Volume 164 — Pennsylvania State Reports

<p> Attachment execution—Goods outside of state. </p> <p>While an attachment execution served on a garnishee in Pennsylvania cannot bind defendant’s goods in the hands of the garnishee in another state, it will, if the goods have been sold, bind the proceeds in the garnishee’s possession.</p> <p> Account—Collaterals—Fraud—Waiver—Creditors. </p> <p>Where goods deposited with a creditor as collateral security for a debt have been sold, the debtor cannot collusively waive his right to an account from the creditor, so as to defeat the right of his attaching creditors to require an account from the creditor of the proceeds of the sale.</p> <p>The holder of collateral securities, with power to sell them for his debt, is not bound to obtain the highest possible price for them, but he is bound to the exercise of common prudence and good faith in his management and conversion of them; and while the debtor may acquiesce in or assent to fraudulent conduct, so far as concerns himself, he cannot bind his creditors by such acquiescence or consent.</p> <p> Partnership—Settlement of prosecution—Evidence. </p> <p>Where a partner who acts as prosecutor of a person who has embezzled money of the firm, settles the prosecution, and receives money therefor, the presumption is that the money is received on behalf of the firm, and the partner cannot be heard to allege that the money was paid to him individually as a bribe to stop the prosecution.</p> <p>Mr. Justice Mitchell dissented.</p>

