Volume 163 — Pennsylvania State Reports

Appeal, No. 48, July T., 1894, by Walter M. Franklin, district attorney, from order of O. & T. and Q. S. of Lancaster Co., adjudicating office costs in cases disposed of at.Nov. Sessions, 1893, and dismissing exceptions filed. Adjudication of office costs. From the record it appeared that, on Dee. 4,1893, the court,. Brubaker, J., handed down from the bench to the clerk of the court of quarter sessions a paper which was ordered to be-filed.

<p> Evidence—Marriage—Deputation. </p> <p>Common reputation in a family connection as to who are members of the family is admissible when no superior evidence is attainable, or in connection with superior evidence, to prove pedigree, legitimacy and marriage.</p> <p> Decedent—Intestate laws—Evidence—Presumption. </p> <p>Where an estate is claimed by first cousins of decedent, and also by persons claiming as children of his half-brother whose legitimacy is denied, there is a presumption of marriage and legitimacy notwithstanding such denial, which is strengthened by lapse of time, and after ninety years it cannot be overcome except by strong, direct and satisfactory proof.</p> <p>In such a case witnesses on behalf of the children of the alleged half-brother testified to declarations of decedent, and of deceased sisters and mother of decedent that the claimant’s father was the half-brother of decedent. Other -witnesses testified to declarations of decedent’s mother that she was married to claimant’s grandfather. These declarations were made ante litem motam, and no evidence was offered to contradict them. Held, that these declarations, made long before any litigation arose, by persons related to the family and now dead, being the only proof of which the subject was susceptible, were, although hearsay, competent and conclusive. Held, also, that while the burden of proof was upon claimants to establish their relationship to decedent, they were not confronted with the presumption of the illegitimacy of their ancestor, nor required to disprove it.</p>

<p>Street railways—Location—Act of Nov. 22, 1873—Quo warranto.</p> <p>The act of Nov. 22, 1873, P. L. of 1874, 444, authorized the Union Passenger Railway Company to extend its routes on certain specified streets in the city of Philadelphia “ and on such other street or streets south of Christian street west of Twentieth street north of Columbia avenue and east of Third street as councils of the city of Philadelphia may from time to time permit or authorize to be used by said company with single or double tracks.” Two of these streets,—Christian in the southerly and Columbia avenue in the northerly section of the city,—run nearly east and west, and both are crossed at right angles by the other two,—Third and Twentieth streets,—while York street is north of and parallel with Columbia avenue. Held, that the street railway company, councils consenting, had a right to occupy York street between Pourth and Twentieth streets, and that the company was not limited by its charter merely to those streets within the lines of the southwesterly angle formed by the intersection and extension of the lines of Christian and Twentieth streets, and of the northeasterly angle formed by the intersection and extension of the lines of Third street and Columbia avenue.</p>

<p> Will—Substitutional legacy—Codicil. </p> <p>Testatrix by her will bequeathed to each of her granddaughters, Mabel Ridgway and Cornelia Norris two thousand dollars “ when they shall reach the age of twenty-one years respectively.” Cornelia died in 1874, an infant about two years old. In 1883 testatrix added a codicil to her will whereby she declared, “I wish my granddaughter Edith Norris, to have two thousand dollars from my estate (the eldest daughter of Isabel F. Norris) ; I have left the same amount to Mabel Ridgway.” Edith Norris was born subsequent to the death of Cornelia Norris, and at the date of the codicil was the eldest daughter of Mrs. Norris. Held, that the legacy to Edith was not substitutional of that to Cornelia, and that it was vested and presently payable, and not contingent upon her reaching the age of twenty-one years.</p> <p>If two legacies of equal amount are bequeathed to the same person in the same instrument or in a will and codicil thereto, the second will be considered as substitutional unless it plainly appears that it was intended as cumulative. But there is no presumption that a legacy bequeathed in the codicil to one person is a substitute for a legacy of the same amount bequeathed in the will to another person nor does such a presumption arise from the mere fact that the legacy given in the will lapsed by the death of the legatee nine years before the codicil was written. By Mr. Justice McCollum.</p>

<p>Appeal, No. 12, July T., 1893, by Frances W. Titlow, widow of George Titlow, and the Guarantee Trust & Safe Deposit. Co., guardian of Frank Titlow, from decree of O. C. Phila. Co., Jan. T., 1885, No. 160, in estate of David Titlow, deceased.</p> <p>Exceptions to adjudication by Ashman, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p>

<p>Affidavit of defence—Executory contract—Act of May 25, 1887.</p> <p>Under the practice act of May 25, 1887, P. L. 271, an affidavit of defence is required in an action to recover damages for the breach of an executory contract.</p> <p>Defendant entered into a contract in writing with plaintiff company, to pay off and cancel a number of bonds secured by mortgage on property which the company conveyed to him, “ and have said mortgage satisfied of record.” He also agreed to indemnify the company and its stockholders against “ all claims and demands of the holders of said bonds and mortgage.” He did not pay off and cancel the bond or have the mortgage satisfied, nor indemnify the company or its stockholders. Judgment was recovered against the company, the mortgaged property was sold, and the company was compelled to pay a judgment obtained on one of the bonds. The company then sued defendant, and in its statement set out the contract, the breaches of if and the loss resulting therefrom. Defendant in his affidavit of defence did not deny any of the material averments of the statement. Held, that it was proper to enter judgment against defendant for want of a sufficient affidavit of defence.</p> <p>In the above case defendant averred that the bondholders agreed to deliver to defendant the bonds on his paying to them seventy-five per cent of their par value. He also averred that the bondholders and stockholders were “ practically the same,” and that the judgments against the company were collusive and fraudulent. He did not, however, aver that he had ever paid or tendered to the bondholders the seventy-five per cent of the par value of the bonds. Eeld, that these averments of the affidavit were insufficient to prevent judgment.</p>

Appeal, No. 159, July T., 1893, by plaintiff, from order of C. P. No. 1, Phiia. Co., Sept. T.,’1890, No. 339, entering compulsory nonsuit. Trespass for personal injuries. At.the trial it appeared that, on Aug. 22, 1890, plaintiff sprained her ankle while alighting from one of defendant’s trains at the station at Tamaqua. Plaintiff claimed that there was too much space between the steps and the platform, and that the platform was insufficiently lighted.

<p>Appeal, No. 327, Jan. T., 1894, by plaintiff, from decree of 0. P. Lebanon Co., Equity Docket No. 10, dismissing bill in equity.</p> <p>Bill in equity to restrain defendant from maintaining embankment in street in front of plaintiff’s premises.</p> <p>The bill, filed Nov. 28,1892, averred that defendant company was incorporated Sept. 12, 1890, and located its railway on a road in front of plaintiff’s premises in March, 1891, and constructed it in front of plaintiff’s- land in July, 1891, and that cars were begun to be run on Dec. 1, 1891; that in the construction of the railway the company raised an embankment in the road, and obstructed the approach to plaintiff’s house. The prayers of the bill were as follows: (1) That defendant be restrained by injunction from operating any car by electricity or otherwise on, upon and over the line of the said railway, immediately in front of .plaintiff’s lot. (2) That defendant be commanded, directed and enjoined to at once abate and remove the said railway, its embankment, ties, rails and fittings, poles and wires, where the same are located and in position on the said Berks and Dauphin turnpike road, in front of and along plaintiff’s lot as complained of, and to leave the said turnpike road in as good condition, repair and shape, and the plaintiff’s facilities for coming and going to and from his lot, by way of the said turnpike road, at the said place, as they were before the said railway was constructed. (8) General relief. Defendant, demurred on the ground of laches.</p> <p>The court sustained the demurrer and dismissed the bill in an opinion by McPherson, J., citing 10 A. & E. Ency. L. 802; 12 Ib. 588, et seq.; High, Inj. § 897; 2 Story, Eq. Jur., 12th ed. § 1520, ad finem; Smith v. Thompson, 54 Am. Dec. 130, note; Bigelow, Estoppel, 2d ed. 508; Galliber v. Caldwell, 145 U. S. 368; Parker v. Spillin, 10 Phila. 8; Seal v. Ry., 1 Pears. 547 ; Carr v. Wallace, 7 Watts, 394; Arnold v. Cornman, 50 Pa. 361; R. R. v. McLanahan, 59 Pa. 41; Chapman v. Chapman, 69 Pa. 214; Putnam v. Tyler, 117 Pa. 570; Thompson’s Ap., 126 Pa. 373; Schuey v. Schaeffer, 130 Pa. 22; Logan v. Gardner, 136 Pa. 600, and 142 Pa. 442. [See 3 Dist. R. 56.]</p> <p>Error assigned was above decree.</p>

<p>Borough auditors—Distributing ballots—Compensation—Acts 1889, 1891.</p> <p>Under section 18 of the ballot law of June 19, 1891, P. L.349, which provides that borough auditors shall certify the cost of printing and distributing ballots to the county commissioners for payment as part of the county election expenses, the borough auditors are entitled to compensation at the rate of two dollars per day as provided by act of May 4, 1889, P. L. 86, for services rendered in distributing the ballots.</p>

Appeal, No. 260, Jan. T., 1894, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1893, No. 594, in favor of plaintiff refusing to open judgment. Rule to open judgment. The facts appear by the opinion of the Supreme Court. Error assigned was discharge of rule.

<p>Appeal, No. 264, Jan. T., 1894, by-defendant, John B. Riley, from judgment of C. P. No. 3, Philadelphia Co., March T., 1890, No. 132, on verdict for plaintiff, Mary Fitzpatrick.</p> <p>Trespass for death of husband. Before Gordon, J.</p> <p>From the record it appeared that plaintiff’s husband, Martin Fitzpatrick, died Feb. 25, 1890, from injuries resulting from an accident which occurred Feb. 12, 1890, while he was engaged in defendant’s employ in lowering a derrick or mast.</p> <p>On April 5, 1890, plaintiff issued a summons in trespass which was returned nihil habet. On July 16, 1891, she began a second action in trespass in the same court. Defendant pleaded not guilty, and when the case was called for trial a verdict was rendered for plaintiff. The court subsequently granted a new trial, and when the case was called, entered a nonsuit on the ground that the action was barred by the statute as it bad not been brought within a year from the time the cause of action had accrued. Plaintiff then issued an alias summons in her first action which was returned “ served.” Defendant filed the following plea:</p> <p>“ The defendant, John B. Riley, comes and says that the plaintiff ought not to further have and maintain.her said action, and the writ should be abated, because he says that, heretofore in the Court of Common Pleas oE Philadelphia county, No. 3, to June Term, 1891, No. 546, the said Mary Fitzpatrick brought an action against this defendant and caused a writ in trespass to be therein issued, and the matter so proceeded that an- issue was framed upon the claim set up in the present action, and thereafter a jury was called, and it being then and there made to appear to the court that the action had not been brought within a year of the date of the death of Martin Fitzpatrick, judgment of nonsuit was entered ; by which said last mentioned action the plaintiff elected to proceed to a final determination of the cause and to abandon the proceeding instituted under the writ first hereinabove pleaded; and this cause proceeds under an alias writ issued in the first mentioned ac^ tion, to which alias writ the plaintiff is not entitled by reason of the later action by her instituted as aforesaid. Wherefore the defendant prays judgment, etc.”</p> <p>After the above plea was filed the court, on plaintiff’s application, took off the judgment of nonsuit in the second action. Plaintiff paid the costs in that action and the suit was discontinued. The court then overruled the plea filed in the first, suit. Defendant then entered a plea of not guilty.</p> <p>At the trial John Travers, a witness for plaintiff, testified that .he had worked about the derrick for several months before the accident; that .there were a sheave and pin in the hole in the mast, that he saw them fall out at the time of the accident, when the bottom of the mast was lifted from the heel-block, and that the sheave fell into water and the iron pin struck Fitzpatrick; that he had seen the sheave and pin in the mast about two weeks before the accident, when in a row-boat on the river, and that a similar accident had happened a short time before’ to Mr. Riley’s derrick. on the other side of the river.</p> <p>John Welsh, another witness to the accident, testified that he knew nothing about rigging at all and that he had no knowledge before the accident of the fact that the sheave and pin were in the mast, but that he saw a pin fall and hit Fitzpatrick, on the head.</p> <p>Travers testified that the sheave and pin had not been propei’ly fastened in the mast; that after the accident he examined the mast and found that there had been no batten over the hole through which, the pin protruded, to hold it in its place, and that there had been no key through the pin to hold it, which-was the proper and usual appliance in such case. Four witnesses .for defendant testified that there was no sheave or pin in the mast at the time of the accident, and that it was three or four months afterwards before a sheave and pin had been put in it.</p> <p>A witness for defendant testified that on the day of the accident Travers told him that the deceased was killed by a nut which had fallen and struck him on the head.</p> <p>[John W. Keyser, a witness for defendant, was asked on cross-examination : “ Did you hand Mr. Travers any money in consideration of his promise to go away and not testify? ” Objected to, objection overruled and bill sealed. “A. Yes, sir.”] [2] “ Did Mr. Riley ask you to go see Mr. Travers ? ” Objected to, objection sustained.</p> <p>Defendant’s request for binding instruction was refused. [3]</p> <p>Yerdict and judgment for plaintiff for $3,500.</p> <p>Errors assigned were (1) striking off special plea; (2) ruling ; (3) instructions; quoting instructions and question and answer, but not bill of exception.</p>

<p>Appeals, Nos. 266-270, Jan. T., 1894, from order of C. P. No. 1, Phila. Co., Sept. T., 1893, Nos. 1089, 1090, 1093, 1094 and 1095, quashing appeals from award of jury assessing-damages.</p> <p>Petition to quash appeal from award of jury assessing damages for land taken for Vernon Park.</p> <p>From the record it appeared that upon the petition of the city of Philadelphia viewers were appointed by the court of quarter sessions, on July 13, 1892, to assess .the damages sustained by the various property owners by reason of the taking of their property for Vernon Park. The viewers so appointed, by their report, filed Aug. 24,1893, awarded damages inter alia as follows: To estate of John Wister, Sr., $154,000; to estate of John Wister, Jr., $52,500; to estate of Peter Leetin $30,000; to estate of Edward Kolb $36,200 ; to Oliver Jester $28,000. Subsequently on November, 1893, a decree was entered by the court of quarter sessions confirming the report. Nov..21,1893, appeals were filed by the city of Philadelphia in the Court of Common Pleas No. 1 and in the court of quarter sessions from the decree of the court of quarter sessions confirming the report and the awards in favor of the estate of John Wister, Sr., and John Wister, Jr., and the estate of Peter Leetin and Oliver Jester and Edward Kolb.</p> <p>On petition of the property owners the several appeals were quashed by the court.</p> <p>■ Error assigned was quashing appeals.</p>

<p> Bailment—Bale—Gontract. </p> <p>Where a person receives goods under an agreement, by which he is .to keep them during a certain period, and if within that time he pays for them he is to become the owner but otherwise he is to pay for the use .of them, he receives them as a bailee, and the property in the goods is not changed until the price is paid.</p> <p> Bailment—Title—Letters of credit—Bills of exchange—Execution. </p> <p>A dealer in bicycles applied to plaintiffs, bankers, for letters of credit to purchase bicycles abroad. The letters were sent directly to the parties in England, who shipped the goods, got the bills of lading and consular invoices, which were sent to plaintiffs’ London house, accompanied by the draft and invoices. The papers were accepted by the London house, and the goods were shipped to plaintiffs. Plaintiffs paid the drafts and gave the bills of lading to the dealer, who signed a receipt by which lie agreed to hold the goods in trust for plaintiffs, and as their property, with liberty to sell the same for their account, and to hand the proceeds to them to apply against their acceptances and for the payment of any other indebtedness of the dealer. Held, that the dealer took no title in the goods which would render them liable to execution for his debts.</p>

