1861, moved all his fanning property over to the Kelly and farmed it himself one year, and then George Kling came in as his tenant of the Kelly farm, remaining there until 1866.</p> <p>“ Bechor, who was tenant of the Clingan farm from 1858 until 1875, made the new division fences on the Clingan part, and the tenant of the Kelly farm made the fences on the Kelly part. Thomas told him (Bechor) that the part on that, side belonged to the Clingan farm and on the other side was his own, and that he had nothing further to do with the Clingan farm. George Kling, Thomas’s tenant on the Kelly, says he ploughed up the old fence rows in the spring of 1862.</p> <p>“In 1862 a deed was drawn by William Jones, Esq., at the instance of Thomas and John L. Lewis, from John L. to Thomas, for the Centre county farm, 178 acres and 30 perches, for the consideration of $8.00 per acre, which, however, was never executed. The lands adjoining were sold at $50.00 per acre.</p> <p>“ In June, 1868, John L. Lewis, now about 90 years old, and Thomas procured a surveyor to go upon the premises and make a draft of the premises, as they had been changed. The surveyor states that the original lines were not mai’hed on the ground, and he found, the fences as they were changed.</p> <p>“In 1863, John L. Lewis purchased the Harmon tract, 13 acres and 30 perches, lying between the two [daces, and from that time the old lines between the two places were entirely obliterated. About a month before the death of John L. Lewis, the Hon. Chas. S. Wolfe was sent for to draw up his will. The disposition of the property was stated — that the Centre county farm and the Kelly farm should be in full of Thomas’s share in his father’s estate, and that Thomas should release to his sisters his undivided half in the Clingan farm and all his interest in the personal estate of his father. It was late at night and Mr. Wolfe was requested to return in the morning to write the will. That same night, after Mr. Wolfe had gone, Thomas opposing the making of the will, promised his father that if no will was made, he would accept the Centre county-farm and the Kelly farm in full of his share of his father’s estate and would release to the sisters his undivided half of the Clingan farm and the whole of his interest in the personal estate of his father. When Mr. Wolfe returned the next day to write the will, he was informed that his services were not needed, that it was all arranged.</p> <p>“ After the death of the father, the children all met, Thomas with them, and it was agreed that they should all live together as they had been for a year. Thomas and Zeigler took out letters of administration on the estate of John L. Lewis.</p> <p>“ From the time of the severance by the changing of the fences in 1862 and 1868, the rents, issues and profits of the Clingan farm were taken exclusively by the father John L. Lewis. Tliomas, as administrator of his father, returned in the inventory the whole of the last year’s crops of the Clingan farm as the property of the decedent, his father.</p> <p>“ At the end of the year from their father’s death, the heirs all met again, and it was agreed that they should abide by the arrangement of their father: That Mrs. Lamb should have the Milesburg lot, Mrs. Harris should go to the Boarding House lot; Miss Lewis and Mrs. Zeigler should remain in the Homestead, what was called the Stewart note was given to Miss Sarah J. Lewis ; the income of the Clingan farm and the bank stock to be divided among them all except Thomas. So it was done for a period of fifteen years, without dissent or challenge. The Clingan farm was very poor, and for many years there was large outlay upon it, with little or no income. Fences were built, buildings repaired, wells dug, lands limed and cultivated, all at the expense of the sisters, until at the time of the trial the farm was from one half to one third greater in value.</p> <p>“ Mrs. Harris went to the Boarding House lot and Thomas, then unmarried, went with her. Her furniture and rooms remained there until Thomas left. He married in 1872.</p> <p>“ In 1884 a purchaser came to buy the Boarding House lot, and the title was found in this condition. Thomas stated that that was the arrangement with his father and he was willing to stand by it. Accordingly deeds were drawn and executed by the sisters for the Centre county farm, — the Kelly farm was already in his name: and deeds were drawn for his interest in all the rest of the property, real and personal, including this undivided half of the Clingan farm. He took them, examined them, said they were all right. But his wife refused to sign them. He then said that he was willing to sign the deed himself, or join in any other proceeding by which it could have been accomplished.