<p>Appeal, No. 7, Jan. T., 1894, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1890, No. 802, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Lynch, J.</p> <p>At the trial it appeared that, on Oct. 81, 1889, plaintiff was injured while side-tracking a freight car by a flying switch. He claimed that the accident was caused by the absence of a grab-iron or ladder from the car which he was side-tracking. The facts appear by the opinion of the Supreme Court.</p> <p>0. Russell, a witness .for plaintiff, was asked, under objection and exception : “ Q. Whether a car constructed as that car is there, with no handle in front of it, would be a safe or unsafe car for a brakeman to work on in making a flying switch? A. Well, in my opinion it is a very unsafe car.” [1]</p> <p>The same witness was asked: “ Q. What is the usual appliance to be found on the front of a freight car for the protection of the men, in 1889 ? Objected to on the ground that defendant was not bound to adopt any special pattern of car; that merely what may have been the case with the majority of cars, is not evidence. Plaintiff’s counsel states that the purpose is to show not what was found on one particular style of car, but what was ordinarily, commonly found on the front of a freight car, for the protection of the men, prior to the time this accident happened. Objection overruled and exception. “A. Well, the cars, as a rule, have a ladder that runs from the top of the car or roof of a car, besides one or two handles on the end whereby to take hold in case it was necessary.” [2]</p> <p>Thomas McCann, Thomas May, and J. F. Mulherrin, witnesses for plaintiff, were permitted, under objection and exception, to express their opinion that the car was an unsafe car to make a flying switch on. [8-5]</p> <p>James MeGinley, foreman of car inspectors, and a witness for defendant, was asked: “ Q. If the grab-iron that is spoken of here was missing from the corner of the car, what was the duty of the man who inspected it, relative to making a report about it and holding the car ?” Objected to on the ground that the duties in that regard are covered by the general rules in evidence. Objection sustained, exception.” [6]</p> <p>The same witness was asked: “ Q. The instructions for your assistant inspectors, including those who inspected this car, were by word of mouth from you? A. Yes, sir. Q. They were not furnished with printed rules ? A. No.” Defendant’s counsel now proposes to renew the question: What was the duty under your verbal instruction of the assistant inspectors, including the inspectors of the car in question on that day,with reference to reporting a missing grab-iron from a car and with reference to holding the car until repaired ? Plaintiff’s counsel: We desire, to know whether defendants propose to prove by witness on the stand that witness gave to his assistants instructions to reject cars that had no handles or grab-irons on and never had any on, and also whether it is proposed to show that the assistants under the witness disregarded those instructions. Defendant’s counsel: We propose to show that, under the general oral instructions given, it was the duty of the inspectors to report any defect in the car, including the absence of a grab-iron. We propose to show that they did not report any defect of that kind in regard to this particular car; and that if it existed and they did not report it they failed in their duty. Plaintiff objects to the question for the reason that the defendant is not allowed in this action to escape its liability to the plaintiff by showing oral instructions on the part of this witness sufficient to have rejected the car in question had they been obeyed, so that the assistant in disobeying the instruction would be the person responsible for the damages resulting, instead of the company, under the printed rules. The Court: The objection is sustained. The court understands from an inspection of the book that it furnished the instruction from the employer to the inspector in so far as this matter is concerned. Defendant excepts and bill sealed.” [7]</p> <p>Edward Hartsell, the car inspector, defendant’s witness, was asked: “ Q. If there had been no grab-iron there or a grab-iron was missing, what, under the instruction of the foreman, was your duty to do about it? Question objected to because the testimony of the foreman, Mr. McGrinley, is that the witness was acting under oral instructions from McGrinley, and in effect that those oral instructions were different from the written instructions in the book in evidence. Objection sustained and bill sealed for defendant.” [8]</p> <p>The court charged in part as follows :</p> <p>“ [The evidence of the plaintiff tends to show—and it is for you to consider—that he never had seen on this or any road, a car without the guards spoken of; and that he had never been shown or warned by any person that such cars were in use by, or under the control of the defendant company, and that he had not observed this car and did not know until after giving the signal to the engineer to go ahead and attempting to step to the brake, that this car was without a ladder, guard, or hand-catch. If you determine from this evidence, that the defendant had not frequently or commonly used a car of this kind during the time plaintiff was employed upon the road, that they had not warned him that this car was without these appliances, that he did. not know it, had not a fair opportunity of knowing it, and that he was entirely free himself from negligence at the time of the accident, you may find a verdict in his favor. [9] ....</p> <p>“ [Was the car in question without the necessary guard spoken of by some of the witnesses ? If you find it was, and that such guards were reasonably necessary for the safety of the employee, and were in common, ordinary use upon other roads, and that the accident happened without the fault of the plaintiff, you' may find a verdict in his favor.] [10] ....</p> <p>“ [The defendant company on the first of September, 1889, did adopt, it seems, a system of rules intended to regulate the inspection of foreign cars to be received by them for transportation, contained, as I understand, in the book in evidence, upon the title page of which are the words : ‘ Code of rules governing the condition of, and repairs to freight cars for the interchange of traffic, adopted,’ etc., adopted or to take effect on this company’s road on the first of September, 1889. Page three contains the following: ‘ General Rule 1. The railway company shall give foreign cars, while on its line, the same care as to oiling and packing that it gives to its own cars. Rule 2. Cars must be delivered in good running order and returned in as good general condition as when received. Rule 3. Cars may be refused for any of the following defects: ’ Here follows an enumeration of defects, including defects of wheels, axles, brakes, etc. On page ten it is stated that steps, ladders or running boards shall be considered in bad order unless the following conditions are complied with: ‘ Running-boards sound and securely fastened to roof of ear, roof grab-irons, ladders, handles, sill steps, ladder sides and rounds, all sound and securely fastened to car body by either bolts or lay screws.’ Page 11, Rule 4. ‘ A car with defects which do not render it unsafe to run or unsafe to trainmen must be accepted; but in such cases the company to whom such a car is offered may require that a defect card shall be securely attached to the car, preferably on the sides of cross-tie timber.’</p> <p>“ You will observe that, according to these rules for inspection, there is no provision as to whether ladders, roof grab-irons, ladder handles, ladder sides, rounds, etc., shall be upon the car. The rules seem to assume that cars properly constructed and without defect shall have these. I do not find any provisions in these rules that the defendant’s inspector shall mark a car defective and unfit for use upon its road or unsafe for its employees, if it have no roof grab-iron, ladder handles, sill steps, ladder sides and rounds secured to the car. The inspectors did not report this car defective for not having handles and ladders. Was it the inspector’s duty under the rules to do so ? I have not found any provision in the rules for the reporting of a car defective because it has not upon the end, a ladder or safeguard ; and it is for you to decide whether a system of rules adopted by the company for the inspection of its ears ought to provide that cars without ladders and safety-handles shall be inspected. If you shall decide from the evidence that this system of inspecting foreign cars in force at the time plaintiff was hurt, was defective in the particular to which I have called your attention, it is the negligence of the company.] [11] ....</p> <p>■ “ [No sane man would lose a leg for any compensation, but you are not to be guided by such a consideration as that, in arriving at the amount of damages.] [12] ....</p> <p>“ As was stated by counsel, a man may live to be sixty-five or seventy years of age, or he may die to-morrow; but you would probably be warranted in acting upon the rule that a man in good health would live to the ordinary age of sixty-five or seventy years.” [13]</p> <p>Plaintiff’s points were as follows:</p> <p>“ 1. It was the duty of the defendant to exercise reasonable care in furnishing freight cars with the ordinary appliances, rods, ladders or handles by which the plaintiff in the performance of his duty as a brakeman on defendant’s car could perform that duty by the exercise of ordinary care on his part, without unnecessary danger to himself; and if the jury find from the evidence that the defendant failed to exercise reasonable care in furnishing the car, which in this case was loaded with apples, with proper appliances, the rods, ladders, or handles, and that by reason of such failure on the part of the defendant the plaintiff was injured by falling from the front end of the car in question while in the performance of his duty and the exercise of ordinary care on his part, he not knowing or having reasonable opportunity for discovering the absence of rods or handles on the front end of the car, the plaintiff is entitled to recover damages in this action for injuries sustained by him. Answer: I affirm that point with the explanation that if the injury occurred to plaintiff while he was in the performance of his duty and in the exercise of ordinary care, he not knowing or having a reasonable opportunity for discovering the absence of rods on the front end of the car. The exercise of ordinary care is to be considered and understood by the jury in relation to the business in which plaintiff was engaged. For instance, what might be care while upon the streets of Wilkes-Barre might be great negligence upon the bumper or front end of a freight car. Ordinary care means care according to the, position in which a person is placed, and what his duty is. Negligence, as defined by the Supreme Court, is the absence of care according to the circumstances.” [14]</p> <p>“ 2. It was the duty of the defendant before receiving the ■car No. 1093 from the Pennsylvania Railroad Company’s yard for transportation over defendant’s line, to exact that such car was provided with such necessary hand-rods or grab-irons as would render it reasonably safe for its brakemen to operate, in the exercise of ordinary care ; and if the system of inspection provided by the defendant company- in such cases before receiving cars from the Pennsylvania yard, was' defective in not exacting the existence of such necessary hand-rods or grab-irons, then the defendant was guilty of negligence in that behalf, and if they did receive the car in question without having thereon hand-rods or grab-irons as aforesaid, and the plaintiff, while in the performance of his duty in making a flying switch, did not know of the absence of the hand-rod or grab-iron and had not reasonable opportunity to discover that fact, and while in the exercise of ordinary care suffered the injury complained of by reason of there being no rod or grab-iron on the front of the car in question, or on the side near the front, then the plaintiff is entitled to recover in this action. Answer : If you determine under the instructions which the court has given you that the plaintiff was free from negligence himself in any matter which contributed to his injury, this point is affirmed. But you will steadily keep that in mind—that in order to entitle the plaintiff to recover he must be free from contributory negligence.” [15]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. The plaintiff assumes the usual risks of his business and the defendant was not bound to employ the latest devices or the safest kind, but only such as were ordinarily safe and in ordinary use; and it being shown by the plaintiff’s own witnesses that cars of this pattern were often in use upon the road, the plaintiff is affected with notice and cannot object that the car was equipped with iron steps instead of a ladder. Answer : ‘ The plaintiff assumes the usual risks of his business, and the defendant was not bound to employ the latest devices or the safest kind, but only such as were ordinarily safe and in ordinary use.’ I have already endeavored to state that to be the law, and that part of the point is affirmed. The second part of the point, ‘ And it being shown by the plaintiff’s own witnesses that cars of this pattern, were often in use upon the road, the plaintiff is affected with notice and cannot object that the car was equipped with iron steps instead of a ladder,’ is refused. That is a question of fact upon which there is conflicting evidence for the jury to pass upon.” [16]</p> <p>“ 3. It was the duty of the plaintiff before attempting to uncouple the car in question to ascertain whether it was safe to do so or not while the train was in motion. Answer: That point is refused. That is a question of fact for the jury to pass upon. Taking all of the circumstances as detailed by the witnesses, into consideration, you will decide that question.” [17]</p> <p>“4. It being in evidence by the plaintiff’s own witnesses that the car was entirely safe to make the switch by roping it, and it being further in evidence by his own testimony that the plaintiff himself made the flying switch, he did so at his own peril and the company is not responsible for the resulting accident. Answer : That point is not affirmed. That is a question of fact for the jury. You will remember the evidence as to the time within which it was necessary to make the flying switch, and the opportunity for siding cars at that place.” [18]</p> <p>“5. Since plaintiff’s own witnesses testified that he could have stood with entire safety on the middle of the platform and could from that place have called to the engineer to go ahead, he being only the length of the tender distant from him, his failure to signal was contributory negligence on his part. Answer: That point is refused. His failure to stand at that point and signal to the engineer, under the evidence, does not present a question for the jury to pass upon. If, however, the jury believe from the evidence in the case or the preponderance of the credible evidence, that it was the plaintiff’s duty to stand in the middle of the car and give the signal, and that it was negligence upon his part to go to the right of the car as he stated he did, you may find for the defendant.” [19]</p> <p>“ 6. As plaintiff testified that after he signaled the engineer he turned to the left, reached for support at that point and fell upon taking the second step toward the left side of the car, the absence of a grab-iron on the right side made no difference and was not the proximate cause of the injury. Answer : That point is refused. It is a question for the jury to decide whether a grab-iron on the corner or side of the car would not have enabled the plaintiff to have steadied himself and thereby protected himself from the fall.” [20]</p> <p>“ 7. If the car lacked the grab-rod or was otherwise defective, the undisputed evidence being that the cars were inspected regularly and the defects alleged being such as the inspector ought to have discovered, negligence of the inspector was the negligence of a co-employee, and there being no evidence that the defendant did not exercise ordinary care in the selection of inspectors or continuing them in its employ, the defendant is not liable and the plaintiff cannot recover. Answer : That point is refused. If the accident was caused by the negligence of the inspector of this company to do his duty in making a ■thorough inspection under the rules, then the plaintiff cannot recover, because it is the negligence of a co-employee. But if •the inspector did his duty under the rules furnished him, and you find as a matter of fact that those rules were defective in not prescribing what was essential for the inspection of foreign cars in order to make them reasonably safe for the employees of the company, you may find for the plaintiff. Because in that case it is the negligence of the company and not of its ■ employees, and they cannot saddle their own want of care in prescribing rules upon one of their servants.” [21]</p> <p>8. Request for binding instruction. Refused. [22]</p> <p>Yerdict and judgment for plaintiff for $8,080.</p> <p>Errors assigned were (1-8) rulings on evidence; (9-22) instructions as above; quoting instructions, bills of exception, and evidence.</p>