<p>Appeal, No. 285, Jan. T., 1894, by William L. Lance, to use of Thomas A. Gummey and the Fidelity Ins. Trust & Safe Deposit Co., from order of C. P. No. 4, Phila. Co., June T., 1890, No. 4, dismissing exceptions to report of referee.</p> <p>Assumpsit on coal lease.</p> <p>The master, S. S. Hollingsworth, Esq., reported as follows:</p> <p>“FINDINGS OF FACT.</p> <p>“1. On Oct. 21, 1871, William L. Lance leased to Thomas Broderick and others, by deed duly executed by all parties, ‘ all the anthracite coal upon and under ’ certain described parcels of land in Plymouth township, Luzerne county, in the state of Pennsylvania, ‘ with the right and privilege to enter upon and mine and remove the same.’ This indenture of lease provided inter alia as follows:</p> <p>“ ‘ 2d. The parties of the second part, their executors, administrators and assigns, shall pay to the said party of the first part, his administrators and assigns, twenty-five cents per ton of two thousand two hundred and forty pounds of coal mined from the premises described, that will pass over a five eighths of an inch mesh. The rent or royalty shall be paid quarterly in each year of the term, on the first days of April, July, October and January, for all coal that may be mined up to those times respectively. But the said parties of the second part, whether coal be mined or not, shall pay annually, to the said party of the.first part, a minimum rental of eight thousand dollars per year, payable on the first days of April, July, October and January aforesaid. But if the said parties of the second part shall fail in any one year to mine coal sufficient to amount to the said minimum, which they shall have paid, the deficiency may be made up in any subsequent year.’</p> <p>“ ‘ 8th. The parties of the second part shall not assign this lease nor underlet the premises, or any part thereof, without the written consent of the party of the first part.’</p> <p>“‘12th. The party of the first part shall have all the culm or refuse coal from the mines, and shall have the right and privilege to enter upon the premises at any time and remove the same, but the said parties of the second part may use so much of the culm as may be necessary for any purposes about their works.’</p> <p>“ 2. The lessees immediately entered into possession- under this lease.</p> <p>“ 3. On April 1,1872, Thomas Broderick, Thomas D. Conyngham and T. Frank Walter assigned all their rights, privileges, propeity, title and estate in the land, machineiy, improvements and fixtures mentioned and demised in the said lease of Oct. 21, 1871, to the Lehigh Coal and Navigation Co., subject to the performance by the said Lehigh Coal and Navigation Co., its successors and assigns, of the covenants and agreements of the said Thomas Broderick, Thomas D. Conjmgham and T. Frank Walter in the said lease contained, and to the payment of the rent or royalty therein reserved and agreed to be paid after the first day of April, 1872. •’</p> <p>“ This assignment was under seal and executed by the assignors, but not by the assignee, the Lehigh Coal and Navigation Co., and does not appear to have received the written consent of William L. Lance, the original lessor.</p> <p>“ 4. The Lehigh Coal and Navigation Co. entered into possession of the demised premises under this assignment and mined coal forborne time.</p> <p>“ 5. On March 28, 1874, the said Lehigh Coal and Navigation Co. assigned to the defendant, the Lehigh and Wilkes-Barre Coal Co., all its ‘rights, privileges, property, title and estate into or unto the lands, machinery, improvements and fixtures mentioned and demised in said lease of Oct. 21, T871, subject only to the performance bj- the said the Lehigh and Wilkes-Barre Coal Co., its successors and assigns, of the covenants and agreements of the said the Lehigh Coal and Navigation Co., for themselves- and for Thomas Broderick, Thomas D. Conyngham and T. Frank Walter, in the said lease contained, and to the payment of rent or royalty therein reserved, from and after Jan. 1, 1874.</p> <p>“ This assignment was under seal and executed by both the assignor and assignee.</p> <p>“ 6. The assignee, the defendant in the present suit, entered into possession of the demised premises and has continued in possession ever since, except during the time the property was in possession of receivers appointed by the United States circuit court, as hereinafter mentioned.</p> <p>“ 7. The Lehigh and Wilkes-Barre Coal Co. were in the hands of receivers, appointed by the circuit court of the United States for the western district of Pennsylvania, from Feb. 12, 1877, until March 6, 1882. The accounts of the receivers were settled monthly before a master, appointed by the court, and a final decree entered showing that they had -been so settled.</p> <p>“ 8. The customary way of preparing coal for shipment in the Wyoming region is to pass it over a breaker, and this was the custom in 1871.</p> <p>“ 9. [Mining several properties through one colliery is an ordinary method of mining.] [2]</p> <p>“ 10. The coal from the Lance property was mined by the defendant through two collieries, the Reynolds colliery and the Nottingham colliery, neither of which was situated on the lessor’s property.</p> <p>“11. [Culm or' refuse is the coal which passes through the screens of the breakers and is then "placed on what is known as the culm or refuse heap. It is unmarketable coal, and may, according to the demand of the market, include at one time what is marketable at another time. The various sizes of-coal which are prepared for the market from the coal mine are lump, broken, egg, stove, pea and buckwheat. All these sizes; except pea and buckwheat, pass over a screen with a five-eighths inch mesh; bu'ckwheat will pass through a three-eighths inch screen, but pea will pass over it, but will -not pass over a five-eighths inch screen.] [3]</p> <p>“ 12. At the time the lease in question was made all these varieties óf co'al were known commercially and were sold 'in the market, except buckwheat. It does not clearly appear what size pea coal was in 1871. There was evidence that it would pass over a half-inch mesh, but no evidence that it would pass over a five-eighths inch mesh. Buckwheat does not appear to have been sold until 1885. During this time, however, some part of the pea coal—there being no demand for it—went on the culm or refuse heap.</p> <p>“ 13. The Nottingham colliery is a model colliery. It draws its coal from some twenty-five properties ; has a capacity of three thousand tons in a day of ten hours, and cost $600,000, although it could be replaced for $400,000. At this colliery the effort was to make nothing, but lump coal. And no other sizes óf coal were made there except to the extent that their production was incidental to the preparation of lump.coal. At the Reynolds colliery very little lump coal was made, but the broken coal was sometimes put through the breaker a second time, which involves a greater amount of coal breaking into small lumps, and consequently a greater product of pea and buckwheat coal and a less product of coal passing over a screen with a five-eighths inch mesh.</p> <p>“14. The Reynolds and Nottingham collieries had together one culm heap, situated about a half mile from the property of the lessor. No coal has ever been removed from this culm heap by the defendant.</p> <p>“ 15. The following statement shows the amount and prices of pea and buckwheat coal mined from the lessor’s property and sold by the defendant, from the year 1875 to the year 1891, inclusive : [Statement omitted; the amount received was over $90,000.]</p> <p>“ The lessor was aware, certainly during a portion of this time, of the sale of this coal by the defendant, and he objected to it. He also objected to the location of the culm heap outside his own property. [It would not, however, have been practicable for the company defendant to have worked the lessor’s property by a separate breaker erected on that property.] [9] By this is meant that, it being customary to work several properties through, one. colliery, a company having several properties could not profitably work them if it had to erect a separate breaker on each property.</p> <p>“ 16. About one thirteenth of the total amount of coal mined and sold down to December 81,1891, from the lessor’s property through the Nottingham colliery, was pea coal; and about one eighth of that mined, and sold through the Reynolds colliery was pea coal.</p> <p>“17. In mining the coal, when the defendant would get down to the. bottom of a vein in the plaintiff’s property, it would throw back on the gangways rock and bony coal to the depth of two or three feet; and on top of this would then lay the sills on which the rails of the car tracks rested, so that the tracks over which the cars ran did not rest upon the ground at the bottom of the vein, but rested upon a layer of rock and coal two or three feet in height above the bottom.</p> <p>“ 18. Coal from adjoining properties was hauled through the. Lance, property to the foot of the shaft, where it was raised to the surface, and the same is true of the coal which was mined from the Lance' property ; that also was hauled through other properties to the foot of the shaft.</p> <p>. “ 19. The marketable coal from the Lance property, which was placed on the culm or refuse heap, was placed there together with unmarketable coal from other properties, and all mixed up together, and there is no way to distinguish what is plaintiff’s coal from what is somebody else’s coal.</p> <p>. “ 20. [There is no evidence of either the number of tons of plaintiff’s coal in the culm heap, or of its value per ton.] [10]</p> <p>“ 21. It does not appear that Lance .ever made any claim for compensation on account of coal hauled by the defendant from other properties across the gangway in his mine.</p> <p>“ 22. The defendant has never refused to allow the lessor to take away coal from the culm heap. On the contrary, he was notified to go there and take it.</p> <p>“ 23. The number of tons of coal which was hauled from other properties through the plaintiff’s property to the foot of the shaft was 1,040,491|§.</p> <p>“ 24. There is no evidence of any custom to pay a toll for' hauling coal from one man’s mine through another man’s mine, but there is evidence that it was worth about five cents a ton in this ease.</p> <p>“ 25. At the time the lease in question was made, in 1871, while coal smaller than chestnut coal, that is pea coal, was a marketable commoditj'-, there was not such a demand for it as has grown since. . The more extended use of bituminous coal during the last twenty years has made it necessary to devise means for using anthracite coal not generally, if at all,'in use in 1871, and the result of this effort has been to create a greater .market for the smaller sizes of anthracite coal, and it has therefore become profitable to break up the coal, and necessarily in this way to increase the amount of coal that will not passover a screen of five-eighths inch mesh.</p> <p>“ OPINION.</p> <p>“ The decision of this case necessarily depends to a great extent, if not entirely, upon the meaning of the lease of the coal property in question, made by the plaintiff to Thomas Broderick et al., on Oct. 1, 1871. The defendant is in possession under an assignment from the Lehigh Coal and Navigation Co., to whom the original lessees had previously assigned their interest in the lease. _</p> <p>“ The plaintiff leased to the lessees, their executors, administrators and assigns, ‘ all the anthracite coal upon and under the said parcels of land, as above described, with the right and privilege to enter upon and mine and remove the same,’ for the term of ninety-nine years. The lessees were to pay to the lessor, liis executors, administrators and assigns, ‘ twenty-five cents per ton of two thousand two hundred and forty pounds of coal mined from the premises described, that will pass over a screen of five-eighths of an inch mesh.’ The lessor was to have ‘ all the culm or refuse coal from the mines,’ and the right and privilege of entering upon the premises at any time and removing the same.</p> <p>“ Under the decisions of this state, commencing’ with Caldwell v. Fulton, 81 Pa. 475, and including Lillibridge v. The Coal Co., 143 Pa. 293, this lease created an ownership of the coal in the lessees, or their assigns, during the period of the lease, just as absolutely, and the same in character, as if it had been a lease of the surface of the land for ninety-nine years. As long as the lessees paid the rent reserved they would have the right to the possession of the coal and to mine and remove it; and were there no' provisions in the lease that the lessor should be the owner of the culm or refuse coal, there would be nothing upon which to base the claim which the plaintiff here makes to be paid for the pea and buckwheat coal which the defendant has sold, and for the value of the culm or refuse coal which he alleges the defendant has converted to its own use. It is therefore necessary to decide what is meant in this lease by the twelfth paragraph, which is in these words : ‘ The party of the first' part shall have the culm or refuse coal from the mines, and shall have the right and privilege to enter upon the premises at any time and remove the same, but the said parties of the second part may use so much of the culm as may be necessary for any purposes about their works.’</p> <p>“ It is contended by the plaintiff that the words ‘ culm or refuse coal ’ include all the coal which will not pass over 'a screen with a five-eighths inch mesh, and it is urged that if this is'not the correct construction their the plaintiff would have no security for the payment of rent to him whatsoever, because the lessee might break up the coal so that it would not pass over such a screen and yet be marketable coal, which he could sell and still be under no obligations to pay royalty on it. This does not seem to be the proper construction of the lease. It does not expressly provide that everything which does not pass over a screen with a five-eighths inch mesh shall belong to the lessor. If he is entitled to so much, it must be by force of the provision just quoted giving him all the culm or refuse coal.</p> <p>“ [The evidence very clearly establishes that what is meant by culm or refuse coal, as these terms are used in mining leases, is that part of the coal which in preparing the coal mined for the market goes upon the culm pile. It may include .any size coal if placed on that pile, and, as a matter of fact, it has, and does even now, sometimes include a certain amount of chestnut coal, which is a coal that will pass over a five-eighths inch mesh.] [4] Taking, then, this definition of the words culm or refuse coal, there is no provision in the' lease which gives the lessor all the coal which passes through a screen with a.five-eighths inch mesh ; and the answer to the argument that unless he is given all such coal, he has no security for the payment of the stipulated rent or royalty is plain..</p> <p>“ The lessor is entitled to twenty-five cents a ton for-all coal which will pass over-such a screen as the lease calls for. By the words ‘ will pass over ’ is evidently meant ‘ when treated,’ to use the language of the lease itself, ‘ in a judicious and careful' manner ’ for the purpose of ascertaining what coal mined will pass over such a screen. It is true that the lessee would probably be entitled to adopt such improvements in the construction and operation of breakers as might from time to time be introduced, and while he would also have the right to so arrange and operate the breakers as to break up a large quantity of the coal into smaller sizes, to meet the demands of the market, yet to the extent to which he thus diminished the amount .of coal that would pass over the screen called for in the lease he would be bound to pay the stipulated royalty per ton.</p> <p>“ The case itself affords a very good illustration of the limitation which a proper construction of the lease places upon the lessee in its preparation of its coal for the market..</p> <p>“The evidence-is that'at the Nottingham colliery, where much the larger portion of the coal was prepared -for market, the effort was to make nothing but lump coal, and that this colliery is a model colliery in its construction and operation. On the other hand, at the Reynolds colliery, where a much smaller portion of the coal mined from the lessor’s property was prepared, the effort was not to make any lump coal, but to break up the coal into smaller sizes to meet the demands of the market for smaller sized coal. In doing this the relative amount of coal which would pass through a screen with a five-eighths inch mesh was considerably increased over the amount which passed through the same sized screen at the Nottingham colliery. In other words, at the Reynolds colliery the amount of pea and buckwheat and refuse coal was increased, for the purpose of meeting the demands of the market for smaller sized coal, and of course the amount of coal which went over the screen of the size called for in the lease was diminished.</p> <p>“ The failure to include in the return of coal, on which the royalty was payable, the number of tons which if not thus broken up, would have passed over the five-eighths inch screen at the Rejmolds colliery was a violation of the right of the lessor, and to the extent to which he was damaged thereby he would be entitled to recover at the rate of twenty-five cents a ton for the amount of such shortage.</p> <p>“ Unfortunately, however, in the present case there is no evidence to fix with any degree of accuracy this amount of reduction in the coal, which would otherwise have passed over the screen at the Reynolds colliery; and the plaintiff himself has expressly abandoned any claim'to recover for coal mined, which should have been- included in the returns made by the lessee and which has not been so included. . He based this part of the claim upon the construction of the contract under which he insists that he is entitled to all the coal that goes through the screen provided for in the lease, and that therefore he is entitled to the value, at the , mine, of the pea and buckwheat coal sold. I think this is not the meaning of the lease, and therefore must reject this part of the plaintiff’s claim.</p> <p>“As, however, a different construction may be placed on the lease, it is proper to consider here the defences which have been set up to this part of the plaintiff’s claim, under the plaintiff’s construction of the lease. They are three in number: First, that the plaintiff is concluded by reason of the settlement of the accounts entered from time to time by the defendant; second, that the plaintiff knew of and acquiesced without objection in the sale of the pea and buckwheat coal by the defendant, and that he is estopped thereby from setting up any claim for the value of such coal; and, thirdly, that the statute of limitation applies, and that the claim must be confined to coal sold within six years before suit brought.</p> <p>“ In support of the first ground of defence, the case of Dun-ham' v. Haggerty, 110 Pa. 560, is cited. This .case does not seem to go far enough to sustain the defence in the present case. The court say that the statements rendered b}' a coal company, of coal mined, to the lessor, are not like mutual settlements of accounts, and that if it be shown that the statements did not contain all that they should contain, they are not conclusive unless the party to whom they were rendered accepted them with a knowledge that they were not correct. I take it that this means that where the party to whom the accounts are rendered has knowledge that they are'not correct, and accepts them without objection, that then in such case he is bound by the settlement; but when he objects all the time, as the plaintiff did in the present case, to the failure to pay him for pea coal, I do not understand this case, nor any case, as deciding that he is estopped by receiving the accounts and accepting payment according to the accounts, and I am of the opinion that the plaintiff in the present case would not be concluded from setting up the claim which he has set up by the fact that he has accepted the accounts of the defendant, in view of the other fact that he has always objected to their right to exclude pea coal from the coal on which they were bound to pay a royalty.</p> <p>“ In regard to the second point, I am of the opinion that there has been no such conduct on the part of the plaintiff as estops him from asserting this claim, if he is entitled under the contract to make it. The evidence, so far as there is any evidence on the subject, is that he objected to the defendant taking the pea coal, and I think it is not material whether he objected or not. . If he had the right to the pea coal under the contract, nothing would deprive him of it unless he released the right, or did some act which would make it inequitable for him to assert the right against the defendant, or unless he is barred by the statute of limitation: De Bussche v. Alt, 8 Ch. D. 286-814. The so-called equitable estoppel upon which the defendant relies amounts to nothing more, according to its own allegation, than that the plaintiff saw that the pea coal was being sold find that he did not make any claim for it. I take it that this would not estop him from subsequently making the claim.</p> <p>“ The objection of the statute of limitation was based upon the ground that an action of covenant could not have been ■ sustained by the lessor against the defendant, because the intermediate assignment of the lease from Broderick to the Lehigh Coal and Navigation Co. was not sealed by the assignee, and the case of Maulé v. Weaver, 7 Pa. 329, was relied upon.</p> <p>“ In my judgment, this case has no application to the present one. Had there been a suit against the Lehigh Coal and Navigation Co. under the prior assignment, it would have been pertinent, but the present action is against parties who'did execute the assignment which provided that it was made ‘subject to the performance by the Lehigh and Wilkes-Barre Coal Co., its successors and assigns,- of the covenants and agreements of the said The Lehigh Coal and Navigation Co. for themselves and for Thomas Broderick, Thomas X). Conyngham and T. Frank Walter in the said lease contained.’</p> <p>“ Even if the defendant be right in its contention that aii action of'covenant could not have been sustained on the deed from Broderick and others to the Lehigh Coal and Navigation Co., because it was a deed poll and not signed or executed by the Lehigh Coal and Navigation Co., nevertheless, that assignment created certain obligations so far as the Lehigh Coal and Navigation Co. was concerned, and the subsequent assignment by it to the defendant, which was executed by the defendant under seal, whereby the defendant undertook to perform the obligations that existed under the original lease and the assignment thereof, would entitle the original lessor, although he was not a party to the last assignment, to'sue upon it, he being the onljr party really interested in the performance of the covenants. See Delp v. Brewing Co., 123 Pa. 42.</p> <p>“ The next part of the plaintiff’s claim is for the value of the coal which went on the culm heap, and which he alleges was converted by the defendant to its own use. It was objected to this claim that it was an action outside of the contract, and ■ not an action on the contract. It was said that the lease gave the right to the lessor to have the culm or refuse coal, but that it was not the sort of a right that could be enforced by an action of covenant, although the lease was under seal. The difficulty with this view of the case arises from what the lease itself provides. At the very beginning we find this clause :</p> <p>‘ And the said William L. Lance, for himself, his heirs, executors, •administrators and assigns, and the said Thomas Broderick, Thomas D. Conyngham and T. Frank Walter, for themselves, their executors, administrators and assigns, do by these presents mutually promise, covenant and agree, to and with each other (every specification hereinafter numbered and written out to be deemed and considered as separate and distinct covenants), to do, perform, keep and observe the several undertakings and agreements upon the part of each as hereinafter stated, named and particularly specified.’</p> <p>“ The parties themselves have defined this particular provision, to wit: The twelfth provision of the lease, to be a covenant to be enforced against both parties and their assigns. This would seem to be. a complete answer to the objection.</p> <p>“ The first question which arises is: Has there been a breach of this covenant? [The culm héap was not placed on the land of the lessor. It was argued that this was a breach of the covenant. In my opinion it was not.] [14],</p> <p>“ The fourth clause of this lease provides that for the purpose of ‘ making openings, erecting a breaker and necessary machinery, constructing railroads for sidings, and depositing culm, the said party of the second part shall have so much surface as may be necessary for breaking and operating, and removing the coal mined upon the premises,’ between certain lines, and then provides that if more should be necessary it might take as much more as was needed by paying three hundred dollars a year per acre for the use of it. This provision seems to have been one in ease of the lessee. It is one giving it the right to the use of land if it sees fit to use it, but it was not one making it obligatory upon it to put its breaker upon the land of the lessor, and its failure to do it, therefore, would not be a breach of the covenant.</p> <p>“ It was contended further that mixing up the lessor’s refuse .coal with the refuse coal from other properties mined through the same, colliery in one common culm heap, amounted to a conversion of property which belonged to him.</p> <p>“In view of the fact that it was customary to mine several properties through one colliery, and that it would not be practicable to erect a breaker with its culm heap upon each separate tract where several properties were being mined together, [I think this cannot be considered as a violation of th.e lessor’s rights under the lease.] [15]</p> <p>“ It was admitted that no coal was ever .taken away from the culm heap, and as the defendant has never refused to allow the plaintiff to enter and haul away coal from this culm heap, there is not sufficient evidence to warrant a finding that there has been any breach of the lease in this particular, and if there was, [there is no evidence to show what amount of refuse coal mined from the Lance property went on the common heap, nor the value of it.] [16] There was evidence that one man, McFarland, had screened chestnut, pea, and buckwheat coal from his culm heap, which was worth a certain amount. This would not be sufficient in itself to make a finding, even if there had been a breach of the covenant, which in my opinion there had not been.</p> <p>“ The only remaining claim of the plaintiff is a charge for carrying coal from other mines across the bottom of his mine to the foot of. the shaft. There was an attempt to prove that there was a customary charge for this. Such a custom was not proved. One witness testified that in his judgment a fair price for such a’use of the plaintiff’s property would be five cents a ton. [This evidence is not sufficient, in my judgment, to establish a reasonable price,] [18] because it was based upon a theory of the probable damage one joint lessor would suffer by having an adjoining mine worked through his mine, instead of having his own property mined. No such condition was prov ed to exist in the plaintiff’? case, and in view of the fact that this coal was hauled on a railway resting on a bed of rock and refuse coal, some two or three feet high, which was thrown back from the side chambers into the main gangway for the purpose of making a foundation for the railroad, I am of the opinion that, under the decision in Lillibridge v. The Coal Co., 14-3 Pa. 293, already cited, [the plaintiff could not recover, even if he had shown how much the plaintiff was reasonably entitled to have paid him for hauling through his property the coal which the defendants so hauled from adjoining mines.] [19]</p> <p>“ This disposes of all the plaintiff’s claims. The demurrer to the plea of the statute of limitations is sustained. Upon the other two pleas the finding is for the defendant, and it therefore is ordered that judgment be entered in favor of the defendant.”</p> <p>Exceptions, among others, to the portions of the referee’s report included in brackets were dismissed by the eoui't.</p> <p>JSrrors assigned were dismissal of exceptions, quoting them respectively.</p>

Appeal, No. 232, Jan. T., 1894 .by defendants, from judgment of C. P. No. 1, Phila. Co., 1892, on verdict for plaintiff. Assumpsit on bond given in attachment proceedings under act of March 17, 1869. Before Biddle, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 306, Jan. T., 1894, by plaintiff, from judgment of G. P. No. 3, Phila. Co., March T., 1893, -No. 735, entering compulsory nonsuit. Trespass for death of daughter. Before FrNLETTER, P. J. -. At the trial it appeared that, on April 22, 1893, Mary Flanagan, aged seven and one half years, was killed by one of defendant’s cars on Fourth street, in the city of Philadelphia, just below its intersection with Borden street.

Appeal, No. 324, Jan. T., 1894, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., June T., 1892, No. 67, on verdict for defendants. Sheriff’s interpleader. Before Gordon, J. At the trial it appeared that the goods in controversy were a number of barrels of Portland cement which had been consigned from Stettin,'German}', to H. Marquardt & Co., bankers.

<p> Landlord and tenant—Representations by agent—Affidavit of defence. </p> <p>In an action upon a lease for rent, an affidavit of defence setting forth a mere representation by the landlord’s agent as to -future action, dehors the lease, contrary to its terms, and not averred to be either false or fraudulent, is insufficient to prevent judgment.</p> <p>In such a case an affidavit of defence averred that the landlord’s agent had represented to the tenant that a row of objectionable houses occupied by disorderly people was controlled by the agent and plaintiff, and that these houses were to be demolished not later than a certain' date specified, and that defendant, in consideration of the representations, executed the lease, but that the objectionable houses had not been removed, and defendant was compelled to remove from the premises. Held, that the affidavit of defence was insufficient to prevent judgment for the rent.</p>

<p>Brokers— Commissions— Contract.</p> <p>A broker employed to negotiate' a loan is entitled to his commission when he brings to his principal a party ready and willing to make the loan. A binding contract is not essential where the party produced by the broker stands ready to perform his part of the proposal, and the failure to do so occurs through the fault or inability of the principal.</p> <p> Broker—Principal and agent—Authority of agent—Authority of agent to make representations as to title, etc.—Implied warranty—Parol evidence to vary written agreement. </p> <p>. A man who proposes to sell land, or to borrow money upon mortgage on it, impliedly warrants that he has a marketable title for the purpose desired, and, in the absence of specific instructions to the contrary, his employment of a broker is sufficient authority to the latter to make representations and negotiations on that basis. And such authority is not negatived by merely leaving unanswered questions which have been put- by the broker on a blank furnished by him for the purpose of obtaining information.</p> <p>A broker employed to negotiate a loan on a mortgage procured a party to make the loan. In the memorandum of agreement between the broker and the proposed lender was a provision that the borrower should pay the state tax. This was contrary to the borrower’s instructions. In an action by the broker to recover his commission he offered to show by the lender that the provision as to the payment of the state tax was a mistake through the use of an old printed form, and that it was no part of the actual contract. Held, that the evidence should have been admitted.</p> <p>In the above case in the application made by the broker to the lender it was stated that a “full brief of title and searches, with opinion of counsel, will be required.” On the memorandum of acceptance were the words “ Opinion of J. C. Stillwell, Esq.” Held (1) that it was within the implied authority of the broker to agree upon behalf of his principal to submit the title to opinion of counsel; (2) that the name of a particular counsel upon the acceptance amounted to nothing more than a suggestion that his opinion should be obtained in the first instance, and did not make him final arbiter in the matter; (3) even if such counsel should lie the final arbiter, the question would still be for the jury whether the objections by the counsel were reasonable or not. If they wore, plaintiff would not have exceeded his authority; if they were not, he would nod have produced a willing customer.</p>

Appeal, No. 364, Jan. T., 1894, by plaintiffs, Simmons H. Barrett, trustee, to use of Charles Bennett and Rebecca S. Bennett, his wife, in right of said wife, from judgment of C. P. No. 1, Phila. Co., March T., 1892, No. 412, on case stated, foi defendant. Assumpsit for rent.

<p>Appeal, No. 363, Jan. T., 1894, by plaintiff, from judgment of C. P. -No. 2, Phila. Co., Dec. T.,, 1891,No. 387, on verdictfor defendant.</p> <p>Trespass for personal injuries. Before Pennypacker, J.</p> <p>At the trial it appeared that plaintiff was a brakeman employed by defendant, and that he was injured on Aug. 28,1891, while in the performance of his duties. On June 13, 1891,. plaintiff applied for membership in the Philadelphia & Reading-Relief Association. This association was composed of employees of defendant railroad, and its funds were made up by the joint contributions of the railroad company and the company’s employees.</p> <p>The material portions of the application are as follows :</p> <p>“I, William B. B. Johnson, of Philadelphia, in the 'county of Philadelphia and state of Pennsylvania, employed in the-service of the Philadelphia- & Reading Railroad Company as brakeman on the main line division, do hereby, by reason of such employment, apply for membership in the relief association, and consent and agree to be bound by the regulations of the relief association, as contained in the book of said regulations, approved by the advisory committee, which I have read or have had read to me, and by any other regulations of the-said association hereafter adopted. ...</p> <p>“ And in consideration of the contribution to be made by the Philadelphia & Reading Railroad Company to the funds of the-association, I agree that the acceptance of benefits from the said relief fund for injury or death shall operate as a release of all claims for damages against said company, my employer, arising from such injury or death, which could be made by or through me, and that I or my legal representative's will execute, or, where necessary, procure to be executed by others, such-further instrument as may be necessary formally to evidence-such acquittance.</p> <p>“ I also agree that this application, when approved by the superintendent of the relief association, shall make me a member of the relief association, and constitute a contract- between myself and the said company, my employer, and that the terms of this application and the regulations of said association shall, during my membership, be a part of the conditions of my- einployment by the company, and the same shall not be avoided by any change in the character of my service,” etc.</p> <p>Defendant, under separate offers, offered the application for membership, and the vouchers showing payments made by the association to plaintiff, and the book of membership in the'relief association. It appearing that the plea was “ not guilty ” and that no notice of the proposal to introduce special matter had been given, plaintiff objected to such offer as made'. Objections overruled, evidence received and exceptions. [1-5, 7]</p> <p>The court also admitted under objection and exception evidence as to contributions amounting to some $100,000 made by the railroad company to the relief fund. [6]</p> <p>Plaintiff offered to prove that the day he was employed he was asked to sign some papers relating to his health, etc., with •a request to hurry up as the officer of the company was in a hurry to go away and many others were waiting for employment. Nothing was said about a relief association and he did not know he had signed such paper or that there were 'any rules or regulations. Objected to that he had signed the contract and received benefits under it. The court excluded the offer on the ground that there was no clear evidence of fraud and there was apparently a subsequent ratification. Exception. [8] Rule xxxi, § 126c, Rules of Court, p. 128, is as follows:</p> <p>“ Any defence, legal or equitable, that might heretofore have been specially pleaded, or given in evidence under equitable pleas, shall be admissible under the plea of the general issue, upon notice given at least ten days before the day set for trial. Such notice of special matters of'defence shall contain a specific averment of facts sufficient to constitute a good legal or equitable defence. Copies of such notice shall be filed of record, and also served on the plaintiff or his attorney aforesaid, at least ten days before the day set for trial. In default of such notice the defence shall be confined to matters strictly admissible under the plea filed.” ■</p> <p>Tbe charge of the court was as follows:</p> <p>■“In this case I am asked by the counsel for the defendant to instruct the jury: ‘ That under all the evidence the plaintiff cannot recover.’ That brings up a question which it is necessary for the court to meet, and, under my view of the contract in evidence, there is a release by the plaintiff of his claim, which is a bar to his recovery, even if there was negligence proved on the part of the defendant.'</p> <p>“ [This is a contract or an arrangement for the raising of a fund providing for benefits in the case of injury or death of the employees resulting from accident, and it would seem upon the face óf it a contract which is beneficial to the employee. In most of the cases which arise the employee cannot recover, because of the fact that he accepts the risks of the employment, or because of the fact that an accident had arisen from the negligence of a co-emploj'ee. There is no such distinction drawn in the agreement which is here made, but the benefits are benefits which are conferred upon those who are subjected to an accident in whatever way it may occur. The contract provides that it shall be an agreement between the employee and the company; and it appears, from the evidence in this case, that it has been accepted by the company, because they have paid into the fund of the relief association a sum amounting to $100,000. There is a provision in the agreement that it shall operate as a release of all claim of damages against the said company. It provides that: ‘I agree that acceptance of benefits.from said relief fund for injury or death shall operate as a release of all claims of damages against the company.’' It appears, therefore, that it is not a release in all cases upon its terms, but that what constitutes a release, according to the contract between the parties, is the acceptance of the benefits after the injury has occurred. Now that, assuredly, is of great advantage to the employee, because it permits- him, after he knows the extent of his injury and the manner in which it has occurred, to say whether or not he will take the benefits provided for by the contract, or whether he will rest upon his right to sue and claim damages for negligence. I cannot see that it is any different from a compromise of a case made between the parties, since it gives the employee the right to determine his course of conduct after he has ascertained the extent of his injuries.] [9] Nor do I see that it offends against any principle of the law. It is contended that the contract is one that is ultra vires, one that the railroad company has no authority, under the terms of its charter, to make. That question would arise upon a suit to enforce the contract, but I do not think it arises in the case of an executed contract between the parties. It would certainly be a great hardship to say, after a man had received what was coming to him under the terms of the contract, and is called upon to meet its requirement with respect to the other side, that it was ultra vires. For this reason I do not think that principle is involved in this case.</p> <p>“ I, therefore, shall have to instruct the jury in accordance with request of that point. [Gentlemen of the jury, in this case your verdict will be for the defendant.] ” [10]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>. Errors assigned were (1-8) rulings; (9, 10) instructions; quoting instructions and bills of exceptions, and quoting and referring to evidence.</p>