</p> <p>“ A bill in equity was formulated by his own suggestion. But he filed an answer notwithstanding.</p> <p>“ His own title to the Centre county farm ripened into a good title by the statute of limitations, if his bad faith avails. On the 20th of November, 1888, when his alleged title to the Clingan farm would be endangered by the statute, he brought this suit.</p> <p>“ For twenty years and upward he enjoyed the fruits of the arrangement; on his part the title to the Centre county farm ripened; he permitted the defendants to expend money upon the Clingan farm, upon the opinion that it was their own, which opinion was created bjr his own statement, declarations and silence when money was expended. He never made any claim to the rents, issues and profits of his undivided half of the Clingan farm. He disclaimed ownership all the while.</p> <p>“ Proceedings in partition forced on the sisters showed that he had been advanced in a sum of $300 [$3,000?] over and above his share in the real estate of his father. The evidence showed that he got one half of his father’s estate.</p> <p>“ The original line between the Kelly farm and the Clingan farm was changed and obliterated in 1862 and 1863, and the occasion of the survey in 1868 was the construction of a farm for his grandson, Dr. Zeigler, by cutting 38 acres out of the Clingan farm and adding it to the Bickel farm.”</p> <p>Defendant’s witness, Levi Bechor, testified that plaintiff was in possession of the tract in dispute the same after his father’s death as before, until 1875, receiving part of the crops, cutting wood, etc.</p> <p>Plaintiff, in rebuttal, to show inconsistent claims, offered record in a bill in equity, filed Nov. 24, 1883, by defendants against plaintiff to compel specific performance of contract by plaintiff with decedent to renounce interest in his father’s estate, real and personal, and to convey his title to the one undivided half of the land in dispute, called the Clingan farm, for the Kelly and the Centre county farms, averring that plaintiff and his sisters, after the death of their father, made a parol partition of the lands of the father by which the title of the land in dispute was vested in them. A master found that the contract was within the statute of frauds and therefore void, and that the heirs did not make parol partition, but that the possession continued as before. Bill dismissed. Affirmed, per curiam, in No 235, Jan. T, 1885, unreported.</p> <p>Plaintiff also offered partition proceedings in the orphans' court of Union county instituted by Tiros. S. Lewis for the par tition of the realty of John L. Lewis, deceased. This included the undivided moiety of the Clingan farm, but not the Kelly farm or the Centre county farm. Petitioner’s sisters, defendants here, excepted that the whole of the Clingan farm and the Kelly and Centre county farms should be included in the proceedings. Also that the petition should set out that the petitioner had been advanced out of the real estate. The court overruled the exceptions and ordered that the partition be proceeded with. Affirmed, per curiam, No. 69, July T., 1886, in Lewis’s Ap., 10 Atl. R. 135.</p> <p>Plaiutiff further gave in evidence the report of an auditor in the partition proceedings to ascertain whether there was any owelty due Thomas S. Lewis after advancements were charged. It was contended by the sisters, the defendants here, that he was advanced the amount paid for the undivided half of the Clingan farm. This the auditor refused to find but found that he was advanced $3000 in the Kelly farm. Affirmed, per curiam, in Lewis’s Ap., 127 Pa. 127.</p> <p>The court charged in part as follows:</p> <p>“ [The defendants contend that they have shown such number of facts bearing upon the conduct of Thomas S. Lewis and John L. Lewis as to bar the plaintiff from recovering in this action, that is, that he is estopped and precluded by his acts from recovering on his paper title. It is not necessary for me to recite all these facts, they have been presented to you, and I rule now as a matter of law that they are not sufficient to prevent the plaintiff from recovering.] [1]</p> <p>“We instruct you to render a verdict for the plaintiff for the lands described in the writ.”</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) portion of charge in brackets, quoting it; (2) in giving binding instructions for plaintiff; (3) in refusing to submit the evidence of the defendants to the jury, as an equitable estoppel, to prohibit the plaintiff from asserting his legal title against the defendants, quoting the evidence as within quotations above.</p>