<p> Contract—Penally—Liquidated damages. </p> <p>Where a contract stipulates for a certain sum upon the breach of the contract, the intent of the parties in most cases, but not in all, will determine whether the sum stipulated is a penalty, or liquidated damages. Calling it.a penalty is some evidence that it was so intended, but this is overcome if equity demands that it shall be treated as liquidated damages. In determining the equities of the particular case, the relation which the sum bears to the extent of the injury provided against will be considered, and where there are a number of covenants, and the sum named would be payable for a breach of any one of them, even the least, it is a penalty.</p> <p> Contract—Partial restraint of trade—Physician's practice—Liquidated dam ages—Penalty—Equity. </p> <p>Defendant, a physician, sold his practice to another physician, stipulating verbally that at the end of a certain time he would cease practicing. The vendee sold the practice to plaintiff, also a physician. Defendant, dis-regaining his agreement, again began to practice. Defendant and plaintiff then entered into an agreement in writing whereby, in consideration of two hundred dollars, defendant covenanted that he would .not practice in the locality for a period of ten year’s; that he would use his influence in favor of plaintiff; that he would not manufacture or put on sale any medical preparation during the ten years; and for the true performance of the covenants he bound himself “ in the penal sum of four hundred dollars.” Before the expiration of the ten years, defendant resumed his practice, and plaintiff filed a bill in equity for an injunction to restrain him from so doing. Held, (1) that the penal sum mentioned in the contract was a penalty, and not liquidated damages; (2) that it was not the intention of the parties that defendant was to have the privilege of practice on the payment to plaintiff of four hundred dollars; (3) that as there was an utter uncertainty in any calculation of damages from the breach of the covenants, and the measure of damages was largely conjectural, equity would intervene because of the inadequacy of the remedy at law; (4) that plaintiff was entitled to an injunction for the specific performance of the contract.</p>