<p>Appeal, No. 322, Jan. T., 1893, by defendant, from judgment of C. P. Luzerne Co., Dee. T., 1889, No. 260, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Rice, P. J.</p> <p>At the trial it appeared that, on Sept.'16, 1889, plaintiff, while' in company with a friend who was driving, was injured' at a bridge in Foster township. ‘</p> <p>The court charged in part as follows :</p> <p>“ The complaint is that the township was negligent in that the bridge in question was not properly guarded by guard rails; that, at least, there was no guard rail on the left-hand side. If, therefore, the guard rails were up as defendant alleges, it necessarily follows that the plaintiff and Mrs. Mowrey did not and could not go off the bridge as they allege ; and if they did not go off the bridge in the manner alleged by them, the plaintiff cannot recover in this action, and it is immaterial how the accident occurred. Were there guard rails up, as alleged by the defendant ? Upon that question of fact considerable testimony has been produced, and without further remark we will leave it to be decided by you in accordance with the weight of the credible testimony in the case. If there were no guard rails was the township guilty of negligence in not providing them in the first instance, or in not replacing them after they had been broken down, if they were provided in the first instance ? If proper guard-rails were originally provided, but were broken down or removed through no fault of the defendant or its officers, then the inquiry would arise, did they have actual notice that they were down, or had they been down for such length of' time that in the exercise of the care required of supervisors they ought to have known that they were down ? The court does not declare, as an absolute, unqualified rule of law, that it was the duty of the township to erect and maintain guard rails on this bridge or its approaches. Whether it was their duty, and whether the omission to provide barriers at the side of the bridge was negligence, is a question of fact to be decided by' the jury. In some cases it would be negligence ; in other cases it might not be. The question is to be determined by the jury on a fair and reasonable view of all the facts and circumstances of the case, taking into consideration the length of the bridge, its width, its height, the nature of the approaches, the amount of the travel, and all of the circumstances. Upon this question we quote from a decision of the Supreme Court in the case of Plymouth Township v. Graver, 125 Pa. 32.” .... Plaintiff’s point was among others as follows :</p> <p>“It is the duty of Foster township to keep all bridges, and dangerous approaches thereto, on her public roads, so guarded as to protect travelers in passing over them, and failure on her part in this respect is negligence, and for injury resulting therefrom, without proof of concurrent negligence on the part of the plaintiff, the township is liable.” Affirmed. [1]</p> <p>Defendant’s points were among others as follows:</p> <p>“2. There is no sufficient evidence in this case to. show, or from which the jury have the legal right to infer, that the defendant was guilty of any omission of duty, the absence of, which tended to cause the accident or injury suffered by the plaintiff in this ease, therefore the verdict of the jury should be in favor of the defendant.” Refused. [2]</p> <p>“ 4. If the jury find from the evidence that Mrs. Mowrey, the person driving the vehicle, in whose custody the plaintiff had placed herself, was careless or imprudent in starting out to cross the highway and the bridge in question on this dark night with knowledge of the location and point of accident in question, and did not take ordinary precautions for observing the way over the point she claims she knew was dangerous, then the plaintiff is not entitled to recover. Answer: We decline to charge as requested in that point. It might be a correct statement of the law if this were a suit by Mrs. Mowrey: but we do not think her negligence here, if she was guilty of negligence, could be imputed to the plaintiff in this case.” [8]</p> <p>6. Request for binding instructions. ' Refused. [4]</p> <p>Verdict and judgment for plaintiff for $1,800:</p> <p>JSrrors assigned were (1-4) instructions, quoting them.</p>

<p>Appeal, No. 309, Jan. T., 1894, by defendant, from judgment of Q. S. Luzerne Co., June T., 1893, No. 65, on verdict of guilty.</p> <p>Indictment against banker for fraudulently receiving money of depositor. Before Lynch, P. J.</p> <p>The indictment was as follows :</p> <p>“ The grand inquest of the commonwealth of Pennsylvania,, inquiring for the county of Luzerne, upon their respective oaths and affirmations, do present that F. Y. Rockafellow, •. yeoman, late of said county, on the seventh day of February-in the year of our Lord one thousand eight hundred and ninety-three, at the county aforesaid, and within the jurisdiction of this court, being then and there a banker and engaged in carrying on a private bank in the city of Wilkes-Barre, in said county, under the name of F. Y. Rockafellow & Co., then and-there took and'received of and from one Isaac Long, who was then and there a depositor in said bank, money of the said Isaac Long, depositor as aforesaid, to wit, the sum of four thousand six hundred dollars lawful money of the United States of America, with the knowledge of the said F. V. Rockafellow, banker, that he and the said bank were then and there insolvent, with intent of the said F. Y. Rockafellow then and there unlawfully, willfully and fraudulently to embezzle the said sum of four thousand six hundred dollars, contrary to the form of the act of the general assembly,” etc.</p> <p>The commonwealth, offered to prove by witnesses that they made deposits with defendant, at the times mentioned, in his bank, an'd that he himself received the money. This for the purpose of proving that defendant was a banker, and was doing business as a banker himself oh Feb. 7,1893, and had his bank open for the purpose of receiving deposits. To be followed by proof that he was insolvent on that day.</p> <p>Objected to: (1) because it- is not pertinent; (2) it took place several hgurs after the deposit which is made the subject of indictment now being tried ;• (3) they are separate and distinct offences.</p> <p>The Court: You may show the defendant was a banker, that he was insolvent, that he- knew the fact, that he received deposits on that day ; but you may not show a separate and distinct offence, having charged this man in one count with one specific item. You may show the general course of business, but you may not show a separate and distinct offence. You may show general course of business, but no specific amount. Exception. [3, 4]</p> <p>Evidence was received accordingly.</p> <p>Defendant’s points were, among others, as follows:</p> <p>“ 3. There being no evidence of .the fraudulent appropriation or conversion of the money alleged to have been deposited by said Long on the 7,th day of February, 1893, the verdict must be one of acquittal.” Refused. [1] ,</p> <p>. 4. Request for binding instruction. Refused. [6] •</p> <p>The court charged in part as follows : ■</p> <p>“ In this case, as the court construes the law, the legislature has seen fit to make the known insolvency of the banker at the time he receives the money the evidence of his guilt. -'For example, if the banker knows when he receives the deposit, the money from a depositor, that he is insolvent, then he is presumed to know that he is unable to pay the amount of that money-when called upon in due course of business ; therefore to that extent the receipt of the money with that knowledge is a fraud upon the depositor and the only fraudulent conversion in my judgment required under this act.” [2]</p> <p>The jury returned a verdict of guilty.</p> <p>A motion in arrest of judgment, specified:</p> <p>“ 1. The indictment is insufficient in law' in that it fails to charge that the money which defendant is alleged therein to have re'ceived was embezzled, that is, unlawfully appropriated by defendant to his own use.”</p> <p>“ 2. The indictment is insufficient in law in that it does not charge that the defendant took and received the money aforesaid as a deposit.”</p> <p>Motion overruled and sentence passed.</p> <p>Frrors assigned were (1, 2, 6) instructions ; (3, 4) rulings ; (5) overruling motion in arrest of judgment; quoting instructions, rulings and evidence.</p>

<p>Appeals, Nos. 376, 410, 437, 438, by Henry K. Boyer, trustee, R. K. Dow, David Beam and Thomas Y. Cooper, from order of C. P. No. 3, Pliila. Co., Dec. T., 1890, No. 270, on exceptions to auditor’s report distributing assigned estate of B. K. Jamison & Co.</p> <p>Exceptions to auditor’s report, distributing assigned estate of B. K. Jamison & Co.</p> <p>From the report of the auditor, Henry D. Paxson, Esq., it appeared that, on June 14, 1890, Henry K. Boyer, state treasurer, deposited with B. K. Jamison & Co. a large amount of .state funds. The firm gave him two bonds and warrants of attorney, one in which they were jointly and severally bound, and one in which thejr individually bound themselves to guarantee the payment of the first bond. Judgments were entered upon these bonds and marked to the use of Boyer, trustee, for liis sureties, and Mr. Boyer, as trustee, claimed as a partnership creditor, and also as a creditor of the individual members of tlie firm. The auditor allowed a dividend on the full amount out of each fund, on the authorities cited in the opinion of the Supreme Court.</p> <p>The Indiana County Deposit Bank and other creditors claimed interest on the amounts due them respectively from the date of the assignment to the date of the hearing before the auditor. The auditor rejected these claims, allowing interest only up to date of assignment, and where claims had been reduced to judgment, after the date of the assignment, he decreased the judgments by the amount of the interest to the. date of the assignment, on the authorities cited in the opinion of the Supreme Court.</p> <p>On the next claim the auditor reported :</p> <p>. “ James J. Redstrake on Nov. 12, 1890, gave B. K. Jami-son & Co. an order to buy for him 200 shares of Reading railroad stock. Mr. Redstrake paid Jamison & Co. on account of the purchase $2,100 in cash. The stock was bought by Jami-son & Co. for Mr. Redstrake, to whom they delivered a receipt, produced to the auditor, of which the following is a copy:</p> <p>“‘Philadelphia, 11, 12, 1890. '</p> <p>“ ‘Bo’t for account and risk of J. J. Redstrake, Esq.</p> <p>200 shares Reading 14f>6 $2,925</p> <p>Credit 2,100</p> <p>Balance ' $ 825</p> <p>Received Payment,</p> <p>(Signed) B. K. Jamison & Co.’</p> <p>“When the stock was purchased, Redstrake was unable to pay the balance of $825. It was agreed between the parties that it should be paid Jamison & Co. by Redstrake, with interest at six per cent, in the early part of December, 1890, and that meanwhile the stock purchased should be carried by Jamison & Co. for him. These constitute the negotiations between the parties, which were as is usual' in general stock transactions.</p> <p>“ The auditor further reports that while the stock purchased was entered up in the purchase and sale book of Jamison & Co. in the usual manner, as having been purchased for account of James J. Redstrake, 100 shares from one F. Bayne and 100 shares from one Brinton, all at he is unable, from the evidence that could be ascertained, to discover or trace the identity of the stock in its various transfers and transmutations usual and which took place in its hypothecation by Jamison & Co. to borrow money to enable them to carry it for Redstrake. Therefore, while your auditor finds that, on November 18, 1890, the books of Jamison & Co. show there were 100 shares loaned to Dick Brothers and 100 to Potter, he is unable to learn that this stock has any relation or bearing to the identical stock or its direct substitute purchased for Redstrake. On or about Nov. 28, 1890, the date of the assignment, this stock, with other stock, presumably containing that belonging to Redstrake, was in bulk sold by the persons with whom it was deposited as collateral to cover the money which had been loaned by them to Jamison & Co.</p> <p>“ Upon Nov. 28, 1890, the date of the assignment of Jami-son & Co., a paper produced to your auditor was received by Redstrake from them, of which the following is an exact copy:</p> <p>“ ‘ Philadelphia, 11, 28, ’90.</p> <p>“ ‘ Sold for account and risk of J. J. Redstrake,</p> <p>By B. K. Jamison & Co.</p> <p>100 Reading to Mr. Laughlin at 16¿.</p> <p>100 Reading tb G. H. North at 16£.’</p> <p>“ No previous demand had been made by Jamison & Co. upon Redstrake for the $825 due on the stock since it was to have been paid in December. Jamison & Co., however, were unable to redeem their collaterals, and they were in consequence sold as above stated. Immediately on receipt of this paper Mr. Redstrake, by telephone, asked Jamison & Co. by what authoritj1- they had sold his stock, and the reply given'was that they had made an assignment. A few days afterwards, to wit, Dec. 2, 1890, Redstrake' came to Philadelphia, called upon B. K. Jamison & Co., and in the presence of a witness, Mr. A. McClean, tendered to Jamison & Co. the balance in cash due them, viz: $825, und the proper interest, in order to perform his promises, and demanded his stock, which amount they refused to accept, and which stock they refused to deliver, stating that they had made an assignment.</p> <p>“ The same tender and demand was upon the same day made to S. G. Thompson, Esq., the assignee, and he likewise refused to receive the money or to deliver the stock.</p> <p>“ Your auditor, finds that the market quotation of Reading railroad stock at the Stock Exchange, at the time the said stock was sold, viz: Nov. 28,1890, was $161 per share; and, further, that the highest price at which such stock has sold at the Stock Exchange since the date of the tender made, viz: Dec. 2, 1890, and the date of the present hearing, viz : May 29, 1893, was upon Peb. 11,1892, when it reached $35.00 per share. . . .</p> <p>“ Where the identity of the fund cannot be traced, where the ■chancellor cannot lay his hand upon it, or the change it may have produced, and say, ‘ This is the property of the cestui que trust,’ then it is never denied that the real owner no longer lias specific remedy against any part of the estate, but must come in pari passu with the other creditors. . . .</p> <p>“ Apart from these considerations it would be foreign to your auditor’s duties to award claims set up adversely to the funds in the- hands of the accountant which have been decreed to the general creditors of the assignors. If the contention that the stock in question or its equivalent is the property of Mr. Redstrake be correct, then there could have been no assignment of the same and the property could not be distributed by your auditor. In that case, the claimant ought to have taken remedy in other proceedings.</p> <p>“In the casé of Wylie’s and Quail’s Appeal, 92 Pa. 198 (1879), it is said: ‘The fund of the court was by the decree of the court appropriated to creditors; the auditor was ordered to distribute it among the creditors, and he had no authority to pass upon the rights of an adverse claimant. The decree definitely fixed the rights of the creditors to have the money in court divided among themselves, and, as long as the decree stood, neither the auditor nor the court could turn it over to some other party.’ Beginning with Okie’s Appeal, 9 W. & S. 156, there are numerous authorities to the same effect in Williams’s Appeal, 101 Pa. 480; Geist’s Appeal, 104 Pa. 354.</p> <p>“ In awarding distribution to Mr. Redstrake upon the valúation of the 200 shares of stock, there yet remains to be determined what market quotation should be taken as a basis. It was contended with considerable zeal and ability that the highest market price reached by the stock from the date of its sale down to the time of its present hearing should govern under the rulings in The Bank of Montgomery v. Reese, 26 Pa. 143, decided in 1856, and the later case of Musgrave v. Beckendorff, 53 Pa. 310 (1866). These decisions have been considerably qualified by the more recent cases. Perhaps it would be more accurate to say that the conditions to which they are still applicable have been more fully interpreted by the light of the later decisions. Their careful examination will demonstrate such conclusion.</p> <p>“In the case of The Bank of Montgomery v. Reese, Mr. Reese was one of the stockholders of the bank. By virtue of such ownership he was entitled to subscribe to additional stock, newly issued, proportionately to the holdings. When he tendered the amount which would entitle him to his new stock, the bank refused his subscription. Here, as the court pointed out, it is plain the corporation was the trustee of its stockholders. The right to purchase the stock did not exist, except under certain conditions. Mr. Reese could not protect himself against the breach, go into open exchange and buy it upon the same terms; perhaps not at all. There was not the mere intervention of a general stock broker, as in the ordinary stock transaction, where the purchaser buys as a stranger and deputizes a stock broker as his agent to purchase in accordance with the customs usual. The stock rose in value, and in order to fully compensate Mr. Reese for the injury, the court applied the rule contended for, in effect deciding that the bank, being the trustee, still continued to hold at the increased valuation in consequence of its wrongful refusal to deliver, involving a deliberate breach of trust.</p> <p>“ Following this decision, in Musgrave v. Beckendorff, the same rule was applied in redressing an injury involving a wanton breach of trust. The plaintiff had loaned the defendant bonds to enable the latter to raise money on them, under an agreement that the identical bonds were to be returned at a certain time, and the bonds were never returned.</p> <p>“ Such other dicta in these two cases tending to describe the rule-as applicable generally to all stock transactions has been characterized as ‘ extra judicial’ and not essential to the case. ■Huntingdon, etc., Railroad Co. v. English, 86 Pa. 253 (1878).</p> <p>“ In the case under present consideration-there was no special trust created, nor was there capacity upon the part of Jamison & Co. other than that ordinarily existing upon the intervention of a stock broker in the purchase of stock to be carried by the broker for the -customer. Mr. Redstrake employed them as brokers to buy stock for him. He was unable to pay for it and wished them to ‘ cany it.’ The purchase was made in accordance with the custom of brokers in such cases. It was made under the principle of law that when one employs another as his agent in a particular capacity, in the absence of an express stipulation, the law implies an agreement that it shall be done with reference to the usual customs of that agency. Mr. Redstrake could not complain that in pursuance of a custom of brokers .the stock was mingled with the stock of other customers of Jamison.& Co. when they had not fully paid for it. In the case of Gilpin v. Howell,- 6 Pa. 57, as early as 1816, Justice Bell, in delivering the opinion of the court, said: ‘It may be, that even in a pledge of stock, which frequently passes from hand to hand with almost as little earmark as money itself, the pledgor may identify and stipulate for a return of the very same shares, by handing his certificate to the pledgee with a blank power to transfer, not to be used except on a failure to redeem, or in some other mode devised for the same purpose. But where, as here, the shares pledged never stood in the name of the pledgor, but passed at once from the former owner to the pledgee, without anything done by the former to set them apart from other like shares of the latter, or even a request preferred to this effect,- -it is not perceived how, with any show of reason, it can be made a subject of complaint, that the pledge, necessarily, was mingled with the other similar stock of the pawnee. The plaintiff, by her agent, dealt throughout with the defendants as stock brokers, engaged in the business of buying and selling stock on their own and others’ ac-r count, and so constantly receiving and again transferring shares of stock, either by a blank power or bj’ a simple order of transfer entered upon the books of the corporation. Under such circumstances, I repeat, it was incumbent on the plaintiff to impress, in some way, upon her shares, a mark of discrimination, if she desired them to' be kept separate from the mass of stock in the possession of the defendants.’</p> <p>“ In the course of raising money to pay for the stock it was, under the custom of brokers, .-pledged in bulk with other stock by Jamison & Co. They were unable to redeem the whole of the stock, became financially embarrassed, and made an assignment for the benefit of their customers and creditors generally. Redstrake made tender of the amount due by him, but Jamison & Co. were unable to furnish the stock. Here there was no deliberate breach of trust. Jamison & Co., however, undertook to deliver the stock to Redstrake and are liable for their failure to perform the agreement, which leads to a consideration of the later cases as to the measure of damages.</p> <p>“ In North v. Philips, 89 Pa. 254, Justice Gordon said: ‘ In the case of the Huntingdon and Broad.Top Railroad v. English, 86 Pa. 247, this court, without dissent, ruled that the rule of damages as stated in the Bank v. Reese, 26 Pa. 143, did not apply to ordinary stock contracts, but only to trusts and cases' where justice could not be reached by the ordinary measure of damages.’ And damages are ascertained by the market value of the stock at the time of the conversion, from which should be deducted the amount due upon the stock by the claimant: Neiler v. Kellejq 69 Pa. 406; Work v. Bennett, 70 Pa. 484; R. R. v. English, 86 Pa. 247; Pa. Co. v. R. R., 153 Pa. 156.”</p> <p>The auditor made an award accordingly.</p> <p>The cases of Dow, Bearn and Cooper were similar to that of Redstrake and were disposed of in the same way.</p> <p>Exceptions by the parties adversely affected by these allowances were sustained by the court in an opinion by Fin-letter, P. J., 3 Dist. R. 217.-</p> <p>The auditor reported a new distribution in which Redstrake’s claim was given a preference, and the other claims given dividends on the highest market value of their stock less deductions as stated above. Exceptions by all the claimants were dismissed and the distribution confirmed.</p> <p>JErrors assigned by Boyer were to the action of the court in refusing to allow him to participate in the two funds, and in sustaining the exceptions of the other claimants to the original ruling of the auditor, quoting the exceptions.</p> <p>JErrors assigned by the other claimants were to the dismissal of their exceptions to the amended report and in not awarding them the full amount of their claims.</p>

<p> Railroads—Eminent domain—Measure of damages. </p> <p>The advantages to a property resulting from the construction of a rail- . road which are to be considered in connection with the disadvantages, are such as are special to the property affected and give it an increased value above the general appreciation of property in the neighborhood.</p> <p>It is error to limit this rule so as to give to the railroad company merely the benefit of the increase in the value of the property taken in excess-of the increase in value of any other property affected by the construction of the road. Such a limitation deprives the company of the benefit of having the jury consider the advantage to the property of the plaintiff which was special and peculiar to it as compared with the advantage to the property in the neighborhood.</p> <p>In pi-oceedings to recover damages for injuries caused by the construction of a railroad, the jury cannot consider, as an element of damages, the destruction of a river landing on neighboring property.</p>

<p> Wills—Distribution per capita—Nephews and nieces. </p> <p>Where there is a testamentary gift to one person, and to the children of another person, who stand in the same relation to the testator, the donees take per capita.</p> <p>Where a gift is to persons or classes of persons who stand in the same relation to the testator, the analogy furnished by the intestate laws indicates a division per capita.</p> <p>Testatrix gave the residue of her estate to her niece, and directed as follows: “ Should my beloved niece die without issue, then in that ease, I will and devise the remainder of my estate after her decease without issue as aforesaid, to be divided among my nephews and nieces, to wit: The legal heirs of Mrs. Lilly A. Gwin, the heirs of my beloved brother James A. Scott and the lawful heirs of my beloved brother John W. Scott, and Anna R. Stuckey (a niece), each to take share and share alike.” The niece to whom the residuary estate was first given died without issue. Held, that the estate should be divided among the nephews and nieces mentioned in the will, per capita and not per stirpes.</p>

<p>Appeal, No. 447, Jan. T., 1894, from order of G. P. Huntingdon Co., Dec. T., 1893, sustaining exceptions to auditor’s report..</p> <p>Exceptions to. report of John D. Dorris, Esq., auditor, distributing fund raised by sheriff’s sale of partnership property. Before Furst, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree, reversing report of auditor' and awarding distribution to plaintiff, quoting decree.</p>