<p>Wills — Issue devisavü vel non — lies judicata.</p> <p>Where a brother and sister have executed a double will, and after the brother’s death the sister has executed another will, malting a different disposition of her property than that contemplated by the double will, and the Snpreme Court has decided on an appeal from the probate of the double will that' the effect of the later will of the sister is to revoke the double will, so far as she is concerned, the validity of the later will may still be attacked on the ground that testatrix lacked testamentary capacity and was subjected to undue influence. The decision on the appeal was not res judicata as to these questions.</p>

<p>Appeal, No. 483, Jan. T., 1894, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1892, No. 293, on verdict for plaintiff.</p> <p>Trespass for injuries caused by operation of coke ovens.</p> <p>At the trial before Mestrezat, J., it appeared that plaintiff had a life estate in the house in which she lived, and that the value of the unincumbered fee was about one thousand dollars. Defendant built coke ovens on the street fronting her premises and caused her discomfort and inconvenience. There was no claim for physical injury or suffering.</p> <p>When Lyman S. Strickler, a witness for plaintiff, was on the stand, he was asked:</p> <p>“ Q. State to the court and jury what in your judgment would be the damages to Margaret Herbert. Mr. Lindsey : I object that the witness has not given sufficient data to form an opinion, and consequently that the witness has not shown any such knowledge of the site there as would entitle him to give an opinion. Mr. Campbell: He says that he is familiar with the place and.had a knowledge of it while the ovens were fired and while they lived there. Mr. Ewing : Saw it once when passing along there ? Mr. Campbell: Did you pass there during the year and a half from August, 1891, to November, 1892? A. Frequently. Q. Frequently ? A. Yes, sir. Q. Did you see these ovens in operation? A. I remember of seeing them once in operation, but I passed the property several times. Q. During that time ? A. Yes, sir. The Court: As to the dates, Mr. Campbell. Mr. Campbell: From August, 1891, to November, 1892. Mr. Lindsey: The question then clearly, your Honor, ought to be confined from the period of January, 1892, to November, 1892. We object to that; the witness has not shown sufficient knowledge. Mr. Campbell: Q. Mr. Strickler, what, in your opinion, was the damage to Margaret Herbert and this property ? Mr. Lindsey : I will ask you if you saw them in operation from Januaiy, 1892, to November, 1892. If you can fix the dates as between these two months; do you say that during that time you saw them in operation only the once ? A. Only the once, yes, sir. Q. Did you see them from the public road or train, in passing ? A. I have walked along the railroad and also along the public road. I was assessor in that township. Q. You had only seen them once in operation ? A. Yes, sir. Q. Well, where were you when you saw them in operation ? On the old public road back of the house? A. Yes, sir. Q. Just in passing? A. Yes, sir. Mr. Lindsey : I object. The Court: Objection overruled and exception sealed. Mr. Campbell: Go on and state to the court and jury what, in your judgment, what the amount of damage would be ? A. Well, for the nine months I can’t say that I would give $5.00 for the property and live there. Q. Answer the question and give the amount? A. Twenty-five hundred dollars.” [1]</p> <p>Daniel D. Sproat testified that the damages would be from $10,000 to $15,000.</p> <p>Defendant’s second point was as follows :</p> <p>“ 2. That the measure of damages, if any, would be the difference in the rental value of the property during the period of the continuance of the trespass.” Refused. [7]</p> <p>The court charged in part as follows:</p> <p>“ Now, gentlemen of the jury, you may go a step further, and you majq instead of following the usual and ordinary rule in measuring these damages, give what is known as punitive exemplary damages as spoken of by the counsel in their arguments. If you find that the conduct of the defendant in doing these alleged wrongs was reckless, was willful and with a disregard of the plaintiff’s rights in these premises, you may go a step further and give such damages as will be punitive, in other words, will punish the defendant for his conduct.” [8]</p> <p>Verdict and judgment for plaintiff for $850.</p> <p>Errors assigned were, among others, (1) ruling, quoting bill of exceptions ; (7, 8) instructions, quoting them ; (9) that the. charge of the court was inadequate in not commenting upon the extraordinary estimates of damages.</p>