<p>Constitution—Local acts—Loads—Act of June 12, 1893.</p> <p>A law which is general in character and applies to all townships throughout the commonwealth, is not unconstitutional because, by its adoption in 'some townships and not in others, local results may be produced.</p> <p>The act of June 12, 1893, P. L. 451, entitled an act “ enabling the taxpayers of townships and road districts to contract for making at their own expense the roads, and paying salaries of township or road district officers, and thereby preventing the levy and collection of road taxes therein,” does not violate art. 3, § 7 of the constitution relating to local and special legislation.</p>

<p> Will—Conversion of real estate. </p> <p>In order to work a conversion of real estate by will there must be either, 1, a positive direction to sell; or, 2, an absolute necessity to sell in order, to execute the will; or, 3, such a blending of realty and personally by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the fund as money.</p> <p>Testatrix by her will directed as follows: “ This piece of land I want, disposed of as follows: The valuation of it when sold is to go to my brother Orin G. Irwin, and my cousins, Harriet Elizabeth Irwin, Daniel Wilson Irwin and William Paul Irwin to share and share alike; and it is my sincere wish and desire that this piece oE land be not sold until William Paul Irwin becomes fourteen years of age, and not then unless three fourths of the heirs, together with the executors, are agreed. In case of the death of any of the cousins, their share or shares of the piece of ground in Burnside borough is to go to whichever one of their parents that may be living, and if both be living they are to share it equally.” Held, that the will did not work a conversion of the land.</p> <p>Trespass—Possession— Unimproved land.</p> <p>Where land is unimproved and unoccupied, the title carries with it the possession, and such possession is sufficient to maintain trespass.</p> <p> Evidence—Proof of execution of paper. </p> <p>When one of the parties to an instrument testifies to the fact of execution by himself and the other party, and that both the subscribing witnesses were dead, and that he had some acquaintance with the handwriting of one of the witnesses from having seen him sign for him, and that he had seen some of the handwriting of the other witness, who wrote the paper in question which the witness signed, it is sufficient to justify the admission of the paper.</p> <p> Evidence—Trespass—Tax receipts—Assessment books. </p> <p>Assessment books and tax receipts cannot prove title in trespass, but they are some evidence of claim, and are more or less efficient as a basis of inference, according as the opposing evidence of a similar character is weaker or stronger, and the other facts in the case are more or less consistent with the claim made.</p> <p>Evidence—Competency of witness—Party dead—Act of 1891.</p> <p>The act of June 11, 1891, P. L. 287, authorizes the admission of testimony of one of the parties to facts transpiring before the death of the deceased party or person, if the relevant matter occurred between the witness and some other living and competent person.</p> <p>Timber—Reservation of timber—Deed. .</p> <p>In 1865, Patchen, by a verbal agreement, sold a tract of land to Kime. Kime subsequently, by parol agreement, sold the land to an other'person, reserving the timber. The vendee again sold the land, reserving the timber. In 1883, Patchen, the holder of the legal title, made a deed to one Irwin, who in 1868 had bought the equitable title with knowledge of the reservation of the timber. In 1883, Kime by agreement in writing sold the timber, the purchaser to have fifteen years, “ from the date of a deed of conveyance made by Patchen to Irwin for the above mentioned piece of land, to cut and remove the above mentioned timber, free of charge.” Held, (1) that after the agreement with Kime in 1865 Patchen had nothing to convey but the bare legal title; (2) that Kime’s right to take olf the standing timber was limited to the merchantable timber on the land' at the time he sold it; (3) that any timber which grew into value on the land after 1868 was the timber of the owners of the land. !</p> <p> Title lo realty—Declarations—Estoppel. </p> <p>In the above case it was not improper to reject evidence that plaintiff lived near the land and saw the timber being cut and removed, and that she had said that the Patchen’s estate owned the timber.</p> <p>Timber—Act of March 27, 1824—Trespass.</p> <p>If a defendant in an action for cutting timber trees under the act of March 27,1824, § 3, 8 Sm. L. 283, who has a right to enter upon plaintiff’s land to cut down certain trees, also cuts down other trees which he has no right to cut, as to such trees he is a trespasser, and liable under the act.</p>