<p>Appeal, No. 474, Jan. T., 1894, by plaintiff, from judgment of C. P. Centre Co., Aug. T., 1892, No. 65, for defendant, non obstante veredicto.</p> <p>Assumpsit for maintenance of insane paupers. Before Furst, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court instructed the jury to return a verdict for plaintiff subject to the question of law reserved whether there was any evidence upon which plaintiff was entitled to recover. Verdict for plaintiff. The court entered judgment for defendant non obstante veredicto, on the ground that no order of relief had been obtained, citing Poor Directors v. Worthington, 38 Pa. 160; Overseers v. Bunn, 12 S. & R. 292; South Huntingdon Overseers v. West Huntingdon Overseers, 7 Watts, 527; Directors v. Wallace, 8 W. & S. 94; Directors v. Murray, 32 Pa. 178; Overseers v. Baker’s Ex’rs, 2 Watts, 280; Gibson v. Poor Dist., 122 Pa. 557; Wertz v. Blair Co., 66 Pa. 18.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeals, Nos. 81 and 82, July T., 1893, from order of C. P. Cumberland Co., Sept. T., 1890, No. 99, opening judgment.</p> <p>Rule to open judgment. Before Sadler, P. J.</p> <p>The petition for the rule by D. S. Morgan & Co. averred :</p> <p>“ That one Jacob Swartz has recovered a judgment in the said court of common pleas to No. 99, Sept. Term, 1890, against D. S. Morgan & Co. and John T. Stuart and Walter Stuart for the sum of $300. That the summons in assumpsit issued on the 24tli day of June, 1890, and was served personally upon John T. Stuart, and service was accepted for all the defendants named in the writ by J. Wilson Swartz as their attorney.</p> <p>“ That judgment was taken Sept. 2, 1890, by plaintiff for want of an affidavit of defence, for said sum of $300, and fi. fa. to No. 22, May Term, 1891, was issued, and the money paid by Walter Stuart.</p> <p>“ The petitioners aver that they had no notice of the issue of said summons, or .the acceptance of service by the said Swartz, until recently. That the said Swartz was not retained or employed by them in any manner or form, and his appearance wholly unauthorized by the petitioners, or any one on their behalf.</p> <p>“ That the said judgment by default was therefore illegal and void as to your petitioners and should be stricken off.</p> <p>“ That this is the first opportunity that your petitioners have had to bring the matter before, the court, as they were wholly unaware of the existence of said judgment until recently.</p> <p>“ That they have a perfect defence to any action the said Jacob Swartz might have against them, and had thej^ known of the action, could in their belief successfully defended the same.</p> <p>“ That the said Jacob Swartz claimed his right of action in said suit on an indemnity bond that-was in fact never executed by them, that is D. S. Morgan & Co., or any one by or with .their authority,’ had no right of action against the petitioners.”</p> <p>The answer of Walter Stuart averred:</p> <p>“It is not true as alleged in the petition that the indemnity bond upon which above judgment is founded was never executed by or with the authority of D..S. Morgan & Co. Said bond was executed by said D. S. Morgan & Co., by John T. Stuart, Esq., their attorney, and the name ‘ D. S. Morgan & Co., per J. T. S. Atty.,’ is affixed to the bond. John T. Stuart, Esq., was a practicing attorney at law in the county aforesaid and was employed as attorney for D. S. Morgan & Co., in a judgment in their favor against T. R. Neidig for $126.26, with interest from Oct. 14, 1887, on the docket of Shryock, J. P. An execution was issued thereon in October, 1887, and certain goods purporting to be owned by defendant, T. R. Neidig, were seized by Jacob Swartz, constable, to whom said execution had been committed, and the ownership of the goods so levied upon was claimed by one H. Neidig to be in him. The constable, Jacob Swartz, demanded of D. S. Morgan & Co., through their attorney, John T. Stuart, Esq., a bond of indemnity to protect him from loss and damage by reason of the execution aforesaid, and refused to proceed further or to make sale of the goods levied upon unless such bond was given to him. John T. Stuart, Esq., immediately communicated upon the subject with Thos. A. Correll, who was the general agent of D. S. Morgan & Co., and who represented them in the collection of the claim against T. R. Neidig, and received from him the following response :</p> <p>“ ‘ D. S. Morgan & Co. v. T. R. Neidig.</p> <p>“ Harrisburg, Pa., Oct. 27,1887.</p> <p>“ ‘ My Dear Sirs:</p> <p>“ ‘ Please indemnify the constable, and D. S. Morgan & Co. will hold him harmless.</p> <p>“ ‘ Yery truly yours,</p> <p>“ ‘ Thos. A. Correll,</p> <p>“ ‘ Stuart & Stuart, Esqs., General Agent,</p> <p>“ ‘ Carlisle, Pa. D. S. Morgan & Co.’</p> <p>“ John T. Stuart, Esq., who was the senior partner of the said firm of Stuart & Stuart, thereupon executed in the name of D. S. Morgan & Co. the bond of indemnity referred to above, and the same was delivered to Jacob Swartz, constable, and it was in a suit upon said bond that above judgment, No. 99, Sept. Term, 1890, was obtained.</p> <p>“ An execution was issued thereon and the amount of debt, interest and costs due, viz: $351.97, was, on June 15, 1891, paid by the hondsinen and marked for their use, and the judgment and execution now stand for the use of the deponent.</p> <p>“ After the bond of indemnity aforesaid had been delivered to Jacob Swartz, constable, he proceeded with the execution, in his hands and made the money thereon, and the amount due D. S. Morgan & Co., viz: $126.76, was, on Nov. 26,1887,paid over to John T. Stuart, Esq., and by him, through their proper representative, to D. S. Morgan & Co.</p> <p>“ In the suit No. 99, Sept. Term, 1890, on June 28, 1890, John T. Stuart, Esq., made an indorsement as follows on the summons:</p> <p>“ ‘ June 28, 1890, I hereby'appear for and accept service for defendants within named.</p> <p>“ ‘ G. Wilson Swartz, Att’y for Def’ts.’</p> <p>and the sheriff’s return was ‘ served personally and by certified copy on John T. Stuart, together with copy of plaintiff’s state ment. Service accepted as per' indorsement for D. S. Morgan & Co., and Walter Stuart, Jr.’</p> <p>“ G. Wilson Swartz was a young attorney recently admitted to the bar, who had his office in the office of Stuart & Stuart, and his name was signed to said indorsement by John T. Stuart Esq., but as a matter of fact John T. Stuart, Esq., continued to act as attorney for D. S. Morgan & Co. and considered the said appearance and acceptance of service in all respects as if he had signed his own name thereto instead of the name of G. Wilson Swartz, and the appearance and acceptance of service was really by John T. Stuart, Esq.</p> <p>“ Deponent further represents that he received no benefit or advantage of any kind by reason of his becoming bondsman as aforesaid, that by reason of said bond D. S. Morgan & Co. have realized their claim in full against T. R. Neidig and have received and kept the money, yet deponent has been compelled to pay the amount of debt, interest and costs recovered on said bond, viz: $351.97. That said sum with interest from June 15, 1891, is justly due and owing to him by D. S. Morgan & Co., and he therefore prays that the rule to show cause why, etc., shall be discharged at the cost of said firm.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Rule to open judgment absolute.</p> <p>jError assigned by Walter Stuart was in opening judgment.</p> <p>Error assigned by Morgan & Co. was in not striking off judgment.</p>

Appeal, No. 11, July T., 1893, by plaintiff, from judgment of C. P. Erie Co., May T., 18.91, No. 157, on verdict for defendant. Replevin for steam tug. Before Gunnison, P. J. At the trial it appeared that plaintiff and Frank L. Montgomery were partners in the fishing business, trading under the name of the Erie Fish Co. They owned in common the vessel in dispute.

Appeal, No. 48, Jan. T., 1894, by defendants, from order of C. P. Crawford Co., Sept. T., 1892, No. 119, refusing to open judgment. Rule to open judgment. The following opinion was filed by Henderson, P. J.: “ The mortgage upon which this action was brought was given to secure the payment of certain promissory notes therein referred to.

<p>Appeal, No. 476, Jan. T., 1894, by-plaintiff, from order of C. P. Cumberland Co., May T., 1893, No. 245, dismissing exceptions to report of auditor.</p> <p>Exceptions to report of E. W. Biddle, Esq., auditor distributing proceeds of sheriff’s sale.' Before Sadler, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were, dismissal of exceptions and entry of decree of distribution, quoting them.</p>

<p> Principal and surety—Failure to revive judgment. </p> <p>The failure of a judgment creditor to revive and continue the lien of a judgment against the real estate of a principal debtor, does not release the surety where the surety died within five years after the last revival.</p> <p>Constitution—Amendment of act—Acts of June 1, 1887, Feb. 24, 1834.</p> <p>The act of June 1, 1887, P. L. 289, amending the act of March 26, 1827, P. L. 129, by adding a clause preventing the continuance of a lien of a judgment as against a terre tenant whose deed is recorded, does not affect the act of Feb. 24, 1834, P. L. 77, continuing the lien of judgments against the lands of decedents. As the act'of June 1, 1887, does not undertake to amend the act of Feb. 24, 1834, there was no need to repeat the terms of thelatter act as required by article 8, § 6, of the constitution, relating to amendment of acts. The constitutional provision applies only to express amendments.</p> <p> Subrogation—Equity. </p> <p>The right to enforce subrogation deiiends ujnon the equity of each ease. It may be enforced by the debtor or by the creditor, as the case may be; but it seems that in no case may the latter do what the former could not do with the right conceded to be in him.</p>

<p>Appeal, No. 412, Jan. T., 1894, by Keziah Searight et al., widow and children of F. W. Searight, deceased, from decree of O. C. Cumberland Co., dismissing ex-céptions to auditor’s report.</p> <p>Adjudication of executor’s account.</p> <p>The auditor, Edw. B. Watts, Esq., reported the facts to be as follows :</p> <p>“ F. W- Searight died on the 8th day of August, 1888, leaving a will, which was duly proven afte'r his death. The will is as follows :</p> <p>“ ‘ Item. I hereby authorize and empower my executors hereinafter named to keep my estate intact and undistributed for a period of five years after my decease if they see fit so to do.</p> <p>“ ‘ Item. Within said period of five years I empower my said executors to sell and convey my real estate for the purpose of raising money, and to mortgage or in any way' encumber or pledge either my personal or real estate for the purpose of borrowing money if they see fit so to do.</p> <p>“ ‘ Item. I empower my executors at any time before final settlement of my estate to sell and convey any or all of my real estate wheresoever situate for the purpose of payment of my debts if they see fit so to do.</p> <p>“ ‘ Item. At the end of said five years or before or after said period, upon settlement of my estate by my executors, I hereby direct that my wife and children shall take such portions of my estate as they would respectively be entitled to under the intestate laws of this commonwealth.</p> <p>“ ‘ I hereby appoint my wife Keziah Searight, R. M. Searight and Joseph A. Stuart to be the executors of this my last will and testament.’</p> <p>“ Letters testamentary were duly granted to the executors named in the will.</p> <p>“ F. 'W. Searight died possessed of certain real estate (farms) and personal property, but he was heavily in debt. His estate is not sufficient to pay the debts.</p> <p>■ “The accountant, on Nov. 6, 1891, filed a.first account, which was made up of personalty and the income of the real estate. The -balance in his hands as shown by that account was distributed as personalty to all the creditors of the estate, by an auditor appointed by the court, without objection on the part of anybody. A dividend, however, of only .0472 per centurn of the debts was thereby paid. The account now before the auditor is made up chiefly of income from the real estate and the proceeds of the sales of the real estate. The income is from the proceeds of the crops of the years 1891 and 1892. The sales of the real estate took place in the fall of 1892, and were confirmed by the court on Dec. 16, 1892.</p> <p>“ The accountant in his capacity of executor collected the income from the real estate with the exception of $962.23, which was collected by his coexecutors. The real estate did not sell for enough to pay the judgments that were against it at the time of F. W. Searight’s death. The debit side of the account shows charges to the amount of $43,130, and the credits claimed amount to $31,102.21. Exceptions to the account were filed by the coexecutors and by creditors.</p> <p>“ The widow.and heirs of F. W. Searight claim the proceeds of the sale of all the crops gathered from the real estate and charged on the debit side of the account. A suit has been brought by them against Joseph A. Stuart to No. 600 May Term, 1893, in the Court of Common Pleas of Cumberland county, for the recovery of these crops. It was agreed before the auditor that he should pass upon this question and that the said suit should be merged in his determination and be ended thereby.”</p> <p>The auditor refused to allow the claim of the widow and children to the income from the real estate.</p> <p>Exceptions to the auditor’s report were dismissed by the court in an opinion by Stevvakt, P. J., specially presiding’.</p> <p>Errors assigned were dismissal of exceptions to above rulings, quoting them.</p>

Appeal, No. 434, Jan. T., 1894, by James Coyle and Keziah Searight, judgment creditors, from, decree of O. C. Cumberland Co., distributing estate of F. W. Searight, deceased. Adjudication of executor’s account. From the report of Edw.

<p>Appeal, No. 40, Jan. T., 1894, by plaintiff, from judgment of C. P. McKean Co., Feb. T., 1890, No. 240, on exceptions to report of referee.</p> <p>Assumpsit to recover moneys alleged to have been obtained by false representations#</p> <p>The referee, Robert F. Glenn, Esq., found the facts as follows :</p> <p>“1. That on July 8, 1877, R. W. Mackey was the owner of what was known as the ‘ Funk well,’ together with five acres of ground on which said well was located, situated in Oilereek township, Venango county, Pennsylvania. )</p> <p>“ 2. That claiming power of attorney to do so, A. C. Hawkins, on said date, receipted to N. S. Davis, plaintiff, for five hundred dollars, ‘ being on account of well known as the Funk No. 1 and the five acres on which it is situated, the terms béing as follows, viz :"$500 cash, $300 on Sept. 17, $350 Jan. Í, 1878, and $350 on July 1, 1878, total amount being $1,5.00,’ signing said receipt ‘R. W. Mackey'per A. C. Hawkins, Atty. in fact.’</p> <p>“3. That A. C. Hawkins, defendant, received from N. S. Davis, plaintiff, and receipted therefor on the same account: $200 Sept. 17, 1877; $100 Oct. 18, 1877 ; $200 July 4, 1878; $200 June 10, 1879; $100 Oct. 27, 1879. Signing all said receipts ‘ R. W. Mackey per A. C. Hawkins, Atty.’</p> <p>“ 4. That on July 8, 1877, and for some time prior thereto, A. C. Hawkins held a power of attorney made by R. W. Mackey, by the terms of which he, Hawkins, was authorized ‘ to collect, sell and receipt for all money arising from sales of oil, and to collect and receipt for all rents due or which may become due on property owned by me in Venango county, to rent said propperty and generally to transact all business connected with the management of property owned by me in said county,’ which said power of attorney remainéd in force until the death of. Mackey, Jan. 1,1879.</p> <p>5. That by virtue of the authority contained in said power of attorney, he, Hawkins, collected for his principal, R. W. Mackey, $1,211.40, and expended on all acccounts, including personal expenses, as claimed by him, and for a part of which he holds receipts,' $727.47.</p> <p>“ 6. That after the death of Mackey and .the revocation thereby of his power of attorney, he, Hawkins, received from sale of royalty oil from Mackey land, $424.52, and $300 from Davis on account of the ‘ Funk well ’ sale. That he expended during said time on all accounts, including personal expenses, $349.21,</p> <p>“ 7. That.the total amount received by Hawkins, during his administration, exclusive of Davis, was $1,635.92. And his total expenditures, exclusive- of $300, claimed to have been paid Mackey, in cash, at Long Branch, were $1,076.68. Of the amount expended $952.77 was used in paying taxes and redemptions. The balance, $123.91 was personal expenses, except a fee of five dollars paid Dodd & Lee, attorneys, and $27.00 paid Heydrick Brothers for surveying.</p> <p>“ All receipts -are for royalty oil sold, with the exception of $500 received from O. B. Park on ‘account Farrel acre,’ and for which no further explanation is offered.’ The excess of re ceipts over expenditures on account of said property during the time Hawkins claims to have had it in charge, exclusive of receipts froni Davisi is $559.54.</p> <p>“ 8. That the defendant, Hawkins, had no written authority from Mackey to make sale to Davis, plaintiff, of the land mentioned ; neither is there any competent evidence that Mackey ever knew of the sale or the proposed sale, or had any knowledge that the sale had been made.</p> <p>“ 9. That after the death of Mackey, Hawkins collected from Davis $300 on account of .the alleged sale of land to him, without any authority from any one to do so, signing receipts therefor ‘ R. W. Mackey per A. C. Hawkins, Atty.,’ and knowing that the heirs of R. W. Mackey ¡at the time disclaimed all title to the land. -. . .</p> <p>“ 10! That.Á. G. Hawkins told N. S. Davis that he had a power 'pf attorney to sell the land, and continued to represent that he had such authority, by signing receipts for the purchase» ■money ás attorney, and by assertions to that effect, until the year 1886, when Davis first discovered that he did not have such power of attorney.</p> <p>, “11. That Hawkins did not expend the money, received from Davis, in. the .care of Mackey’s property, except to claim to use the whole thereof, together'with a considerable amount of funds belonging to tbe estate, to pay himself, for receipting to the pipe line company for twenty-one small royalty balances, and to’ O. B, Park for five .hundred dbllars, in three payments, and for paying taxes, :and for two othbr items of expense on the properties in his charge,- to the amount.of a little more than one half of his receipts—all expenses, including personal, being paid out of -the funds, in his hands.</p> <p>“12. That Hawkins never informed the representatives of R. W. Mackey, deceased, of the alleged sale to Davis; nor did he offer to account to them in any way for the proceeds thereof, until more than ten years after the death of his principal, and more than five years after he had given up connection with the estate.</p> <p>“ 13. That the executors of R. W. Mackey, deceased, through J. L. Connely, repudiated the contract made by Hawkins with Davis, as soon as they learned of it; denied his right to make such contract, and refused at all times to recognize any claim of Davis to have its terms complied with on their part.</p> <p>“ 14. That Davis, upon learning that Hawkins had no authority to sell the land, and being notified that he would be held responsible by the Mackey estate as- a trespasser thereon, abandoned the property.</p> <p>“15. That Judge J. L. Connely was the duly authorized agent or attorney in fact, for the executors of the Mackey estate, in the matters in which he acted with relation to the said estate.”</p> <p>The referee found for plaintiff for the sum of $2,-422.45.</p> <p>Exceptions to the referee’s report were sustained in an opinion by Morrison, J., for reasons stated in the opinion of the Supreme Court, and judgment was entered for defendant..</p> <p>Errors assigned were in sustaining exceptions, quoting them,, and in entering judgment as above.</p>

<p>Appeal, No. 500, Jan. T., 1894, by plaintiff, from order of C. P. Warren Co., March T., 1881, No. 258, making absolute rule to open judgment.</p> <p>Rule to open judgment.</p> <p>From the record it appeared that judgment was entered June 2, 1881, on the following note, signed by defendant: “ $4,000. Meadville, Pa., 10 Nov., 1873.</p> <p>“ One day after date for value received I promise to pay to the order of F. Bates, cashier in trust for the Exchange Bank of ■ Titusville, Four Thousand Dollars, without defalcation. And further, I do hereby empower any attorney of any court of record of this state, or elsewhere, to appear for me and confess judgment for the same in favor of the above bank, its executors, administrators or assigns, against me with costs of suit and release of errors.”</p> <p>On Jan. 4,1892, defendant filed his petition to open the judgment. The petition set up lack of consideration, etc., and the statute of limitations and averred that petitioner did not know until about or during the month of October, 1891, that judgment had been entered on the note.</p> <p>The following opinion was filed by Noyes, P. J. :</p> <p>“ All the averments affecting the original validity of the note and warrant upon which this judgment is entered are denied in the answer, and are not supported by any proof. They are, therefore, entitled to no consideration. The application rests upon-the naked allegation that the note was more than six years past due when judgment was entered, and that it was not under seal.</p> <p>“ There was a time when the plea of the statute of limitations was regarded with so much disfavor that the courts refused to open judgments to allow this defence to be made. But the attitude of courts' towards this defence has materially changed; the considerations which induced the legislature to pass the law have induced the courts to enforce it as a measure beneficial to the community, tending to quiet disputes, and on the whole to the promotion of justice, though in individual cases it may he apparently otherwise. Courts of equity are bound by the statute as courts of law, and enforce its provisions in the same spirit. Both at law and in equity the defence may be waived, and will be, considered as waived unless setup in the pleadings, before judgment.</p> <p>“It cannot be doubted that the statute of limitations would have been a good defence in the action in which this judgment was entered, and there is nothing in the statute itself by which the defendant may be deprived of its benefit. If it is lost it is by reason of the implied waiver arising from the fact that it was not interposed before judgment. But in this case the defendant has never had a day in court, nor any opportunity to set up his defence. The judgment was confessed upon a warrant of attorney simultaneous with the bringing of the suit, and this application was promptly made when notice of this was brought to the defendant. Notwithstanding the dictum of so' able a jurist as Mr. Justice Mitchell, in Woods v. Irwin, 141 Pa. 295, we are of opinion that where a defendant in a judgment confessed, who has- had no day in court, promptly applies to have the judgment opened on the ground that the debt was barred by the statute before the judgment was entered, he should be given an opportunity to set it up, evén although no other ground of defence be shown. It may be a dishonest defence, morally speaking, but neither courts of law nor equity are privileged to apply any other ethical standard than those established bylaw. There is no moral reason why a court should refuse to open a judgment in such a case as the present, which would not apply to any other case where the statute of limitations is relied upon, alone and unsupported by other defence.</p> <p>“ The rule to show cause ,why the judgment should not be opened is made absolute. Proceedings stayed in the meantime. An issue is awarded in which the judgment note shall stand for a declaration and the defendant shall plead the statute of limitations and no other plea within ten days. The plaintiff on the trial to be at liberty to show any matter in bar of the running of the statute, subject to the usual rules as to notice of special matter.”</p> <p>Error assigned was opening judgment.</p>

<p> Practice—Pleading—Statement—Promissory note. </p> <p>Where a statement in assumpsit avers a debt for money loaned to defendant, and in the same count sets forth a copy of a note given to plaintiff by defendant for the debt, it is not improper at the trial to treat the note as the real cause of action.</p> <p> Promissory notes—Fraudulent alteration—Evidence. ■ </p> <p>In such a case where the defence is an alleged fraudulent alteration of the amount of the note, all evidence is admissible bearing in any way on the nature of the transaction. Evidence is properly admissible that plaintiff at the time was borrowing a larger sum from a third party, and that he had declared to defendant’s family that nothing was due him, and that he did not mention the debt when the inquiry was made at an inquest of lunacy held over the debtor.</p> <p> Promissory notes—Alteration of note—Charge of court. </p> <p>Where alteration of the amount of a promissory note is alleged as a defence to the note, but the signature to the note is not disputed, it is error for the court to say to the jury: “ The defendant alleges that the note produced by Winters (plaintiff) is not the note of Mowrer (defendant) or that it was signed by him,” and “ If the whole evidence has satisfied you that the note produced was actually signed by George Mowrer as it now appears,” etc.</p>

<p> Husband and wife—Foreign laws—Evidence. </p> <p>A married woman living in Maryland bought at a sheriff’s sale of her husband’s goods certain personal property, and gave in payment therefor a note signed by herself, her husband and two sureties. The note was subsequently paid by the wife and the sureties. The husband entered Pennsylvania, taking some of the property with him, where it was again sold under an execution as his property. The wife then brought an action to recover damages for the sale of the property.- - At the trial expert evidence was offered to show that under the law of Maryland a married woman’s note, to be binding upon her, must be signed by her husband.</p> <p>Held, that such evidence was competent.</p> <p>If the joinder of the husband in the note was necessary under the law of Maryland to enable his wife to make a valid note capable of enforcement against her, and if the purchase was in fact made by her with this note on her own credit and the credit of her sureties, and its payment was by her and her sureties without aid from her husband, then the jury would have been warranted in finding that the property purchased with it belonged to her, and that she was entitled to recover its value in this action.</p> <p>After the reason for the husband’s signature was explained, the question of ownership was thereafter not a question of law, but a question of fact to be determined from all the circumstances connected with the transaction as they were presented by the evidence.</p> <p>The construction of the statute of another state, by the courts of that state, may be shown either by one familiar with, or by the published reports of, the decisions made by such courts; or both methods may be used in the same case.</p>