<p>Decedent's estates — Glaim for services — Evidence—Presumption.</p> <p>Relationship, either by consanguinity or affinity, is a fact which tends to rebut the presumption, which the law raises, that a promise to pay is intended when personal services are rendered. But, alone, it does not overcome the presumption except in the ease of parent and child. In all other cases there must be evidence beyond the relationship that the creation of no debt was intended.</p> <p>In an action by a son-in-law against his mother-in-law’s estate for board, where one of the witnesses testifies that the decedent had told her that she had promised to pay her son-in-law for board, the case must be submitted to the jury.</p>

<p>Negligence — Turnpike — Evidence—Contributory negligence — Presumption.</p> <p>In an action against a turnpike road company to recover damages for personal injuries, it is proper to submit the case to the jury where there is evidence that plaintiff, on a dark night while traveling on defendant’s road, drove over an embankment in the road at a point where a summer road was depressed from two to four feet below the level of the macadamized portion of the turnpike.</p>

<p>Contract — Services—Parent and child — Evidence.</p> <p>In an action by a daughter against her father to recover wages alleged to be due under an express contract to pay them, the case must be submitted to the jury, where the plaintiff testifies: “He said if I would pay my rent of five dollars a month, and if I worked any, he would pay me every cent I worked for him. He told my husband so more than a dozen times, and me too, double as much as any one else.”</p>

Appeal, No. 411, Jan. T., 1894, by defendants, Peter Boffenmyer and David M. Boffenmyer, trading as P. Boffenmyer & Son and The Lancaster Trust Co., executor of Peter Boffenmyer, deceased, substituted, from judgment of C. P. Lancaster Co., Sept. T., 1892, No. 58, on verdict for plaintiff. Assumpsit on promissory notes. Before Livingston, P. J. At the trial it appeared that, in 1879, David M. Boffenmyer was in business and kept an account at the Lancaster County National Bank.