<p> Will—Issue devisavit vel non—Judgment non obstante veredicto—New trial—Practice, O. P. </p> <p>On the trial of an issue devisavit vel non where the court submits the contradictory evidence of a fact to the jury, and the jury has found the fact, the court cannot, on a point reserved, enter judgment non obstante veredicto, on the ground that the facts did not warrant the inference drawn from them by the jury. In such a case judgment should be entered upon the verdict, or the party aggrieved left to the remedy of a new trial.</p> <p> Issue devisavit vel non—Testamentary capacity—Undue influence—Verdict. </p> <p>On the trial of an issue devisavit vel non where both the question of testamentary capacity and undue influence were involved, the jury were instructed that if they found for defendants they should state whether they found that the decedent “was not of sound mind and memory, or that she was acting under undue influence.” The verdict was for defendants, and that decedent was not of sound mind; but nothing was said as to the question of undue influence. The court subsequently entered judgment non obstante veredicto on the reserved question “ whether there is any evidence on which defendants are entitled to recover ? ” Held, to be error, as the reserved point and the judgment upon it did not embrace the issue.</p> <p> Definition of court. </p> <p>The court is a tribunal established for the public administration of justice, and composed of one or more judges who sit for that purpose at fixed times and places attended by proper officers.</p> <p> Court—Associate judges—Judgment after adjournment. </p> <p>Where a court is composed of more than one judge, one of the judges cannot, after the adjournment of the court, and without consultation with his associate or associates, enter a valid judgment.</p> <p>What is ordered and adjudged by the court, not merely what is entered, constitutes the judgment.</p>

<p>Appeal, No. 77, Jan. T., 1894, by plaintiff, from order of C. P. Erie Co., Sept. T., 1892, No. 227, re-instating appeal from alderman.</p> <p>Rule to re-instate appeal from alderman.</p> <p>From the record it appeared that, on Aug. 4, 1892, plaintiff recovered a judgment before Alderman Swalley for $227.20. Defendants appealed and filed a transcript of the alderman in the court of common pleas. Plaintiff, alleging that the appeal had not been taken in time, obtained a rule to strike off the appeal, and this rule was subsequently made absolute. On Nov. 12, 1892, defendant obtained a rule to show cause why the order striking off the appeal should not itself be stricken off, and the appeal re-instated. On Nov. 29, 1892, this rule was made absolute, and the appeal was re-instated.</p> <p>Error assigned was in making absolute the latter rule, and in re-instating the appeal.</p>

<p>Judgment—Assignments—Revival of judgment—Parties — Surplusage—Several owners—Notice•—Assessment of damages—Practice, 0■■ P.</p> <p>The assignees of different portions of a judgment can only recover or collect the judgment on the original plaintiff’s title and in his name.</p> <p>If the sci. fa. to revive recites the names of the legal plaintiff and defendant, the number and term of the judgment, its date and amount, the renewal is'valid, although the names of the use plaintiffs are recited in the writ. Such recital is mere surplusage.</p> <p>When portions of a judgment are assigned to different parties, any one of them has a right to use the name of the legal plaintiff to revive it, and when the writ is issued by one, it is for the benefit of all. Assignments appearing on the record are notice to subsequent judgment creditors.</p> <p>Where one of several assignees of portions of a judgment has issued a sci. fa. to revive, another of the assignees may assess his damages under the writ thus issued without issuing a separate writ.</p>

<p>Appeal, No. 392, Jan. T., 1894, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1892, No. 74, on verdict for defendants.</p> <p>Trespass for death of plaintiff’s husband. Before Gunnison, P. J.</p> <p>At the trial it appeared that plaintiff’s husband was employed by W. L. Scott & Co. to unload coal cars into pockets on a trestle. The trestle was about forty-one feet high and eight hundred feet long, with a slight grade to enable cars upon it to be moved by gravity. The coal in the pockets was transferred by chutes into vessels on Lake Erie. .On July 13,1891, a car loaded with coal was delivered at the works of Wm. L. Scott & Co. One brake of the car was missing and the other defective. On one end of the car was written with chalk in large plain letters: “No brake,” and on the other: “Bad brake.” This car was drawn to the top of the trestle, and started down the incline by one of Scott & Co.’s employees. Its motion could not be stopped because of the defective brakes, and it ran into the car in which plaintiff’s husband was working, causing the injuries from which he died. The car was owned by the railroad company. There was no evidence that the trestle, cables and stationary engines owned by Scott & Co. were defective.</p> <p>The court, under objection and exception, refused to admit evidence that other cars than the one which caused the accident, and which were marked “ b'ad brakes ” and “ no brakes ” were taken on to the trestle by defendants before the accident, to prove that defendants did not show due diligence in selecting their cars that were placed on the trestle. [1]</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Errors assigned were (1) ruling on evidence; (2) refusal to take off nonsuit; quoting bill of exception.</p>

<p> Conversion of collateral security—Sale—Fraud—Damages. </p> <p>A creditor who sells collateral deposited to secure his debt, after refusing to accept the amount of his debt and surrender the collateral, because the debtor declined to pay another debt to another person, for which the collateral was not pledged, is guilty of an unlawful conversion of the property, and the measure of damages is the real value of the collateral at the time of the sale.</p> <p>In such a case the fact that, immediately prior to the sale, the creditor offers to accept the amount of his own debt, does not make the sale valid, reasonable time not being granted the debtor within which to comply with the offer.</p> <p> Equity—Jurisdiction—Sale of collateral. </p> <p>In the above case the creditor bought the collateral at the sale, and sold it after a bill was filed to compel reconveyance. Held, that a court of equity had jurisdiction to enter a decree for damages against the creditor for the conversion of the collateral.</p>