<p>Negligence — Master and servant— Machinery in general use— Special instructions—Evidence.</p> <p>In an action by a servant against a master to recover damages for personal injuries, the test of liability is not danger, but negligence, and negligence can never be imputed from the employment of the methods or machinery in general use in the business.</p> <p>In a case where a boy seventeen years old was injured while working at a candy-rolling machine, it appeared that his employer, the defendant, had removed temporarily from the machine a safety-guard of his own invention, with which plaintiff had been accustomed to work the machine; Reid, that defendant should have been permitted to show that the same kind of machines were used without guards in another factory where the boy had previously worked, and that defendant’s safety-guard was not in general use in the trade.</p> <p>In such a case defendant was entitled to have explicit directions to the jury that the use of the machine without a guard being the ordinary habit of the trade, was not negligence prima facie, and would only become so if the boy’s inexperience was such that he ought to have had special instructions when the change was made, and such instructions were not given.</p> <p> Negligence—Measure of damages—Earnings of minor. </p> <p>In an action by a father to recover damages for personal injuries to his minor son, where there is evidence that the boy received a certain amount per week at the time of the accident, but no evidence whatever as to what he would be likely to receive in the' future, it is error for the court to suggest to the jury that the boy might get ‘‘ more by way of promotion.”</p> <p> Charge of court—Beading plaintiff's statement to jury—Practice, C. P. </p> <p>It is bad practice for the trial judge in his charge to read plaintiff’s statement to the jury, as it tends to get figures and amounts into the jury’s mind without evidence.</p>

<p>Appeal, No. 104, Jan. T., 1894, by Lancaster Co., and Robert S. Conklin, an inhabitant of Columbia borough, from order of Q. S. Lancaster Co., Jan..T., 1898, Minutes 334, dividing the borough of Columbia into nine wards and nine election districts.</p> <p>Division of borough into wards. Before Brubaker, J.</p> <p>From the record it appeared that on Jan. 21, 1893, a petition of freeholders, residents of the borough of Columbia, was presented, asking the court to appoint three' impartial men to inquire into the propriety of dividing the borough of Columbia into wards to suit the convenience of the inhabitants thereof, according to the provisions of the act of assembly. On Jan. 23, 1893, the court appointed commissioners to inquire into the propriety of granting the prayer of the petitioners. Subsequently an order was issued to the commissioners which directed them to inquire into the propriety of granting the prayer of the petitioners, “ and if they, or any two of them, shall be of opinion that such division is necessary for the convenience of the inhabitants thereof, shall make a plot or draft of the proposed new election district or districts, if the same cannot be fully designated by natural lines or boundaries; all of which they, or any two of them, shall report to the next court of quarter sessions, together with their opinion of the same.” The commissioners reported to the court at April Sessions, 1898, which was the next court of quarter sessions, that they had “ viewed the said borough, and after due consideration are of the opinion the said borough of Columbia should he divided into nine wards, to suit the convenience of the inhabitants thereof, and they do therefore divide the said borough of Columbia into nine.ward's, with the following lines and boundaries,” etc. To this report a draft of the nine wards was attached.</p> <p>Appended to the report was a notice of the time and place of meeting of the commissioners “ where all persons may attend if they see proper,” and an affidavit that the notice was put up in ten of the most public places in the borough, at least twenty days before the time of meeting, and that a copy was served on the chief burgess at the same time, naming ten hotels and saloons. One of the county commissioners accepted service.</p> <p>This report was confirmed nisi, April 17,1898, and on Aug. 24, 1893, it was confirmed absolutely, and a decree made. No exceptions were filed.</p> <p>Errors assigned were (1) confirmation of report; (2) entry of decree.</p>

<p> Contract—Sale—Warranty. </p> <p>In an action upon a contract of sale to recover the price of an article which the plaintiff dealt in, but did not manufacture, it is proper to charge that unless the jury believe from the evidence that the plaintiff expressly warranted the article to work satisfactorily, or fraudulently or falsely represented that it would work satisfactorily, then the plaintiff is entitled to recover, even if the jury find that it did not work satisfactorily.</p> <p>. Evidence—Previous conduct of defendant.</p> <p>In an action to recover the price of an article sold to defendant, where defendant denies all indebtedness, it is proper to permit a witness to testify that when the same claim was presented before a justice of the peace, defendant claimed a set-off to a portion of the claim.</p>

<p>Appeal, No. 433, Jan. T., 1894, by plaintiff, The Liederkranz Singing Society of Lancaster, Pa., by F. C. Ostermayer and Andrew J. Riski, of the Board of Trustees of said Society, from order of C. P. Lancaster Co., Nov. T., 1892, No. 5, refusing to take off a nonsuit in favor of defendants, Germania Turn-Verein of Lancaster, Pa., Victor Roth, Philip Stumpf and August Koehler.</p> <p>Replevin to recover furniture and other personal property. Before Brubaker, J.</p> <p>At the trial it appeared that, in 1892, the Liederkranz Society was composed of about twelve or fourteen active members and about two hundred passive members. At a meeting of the active members' it was resolved by a majority to remove the headquarters of the association to a room in the hall of another singing society known as the Germania Turn-Verein of Lancaster. The defendant, Roth, who was president, and Stumpf and Koehler, thereupon moved the property of the society to the new headquarters. This suit was then brought by members of the society who opposed the change. The caption of the suit was: “ The Liederkranz Singing Society of Lancaster, Pa., by F. C. Ostermayer and Andrew J. Riski, of the Board of Trustees of. said Society, v. The Germania TurnVerein of Lancaster, Pa., Victor Roth, Philip Stumpf and August Koehler.” . Riski’s name was afterwards withdrawn.</p> <p>Defendant moved for a nonsuit on the grounds :</p> <p>“ 1. That these people have established no legal plaintiff, have shown no right to sue. The evidence of the plaintiff here is that this was an unincorporated society in which all the members, some two hundred, had an equal interest, but the suit is brought in the name of the Liederkranz Society of Lancaster, Pennsylvania.</p> <p>“ 2. On the ground that the admitted testimony of the plaintiffs is that the defendants had a joint right with the plaintiffs to the possession of these goods. They have sworn that one of the defendants was president of plaintiff society, one was vice president, one was secretary and one was a trustee; whereas, they only pretend to sue here with one trustee, who was a trustee at that time; so that the clear right of possession is in the defendants.”</p> <p>The court entered a nonsuit and subsequently refused to take it off.</p> <p>Error assigned was above order.</p>

<p> Negligence—Master and servant—Infant—Risk of employment. </p> <p>• A servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care, and the employer is not responsible for those injuries to which the employee voluntarily subjects, himself. This rule applies to infants under the age of fourteen years where the employer has not been guilty of negligence.</p> <p>Plaintiff, a boy under twelve years of age, was employed in carrying-waste material down an elevator. He was injured by standing on the automatic doors closing the elevator shaft, while the elevator was ascending from below him. He testified that he had been instructed by the foreman to go upon the doors when there was unusual delay to find out the cause of the delay, and that at the time of the accident he had done so. The foreman and three other of the defendant’s employees testified that the boy had always been warned to keep away from the doors. Held that the only question for the jury was whether the evidence of the boy, or that of' the defendant’s witnesses was true; that the court should-have charged the jury that if they believed from all the evidence that plaintiff in getting on the doors of the elevator acted in violation of his-instructions, and that Ms injury was caused by his so doing, the verdict should be for defendant.</p> <p>It seems that in such a caso defendants were not negligent even if they had omitted warning the boy to keep away from the doors.</p>

Appeal, No. 40, July T., 1894, by •defendants, from judgment of C. P. Schuylkill Co., May T., 1894, No. 13, on quo warranto. Quo warranto to oust respondents from office of county auditors. Before Weidman, J. From the record it appeared that Thomas E. Samuels, Emanuel Jenkyn and John E. Doyle were elected auditors of Schuylkill county on Nov. 7,1893, for a full term of three years. The census of 1890 shows Schuylkill county to have a population of 154,163.

<p>Appeal, No. 72, July T., 1894, by defendant, from judgment of Q.' S. Lancaster Co., Nov. T., 1893, No. 121, on verdict for Commonwealth.</p> <p>Indictment for doing insurance business without license.</p> <p>At the trial it appeared that defendant was an insurance agent in the employ of the Guarantee and Accident Lloyds of New York, an unincorporated association of one hundred indi- ' vidual underwriters of accident insurance. As their agent he issued a policy of accident insurance to B. E. Radcliff.</p> <p>The insurance commissioner of Pennsylvania, alleging that the Lloyds was a foreign company of New York, doing business in this state, and that their agents must pay license, made complaint against defendant and the above indictment was found.</p> <p>The court charged in part as follows :</p> <p>“ [The evidence offered before you on the part of the commonwealth is uncontradicted. The defence made here by the defendant is that this insurance company is not an incorporated company, and therefore does not come within the purview of the act of assembly which I have just read. I charge you that that is not necessary. The act of assembly does not say it should be an incorporated company, and therefore if you believe this testimony, which is un contradicted, your verdict should-be in favor of the commonwealth, of guilty in manner and form as he stands indicted.] ” [1]</p> <p>Verdict, guilty, and sentence thereon.</p> <p>Error assigned was above instruction, quoting it.</p>

<p> Equity—Setting aside conveyance—Deed—Evidence. </p> <p>Equity will, upon proper occasion, intervene and set aside voluntarily executed deeds and other instruments, yet the power to do so is of an exceedingly delicate character, not to be lightly exercised, and only to be invoked when the manifest justice of the case requires it.</p> <p>On a bill in equity to set aside a deed executed by a mother to her daughters, the mother, who was the plaintiff in the bill, testified that she executed it in compliance with a request of one of her daughters, at a dme when plaintiff’s husband was financially embarrassed; that nothing said as to how her husband’s debts would affect her; that she knew that her property was not subject to her husband’s debts, but that she had executed the deed in a fright. The deed was executed both by plaintiff and her husband, and at the same time the daughters executed a deed for a life estate in the property to their parents. A witness who was present when the deed was signed testified that plaintiff and her husband said that they were going “to give the girls a home.” Plaintiff’s son testified that when he returned home on the day the deed was signed, plaintiff said: “ I gave the girls a deed to this property. I only done it for protection.” The daughter who requested the mother to execute the deed testified that she told plaintiff to give the 'property to her daughters in her lifetime, and that plaintiff asked her husband if he was willing they should have it, and he said he was. It appeared that the grantors were elderly people, and that the two daughters who lived at home were of middle age. There was no evidence of solicitation, imposition, or any wrongful action on the part of the grantees. Reid, that the deed should not bo canceled.</p>

<p>Appeal, No. 453, Jan. T., 1893, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1888, No. 344, on report of referee.</p> <p>Exceptions to report of referee, A. J. Maloney, Esq.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was entry of judgment.</p>

<p> Negligence—Master and servant—Delivery of goods. </p> <p>The act of the driver of a vendor of goods in adjusting the goods to the chains of a hoist on the outside of the building of the purchaser of the goods is the final act of delivery, and if it is negligently performed, and an accident results therefrom, the purchaser of the goods is not liable for the injury sustained.</p> <p> Negligence—Evidence—Special finding by jury. </p> <p>In an action to recover damages for personal injuries plaintiff testified that he was injured by bags of wool purchased by defendant falling upon him from the third floor of a building occupied by defendants. The bags, upon delivery by the vendor, had been attached to a hoist outside of the building by the servant of' the vendor, and had been raised to the third floor. The lift was not running when the bags fell, but the jury reported specially that they could not say how many minutes the bags were left suspended after the lift ceased running. Held, that the evidence was insufficient to sustain a judgment on a verdict for plaintiff.</p>

<p>Appeal, No. 109, July T., 1893, from decree of O. C. Phila. Co., April T., 1881, No. 230, sustaining demurrer to petition for citation.</p> <p>Petition for citation.</p> <p>The petition of appellant, filed April 3, 1893, averred:</p> <p>“ John B. Ellison died in the city of Philadelphia on March 7, 1865, leaving a last will bearing date May 30, 1864, a copy of which is hereunto attached. Letters testamentary upon the estate were duly granted by the register of wills of Philadelphia county to Rodman B. Ellison and William P. Ellison.</p> <p>“ The said executors- entered upon their duties and continued to act as executors and trustees under the provisions of the said will until the filing of their account.</p> <p>“By the terms of the said will no distribution was to be made of the principal of the estate until the death of the wife of the said John B. Ellison, which occurred July 14, 1880.</p> <p>“ On the death of the said wife of John B. Ellison, the said executors filed their account in the orphans’ court, which was adjudicated Jan. 13, 1882.</p> <p>“ By the terms of the said will, on the death of the said wife of John B. Ellison, the estate was to be divided into four shares, one share to each of the four children of the decedent, of whom, your petitioner was one; but the shares of your petitioner and her sister, Margaret Ellis, were, after the said distribution, to be held in trust by trustees to be selected by them respectively.</p> <p>“ The said Margaret Ellis selected Ellis D. Williams, Esq., as her trustee, and your petitioner .selected, at the special instance and request of her brother, Rodman B. Ellison (the executor of the will), her brother William P. Ellison to act as the trustee for your petitioner.</p> <p>“At the audit of the account of the said executors, your petitioner was .not present, but was represented by her trustee and brother, William P. Ellison, who was also one of the executors of the said will.</p> <p>“ When the said account came up for audit, as your petitioner has been informed for the first time, in January, 1898, Ellis D. Williams, Esq., trustee for Mrs. Ellis, discovered that the moneys of the estate of John B. Ellison had been used by the executors in their business during the period from 1865 (the time of the death of the decedent) to the time of the filing of their account. The said Ellis D. Williams, Esq., called this to the attention of the executors, and was about to proceed to make the executors account for the profits earned by the said money, and which were properly due to the estate, when the said executors, and particularly William .P. Ellison, induced their said sister, Margaret Ellis, to instruct her said trustee to desist from attempting to so surcharge them, and at the same time pledged the said Margaret Ellis not to communicate the-facts to your petitioner.</p> <p>“Your petitioner further avers that the said executors were, at the time they were acting as executors until the filing of their account, engaged in commercial business in the city of Philadelphia under the firm name of John B. Ellison & Sons. During that time they used the money of the estate of the said John B. Ellison in the said business, and at the risk of the said business. •</p> <p>“ Your petitioner further avers that during the time aforesaid large profits were made by the said executors in the business aforesaid, and that the said estate by reason thereof was entitled to share in the profits of the said business during the years aforesaid.</p> <p>“ The said executors were permitted, at the said audit (in violation of law), with the consent of the parties present, to testify to certain alleged facts relating to the purchase of the business of the said John B. Ellison by the said executors in his lifetime. Your petitioner never consented to such testimony being admitted, personally, nor did she ever authorize William P. Ellison, one of the said executors, her trustee, who represented her throughout the proceedings, either so to testify or to permit his coexecutor to testify; nor had she any knowledge that they had so testified until January, 1898.</p> <p>“ By the testimony aforesaid, the executors were enabled to show a state of facts which tended to relieve them from a surcharge of many thousands of dollars, as your petitioner believes and expects to be able to prove to the satisfaction of your honorable court.</p> <p>“No explanation of any kind was given to your petitioner by the said William P. Ellison, her trustee, or by either of the said executors, her said brothers, as to the acts being done in the settlement or adjudication of the said estate, but your said petitioner was, by the willful concealment of the facts from her by the said William P. Ellison, her trustee and brother, defrauded of a large portion of her share of the said estate. That both of the said executors profited thereby to the extent of many thousands of dollars in fraud of the rights of your petitioner, as your petitioner believes and expects to be able to-prove.</p> <p>“ Your petitioner further avers that she was, by the fraudulent acts of the said William P. Ellison and Rodman B. Ellison, executors as aforesaid, prevented from properly protecting her interest in the said estate at the audit of the account of the said executors, and was prevented by them from attending the said audit. By reason of their relation to her as the executors of her father’s will, and as her brothers, and (in respect to the said William P. Ellison) as her trustee, they sustained such a relation of confidence to your petitioner that they were bound to, disclose to her the facts hereinabove recited; and by failing to do so they have procured a'decree of .the court in fraud of the rights of your petitioner.</p> <p>“ The said William P. Ellison has, from the date of the said adjudication until the present time, acted as the trustee of your petitioner of the funds received by him from the executors of- said estate, and your petitioner was first informed of the facts relating to the settlement of the said estate, as herein recited, since the 1st of Janfiary, 1898. The said William P. Ellison, having notified your petitioner that he was about to resign the trust, your petitioner placed the matter in the hands of counsel, and thereupon, on information disclosed by the sister of your petitioner and by Ellis D. Williams, the trustee of her said sister, for the first time discovered the facts hereinabove recited. These facts were brought to the attention of your petitioner by a copy of a letter written by Ellis D. Williams, Esq., to William P. Ellison, bearing date on the 9th day of January, 1893.” [Here follows copy of letter.]</p> <p>“ In conclusion, your petitioner avers that she was at the time of the adjudication aforesaid a married woman, and has been under coverture from that time until the present.</p> <p>“ Your. petitioner therefore prays that a citation may issue to Rodman B. Ellison and William P. Ellison and to Margaret Ellis and Ellis D. Williams, trustee for Margaret Ellis (being all the parties in interest) to appear and show cause: (1) Why the adjudication of the accounts of Rodman B. Ellison and William P. Ellison as executors of the will of JohnB. Ellison, deceased, should not be reopened and a rehearing granted, and the said Rodman B. Ellison and William P. Ellison be surcharged with the profits earned by the moneys of the estate by their use in business of the said Rodman B. Ellison and William P. Ellison from 1865 until 1882. (2) To show cause why</p> <p>the record of the said orphans’ court should' not be amended by striking therefrom the adjudication so fraudulently procured to be entered upon the account of the said executors as herein-before set forth. (3) Why the said Rodman B. Ellison and William P. Ellison should not state an account of the profits earned by the said moneys of the estate by their use in the business áforesaid, and .make payment of the proper portion thereof to your petitioner. (4) And your petitioner prays such other and further relief in the premises as to the court shall seem meet or the cause may require.”</p> <p>Respondents demurred on the ground that the petition stated no facts sufficient to justify the court in setting aside the adjudication made Jan. 13, 1882. Petition dismissed in opinion by Ashman, J., 2 Dist. R. 521. Petitioner appealed.</p> <p>Errors, assigned were (1) in not requiring the executors to account; (2) in not holding that petitioner is entitled to a review by reason of the fraud in procuring the adjudication; (3) in finding as quoted in opinion of Supreme Court; (4) in holding that petitioner’s rights were lost by laches ; (5) in entering decree.</p>

<p>Appeal, by property owners, No. 398, Jan. T., 1893, from order of Q. S. Phila. Co., Jan. T., 1891, vacating street.</p> <p>Petition for vacation of street.</p> <p>From the record it appeared that on Jan. 24, 1891, a petition of twelve persons purporting to be freeholders of the vicinity was presented, averring that the portion of Swanson street which “ is opened and used as a public street,” extending from Washington avenue to Prime street, had become useless to the public because of its occupation by railroad tracks. The petition prayed that this portion of the street be vacated. On June 4, 1891, the court appointed six jurors who subsequently reported that, after deliberation, three of these decided in favor of the propriety of vacating the street, and three others decided against the vacation. Being equally divided upon the question, they prayed to be discharged from its further consideration.</p> <p>On the hearing before the jury counsel admitted that the petitioners held title for the Pennsylvania railroad company, but no exception to that effect was filed in the court below.</p> <p>The court, Arnold, J., made an order vacating the portion of the street as prayed for in the petition.</p> <p>Errors assigned were (1) in ordering the vacation; (2) in not refusing to order as prayed for; (8) in not refusing to consider the petition because of a lack of jurisdiction, the court below having no jurisdiction to order a vacation of a part of an opened street. (4) The court below had no jurisdiction to entertain a petition filed by persons who were confessedly not freeholders of the vicinity. (5) The petition for the vacation was defective in that it failed to show by what authority Swanson street had been opened. (6) The court had no right to entertain jurisdiction of the petition, in view of the fact that the reason assigned, namely, danger in the use of the street because of its use by a railroad company, was insufficient.</p>

<p> Party walls—Deed—Easement of light and air—Covenant. </p> <p>An owner of a lot has a right to open windows in a party wall where the adjoining owner has covenanted in a deed to preserve to his neighbor an easement of light and air, and has also covenanted for himself, his heirs and assigns, not to erect a wall above a certain height “ unless there shall be left between the buildings a clear space of at least thirty-six inches between the faces of the two walls.”</p>

<p>Appeal, No. 67, Jan. T., 1894, by-Rosalie Parant Coleman et al., from decree of C. P. No. 1, Phila. Co., June T., 1893, No. 339, in the matter of the will of Robert Coleman, deceased.</p> <p>Petition for correction of records of register of wills.</p> <p>The petition of the widow and heirs of George Dawson Coleman set forth:</p> <p>That George Dawson Coleman died in Paris, October, 1891, leaving no children; that he was the only son of Robert Coleman, a citizen of Pennsylvania, who died in Paris, 1878, leaving surviving a widow, Rosalie Parant Coleman.</p> <p>That on Sept. 2,1878, the register of wills was requested by Horace Brock to issue a commission to Paris, France, to examine witnesses to prove the will of said Robert Coleman, deceased, in the custody of the proper legal authorities of Paris. On Sept. 4, 1878, the register issued said commission. The commission was returned executed on Sept. 18, 1878.</p> <p>It therein appeared that the original olographic will of Robert Coleman had been deposited among the archives of one Joseph Lavoignat, a.notary, in Paris ; that the original will was produced at the execution of the commission, and the signature of Robert Coleman thereto was duly proved by the testimony of four witnesses.</p> <p>It also appeared that the said will, in custodia legis, could not be removed and withdrawn under the law of France. Attached to the commission was a true copy of said will, now on file among the records of said register; but said copy has not been transcribed and entered in the books of the register.</p> <p>In August or September, 1878, and prior to Sept. 20, 1878, there was presented to the register a translation of the last will of Robert Coleman, deceased, so deposited with notary Lavoignat. This was not a copy of the original, but an English translation of a French translation of the original will in English.</p> <p>By reason of the translation and retranslation, a number of errors have crept into the copy, so that the paper presented to the register on Sept. 19, 1878, was quite different from the original.</p> <p>That letters testamentary on the estate of Robert Coleman, deceased, were issued by the register of wills to Horace Brock, on Sept. 19, 1878, upon a certified copy of the will, which it was claimed was duly proved in Paris, France, Aug. 9, 1878.</p> <p>That the retranslation of the translation of said will only has been transcribed in the office-of said register, and that the true copy attached to the commission was not recorded; that the transcription should have been corrected so as to correspond with the original.</p> <p>That by the will of Robert Coleman, deceased, petitioners charge there was devised to George Dawson Coleman an estate in fee in the real estate, and there was bequeathed to him an absolute interest in the personalty, and it is of importance to petitioners that the record of the will of said Robert Coleman should be true and correct, as shown by the copy attached to the commission. That said transcription in said will-book is incorrect, and calculated to cloud the title to said real estate.</p> <p>That on April 13, 1893, petitioner made application to William G. Shields, Esq., register of wills, praying him to correct the errors a'nd omissions appearing in said transcription, but he refused to comply.</p> <p>Petitioners are advised that by the resolution of the legislature approved June 17, 1839, the judges of the courts of common pleas, if neglect on the part of any register of wills, etc., be apparent, may order the deficiency to be corrected; that this case is a case of manifest neglect.</p> <p>The prayer was for the amendment of the transcription of the will of Robert Coleman.</p> <p>The register filed an answer in which he averred that owing to the lapse of fifteen years he did not feel it proper to question the matter of the authentication as shown by the record.</p> <p>Order made in accordance with prayer of petition.</p> <p>'Error assigned was above order.</p>

<p>Tax sale—Registry .of deed—Several owners—Suit—Service—Acts of March 14, 1865, and March 29, 1867.</p> <p>A deed to three persons as tenants in common was registered in the registry bureau in Philadelphia in the name of one of the tenants in com-mon with the words “ et al.” following the name. A claim for taxes was filed against the property. When suit was brought upon the claim, the owners were suggested in the same way that they appeared in the registry bureau. No efforts were made to serve the two owners whose names were not registered, and the property was sold without notice to them. Held, that their interests were not divested by the sale.</p>