<p>Appeal, No. 431, Jan. T., 1894, by defendant, from judgment of C. P. Lancaster Co., May T., 1892, No. 36, on verdict for plaintiff.</p> <p>Feigned issue in trespass q. o. f. to determine damages for widening street. Before Brubaker, J.</p> <p>At the trial, it appeared that, in 1874, the land in controversy was owned by the Moravian Church of Lititz. In that year the trustees of the church passed the following resolution : “ It was resolved to sell to W. Evans the house and lot No. 2, for $100,- on condition that he removes the house and widens the alley fourteen feet, and that he does not get a deed until the house is removed.”</p> <p>The deed was executed by the trustees on Sept. 19, 1874, but contained no reservation or condition. Plaintiff moved back his line eight feet, and in 1881 executed a deed to the church for the strip eight feet wide. This deed however was never delivered. In 1891, the borough instituted proceedings under the act of May 16, 1891, P. L. 75, to widen the street an additional six feet. Plaintiff appealed.</p> <p>The court charged as follows :</p> <p>“ [I would say here that you need not take into consideration any matters outside of the case with reference to the deeding of the property by the congregation of the Moravian church at Lititz to Mr. Evans, with reference to the fourteen feet that was to be widened into the street. I shall ask you to find several special facts, and upon those facts as found by you we will render a verdict in accordance with the law. What you have to do now is to ascertain what was the quantum of damages sustained, if any, by the plaintiff, independent of any other facts. You must presume here that he owned the property.] ” [2]</p> <p>The special verdict and the question of law reserved are stated in the following opinion of the court by Brubaker, J.:</p> <p>“ This case is a feigned issue to determine what amount of damage, if any, has been sustained by the plaintiff, by reason of the widening of Cedar street, in the borough of Lititz, from Main street to Juniper alley. The special verdict found by the jury is as follows:</p> <p>“ ‘ The jury find in favor of the plaintiff for sixty dollars per foot (of six feet), or $360, subject to the opinion of the court on the question of law reserved on the following facts found by the jury:</p> <p>“ ‘ The jury finds the minutes of Jan. 8,1874, of the Congrenation of the United Brethren of Lititz and vicinity was a part of the contract of sale of the property described in the deed of conveyance of said corporation to Wm. Evans, the plaintiff in this suit, and an implied covenant to said deed of conveyance as making the said alley fourteen feet wide along Wm. Evans’s said property.</p> <p>“ ‘ Further, the jury finds that the deed of the said Wm. Evans and wife, dated Nov. 2, 1881, to the Moravian congregation of Lititz, formerly known as the Congregation of the United Brethren of Lititz and its vicinity, was not delivered to the said corporation.’</p> <p>“ The question of law reserved by the court is: ‘ If the court should be of opinion that on the facts found by the jury the plaintiff is entitled to recover the damages as fixed by the jury, then judgment is to be entered in favor of. the plaintiff, otherwise to be entered in favor of the defendant.’</p> <p>“ The peculiar feature of this case is the undisputed fact that the plaintiff, on Sept. 19, 1874, over sixteen years prior to the incorporation of the borough, had purchased and received a deed from the ‘ Congregation of the United Brethren of Lititz and vicinity,’ for a piece of ground 150 feet in length along Cedar street, which is, in part, the ground in question. At the time of this purchase Cedar street was an alley twenty feet wide. A conveyance was made by the trustees of said congregation or church, by virtue of a resolution of the board of trustees, which is as follows :</p> <p>“ ‘ It was resolved to sell to W. Evans the house and lot No. 2, for $100, on condition that he removes the house and widens the alley fourteen feet, and that he does not get a deed until the house is removed.’</p> <p>“ The deed itself does not refer to the resolution or contain any reservation or condition such as contemplated by the parties in the sale of the ground. The fourteen feet referred to in the resolution never was added to the alley or street. Mr. Evans, the plaintiff, however, had removed his fence back a distance of eight feet, giving the alley that additional width, which was the situation at the time of the widening of the street by the borough.</p> <p>“ The question now under consideration is whether the testimony concerning this transaction with the church should have been admitted as evidence in the issue between the parties to this suit.</p> <p>“ [The nature of the issue framed is an action of trespass ; the plea, not guilty. The plaintiff proved ownership and possession, but both were not necessary. Evidence of possession alone, if believed, will support the action, and dispose of the plea of not guilty.] [3]</p> <p>“ The principle is an old one, that the plaintiff in trespass, as well as in ejectment, may recover upon his prior possession against a person showing no title, but cannot maintain the action against one who has a better title. It is unnecessary to cite authorities in support of this rule of evidence. It is so familiar we need only refer to it. In the trial of this suit there was no denial of the possession of the six feet of ground in the plaintiff.</p> <p>“ On account of the novel features arising in this ease, the purchase of this property having been made by Mr. Evans subject to and burdened with the easement to the church property, which would have been a good defence in a suit between them, we took the precaution to direct a special verdict as to the finding of facts in this case, so that we should be able carefully to review the matter.</p> <p>“ [We find that we should be ignoring one of the plainest rules of evidence, if we entered judgment in favor of the defendant, notwithstanding the verdict. The point in dispute here was not whether the plaintiff had title subject to the easement, nor whether there was title in the defendant, for the defendant did not claim title, or pretend to claim title, but whether the plaintiff was in possession of the property taken by the borough in the widening of the street, and if so, what amount of damage, if any, was sustained by reason thereof-] [4]</p> <p>“ We, therefore, direct judgment to be entered on the verdict as rendered.”</p> <p>JSrrors assigned were, among others, (2) charge of the court, quoting it; (3, 4) portions of the opinion as above, quoting them; (5) in entering judgment on the verdict; (6) in not entering judgment for defendant non obstante veredicto.</p>