<p>Banks and banking—Assignment for benefit of creditors— County warrants—Course of dealing.</p> <p>A firm of bankers, at the time they made an assignment for the benefit of their creditors, had on deposit a large amount of money belonging to a county. Prior to their assignment they cashed for their customers a large number of warrants drawn upon the county treasurer. A number of these warrants were delivered as collateral security for a debt of the bank, which was subsequently paid by sale of the real estate. Held that the county was entitled to have the warrants surrendered, and a charge entered for their amount in the account of the county treasurer with the firm.</p> <p>It seems that the county was entitled to a surrender of the warrants independently of the fact that it was the established course of dealing between the parties to have the warrants charged off against the treasurer’s account.</p> <p> Equity—Jurisdiction—Possession of county warrants. </p> <p>Equity has jurisdiction in such a case to compel the surrender of the warrants.</p> <p> Equity—Amendment—Parties. </p> <p>A bill in equity was filed by the county against a national bank, which had received the warrants as collateral, but whose debt had been subsequently paid by the assignees of the firm. The court permitted an amendment adding the name of the county treasurer as a plaintiff, and the assignees of the firm as defendants. Held, that the amendment was proper, as it did not change the character of the litigation, or the cause of action, but merely brought in other parties whose interests were affected.</p>

Appeals, Nos. 365 and 386, Jan. T., 1894, by plaintiff and defendant, from judgment of C. P. Warren Co., Sept. T., 1890, No. 21, for plaintiff for only part of his claim, on trial by court. Assumpsit on general warranty in deed.

<p>Appeal, No. 133, July T., 1893, by plaintiffs, from judgment of C. P. Warren Co., Sept. T., 1891, No. 57, on verdict for defendant.</p> <p>Ejectment. Before Olmstead, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Plaintiffs claimed under the will of George A. Cobham, defendants under an orphans’ court sale.</p> <p>Plaintiffs offered a paragraph of defendant’s abstract of title referring to the will of George A. Cobham as filed, as an item of proof that the will was filed, to be followed by entry of filing, etc. Excluded as irrelevant; exception. [11]</p> <p>The court, under objection and exception by plaintiff, as to jurisdiction of register, admitted in evidence the renunciation of the executors named in George A. Cobham’s will, the record of letters of administration granted to R. B. Smith, petition for his removal, order vacating his appointment, request for appointment of W. M. Lindsey, bond and letters of administration granted to Lindsey, proceedings for sale of real estate to pay debts, and record of deed from W. M. Lindsey, administrator, to George N. Parmlee. [1-5]</p> <p>Plaintiffs offered in evidence the agreement, signed by Georgena C. Cobham, Elizabeth Sager, John Sager, Alice Mead, George Mead and Henry Cobham, dated June 18, 1871, and identified by the witness, James O. Parmlee, Esq., to be followed by evidence that the will of George A. Cobham was withdrawn from probate ; that letters of administration upon his estate were granted to W. M. Lindsey; that said administrator obtained from the court an order of sale of the real estate of the decedent, George A. Cobham, without exhibiting to the court a schedule of the debts of the decedent; that the real estate of said decedent, consisting of several parcels, was sold as one body of land to George N. Parmlee, the person named in said agreement; that said Parmlee paid no money for said land to the administrator; that the said George N. Parmlee made deeds for different parcels of said land to different parties to said agreement, receiving no money from either of them. This-evidence being for the purpose of showing that the administrator’s sale, under which defendant claims title, was a fraud upon the other beneficiaries beside the parties to the agreement under the will of the testator, George A. Cob-ham, and void as to them. Also to prove that defendant knew of the will and who the trustees and executors under it were.</p> <p>Counsel for defendant objected to the offers, except so much as goes to prove that W. M. Lindsey was appointed administrator, and that in the course of his duties as administrator, he applied to the orphans’ court of Warren county for leave to sell the land in controversj7, made sale thereof, the return approved by the court and deed made in pursuance thereof.</p> <p>Objections sustained, evidence excluded, exception by plaintiffs’ counsel and bill sealed. [12-16]</p> <p>The petition for leave to sell concluded as follows :</p> <p>“ And your -petitioner further represents that the available personal assets of the decedent, that have come to the hands and knowledge of your petitioner, are entirely insufficient to pay the debts owing by said estate, as appears by accounts and claims duly authenticated and filed with him.</p> <p>“ That the whole amount of personal property as invoiced and appraised by R. B. Smith, the former administrator, after deducting the exemption claimed and retained by the children of the deceased, was $921, to which were added some claims and accounts supposed to be due the deceased, but from which nothing has been realized and probably never will.</p> <p>“ The debts now presented and filed with your petitioner, duly authenticated, amount to $5,124.64, being a balance over and above the assets of $4,208.64, besides interest and costs of administration.</p> <p>“ Your petitioner, therefore, with the full knowledge and approbation of all the heirs of the decedent, prays an order that the herein described real estate shall be sold for the payment of debts.” No schedule of debts was annexed.</p> <p>The court charged in part as follows :</p> <p>“ [I believe that the orphans’ court sale was a regular sale, and that any act done by the administrator after his appointment and before the probate of this will was a legal and valid act, just precisely as much as though no will had been probated at all; that you cannot go back and inquire whether this will was in existence at that time, although not upon the record. If such things could be done there would be no security of titles, particularly those obtained at orphans’ court sale. After this grept lapse of time, which always operates and should operate to quiet titles, I think it would be entirely illegal and contrary to public policy, and operate as a disturbance of titles that have rested quiet for many years, to hold that this whole transaction can be opened at this period and we go back and undo what the orphans’ court did do in this case, and what the administrator under the authority of the orphans’ court did. Under the view that we take of this case the plaintiffs cannot recover, and your verdict will be for the defendant.] ” [9] Plaintiffs’ points were among others as follows :</p> <p>“ 1. The undisputed evidence showing that the deceased died testate, and by his will appointed trustees and executors, and no renunciation or refusal to act by said executors having been shown, the register had no jurisdiction to appoint Rufus B. Smith or W. M. Lindsey administrators of the estate of George Ashworth Cobham, deceased.” Refused. [6]</p> <p>“ 2. The undisputed evidence showing that George Ash-worth Cobham died testate, the register had no jurisdiction to issue letters of administration, except with the will annexed.” Refused. [7]</p> <p>3. The petition for sale was insufficient to confer jurisdiction and the sale thereunder void. Refused. [10]</p> <p>4. Request for binding instruction. Refused. [8]</p> <p>Verdict and judgment for defendant.</p> <p>Errors assigned were (1-5, 11—16) rulings on evidence; (6-10) instructions; quoting instructions and bills of exceptions but not evidence.</p>