<p>Appeal, No. 8, Jan. T., 1894, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1891, No. 1262, on verdict for plaintiff.</p> <p>Appeal from report of road jury assessing damages for widening and changing grade of Roxborough avenue. Before PenNYPACKER, J.</p> <p>When John Markle, one of the plaintiffs, was on the stand, he was asked: “ Q. Assuming that we shall find in this case that your property became subject to the construction of Man-ay unk avenue to its present height before Roxborough avenue was graded, was it not to your advantage to have Roxborough avenue graded as it is now rather than remain down on a level with the ground on both sides ? ” Objected to, objection sustained and bill sealed. [1]</p> <p>The court excluded, under exception,. defendant’s offer to prove the passage of an ordinance ’dated. Nov. 14, 1883, directing the opening of Manayunk avenue from Lyceum avenue to Sliurs Lane. [7]</p> <p>The court excluded, under exception, defendant’s offer to prove that, in March, 1884, the present plaintiff filed a petition, for damages for the opening of Manayunk avenue and Pechin street. [8]</p> <p>Plaintiff, on redirect examination of his witness, Geo. W. Hancock, asked:</p> <p>. “ Q. Mr. Miller has examined you upon the hypothesis that city improvements could not be put in at the grade of ’the old ground, or at a much less grade than the present, is that a correct or a false hypothesis? A. It is possible to put.’them in the wajr the ground was before, Q. That is, you mean sewers and water-pipe?” Objected to; objection overruled, exception noted for defendant. [4]</p> <p>The witness answered: “ It was possible so far as sewer and water-pipe was concerned.”</p> <p>Plaintiff asked his witness H. Reeves Lukens: “ Q. A sewer could have been put in in Roxborough avenue and water-pipe draining down into Manayunk?” Objected to, objection overruled, and exception. [3]</p> <p>The witness answered in the affirmative.</p> <p>The court charged in part as follows:</p> <p>“ It appears that the plaintiff in this case in 1888 was the owner of a tract of ground containing some twelve acres, and which extended along Roxborough avenue for some eight hundred and twenty-five feet from a point some seventy-two feet from Belair street, crossing Manayunk avenue and running to a point on the other side of Pechiii street. In that year, 1888, the city for its own purposes changed the grade of Roxborough avenue. It is contended, on the part'of the plaintiff, that that . was an injury to the value of his land. It is contended that it was an injury, as I understand it, for two reasons. In the first place some thirteen and one half feet were taken from his ground along Roxborough avenue, and in the second place for a distance of some three hundred feet on the upper side of Manayunk avenue there was an elevation of Roxborough avenue so that it stood above the plaintiff’s land at one point eleven feet or more, and the effect of it was that all along the three hundred feet it was raised above the plaintiff’s land. That is the main part of the contention of the plaintiff with respect to his injuiy.</p> <p>“ On the other hand the defendant contends that before this change of grade was made on Roxborough avenue there was a descent of some twenty-three and one half feet in two hundred and seventy feet from Pechin street, making a very steep descent, and at the junction of Roxborough avenue and Manayunk avenue there was what is called a basin, Roxborough avenue rising from that point on toward Belair street and toward Terrace street, and as after the change of grade there is a gradual, descent from Pechin street along the front of the plaintiff’s property of not more than two and one half feet, in one hundred, that the plaintiff has been benefited by that change in the grade.</p> <p>“ The city also contends; as I understand counsel for the city, that if there has been an injury to the plaintiff’s land much of the injury is due not to the change of grade on Roxborough avenue but to the opening of Manayunk- ayenue and Pechin street. Upon this latter question you will remember that what you have to consider is the effect upon the whole of the plaintiff’s land of the change of Roxborough avenue alone. - Tf there has been any injury which is the result of the opening of other streets, Manayunk avenue and Pechin street, you must dismiss that from your consideration entirely. Although these streets may have been opened at or about the same time, the question is exactly as if those streets had been open at some other time, in the past, or as if they remained to be opened in the future. ■If such streets have been opened the plaintiff either has recovered his damages or will have an opportunity to recover damages for the injury resulting from the opening of those streets.”</p> <p>Defendant’s points were among others as follows:</p> <p>“2. In cities a property owner has no right to the mainten-. anee of drainage flow, whether ancient or not, from his own property over a public highway into or through other private property. Any reduction of value of the plaintiff’s property occasioned by the obstruction of the water course passing over Roxborough avenue to the property of Mr. Campbell cannot be considered by the jury in arriving at the verdict. The use of such a water course to drain Roxborough avenue at Mr. Markle’s property cannot be considered in this case Answer: I decline that point, because there is no evidence in the case to which it is applicable, and because any claim which rested upon evidence with respect to the stream has been withdrawn.” [6]</p> <p>“ 3. Prior to the filling in of Roxborough avenue, the public authorities had ordered the opening of Manayunk avenue and Pechin street at their present level, and claims of Mr, Markle had been acted upon by road juries in the respective cases. No damage can be awarded plaintiff in the present suit for any injury occasioned by the new levels of Manayunk avenue or Pechin street, which the city had previously acquired the right to fill up without other liability to Mr. Markle than that incurred in those cases.” Refused. [2]</p> <p>“4. City authorities are under no obligation to lay highway improvements in a street before it is made to conform to the grade established upon the confirmed plan. In estimating the value of Mr. Markle’s property prior to the filling in of Roxborough avenue, the jurjr must consider that street as not entitled to receive of the city authorities cartway paving, water-pipe or sewer, until the grading for which plaintiff claims should be done. Answer: I decline that point as more or less misleading.” [5]</p> <p>Verdict and judgment for plaintiff for 15,000.</p> <p>Errors assigned were (1, 8, 4, 7, 8) rulings; (2, 5, 6) instructions, quoting instructions and bills of exceptions, but not quoting evidence. Assignments 6 and 7 were filed on argument.</p>

<p>Assignment for benefit of creditors —■ Removal of assignee — Practice — ■Master—Act of June 14, 1836.</p> <p>Under the act of June 14, 1836, P. L. 630, relating to the dismissal of assignees for the benefit of creditors, the court may appoint an examiner to take testimony, but has no authority to appoint a master to report upon the facts.- The petitioning creditor in such a case has the right to the best judgment of the court on liis proofs, uninfluenced by the opinion of any other person.</p> <p>It seems that where an auditor has filed a report upon the account 'of an assignee for the benefit of creditors, and has fully considered the question of the integrity of the assignee in managing the estate, it is improper for the court to entertain a petition for the dismissal of the assignee, before acting upon exceptions to the auditor’s report.</p> <p> Appraisement of assigned estate. </p> <p>Appraisers appointed to appraise an estate assigned for the benefit of creditors, should not appraise mining leaseholds and manufacturing plants at a value which they probably would have if operated with great skill and large capital, but at the price which the properties would probably bring at a fair sale. •</p> <p>Where an assigned estate has been greatly overvalued by the appraisers, without the assignee beingaparty to the overvaluation, it is no ground for dismissing the assignee that he subsequently sold the property for what it was actually worth.</p> <p> Equity—Master's fee—Payment before filing report. </p> <p>A master should not, before he has filed his report, accept his fee in whole or in part from one of the parties without the knowledge of the other, or of the court. If the litigation is prolonged, the master has a right to ask a direction of the court for immediate payment of a proportionate part of his fee. If no such request is made to the court, payment should only be made to the master with the knowledge and by consent of counsel for all parties interested.</p> <p> Equity—Proceedings to dismiss assignee—Gosts. </p> <p>Where upon a petition for the dismissal of an assignee for the benefit of creditors, the court finds that the averments of the petition are not sustained, but also finds that they were not groundless, the costs will not be imposed upon the petitioner, but upon the assigned estate.</p> <p> Assignment for benefit of creditors—Distribution—Composition—Payment to creditors to manage business—Eoxeptions. </p> <p>The unsecured creditors of an assigned estate formed a corporation for the purpose of taking a conveyance of a portion of the assets of the estate. The assignee conveyed to the corporation some of the real property of the estate, and also paid to the corporation a large sum of money tobe used as a working capital. All of the creditors agreed to the transaction. The corporation turned out a failure. The assignee filed an account in which credit was taken for the conveyances and payments made to the corporation. The report of the auditor allowing the credit was confirmed absolutely. When the assignee filed the second account one of the creditors claimed-thatthe assignee should be surcharged with the payment made to the corporation. It appeared that this creditor had been represented by counsel at the first audit, and that he had actively participated in the meeting of the creditors leading to the transfer of the properly, and that he knew of the cash payment to the corporation. Held, that there was no ground for surcharging the assignee with payments made to the corporation.</p> <p>In such a case the objecting creditor cannot claim that the agreement was invalid because some of the creditors, acting in a fiduciary capacity, had no authority to join in it.</p> <p> Assignment for benefit of creditors—Accounts—Bes judicata. </p> <p>An assignee for the benefit of creditors in a second account claimed a credit for a certain sum because in the first account credit to that amount had been taken for commissions and counsel fees, in excess of cash on hand. Held, that such a claim was in effect an admission that there had been no final adjudication of the correctness of the credits claimed for counsel fees and commissions, and that their con’ectness could be considered at the audil of the second account.</p> <p> Assignee for benefit of creditors—Commissions. </p> <p>An assignee for the benefit of creditors is not entitled to commissions upon an excessive overvaluation of the assigned estate, but only upon the real value of the estate.</p> <p>The assignee is not entitled' to double compensation in any case; if duties usually performed by an assignee personally have been delegated, to lawyers and agents, and compensation has been allowed for their service, he cannot again charge for such service, as if rendered by himself.</p>

<p> Mutual life insurance—Forfeiture—Estoppel. </p> <p>The by-laws of a mutual life insurance association did not provide the terms or conditions upon which a member might be reinstated after forfeiture of membership, nor was any reference made to the subject in the application or policy. In the assessment notice it was stated that no reinstatement could be made or payment received except upon condition that the assured was alive and in good health. Plaintiff failed to pay several assessments, and was served with the usual notice containing the statement as to reinstatement. He paid all the past assessments and furnished proof to the company that he was in good health. He subsequently paid other assessments. All of the assessments were received by the company without objection or condition. Held, that the action of the company es-topped it from asserting a forfeiture of plaintiff’s membership.</p>

<p> Equity—Specific performance—Sale to two vendees—Trust. </p> <p>Where a person enters into an oral contract to sell land, and snbse-. quently executes a written agreement to sell the same land to another person, the vendor, although not legally liable under the oral contract, is morally liable, and if he chooses to carry it out, a court of equity will noy deny him the right to do so on a bill filed by the second purchaser.</p> <p>Iii such a case a bill in equity by the second purchaser praying that the first purchaser to whom a deed has been made shall be declared a trustee of the legal title for the second purchaser, will be dismissed. The maxim of equity that first in time is first in right is applicable.</p> <p> Equity—Necessary parties—Contract. </p> <p>A father entered into an oral contract to purchase land and directed that the deed should be made to his daughter. Before the deed was made the owner of the land entered into a written agreement to sell the land to another person. The second purchaser filed a bill in equity against the vendor for specific performance, and against the-grantee in the deed to have her declared trustee of the legal title for the second purchaser. Held, that the grantee’s father, who was the real purchaser, was a necessary party to the bill.</p> <p> Specific performance—Equity—Vendor and vendee. </p> <p>Any circumstance tliat shows that a decree of specific performance, even of a written agreement of sale, would be unfair or inequitable, is sufficient to defeat the application.</p> <p> Vendor and vendee—Damages—Specific performance. </p> <p>Where, on a bill in equity for specific performance, it appears that the ! defendant has placed it out of'his power to execute the contract, because of a conveyance previously made to another person, the defendant is liable for damages, which may be ascertained in proceedings under the bill.</p>

<p> Will—Condition subsequent—Decedents' estates—Conclusiveness of decree. </p> <p>Testator died leaving to survive him four childx'en, and a gx-andson, a son of a deceased daughter. He gave a specific sum to a trustee, the income of which was to be paid over to the executox's who were to use so much of it as they might deem sufficient to maintain and educate the grandson until he should arrive at the age of twenty-five years. After the grandson reached that age the whole of the income was to be paid to him. At the death of the grandson the principal was to be paid to his lawful issue, or, in default of which, to testator’s children. By a codicil testator directed that “ should any attempt be made at law or otherwise,” during the minority of his grandson, to withdraw the latter’s person from the custody of testator’s executoi’s by the boy’s father or any other person, the executors were to suspend all further payments, and all provision for the grandson was revoked. After testatox'’s death some corx'espondence took place between the grandson’s father and testator’s executors, the result of which was the voluntary sxxrrender of the boy to the custody of his father. The executors subsequently filed an account, and, upon the application of the executors and testator’s four children, the attorney for the executors was appointed auditor. Although the whereabouts of the grandson and his father were known, no notice was given to either of them of the proceedings, and it was stated to the court that the petitioners for the appointment of the auditor were all the parties interested in the estate. The auditor distributed the whole estate, including the fund left intrust to the grandson, to testator’s four children, and his report was confirmed by the court. Seld :</p> <p>(1) That the decree of distribution was not conclusive upon the grandson.</p> <p>(2) That testator did not mean by the words “ any attempt ” in the codicil, a surrender as the result of correspondence, but that he meant successful attempts made with force or at law.</p> <p>(8) That the grandson had no right to any income withheld from him by the executors, in the exercise of their discretion, before his twenty-fifth year, but he was entitled to all the income accruing after he reached the age of twenty-five years.</p> <p>Conditions subsequent by means of which the estate of a legatee may be forfeited by the acts of persons over whom he has'no control, and for whose conduct he is not responsible, are not regarded with favor by the courts, and will not be enforced when they can be reasonably relieved against.</p>

<p>Appeal, No. 83, Jan. T., 1894, by plaintiff, from order of C. P. No. 2, Pbila. Co., March T., 1891, No. 493, entering judgment of nonsuit.</p> <p>Trespass for personal injuries. Before Fell, J.</p> <p>At the trial it appeared that plaintiff was injured on Aug. 6, 1889, while alighting from a train at the Excursion House, Atlantic City. Plaintiff ha,d purchased a round-trip ticket from Atlantic City to Longport. On her return she rode in a combination car, which was used, one half for passengers and one half for trunks and parcels. During the ride the car became crowded, both ends and between the seats being packed, and she with a female friend determined to get out at the Excursion House. At each end of the car there was an ordinary platform with ordinary steps. She had gotten into the car in that way. When the train reached the Excursion House, the conductor got off at the side door of the car, and called out “ all out for the Excursion House.” There was no platform there. Plaintiff described the accident as follows: “ Q. Mrs. Darlington you say was with you ? A. Yes, sir. Q. Is she a relative ? A. No, sir; no relation at all. Q. You say that she got out the side door ? A. With me; yes, sir; and some others. Q. She got out before you? A. Yes, sir; I was the last to get out, and hesitated about doing so. Q. Did she get out of her own motion ; step right out there ? A. The conductor, if I remember right, extended his hands for her to step out, as he did me, but I was rebelling against going out that way, and, of course, I was taken up with my affairs at that time. Q. The conductor, you think, extended his hands toward her.as he did toward you? A. If I remember rightly, if my memory serves, I think he did. Q. You are certain the conductor did that? A. I am not certain to her, I am certain to myself. Q. You are certain the conductor who took your ticket did that ? A. The conductor who was on the car jumped off at that station. Q. But do you say that the conductor of that train asked you to get off at the baggage door? A. Yes, sir; and when I hesitated, he extended his hands and he says: ‘ Step lively, madam, step lively,’ and in stepping, that is where I was injured. Q. You feel quite positive of that? A. Yes, sir.”</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 271, Jan. T., 1898, by William L. Roberts and William L. Roberts, executor, from decree of O. C. Montgomery Co., in adjudication of decedent’s estate. Exceptions to report of Henry D. Saylor, Esq., auditor. The facts appear by the opinion of the Supreme Court. The opinion of Weand, J., was in part as follows: “ The auditor has deducted the amount (of the costs of the Maryland suit) from Edward’s share upon the ground that Wm.

<p>Appeal, No. 48, July T., 1893, by plaintiff, from decree of C. P. Montgomery Co., Oct. T., 1886, No. 201, opening judgment.</p> <p>Issue to determine validity of judgment.</p> <p>From the record it appeared that on Sept. 19,1892, the court awarded an issue to determine the following facts: “ (1) Was the claim in controversy purchased with the moneys of the estate ? (2) Was the claim in controversy purchased for the benefit of Mrs. N. Adeline Irwin? (2j) If so, was it so purchased with her knowledge ? (3) Is Mrs. N. Adeline Irwin the legal or equitable owner of any part of said claim? (4) Was the judgment confessed for a greater amount than was legally due at the time ? ”</p> <p>At the trial the jury answered questions 1, 2£ and 4 in the negative, and questions 2 and 3 in the affirmative.</p> <p>The following opinion was filed by Weand, J.:</p> <p>“ On Oct. 2, 1874, Ninian Irwin borrowed from Hannah Woods five bonds of $1,000 each, of the Danville, Hazelton & Wilkes-Barre Railroad Co., which he agreed to return within three months. ■</p> <p>“ On Oct. 15, 1874, Irwin borrowed ten more of the same bonds of same denomination which he agreed to return in six months. Irwin died in 1877, without having returned either of the bonds.</p> <p>“Mrs. Woods after the death of Irwin assigned one-half interest of her claim to John Q. Lane. Both parties afterward, Feb. 9, 1881, assigned the whole claim to one J. Wilson Irwin, for $1,000. Ninian Irwin left a will in which he appointed his wife N. Adeline Irwin his executrix. Mr. G. R. Fox acted as counsel for Mrs. Irwin in the settlement of the estate and appears to have had the entire management of it. He also acted as counsel for Mrs. Woods to collect her claim from the estate, and after the assignment to J. W. Irwin he retained possession of the papers, thus acting for all parties interested.</p> <p>“ The negotiation for the purchase of the claim from Mrs. Woods and Mr. Lane was through Mr. Fox, who paid the money to Mr. Lane. Upon the back of the assignment from Woods and Lane to Irwin, and of same date, appears the following in Mr. Fox’s handwriting:</p> <p>“ ‘ This purchase was made one half with money of J. Wilson Irwin and one half with money of Milton Stewart, and to be held by J. W. Irwin in trust for Mrs. N. Adeline Irwin’s use and to be hers on refunding out of the moneys when collected $500 to each of said parties.’</p> <p>“ There also appears on this paper as of same date another indorsement as follows:</p> <p>“ ‘ This assignment with the accompanying papers is left with me for the collection of the money from the estate of Ninian Irwin, deceased, and out of the net proceeds less counsel fees and expenses to pay J. Wilson Irwin $500 with interest from Feb. 9, 1881, and to Milton Stewart $500 with interest from Feb. 9, 1881, if so much 'shall be realized; and if less, then to divide the amount received between them pro rata, and if more than a sum sufficient shall be realized to pay them in full, then to pay the net balance to George Irwin, son of said Ninian Irwin.’ * .</p> <p>“ Neither George Irwin nor Mrs. N. A. Irwin were aware of these indorsements or that they had any interest in the claims until after judgment was obtained. The Danville, Hazelton & Wilkes-Barre Railroad defaulted in the payment of its bonds. Under foreclosure proceedings the road was purchased by a syndicate of the bondholders, who reorganized it as the Sun-bury, Hazelton & Wilkes-Barre Railroad, and sold it to the Pennsylvania Railroad, who gave in payment two series of bonds guaranteed by themselves. The old bonds were convertible into the new, but by reason of Ninian Irwin’s default Mrs. Woods lost the’benefit of such right to convert. Mr. Fox placed the claim in the hands of another attorney who then brought suit in the name of ‘ Hannah Woods, to use of J. W. Irwin and Milton Stewart, trustee.’ In this suit Mr. Fox acted as attorney for Mrs. Irwin as executrix and advised her to confess judgment which she did for $15,525, said suit being to Dec. T., 1886, No. 19.</p> <p>“ Mrs. Irwin says in her testimony that she did not then know that the judgment was for her benefit, and that if she-had known it she would not have confessed judg’ment for $15,000, when only $1,000 was paid.</p> <p>“Subsequently.!. M. Albertson & Sons, who held a judgment against Ninian Irwin, petitioned the court to open the-judgment to allow them to interpose the plea of the statute. The judgment was opened and on a trial the court directed a verdict for the defendant. This judgment was reversed by the Supreme Court. See Woods v. Irwin, 141 Pa. 278.</p> <p>“ Mr. Stewart having, declined to appeal the case to the Supreme Court, he was induced by Mr. Fox to assign the claim to George Irwin, who indemnified him against costs. Albertson & Sons then applied to have the judgment opened upon the-ground that it was fraudulently confessed by the executrix and is held and enforced against the decedent’s estate for a sum many times the amount actually due thereon and for her own personal use and benefit, etc. The court thereupon awarded an issue to determine several questions of fact. Those found in favor of the' contestants and upon which, and for-other reasons, they ask the court to open the judgment, are, 1st, that the claim was purchased for the benefit of Mrs. N. A. Irwin, and that she is the legal or equitable owner of part of' said claim.</p> <p>“ George Irwin distinctly asserts that he knew nothing of any interest he might have had in this claim apart from the assignment to him on April 11, 1890, from Milton Stewart, who-describes himself as trustee, who survived J. W. Irwin, and this assignment it is testified was for the purpose of carrying-the case to the Supreme Court after Mr. Stewart had declined so to do. There is no evidence to show that Mr. Fox was authorized to mark the claim to the use of George Irwin, and the only interest therefore that the latter can have is to the extent of five hundred dollars. Mrs. Irwin therefore stands as claimant for all that may be recovered over and above $1,000 with interest.</p> <p>“ Even if we concede that the purchase or assignment for the use of Mrs. Irwin was a revocable trust, we must still regard it as in full force, for nothing has been done to show that such right to revoke was ever claimed or exercised, and the suit which has passed into judgment was brought by Irwin . and Stewart, trustee, thus admitting that the claim was held for the use of some one else, and as the indorsement of Mr. Fox was directed to be made for Mrs. Irwin’s use by the purchaser, she must be regarded as having an interest therein even without the finding of the juiy Upon that point. Mr. Fox in his testimony says: ‘ The assignment was left in my hands where it has been ever since, with directions that, upon receipt of the money, if there was enough to pay the principal these gentleman advanced and interest, they should get their money back, and if not, it should be divided pro rata between them, and that if it realized more, the excess I should pay for the benefit of Mrs. Ninian Irwin.’</p> <p>“There can be no other conclusion drawn from the facts and circumstances of this case than that J. Wilson Irwin and Milton Stewart bought this claim, for all it was considered by them then worth, not as an investment or venture to make money for themselves, but with the understanding, intention. and instructions that beyond the amount paid by them it was to belong to Mrs. Irwin, who was the executrix.</p> <p>“ It must be conceded that if she had bought the claim for $1,000, either directly or through her counsel, any advantage gained would enure to the benefit of the estate. It is only necessary to refer to Hill v. Frazier, 22 Pa. 320, where it is said: ‘ It is a universal rule that one to whom the management of any business is confided, cannot create other relations which will put him in an attitude of hostility to his principal, or cestui que trust; ’ and to Saeger v. Wilson, 4 W. & S. 501, ‘ compromises by which money is gained or saved by executors or administrators or trustees, enure to the benefit of those for whom they act and not for the benefit of the trustee.’ In the case of Heager’s Executors, 15 S. & R. 65, it was ruled that, ‘ In chancery the principle is one never departed from, and is as binding as any axiom of the common law, that he who takes upon him a trust, takes it for the benefit of him for whom he is intrusted, but not to take any advantage for himself.’ ‘ A trustee shall never be permitted to raise in himself an interest opposite, to that of his cestui que trust.’</p> <p>“ Is the rule different where the purchase, as in this case, is made for the benefit of the trustee, although without his knowledge ? The application of the rule does not depend upon actual fraud. The doctrine is a rule of public policy necessary to preserve honesty and fidelity in the administration of trusts : Fisher’s Appeal, 34 Pa. 29. It must not be forgotten that this whole business was managed by the counsel for Mrs. Irwin and the estate. It was his duty to protect the estate as much as it was the duty of the executrix and his knowledge was her knowledge. As he could acquire no interest for himself, antagonistic to the estate, neither could he do so for his client, the executrix. She could not intrust him with the sole management of the estate and thus allow him to secure for herself an advantage which she was not permitted to do herself. He knew that the claim could be bought for $1,000 and he secured its purchase with the object, as he says, of having it in friendly hands. But what kind of friendship would that be which would buy a claim for $1,000, and then claim $15,000 for it. The rule appears to be imperative that the trustee cannot acquire an advantage or interest in a claim against the estate beyond the amount actually advanced for it. In this case by inducing others to buy up the claim for her use she was enabled to hold it until an advantage was secured hostile to the trust.</p> <p>“ In the note to Keech v. Sanford, 1 Leading Cases in Equity, Hare and Wallace’s Notes, 3d Am. ed., p. 91, it is said: ‘It is a principle firmly maintained in the equity jurisprudence of this country, that a trustee is not at liberty to act or contract for his own benefit in regard to the subject of the trust, and .that the advantage of all that he does about the trust property shall accrue to the cestui que trust, if the latter desire it.- An independent interest in a trustee in the subject of the trust, would in its very nature be an interest hostile to the cestui qui trust, and that is. repugnant to the relation which the trustee has assumed. So far as he acts about the property for himself distinctly, he divests himself of the character of trustee for another, and this by his own act he cannot do. Whenever one person is placed in such relation to another by the act or consent of that other, or the act of a third person, or of. the law, that he becomes interested for him or interested with him in any subject of property or business, he is- prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated, and in Hill v. Frazier, supra, it was said that, ‘ One who is charged with the duty of paying debts cannot make a speculation by buying them for his own use, whether he does it with his own money or not.’ The principle would be of little value if the act condemned could he done by the counsel for the trustee even without her consent or knowledge. The counsel in many cases, as in this, transacting all the business of the estate,, possessed of the knowledge thus gained, could thus secure claims for the trustee indirectly, what the law could not permit to be done directly. No better illustration of the mischief of such a rule could be had than is furnished in this case. If the counsel had at once notified Mrs. Irwin of the assignment and her interest therein she could have relinquished her claim or presented it for the benefit of the estate and thus have acted as the law requires, and she states in her testimony that she would not have confessed the judgment for more than $1,000 had she known the facts. By concealing them from her she was induced to claim an advantage for herself as against those she represented in her' capacity of executrix. We are therefore of opinion that as to other creditors this judgment cannot be enforced for more than $1,000 with interest from Feb. 9, 1881, but that it can be used until a dividend thereon pays that amount. We cannot therefore open or set aside the judgment, but by virtue of the power vested in us as a court of chancery, we can restrain collection beyond the amount really due.”</p> <p>The court made the following order:</p> <p>“ And now April 18,1893, it is ordered and decreed that the judgment, Woods to use v. Irwin, executrix, etc., entered in judgment docket, L. 1, P. 127, Nov. 26, 1886, is declared null and void for all amount over and above a dividend amounting to $1,000, with interest from Feb. 9,1881, to be realized thereon, and is not to be enforced or considered binding against the estate of William Irwin, deceased, after the dividend on said judgment shall pay plaintiff the said sum of $1,000 with interest as aforesaid.”</p> <p>Error assigned among others was above order, quoting it.</p>