<p>Will — Issue devisavit vel non — Undue influence — Confidential relation— Evidence — Burden of proof.</p> <p>Where a will is drawn in favor of one occupying a confidential relation who either writes it, or procures it to be written, or whose advice is sought and taken, the burden rests on such beneficiary to disprove undue influence. This is not the ease however where there is no evidence that the beneficiary solicited the benefit, or wrote the will, or procured it to be written, or that his advice was sought or taken.</p> <p>Testatrix, the owner of several farms and other property, made her superintendent the executor of her will, and devised to him one of her most valuable farms. The evidence did not show that the relation between them was any more confidential than that of employer and employee usually and necessarily is. It did not appear that the executor was in any way connected with the making of the will either by agency, procurement, suggestion, persuasion, solicitation, presence at or knowledge of its execution. Held, that the burden was not shifted to the proponent to show that the will was not executed under undue influence.</p> <p>Will— Testamentary capacity — Evidence.</p> <p>An issue devisavit vel non, to determine testamentary capacity of testatrix, will not be granted where the evidence is in effect that testatrix during the last years of her life was in bad health, suffering from dyspepsia, catarrh, headache, slight insomnia and occasional lapses of memory and absent-mindedness, but that she did not suffer from imbecility or delusion, and that she was entirely competent to transact business at the time she made her will, and that she continued to attend to business, make contracts, draw checks, etc., up to near the time of her death.</p> <p>Issue devisavit vel non — Evidence of forgery.</p> <p>An issue devisavit vel non will not be awarded, to determine validity of signature of testatrix, where the evidence for contestants is that of three witnesses who testified that in their opinion and belief the signature was not genuine, and of two witnesses who testified that testatrix declared at the time of her death that she had no written will; while the subscribing witnesses, two reputable members of the bar, testified that they saw testatrix sign her name to the will and that she requested them to sign as witnesses to her signature.</p>

Appeal, No. 456, Jan. T., 1894, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1892, No. 1, on verdict for defendants. Ejectment for No. 543 W. Walnut St., Lancaster. Before Brubaker, J. At the trial, it appeared that Susan Ehrisman, plaintiff’s wife, died March 27, 1886, leaving a will wherein she directed as follows: “Item.

Appeal, No. 479, Jan. T., 1894, by Carroll Croxall, from decree of O. C. York Co., dismissing exceptions to auditor’s report in estate of Georgianna Croxall, deceased. Exceptions to report of James G. Glessner, Esq., auditor to distribute.

Appeal, No. 66, July T., 1894, by defendant, Joseph W. Cake, from order of C. P. Northumberland Co., May T., 1891, No. 281, discharging rule to open judgment. Rule to open judgment. The following opinion was filed by Savidge, P. J. .- “ Judgment was entered by virtue of a confession in a judgment note dated April 13, 1881. As legatee of his wife, Minnie E., J. A. Cake is owner of the judgment and it has been marked to his use.

Appeals, Nos. 5, 6 and 7, May T., 1894, by Josephine McCoueh, Annie Little and Mary A. Miller, from order of C. P. Dauphin Co., June T.,… Held: as of the date of the decree of dissolution, the equities between the claimants require the same rule to govern in cases where tbe assured have died since the dissolution, but before the audit was closed. “ It must not be overlooked that the breach of contract by the corporation, on which the claim for damages in all these cases is…

Appeal, No. 34, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., June T., 1892, No. 407, for plaintiff, on appeal from tax settlement. Appeal from tax settlement. The facts appear by the opinion of tbe Supreme Court. Error assigned was entry of judgment.