<p> Equity—Master's findings of fact. </p> <p>The findings of a master on questions of fact, approved by the court below, will not be set aside in the Supreme Court, except for clear error, even where the testimony is conflicting, and the merits may appear contrary to the master’s conclusion.</p> <p> Contract—Sale of timber—Fraud—Misrepresentations—Rescission. </p> <p>Defendants sold to plaintiffs the timber on about one thousand acres of land. The land was cut up by ravines and broken by elevations, and the quantity of timber upon it could only have been ascertained by the work of four men for twenty-four days. Defendant represented that there were nine million feet of timber upon the tract, although he knew that there were only three million feet. Fie directed one of his employees to show plaintiffs only the best part of the timber, and not to take them over that part which had been cut. The employee obeyed his orders, and stated to plaintiffs that what he showed them was a general average of the timber. Defendant knew the quantity of timber on the land from an estimate which ho had previously had made. Held that plaintiffs were entitled to a rescission of the ’contract.</p> <p>This is not the case of buyers relying upon an imperfect investigation of their own, as in Mehaffey v. Ferguson, 156 Pa. 156, but the case of a buyer relying upon a false estimate of the vendor, and his confidence increased by a further falsehood still more persuasive. By Mr. Justice Dean.</p>

Appeal, No. 227, Jan. T, 1893, by defendant, from judgment of C. P. Warren Co., Sept. T., 1891, No. 19, on verdict for plaintiff. Trespass for personal injuries. • Before Notes, P. J. The material facts appear by the opinion of the Supreme Court below. Plaintiff’s points were among others as follows: “ 2.

<p> Eminent domain—Discontinuance of condemnation proceedings. </p> <p>Where there has been such an actual taking under the power of eminent domain as invests the donee of the power with title, and gives to the landowner a vested right of compensation, the former cannot be permitted to discontinue the condemnation proceedings without the consent of the latter. This rule applies not only to railroad corporations, but also to municipal and quasi-municipal corporations.</p>

<p>Appeal, No. 41, July T., 1893, by-defendants, from decree of C. P. Union Co., March T., 1891, No. 1, on bill in equity.</p> <p>Bill in equity to postpone lien of mortgage.</p> <p>The case was referred to Samuel Orwig, Esq., as master, from whose report the facts, appear as stated in the opinion of the Supreme Court.</p> <p>The master recommended the following decree:</p> <p>“1. That the lien of the mortgage from R. B, Stryker and Sarah E. Stryker to Charles B. Weaver, executor of- Henry-Weaver, deceased, for $1,200, dated July 21, 1883, and recorded in the office for the recording of deeds, etc., in Union county, in mortgage book E, page 577, August 8, 1888; and also in the office for the recording of deeds in Lycoming county, in mortgage book 14, page 548, and assigned by said Charles B. Weaver, executor, to J. F. Strieby, Esq., Dec. 18,1890, and assignment recorded in Union county, in mortgage book K, pages 118 and 119; and in Lycoming county, in mortgage' book , page , be postponed to the lien of the mortgage from said R. B. Stryker and Sarah E. Stryker to Henderson, Hull & Co., Ltd., for $1,500, dated Nov. 4,1886, also recorded in the office for the recording of deeds, etc., in Union county, in mortgage book F, pages 251, and 252, and in Lycoming county, in mortgage book 2C, page 504, vol. 28, to the extent for the amount of the legacy payable to the said Sarah E. Stryker, under and by the last will and testament of Henry Weaver, deceased, out of the funds directed by said testator to be invested for the use of his widow during her life, and at her death to be paid to his children in equal shares and out of the fund vested in real estate, as the same shall appear in the orphans’ court of Lycoming county.</p> <p>“ 2. That a record of this decree be made by the recorder of deeds in Union' county, and by the recorder of deeds in Lycomiftg county, and a reference to said records on the, margins of the mortgage books where said mortgages are recorded.</p> <p>“ 3. That the decree be entered of record in the courts of' common pleas of Union and Lycoming counties, to the records' of the writs of sci. fas. issued on said mortgages.</p> <p>“ 4. That defendants pay the costs.” .</p> <p>Exceptions to the master’s report were dismissed, and the decree entered as recommended by the master^ in an opinion by McClure, P. J.</p> <p>Frrors assigned were dismissal of exceptions and entry'of decree, quoting them,, and in assuming jurisdiction and in not dismissing bill.</p>

Appeal, No. 189, July T., 1898, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1891, No. 84, on verdict for plaintiff. Trespass for personal injuries. Before Ewing, P. J. At the trial it appeared that, on Monday, Dec. 15,1890, plaintiff, who was freight conductor in the employ of defendant, was injured by engine No. 152 running into a train of nine freight cars, plaintiff being on the engine at the time.