<p> Evidence—Attorney and client—Privileged communications. </p> <p>Where several persons employ the same attorney in the same business, communications made by them in relation to such business, while privileged as to their common adversary, are not privileged inter sese.</p> <p> Evidence—Will—Attorney and client—Husband and wife. </p> <p>Three sisters were equally interested in having a will declared invalid. The husband of one of the sisters employed an attorney, and managed the • litigation. His wife and one of the sisters were made plaintiffs, and the other sister was joined with other parties as a defendant. The case was compromised, and a large payment made to the two plaintiffs. The sister whose husband managed the litigation subsequently died, and the sister who was made a defendant claimed from her estate a part of the money paid under the compromise agreement. Held, that the attorney in the will contest was competent to testify as to who were the parties he represented, and as to declarations made by the husband showing for whom he acted in making the contest.</p> <p> Will contest—.Compromise—Interest—Evidence—Presumption. </p> <p>In such case the law will presume that all the sisters joined in the compromise upon the same terms and conditions, and that the sum received was to be divided in conformity with the intestate laws. This would shift the burden of proof to the sisters to prove a release of interest, etc.</p> <p> Will—Issue devisavii vel non—Compromise. </p> <p>No contestant of a will can compromise anything beyond his or her own personal interest in the contest, and can be entitled to no more than his or her distributive share in a- sum received by way of general compromise.</p>

<p> Mortgage—Payment—Evidence. </p> <p>On a scire facias sur mortgage it appeared that the mortgage, which was for one hundred and fifty dollars, was executed by a husband and wife, and covered land owned by the wife. The husband leased a hotel from the mortgagee at a rental of twenty dollars per month. Defendants claimed that the mortgage was given to secure the first six months’ rent, and thirty dollars loaned to the husband. Plaintiff claimed that the mortgage was given as a continuing security for the rent. The attorney who prepared the mortgage and the husband called as on cross-examination both testified that the mortgage was only to secure the first six months’ rent. Two receipts signed by the mortgagee, one for forty dollars, and the other for thirty dollars, specified that they were on account of the mortgage. It was admitted that more than the amount of the.mortgage had been paid on account of rent. There was no evidence for plaintiff tó contradict defendant’s testimony. Held, that binding instructions should have been given for defendants.</p>

<p>Appeal, No. 131, Jan. T., 1894, from decree of O. C. Lehigh Co., distributing decedent’s estate.</p> <p>Exceptions to auditor’s report. Before Albright, P: J.</p> <p>From the report of the auditor, A. G. Dewalt, Esq., it appeared that on Feb. 22, 1890, Franklin R. Kuhns assigned to Julia Ann Kuhns, his sister, all the right, title and interest he then had, or might thereafter have, in the estate of his father, Reuben Kuhns, which assignment was recorded one day after the death of Reuben Kuhns. On June 9,1890, Reuben Kuhns died.</p> <p>On Feb. 22, 1890, Franklin R. Kuhns was insolvent, and a judgment of the Second National Bank to the use of James Newhard was due and owing by him. On Oct. 10, 1890, the Second National Bank, to the use of James Newhard, issued an attachment execution based upon judgment No. 79, April Term, 1885, against Franklin R. Kuhns and James Newhard, defendants, and Aaron Kuhns, executor of Reuben Kuhns, garnishee. James Newhard died April 5,1892, and his executors were substituted. On May 14, 1892, Aaron Kuhns, the executor, paid to Julia Ann Kuhns, as assignee of Franklin R. Kuhns, $538.92, the full share of Franklin R. Kuhns in his father’s estate.</p> <p>The auditor found that Franklin R. Kuhns and Julia Ann Kuhns were both incompetent to prove the consideration for the assignment of the expectancy. He accordingly awarded the fund to- the attaching creditor.</p> <p>Exceptions dismissed and report confirmed.</p> <p>Errors assigned were dismissal of exception and entry of de' cree, quoting them.</p>

<p>Appeal, No. 252, Jan. T., 1894, by plaintiff, from judgment of C. P. Montgomery Co., Oot. T., 1892, No. 192, entering nonsuit.</p> <p>Assumpsit on policy of live stock insurance.</p> <p>At the trial, before Weand, J., it appeared that on May 18, 1889, defendant insured against loss by accident a horse belonging to plaintiff. Section 14 of the company’s by-laws was as follows: “The insurance in this company shall be confined to a distance not exceeding twelve miles from the borough of Hatboro.” Article 10 of the constitution provided that “ No stock shall be insured by this company unless in a healthy condition, and must have been within the limits of the company at least 30 days.”</p> <p>At the time of insurance plaintiff resided at Jenkintown, about seven miles from Hatboro. About Nov. 19, 1891, he removed permanently to Philadelphia, about seventeen miles distant from Hatboro. He took with him the horse in question, and kept him at a livery stable near his residence. The horse was kicked by another horse in the stable, as a result of which he had to be killed. The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 338, Jan. T., 1893, by defendant, from judgment of C. P. Chester Co., Jan. T., 1893, No. 23, on demurrer to respondent’s return to writ of mandamus.</p> <p>Mandamus to compel register of wills to certify to the or•plians’ court questions arising in a contest concerning the will of A. Taylor Hoopes, deceased.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was entry of judgment on demurrer.</p>

<p>Appeal and certiorari, No. 84, July T., 1898, by defendant, from judgment of C. P. Chester Co., Jan. T., 1893, No. 15, on verdict for plaintiff.</p> <p>Assumpsit on award of arbitrators. Before 'Hemphill, J.</p> <p>The stenographer’s notes of the trial contained the following entries:</p> <p>“ It is admitted that the agreement for a reference and the award of the arbitrators were made in an amicable action pending before J. W. Morton, a justice of the peace of Honeybrook township, and that admission being made it is agreed that the certified copy of the reference and award be received with like effect as if they were the original.</p> <p>“Mr. Reid offers in evidence a certified copy of the transcript before the justice of the peace, J. W. Morton, in .the suit between B. J. Climenson and Edmund Climenson, amicable action, .which contains a copy of the submission and award.</p> <p>“ Mr. Monaghan objects to the transcript, because this was a suit pending before a justice of the peace, and that, therefore, the submission and award are not a common law submission and award, which is stated by the plaintiff’s declaration or statement, to be sued upon. Secondly, that it appears on the face of the award that it is not responsive to the submission. Objection overruled and paper admitted.”</p> <p>The justice’s record was as follows :</p> <p>“Amicable action. Personally appeared before me, J. W. Morton, a justice of'the peace, in and for the county-of Chester, B. J. Climenson and Edmund Climenson, and agreed to submit all matters at variance between them to Evan Damp-man, W. D. Winger and A. M. Anderson, to meet in the library room in Honeybrook on the 23d day of January, 1890, at one o’clock in the afternoon.</p> <p>“January 23, 1890. It is hereby agreed by the parties above named that all matters in dispute between them shall be submitted to the above arbitrators, and that the award of the said arbitrators shall be final and that neither party will appeal therefrom. (Signed by plaintiff and defendant.)</p> <p>“We, the above named referees, having been affirmed according to law, and having heard the parties, their proofs and allegations, do award that we find a balance of one hundred and forty-six dollars and eighty-six cents due B. J. Climenson as it appears on their accounts of profits and charges, as settlement in full from April 21,1871, to April 1, 1878. (Signed by arbitrators.)</p> <p>“ J an. 25, 1890. Judgment publicly; according to above award.</p> <p>“ November 29, 1890. Transcript given B. J. Climenson.</p> <p>“ Certiorari served July 1892, and transcript furnished.”</p> <p>Binding instruction for plaintiff was given. [1]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. That the transcript in evidence and the admission of the plaintiff shows that the reference in this case was of an action pending before J. W. Morton, a justice of the peace;. the arbitration and award cannot therefore be treated as a common law submission and award.” Refused. [2]</p> <p>“ 2. If the jury believe that the submission in this case was of an action pending before a justice of the peace the award cannot be treated as a common law award.” Refused.. [3]</p> <p>“3. If the jury believe that the arbitrators refused to hear and consider claims presented by Edmund Climenson the award is bad and cannot- be sued upon. Answer: That also is dis-affirmed for the reason that there is no evidence, that I recall, to support it.” [4]</p> <p>4. Request for binding instruction. Refused. [5]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-5) instructions, quoting them.</p>

<p> Bill of lading—Bill of exchange—Carrier—Title—Disclaimer—Sheriff —Damages. </p> <p>Where a seller of goods draws a bill of exchange on the purchaser, and attaches the bill of lading for the goods to the draft, and sends the draft and bill of lading to a bank for collection, the seller retains title to the goods only for the purpose of securing payment. If in such a case the purchaser tenders the price of the goods, his title and right to possession will be complete. .</p> <p>A dealer sold a car load of oats, and consigned it in the bill of lading to his, own order. ■ He drew a draft upon the purchaser, and attached the bill of lading to the draft, but neglected to indorse the bill of lading. He sent the draft' and bill of lading to a bank in the town where the purchaser lived. The carrier refused to deliver the oats unless the bill of lading was indorsed by the seller. The bill of lading was accordingly returned to the seller, who refused to indorse it. In the meantime oats had risen in price, and the seller ordered the car to be delivered to another party. The first purchaser .then issued a foreign attachment, and the sheriff attached the car. The levy of the attachment was by mere indorsement upon the writ. The car was not disturbed. Subsequently the conrt ordered the oats to be sold as perishable property. In an action against the sheriff for a wrongful sale: Belli (1) that the action of the first purchaser in levying upon the oats was a disclaimer of title in himself; (2) that the court was bound to assume that the vendor had resumed complete possession of the property, and was within his rights in disposing of it to another; (3) that under the circumstances the sheriff was liable only for nominal damages.</p> <p>AVhero a sheriff levies an attachment upon perishable goods without disturbing the goods, and subsequently sells the goods under an order of court, as perishable goods, he is liable only for nominal damages.</p>

Appeal, No. 74, July T., 1893, by plaintiff,- from order of C. P. Bucks Co., Jan. T., 1893, No. 5, discharging rule to open judgment. Rule to strike off judgment. Before Aerees, P. J. From the record it appeared that judgment was entered on a warrant of attorney for $2,500 on Jan. 10, 1893. The note containing the warrant of attorney was dated Aug. 1, 1892.

<p> Common carriers—Bill of lading—Bill ' of exchange—Consignors—Negligence—Banks. </p> <p>A bank received a bill of lading made out to the order of the consignors, with a draft attached drawn on the purchasers of the car load of goods coveyed by the bill of lading. In the bill of lading was a direction to notify the purchasers. The purchasers drew a new draft upon a person to whom they proposed to sell the goods. The bank discounted the new draft, and passed the amount of it to the purchasers’ credit. The purchasers then drew a check upon this deposit for the amount of the original draft, and delivered the check to the bank. The purchasers failing to sell the goods to the person upon whom the second draft was drawn, sold them to other-parties to whom they directed the railroad company to deliver the car.' The bank never notified the railroad company of its possession of the bill of lading, and the railroad company had no knowledge of its existence. The purchasers subsequently failed, and did not pay the second draft. Held, that the railroad company was not liable to the bank for the goods.</p> <p>The action of the bank in retaining the bill of lading without notice to the railroad company, and permitting the purchasers to assume the position of consignors, and to direct and control the movements of the car, was of such a negligent char-acter as to relieve the railroad company of all liability to the bank upon the bill of lading.</p>

<p>Wholesale liquor license—Transfer—Locality—Act of April 20, 1858. The court of quarter sessions has no jurisdiction to authorize the transfer of a wholesale liquor license from one place to another.</p>

<p> Guardian and ward—Revocation of appointment—Costs. </p> <p>A.person had himself appointed guardian for a minor with full knowledge that a guardian had already been appointed in another county. He then applied to the orphans’ court of the other county to have the first guardian removed, but failed in his application. Upon the application of the first guardian, the orphans’ court of the county appointing the second guardian revoked the appointment upon condition that the second guardian’s costs in the proceeding in both counties should be paid by the first guardian. Meld, that the revocation of the appointment should have been without condition or qualification.</p>

<p> Limited partnership association—Eecording articles—Contract—Individual liability of members. </p> <p>The failure of a limited partnership association to record its articles before the commencement of negotiations -which culminated in a contract after the articles are recorded, does not render the members of the association liable as individuals or general partners for the goods delivered to the association under the contract.</p> <p>Before the articles of a limited partnership association were recorded, the association gave an order for goods. Subsequently, by agreement of the parties, a new order was given superseding the old one, conditioned upon the approval by the association of certain samples of the goods which were to be delivered. After the contract was thus modified the articles of association were recorded. After the recording of the articles, the samples were delivered to' the association and approved. Held, that the members of the association could not be held liable as general partners for the contract price of the goods delivered.</p>

<p> Principal and agent—Sale—Evidence—Revocation of agency. </p> <p>Where a dealer has been in the' habit of selling goods to an agent, notice of the revocation of the agency may be shown by a written or oral communication from the principal or agent, or by circumstances and a course of dealing incompatible with the want of it. In either case if the evidence as to the notice of revocation is conflicting, the question is for the jury.</p> <p>A dealer was in the habit of selling liquors to a hotel which was managed by the owner’s agent. The agent leased the hotel from the owner, and he continued to receive liquors from plaintiff. He testified that shortly before the date of the lease he notified plaintiff’s agent of the change. A few bills were offered in evidence in which the goods were charged to the agent individually, but it was not shown that these were all the bills sent to him after the lease began. A few checks drawn by the agent individually in favor of plaintiff after the lease began were also offered in evidence, but it did not appear that these checks were all of the checks received by plaintiffs after the date of the lease. The agent testified that after'he leased the hotel he procured a new register on which he appeared as proprietor, but he admitted that he used the old register after that time. Plaintiff’s agent denied that lie ever received any notice of the lease. Held, that the question of the liability of the owner of the hotel for the goods delivered after the date of the lease, was for the jury.</p>

Appeal, No. 150, July T., 1893, by defendant, from judgment of O. P. Lackawanna Co., April T., 1891, No. 592, on verdict for plaintiff. Assumpsit for goods sold, etc. Before Abchbald, P. J. At the trial it appeared that on April 1,1889, defendant, the owner of the Westminster hotel at Scranton, Pa., leased it to his former manager, J. J. Curt. Plaintiff had sold cigars to Curt as manager, and continued to deliver cigars to him after April 1,1889.

<p>Appeal, No. 35, Jan. T., 1894, by defendant, from judgment of C. P. Berks Co., May T., 1892, No. 22, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Endltci-i, J.</p> <p>At the trial it appeared that plaintiff was employed by the Temple Iron Co. His business was to unload cars in the stock-house. On Dec. 31, 189Q, while so engaged, with twenty or twenty-five other men, he was instructed to quit work, a crew of defendant company being about to shift cars in the stockhousp. While the shifting continued the plaintiff and his co-employees of the iron company were to remiin idle ; when it was finished, of which they were to judge, they were to resume work. After the lapse of about one hour and a half, when the track upon which plaintiff was-working appeared to be filled with cars, about fifteen mintites after the last car placed upon it had been pushed in, and the engine having steamed off in a westerly direction, the plaintiff, thinking the shifting operations at an end and seeing no engine or ears approaching-, attempted to resume his work.’ He was in the act of getting upon the car he had been unloading, when another loaded car was sent into the stock-house at considerable speed, making a flying switch. The shock of this loaded car striking the line of cars, one of which plaintiff was boarding, caused him to lose his hold and fall between the bumpers of the car he was attempting to board and the one next to it, sustaining severe injuries. It was undisputed that defendant’s employees never unloaded any ears in the iron company’s stock-house ; that the stock-house and siding were the property of the iron company; and that the railroad company’s crew came in and did the shifting only upon the request of the iron, company, taking orders from it as to what to put in and what to take out; but uncontrolled by it as to the speed at which their engines and cars were run or the manner of running them.</p> <p>The court charged in part as follows :</p> <p>“Now, the question is, What kind of negligence is that which is regarded in law as contributing to an accident? Undoubtedly, if the man had not been on that car, if he had not attempted to get on that car at the time when he did, the injury to him could not have happened. But that conclusion may not be enough to establish contributory negligence on his part. In order to constitute contributory negligence, it is necessary that the act which is charged against a man as such should have been an act which in some degree operated as the cause of the occurrence. .</p> <p>“ [Hence, if the jury should find that the plaintiff was'negligent in climbing upon this car, and yet find in spite of his doing so the injury could not have happened but for the negligence of the railroad company, and that that was the direct cause of it, then the fact that this man mistook the appearance of things at the end of the shifting would not make him guilty of contributory negligence in the sense in which the law regards it, but he might, nevertheless, recover.] [1]</p> <p>“In short, if the jury believes from the testimonjr in this case that this man was warranted, fully warranted by the’appearance of things, in believing that the shifting was at an end, and that it was time for him to get on this car and continue his work, then he can recover, if the railroad company was negli geiit and by its negligence caused his injury; or even if he made a mistake as to the ending of the shifting, and ought not to have gone on this car, yet, if the jury believe it was the negligence of the railroad company that brought about this occurrence and the injury that resulted from it to the plaintiff, and that the act of the plaintiff itself was not one which moved in bringing about the injury to any degree, then he may recover.”</p> <p>Defendant’s points were as follows:</p> <p>“ 1. The court is respectfully requested to charge the jury: that under all the evidence in the case the verdict must be for the defendant.” Declined. [2]</p> <p>“ 2. There is no evidence in the case warranting a recovery for the plaintiff.” Reserved. [3]</p> <p>Verdict and judgment for plaintiff for $1,500.</p> <p>Erroi-s assigned were (1-3). above instructions, quoting them.</p>

<p> Will—Devise—Life estate. </p> <p>Testator by a codicil devised real estate to liis daughter, Hannah Shalters, “ her heirs and assigns, to her sole and separate use,” and she “ shall hold and enjoy the said house and premises to her sole and separate use, she to receive the rents, issues and profits thereof,” “.and immediately after her death the same shall descend to and vest in the lawful issue of the said Hannah Shalters,” excepting that in case he should survive his wife, her husband is to have, during his life, one third of the rents, issues and profits, “ but during her lifetime he shall not be at liberty to receive or control any part of said real estate.” In the body of his will testator devised other real estate to his daughter and to her heirs 'and assigns forever, “the said real estate to be enjoyed by my said daughter Hannah during her natural life, to her solo and separate use.” He directed his executors at the request of his daughters to invest their shares of the residuary estate, in real estate “for the sole and separate use of my said daughters, respectively, during their lives, and after their death to go in fee simple, to their children or lawful issue, the same as I devised to them the other real estate in the former part of my will.” Held, that the daughter took a life estate only in the real estate devised to her by the codicil.</p>

Appeal, No. 328, Jan. T., 1894, by defendants, from judgment of C. P. Berks Co., May T., 1892, No. 98, on verdict for plaintiff. Assumpsit for counsel fees. Before Endlich, J. The facts appear by the charge of the court below, and the opinion, of the Supreme Court. The court charged as follows : “ The plaintiff in this case is a practicing member of the bar.

Appeal, No. 113, Jan. T., 1894, by-defendant, from judgment of C. P. Berks Co., Feb. T., 1892, No. 56, on verdict for plaintiff. Trespass for personal injuries. ■ From the record it appeared that suit was brought on Feb. 5, 1892. On Deo. 5, 1892, defendant pleaded not guilty. The, case was then put on the trial list, and on Jan. 7, 1893, was continued on application of defendant.