Appeal, No. 27, May T., 1898, by defendant, from judgment of C. P. Dauphin Co., June T., 1892, No. 365, for plaintiff, on trial by court without jury. Appeal from tax settlement. The facts appear by the opinion of the Supreme Court. Errors assigned were, inter alia, entry of judgment.

<p>Appeal, No. 18, May T., 1894, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1891, No. 444, for plaintiff, on trial by court without jury.</p> <p>Appeal from tax settlement.</p> <p>The court, in an opinion by Simonton, P. J., printed in 151 Pa. 282, note, found that defendant company was not exempt from taxation on the portion of its capital stock invested in the shares of other corporations of the commonwealth which had paid a tax on their capital stock for the same tax year. Exceptions were overruled in an elaborate opinion to the same effect.</p> <p>Error assigned was inter alia to the entry of judgment.</p>

<p>Taxation — Corporations—Duty of treasurer to retain tax — Statutes—Implied repeals — Constitutional law — Title to act — Acts of June 30, 1886, and June 8, 1891.</p> <p>The act of June 8, 1891, P. L. 229, is not in conflict with the constitution of Pennsylvania because of defect in its title, or for any other reason.</p> <p>The fourth section of the act of June 30, 1886, P. L. 193, was not repealed by the act of June 8, 1891, but is still in force and unrepealed.</p> <p>It was made the duty of the treasurer of a corporation, by the 4th section of the act of 1886, to assess and retain and pay over to the state the tax imposed by the first section of the act of June 8, 1891, on so much of its indebtedness as was held and owned by residents of Pennsylvania, and if he fails to do so the corporation is liable.</p>

Appeal, No. 37, July T., 1894, by defendant, from judgment of C. P. Dauphin Co., June T., 1893, No. 366, on trial by court without jury. Appeal from tax settlement. The facts were substantially the same as those of the preceding case.

Appeal, No. 21, May T., 1894, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1893, No. 261, on verdict for the plaintiff. Trespass for personal injuries. Before Simonton, P. J. At the trial, it appeared that, on April 12,1898, between six and seven o’clock in the morning, plaintiff fell on the sidewalk of Court avenue, in the city of Plarrisburg, and sprained her foot and ankle.

<p>Appeal, No. 9, May T., 1894, by William L. Mosebey, from decree of O. C. Fulton Co., dismissing exceptions to auditor’s report on exceptions to account in estate of Elizabeth C. Clippinger, deceased.</p> <p>Exceptions to report of McC. D. Skinner, Esq., auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were dismissal of exceptions to auditor’s report, quoting them.</p>

Appeal, No. 33, May T.; 1894, by plaintiff, from judgment of C. P. Dauphin Co., Jan. T., 1893, No. 260, in favor of defendant, on trial by court without a jury. Sci. fa. sur municipal lien. The following opinion was filed by McPherson, J.: “ This case was tried without a jury under the provisions of the act of 1874. We find the facts to be as follows: “ 1. The plaintiff was incorporated under the general borough act of 1851.

<p>Live stock insurance — Mutual companies — Assessment.</p> <p>Where an insurance company, although organized upon the mutual plan, has the power to issue cash policies, the mere fact of membership does not necessarily imply the liability to assessment.</p> <p>In such a case a person applying for insurance, who is given a policy which upon its face is for cash alone, is not bound by a by-law of which he has no notice, providing that every member should be liable “ to pay ■his or her proportion of all losses and expenses at such time or times as the directors for the time being may require, in proportion to the amount insured by such members.”</p> <p>Corporations — By-laws—Notice.</p> <p>While the member of a mutual insurance company is bound to inform himself of the by-laws of the company after he has become a member, and to govern his future conduct by them, he is not bound to make himself acquainted with the by-laws before he becomes a member, and if he makes a contract with the company which excludes them in any particular, in that particular they do not bind him.</p>

Appeal, No. 111, July T., 1893, by defendant, from judgment of Q. S. Lancaster Co., Nov. T., 1892, No. 119, on verdict of guilty. Indictment for embezzlement.