<p>Appeal, No. 168, July T., 1898, by plaintiff, from decree of C. P. Berks Co., Equity Docket No. 544, 1891.</p> <p>Bill in equity to restrain defendants from excluding Augustus Krecker from the position of pastor of the Immanuel's Church of the Evangelical Association of the City of Reading.</p> <p>The bill alleged the existence, for upwards of ninety years, in the United States of America and in certain foreign countries, of an unincorporated religious association of Christians,known as the Evangelical Association of North America, governed by a fundamental law known as the discipline, establishing a system of graded ecclesiastical, executive, legislative and judicial bodies and officers, under which each local society or congregation is a subordinate member of the general organization.</p> <p>That under the said fundamental law or discipline the countries in which the said association exists are divided into 25 annual conference districts, embracing fifteen states of the Union, Canada, Germany and Switzerland; that the said conferences are, each of them, deliberative bodies, meeting annually, composed of all the itinerant preachers of the denomination, and those who have traveled and by ordination stand in full connection with the ministry of the association, each of the said conferences comprising many organized churches, some of which are incorporated, and all of the said conferences aré subordinate to the general conference.</p> <p>That under the fundamental law or discipline there is a quadrennial conference of the whole association, composed of one member for every fourteen or surplus of more than seven members of each annual conference, who are elected from among the elders by a majority of members of the said annual conference, and also certain officers of the association, including the' bishops, the said quadrennial conference being known as the general conference, and constituted, by the fundamental law,</p> <p>“ The Supreme Court of Law in the Church.”</p> <p>That the ministers of the said association are divided into orders of bishops, elders and deacons, the members of which orders must possess certain qualifications and have certain duties to perform.</p> <p>That the “ Immanuel’s Church of the Evangelical Association ■of the City of Reading, in .the county of Berks,” composed of members of the said religious association, is a corporation ■erected by the Court of Common Pleas of Berks County, Nov. 21, 1866, the charter whereof provides for the election of •seven trustees, in whom the estate of the church, real, personal and mixed, shall be vested, and provides that the corporation shall be subject to the fundamental law or discipline.</p> <p>That by deed dated May 31, 1884, certain property, being the property in question, was conveyed to the officers of the said corporation “in trust, to be kept, used and maintained as •a place of divine worship by the ministry and membership of the Evangelical Association of North America, with power to dispose of and convey the same, subject to the discipline, usage and ministerial appointments of said church or association, as from time to time authorized and declared by the general conference of said association and the annual conference in whose bounds the said premises are situate; ” that at great cost, with money contributed by the members of the said association, a valuable building was erected upon the said property, in which building the said congregation worshiped.</p> <p>That the said church is situate in the East Pennsylvania Conference, which, during the year 1891, was under the charge of Thomas Bowman, a duly elected bishop of the said association.</p> <p>That, under the fundamental law and discipline, the bishop, at the annual conference, and the presiding elders shall, at a meeting of the conference, assign the preachers their respective fields of labor, and that, at the meeting of the East Pennsylvania Conference, held in March, 1891, the said Thomas Bowman, bishop, and the presiding elders assigned Augustus Krecker, one of the plaintiffs, to the said church, to which church he had been duly assigned for the preceding year, and in which, at the time of his re-assignment, he was lawfully exercising the rights of pastor.</p> <p>That, upon the re-assignment of the said Augustus Krecker, the defendants, with many others, conspired together for the purpose of preventing him from acting as pastor of the said church, and procured a majority of the trustees to adopt a resolution excluding him, and providing that Jonas H. Shirey, one of the defendants, should be recognized as pastor, and on March 8, 1891, actually and forcibly prevented the said Augustus Krecker from going into the pulpit.</p> <p>That, on Oct. 1, 1891,-the general conference of the said association met at the city of Indianapolis in regular and stated quadrennial session, and the matter being brought before the said general conference and • regularly examined, it was adjudged and decided that the assignment of the said Augustus Krecker to said church was regular and was the only regular and valid assignment.</p> <p>That on Nov. 13,1891, after the decision of the general conference, the said Augustus Krecker notified the said Jonas H. Shirey and the other defendants of the said decision and demanded admission to the said church, which was refused.</p> <p>The bill prayed : (1) For an injunction restraining defendants from excluding the said Augustus Krecker from the exercise of his rights as pastor. (2) That defendants may be enjoined from time to time to admit to the pastoral rights of the said church, whomsoever the bishop elected by the general conference, may, with the assistance of the presiding elders and in accordance with the discipline, assign to the said church. (3) That the trustees which passed the revolutionary resolution aforesaid may be deposed, and an election to fill the vacancies thus created be ordered. (4) General relief.</p> <p>In the answer, defendants deny that any of the acts with which they are charged were unlawful, averring, amongst other things, that the said Thomas Bowman, before the time of the sitting of the East Pennsyl vania Conference in February and March, 1891, to wit, on March 7, 1890, had been tried in accordance with the discipline upon charges of immoral conduct and suspended from the office of bishop, wherefore he, the said Thomas Bowman, was, under the law and discipline of said association, excluded from in any way performing official functions ; -that the East Pennsylvania Conference did thereupon organize by electing C. S. Hainan, a presiding elder, as president, which said conference, in the transaction of its functions and in accordance with the discipline, did, amongst other things, assign and appoint the said Jonas H. Shirey, defendant, to the pastoral charge of said Immanuel’s Church; that said conference presided ove'r by said C. S. Haman was the only rightful East Pennsylvania Conference, and that said Jonas H. Shirey was and is the only rightful pastor of said church; that the general conference of said association alleged to have been held at Indianapolis, in October, 1891, was not the lawful general conference of said association, but that the general conference held at Philadelphia, in October, 1891, was such lawful conference ; that the action of the trustees of Immanuel’s Church in excluding said Augustus Krecker from the pulpit and pastoral charge of said church was in accordance with the discipline of the association and the provisions of the deed of conveyance of said church property, and that .the plaintiffs were not deprived of any of their rights and privileges as members' of said church, but voluntarily and without cause withdrew from said church and congregation and organized a new congregation elsewhere, by reason of which they have forfeited and relinquished all right to and title in said Immanuel’s Church, and that at the general conference of said association, held at Philadelphia, as aforesaid, it was, amongst other things, adjudged and decided that the assignment of said Jonas H. Shirey to said Immanuel’s Church was regular and valid, and that he was and is the only rightful pastor thereof, although defendants deny that the general conference has any jurisdiction over the appointments of preachers by the president and presiding elders of the annual conference. The answer also avers that plaintiffs, aided and directed by J. J. Esher and Thomas Bowman, falsely claiming to be bishops of said association, .are, by usurpation of power and authority, unwarrantably undertaking to subvert the discipline and unlawfully striving to erect a new church system at variance with the constitution and principles of the Evangelical Association, and that said opposers of the discipline have diverted the funds and property of said association from their proper use to the use of said new system, and threaten and intend, if the property of said Immanuel’s Church shall come into their control, to divert it to the same unlawful purpose. The defendants aver that they, and those united with them, have always adhered to the provisions of the discipline, and are, in truth and fact, the Evangelical Association of North America, and as such entitled to use its name and property for the proper purposes thereof.</p> <p>The following are the pertinent provisions of the discipline:</p> <p>“ At the annual conferences a bishop shall act as president; if there be no bishop present, the conference shall elect one of the elders as chairman: ” § 61.</p> <p>(A record of) “ all accounts and transactions of the conference .... shall be submitted to the 'next general conference for inspection and examination : ” § 62.</p> <p>“ The president and presiding elders shall (at the annual conferences : § 99) assign to the preachers their respective fields of labor (for one year). The presiding elders shall be appointed to their districts bjr the conferences: ” § 63.</p> <p>“ The general conference shall consist of one member for every 14, or surplus of 7 or more'members of each annual conference, who are to be elected from among the elders by the majority of votes of said annual conferences : ” § 70.</p> <p>“ The time and place of the general conference shall be appointed by the bishops, with the consent of a majority of the. (general) conference; and if there be no bishop present the general conference shall do it by a majority of votes, or the oldest annual conference, who then shall give the other annual conferences due notice of the time and place: ” § 71.</p> <p>“ At general conference a bishop shall preside; but if there. be no bishop present, then the president shall be elected in like manner as at the annual conferences.</p> <p>“ Two thirds of the aggregate number of delegates (in 1891, according to the'ratio prescribed in §§ 70,122) shall constitute a quorum: ” § 72.</p> <p>“ The general conference shall have power to make rules and arrangements for our church, under the following restrictions:</p> <p>“ 1. The general conference shall have no power to alter, to detract from or add to any of our articles of faith. . . .</p> <p>“ 2. It shall have no power to alter any rules or forms of our church discipline (the rules of our temporal economy being excepted), unless such alterations are previously recommended by two thirds of the members of all the annual conferences who may be present at the sessions of the same. . . . § 73.</p> <p>“ The general conference is the supreme court of law in the church ; it shall decide upon the legality of all acts of annual conferences, and upon all such cases as may arise between the annual conferences, and such as may arise between any incorporated society of the church and its officers or any annual conference ; and in its judicial capacity it shall decide, render verdict and declare judgment only on such cases as are lawfully brought before it for adjudication. It shall have power to make such rules and regulations as will enable it to execute the powers conferred upon it:” § 74.</p> <p>(A bishop is amenable) “ to the general conference, which has power, if circumstances require it, to depose a bishop from, office or to expel him from the church:” § 124.</p> <p>(In the interval between two general conferences,) “if a bishop be accused of immoral conduct, three of the elders are-to meet and examine the bishop; and if the three elders.are actually of- the opinion that the bishop is guilty of the alleged-crime, they shall call one or two presiding elders, and as many preachers standing in full connection as they may deem necessary, yet so that they be not less than seven in number; whereof at least one shall be a presiding elder. These are to constitute a conference, who shall examine the charge alleged against, him-; and if two thirds of the preachers thus called shall find the bishop guilty of the charge brought against him, they shall have power to suspend him from office until the next general conference, which shall then determine the whole matter.</p> <p>“ But a charge against a bishop must always be preferred in writing and subscribed by those who are willing to substantiate-the alleged crime, and the accused bishop is to have a copy of the same.</p> <p>“None of pur ministers thus excluded can in any wise perform official functions among us, neither be acknowledged by us, without true penitential confession and reformation, and without- being anew received on trial into our chnrch: ” § 125.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The case was referred to Louis Richards, Esq., as examiner- and master, who reported in favor of dismissing the bill.</p> <p>Exceptions to the master’s report were dismissed by the court in an opinion by Endlich, J. Plaintiffs appealed.</p> <p>Errors assigned were (1-41) in dismissing exceptions to master’s report, portions of opinion of the court, and in dismissing the bill.</p>

Appeal, No. 167, Jan. T., 1893, by plaintiff, from judgment of C. P. Northampton Co., Aug. T., 1891, No. 12, on verdict for defendant.

Appeal, No. 65, Oct. T., 1894, by plaintiff, from judgment of G. P. No. 1, Allegheny Co., March Term, 1892, No. 21, on demurrer to statement. Assumpsit for salary of sheriff. Plaintiff in his statement claimed to recover $8,750, being a balance of salary alleged to be due him under the acts of March 31, 1876, P. L. 13, and June 13, 1883, P. L. 112, fixing the salaries of sheriffs at $15,000 per annum in all counties containing over five hundred thousand inhabitants.

Appeal, No. 66, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny County, March T., 1892, No. 19, on demurrer to statement. Assumpsit for salary of'recorder of deeds. The facts appear by the opinion of the Supreme Court. Error assigned was entry of judgment on demurrer.

Appeal, No. 67, Oct. T., 1894, by plaintiff, from judgment of C; P. No. 1, Allegheny County, March T., 1892, No. 20, on demurrer to statement. Assumpsit for salary of clerk of quarter sessions. The facts appear by the opinion of the Supreme Court. jError assigned was entry of judgment on demurrer.

<p> Contract—Set-off—Evidence. </p> <p>McCormick, the owner of a farm, divided it into three parts, and arranged with A. Dorey, W. Dorey, and Eowler that they should plant tobacco and harvest and pack the crop, of which they were to receive one half. There was to be no actual division of the tobacco, but McCormick was to sell it and divide the proceeds. McCormick sold the whole crop of the farm to defendant, receiving at the time of the sale two hundred dollars. The Eowler crop seems to have been destroyed, and was not delivered. The crop of the two Doreys, which was valued at twelve hundred and-six dollars, was delivered. Defendants, claiming that the two hundred dollars paid at the time of the sale was paid on account of all three crops, deducted that amount, and paid to McCormick one thousand and six dollars. Subsequently McCormick and the two Doreys brought suit to recover the two hundred dollars. It appeared that McCormick had paid to the Doreys one half of the sum for which their crops were sold, and that he had paid Fowler for his claim. The court left it to the jury to say whether the two hundred dollars had been paid on account of all three crops, or on account of the Fowler crop alone, as plaintiffs claimed. Reid, that a verdict and judgment for defendants should be sustained.</p> <p>It seems that in the above case the Doreys and Fowler were mere croppers, and as such had no property in the tobacco before it was divided.</p>

<p>Appeal, No. 407, Jan. T., 1894, by T. R. McGinnis et al., from decree of C. P. Lycoming Co., overruling exceptions to auditor’s report.</p> <p>Exceptions to report of auditor, J. F. Strieby, Esq., on exceptions and distribution in trustee’s account. Before Metzger, P. J.</p> <p>From the record it appeared that Frederick R. Weed died in 1882, having by will devised his estate in trust to Mills B. Weed, and naming him as his executor. In 1891 the trustee became insolvent, and made an assignment for benefit of creditors. Before the assignment he conveyed certain real estate of testator to creditors of the testator, L. Truman & Bi’os., and confessed a judgment of $75,000 to the depositors in the trustee’s banking house, and one of $25,000 to the First National Bank of Owego.</p> <p>B. F. Young, a general creditor, filed a bill to set aside the conveyance to L. Truman & Bros., and also another bill, joining Woddrop & Welch as plaintiffs, seeking to have the judgments of the First National Bank of Owego, and of the bank depositors, declared to have no preference, and that the assignment for benefit of creditors should be declared void.</p> <p>In this litigation plaintiffs were successful, final decrees be-: ing entered, as prayed for, and both affirmed by the Supreme Court.' See Young v. Weed, 154 Pa. 816, and Woddrop v. Weed, 154 Pa. 307.</p> <p>Shortly .afterwards the trustee, Mills B. Weed, died, after having been dismissed from his trust, and J. C. Hill was appointed in his place.</p> <p>The new trustee presented a petition praying to be authorized to pay H. C. & S. T. McCormick and H. W. Watson, Esq., counsel fees for’ services rendered in connection with the litigation to which reference has already been made.</p> <p>The court made an order directing the trustee to pay’ the counsel named in the petition $7,500 for their services in the litigation concerning the trust estate, reserving, however, the right to determine in the future, whether this amount should be contributed to equally by all the creditors of said trust estate or should be paid by any particular class of creditors of said estate. The trustee shortly after filed his account, wherein he took credit for the sum of $7,500, paid by him to the counsel named. Appellants excepted to said credit, and an auditor was appointed. At. one of the hearings before him appellants offered testimony to show: (1) That the fee was unreasonable and excessive; (2) that one of the exceptants never had any notice of the application or order of court for the payment of the fee, until after it was made; and (3) that the fee should be charged against one class of creditors, and not to the whole fund. The auditor rejected the offers,' and certified his rulings to the court, who sustained the auditor, but enlarged his powers and ordered him to inquire into and determine whether said fee should be contributed equally by all creditors or by any particular class of creditors.</p> <p>On Jan. 20, 1894, the auditor filed his report, in which he held that said fee should be paid out of the whole fund, and not by any particular class of creditors.</p> <p>Exceptions to the auditor’s report were overruled, and a decree entered confirming the report.</p> <p>Errors assigned were ■ in overruling exceptions to auditor’s report, quoting them.</p>

<p> Costs—Counsel fees. </p> <p>One jointly interested with others in a common fund and who in good faith maintains the necessary litigation to save it from waste and destruction and secure its proper application, is entitled, in equity, to reimbursement of his costs as between solicitor and client, either out of the fund itself, ov by proportional contribution from those who receive the benefits of the litigation.</p> <p> Trusts and trustees— Counsel fees—Practice, C. P. </p> <p>On a petition by a trustee for leave to pay counsel fees, the court is not bound to refer the application to a master or auditor, but may hear evidence as to the proper amount of such' fee, and from this evidence and from the personal knowledge acquired from presiding over tlie litigation in which the services were rendered, may enter a decree allowing the counsel fees.</p>

Appeal, No. 69, Jan. T., 1894, by plaintiff, from judgment of C. P. Lycoming.Co., June T., 1890, No. 339, on verdict for defendants. Sci. fa. sur mechanic’s lien. Before Savidge, P. J., specially presiding. At the trial it appeared that in August, 1889, W. H. Messenger, the record owner of a lot of land in Williamsport, by a verbal contract, sold a portion of the land to James A. Riale for the sum of seven hundred and fifty dollars.

<p> Mortgage—Power to mortgage—Attorney in fact. </p> <p>■ The rule that a power to sell includes a power to mortgage does not apply to a mere letter of attorney with a naked authority to sell uncoupled with any interest in the land or the fund.</p> <p>By an instrument in writing the owner of land constituted and appointed another person her true and lawful attorney for her and in her name “to grant, bargain and sell in fee simple all real estate owned by her, including all ground rents, on such terms and for such prices as he may see fit, and to make,- execute and deliver all necessary deeds and assurances to the purchasers, and to assign all policies of insurance on said properties or with said ground rents.” Meld, that the attorney in fact had no power to execute a bond and mortgage in the name of his principal.</p> <p>Letters of attorney are strictly interpreted, and the authority is never extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given into'full effect.</p> <p>. Equity—Subrogation—Volunteers.</p> <p>Subrogation will not be decreed in favor of a mere volunteer, who, without any duty, moral or otherwise, pays the debt of another. It will not arise in favor of a stranger, but only in favor of the party who, on some sort of compulsion, discharges a demand against a common debtor.</p> <p>An attorney in fact under a letter of.attorney giving him a mere power} to sell, executed a mortgage in the name of his principal for $7,500 upon land already covered by a mortgage for $6,000. The mortgagee retained six thousand dollars, and paid off the first mortgage, paying over to the attorney the remaining fifteen hundred dollars. Held, that the mortgagee, on- the second mortgage being declared invalid, had no right to-be subrogated to the position of the first mortgagee so as to recover the $6,000 paid in extinguishment of the first mortgage.</p>

<p>Appeal, Nos. 235 and 236, Jan. T., 1894, by plaintiffs, from order of C. P. No. 2, Phila. Co., June T., 1892, Nos. 326 and 327, discharging rules for judgment.</p> <p>Rules for judgments for want of sufficient affidavits of defence in assumpsit on promissory note, .and on foreign judgment certified by deputy clerk.</p> <p>In the first ease Charles F. Kindred filed an affidavit of defence in which he averred that “ in 1883 Mark Paine, the use plaintiff, and deponent were owners of a tract of land in Dakota, and each having a one half interest therein. That on or about the date of the note (upon the record of the judgment on which note this action is brought) deponent purchased from said plaintiff his one half interest, and gave him in payment therefor two notes. That after the maturity of said notes 'it was agreed between said plaintiff and deponent that payment therefor should not be exacted, but that deponent, in payment and satisfaction thereof, should, upon demand being made by-said plaintiff, convey back to him the said one half interest in said tract of land. That said agreement was in full payment and satisfaction of- said note. That deponent had been at all times, and is still, ready at any time to comply with said agreement, and on demand being made will convey said land unto said plaintiff in compliance with said agreement, but that, without the knowledge of deponent, and in violation of said agreement and settlement, plaintiff appears to have entered judgment in said suit.</p> <p>“ And deponent suggests that said judgment sued is not certified as alleged by plaintiff in conformity with the act of Congress in such case made and provided.”</p> <p>A similar affidavit was filed in the second case.</p> <p>A supplemental affidavit of defence averred :</p> <p>“ That after the maturity of the two notes (one of which notes is involved in the present case) he entered into a verbal agreement, which agreement was duly set forth in the affidavit of defence previously filed in this cause, in regard' to a settlement of all payments against deponent arising from and under said notes. The terms of said verbal agreements between the said Paine and deponent are as follows : The defendant should convey to said Mark Paine a full -undivided one half interest in the land formerly purchased from said Paine, by the notes in suit, and that said reconveyance of said land should be in full payment and complete satisfaction of said notes ; that said Mark Paine then and there accepted said offer of settlement, and agreed with deponent to receive the said one half interest in said land in payment of said notes as above set forth; that the title of said land was to remain in deponent until such time as the said Mark Paine should request deponent to execute and deliver a deed therefor to him, the said Paine, or to some person or persons to be named by him; and that upon such request being made by the said Paine, and the compliance therewith by the said defendant, the said Mark Paine was to surrender up and deliver to deponent both his said notes. Deponent further avers that said verbal agreements provided that in the interim no further proceedings should be taken to enforce the said payment of the said notes; deponent further avers that said'verbal agreement was never reduced to writing, but that said agreement has never been abrogated or rescinded, but the same is in full force and effect at the present time between the said Mark Paine and this deponent.</p> <p>“ Deponent further avers that the particular circumstances, under which said verbal agreement was entered into are as follows : The said Mark Paine and deponent were jointly interested in a tract of land in Dakota, .the legal title to the whole thereof being in the said Mark Paine, the one undivided half part of which held in his own right and the other undivided •half part thereof being held by him in trust for deponent. Deponent further avers that it was when the respective interests of the said Paine and deponent were as above set forth, that deponent purchased from the said Paine, his undivided half interest in said land, and gave therefor his two certain promissory notes, dated July 3, 1885, to the said Mark Paine for the sum of 13,500 each, payable July 3, 1886, and July 3, 1887, respectively. It was at the maturity of said notes that deponent entered into the verbal agreement above set forth with the said Mark Paine. Deponent further avers that in pursuance of said agreement deponent held said land for the said Paine, and still holds the same subject to the order and direction of said Paine, in accordance with the mutual agreement entered into between him, the said Paine, and deponent; that no request, demand, order, or direction whatever has ever been made or given by the said Mark Paine, or by any one for him, for the execution and delivery of a deed or conveyance of said land as above set forth; and deponent further avers that he continues now to hold said land under said agreement subject to the order and direction of said Mark Paine, and deponent is ready and willing and prepared to make a deed of conveyance for the said one half interest for the said land as above set forth, or to make a similar deed to any one whom the said Paine may designate in fulfillment of his said agreement; that until such request or demand is made, deponent has no means of knowing how or to whom said conveyance shall be made.”</p> <p>Rules for judgment discharged. Plaintiff appealed.</p> <p>Errors assigned were above orders.</p>

<p> Deed—Building restriction—Covenant. </p> <p>An owner of three adjoining lots executed three deeds on the same day for the three lots to different persons. The deed for the middle lot contained the following clause: “It is further understood, conditioned and agreed by and between the said parties hereto that the said William C. Hough, his heirs and assigns, shall not nor will at any time hereafter erect or build on the said hereby granted lot any building or part of a building further westward than thirty-seven feet from the line of Ninth street, except a privy and bath-house, not exceeding six feet in depth and sixteen feet in'height, from the lower floor of the house, now erecting on the said lot, to the eave of said bath-house.” The other two deeds did not refer' to the building restriction, but they did recite the fact of the .conveyance of the lot on the same day to the grantee mentioned in the deed. Held, that the building restriction was in the nature of a covenant running with the land, and was intended to create and did create an easement of light and air in favor of the adjoining lots.</p>

<p>Appeal, No. 329, Jan. T., 1894, by-plaintiff, from judgment of C. P. No. 3, Pbila. Co., June T., 1891, No. 641, on verdict for defendant.</p> <p>Assumpsit for goods furnished to defendant’s wife.</p> <p>At the - trial, before Gordon, J., it appeared that, in Octo-her, 1887, defendant compelled his wife and child to leave his house. He engaged rooms and board for them at a hotel, where he paid their board. Defendant, offered to pay his wife $125 a month, but she refused the offer, claiming that it was insufficient. There was evidence that defendant’s income from his banking business was $20,000 per year. The goods for which suit was brought were ordered by and delivered to defendant's wife after the separation. Bills for similar articles previously ordered by her had been paid by defendant. There was no evidence that plaintiff knew of the separation when the goods were delivered. The court gave binding instruction for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above instruction.</p>

<p> Practice, G. P.—Jury—Divorce. </p> <p>At the trial of an issue in divorce, it is not improper for the libelant’s counsel to ask the jurymen before they are sworn whether they are conscientiously opposed to the granting of divorces.</p> <p> Divorce—Desertion. </p> <p>A husband has a right to change his home if his business, his comfort, or his convenience requires it, if he provides another suitable place of residence; and if his wife refuses to accompany him to the new home without cause, her refusal constitutes a desertion for which a divorce will be decreed.</p>

Appeal, No. 134, Jan. T., 1894, by défendant, from judgment of 0. & T. Luzerne Co., April T., 1893, No. 100, on verdict of guilty of voluntary manslaughter. Indictment for murder and voluntary manslaughter. Before Lynch, J. The facts appear by the opinion of the Supreme Court. Defendant’s points were among others as follows : “1.