Appeal, No. 430, Jan. T., 1894, by defendant, from judgment of C. P. Snyder Co., Dec. T., 1893, No. 12, on verdict for defendant. Sheriff’s interpleader. Before McClure, P. J. At the trial it appeared that, on Feb. 10, 1893, a fi. fa. was issued by Mrs. E. R. Greegor against B. F. Crouse under a judgment on a single bill.

Appeals, No. 37, Jan. T., 1894, and No. 24, July T., 1894, by defendant, from orders of C. P. Union Co., Sept. T., 1888, refusing to strike off writ of levari facias and ordering satisfaction of judgment to be stricken from record. Scire facias sur mortgage. Rule to strike off lev. fa. and rule to strike off entry of satisfaction of judgment. Before McClure, P. J. The facts appear by the opinion of the Supreme Court.

<p> Negligence—Railroads—Passenger—Alighting from train—Contributory Negligence. </p> <p>Plaintiff, a young woman, was a passenger going to Stewart station. As the train approached the station, its speed was lessened, and the conductor and brakeman each announced: “ The next station is Stewart.” Plaintiff immediately started from her seat in the back part of the car. When she reached-the front platform the brakeman asked her to pass on to the next car, stating that she could not alight from (he car in which she was, without getting into mud <jr water. When she had reached the middle of the second car the train stopped momentarily to permit another train to discharge its passengers, but started before plaintiff reached the front platform. The conductor and a brakeman were on the platform, on the side of the car from the station, looking forward to ascertain the cause of the stoppage. Plaintiff spoke to them, but they did not see or hear her. She testified that she then noted the speed-of the train, and thought that she could alight safely. With a bundle in her hand she stepped from the moving train to the platform. While doing this she observed that the train was moving faster than she had supposed and to avoid falling she took hold of the rail of the car with her back to the engine, and was thrown between the platform and the track and was injured. Held, that it was proper to give binding instructions for defendant.</p>

Appeal, No. 131, July T., 1893, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1890, No. 71, on verdict for plaintiff. Assumpsit on insurance policy. Before Livingston, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 180, Jan. T., 1894, by defendants, from judgment of C. P. Lancaster Co., June T., 1880, No. 24, on verdict for plaintiff.</p> <p>Trespass vi et armis q. c. f. Before Brubaker, J.</p> <p>At the trial it appeared that on May 10,1880, Lorenz Nolde, claiming to be trustee of the “ Seventh Day Baptists of Ephrata,” ejected plaintiff from two fields belonging to the society, which he claimed the right to hold under a lease.</p> <p>Plaintiff was called as a witness in his own behalf. Defendants objected to the witness, on the ground of the death of Lorenz Nolde, who was the defendant, and that that would exclude plaintiff from testifying. Objection overruled, exception. [1]</p> <p>When Frank Good, a witness for defendant, was on the stand, he was examined as to an alleged settlement made between the parties, and was asked: “ Q. Wasn’t the understanding of all the parties interested, including Mr. Irwin, who was present, that the'entire difficult}', both civil and criminal, growing out of the alleged forcible entry and detainer—growing out of the action of the 10th of May-—-was settled? ” Objected to by plaintiff’s counsel; objection sustained. [6]</p> <p>Defendant’s points were, among others, as follows :</p> <p>“ 1. The court is requested to direct the jury to disregard the testimony of plaintiff, Martin D. Irwin, it being improvidently admitted by the court, so far as the same relates to the commission of the alleged trespass and conversations with him (Lorenz Nolde) relating thereto. Answer: This point I refuse to affirm. I negative it. I hold that in cases of this kind, trespass or tort, parties are entitled to all witnesses. It is only in cases on contract where one party to the contract is dead, by the policy of the law the other party is not allowed to testify. I»ut in this ease Mr. Irwin was admitted as a witness.” [2]</p> <p>“ 5. That the plaintiff is not entitled for any supposed profit from tobacco of one acre, which was not planted and had no existence, and the jury be directed to exclude auy damages claimed by plaintiff on that account. Ansioer: I negative this point. The plaintiff is entitled to whatever profits he could have made, if he had not been prevented from raising the crop of tobacco. In order to get at the net profits you have to deduct the value of the labor that would have been necessary to raise that crop by the tenant under the circumstances of the case.” [12]</p> <p>Verdict and judgment for plaintiff for $400.</p> <p>Errors assigned were, (1) ruling on evidence, quoting the bill of exceptions; (2, 6, 12) instructions as above, quoting them.</p>

<p>Will—Devise— Gharily.</p> <p>Testator gave a life estate to bis nephew with a direction that if his nephew abstained from intoxicating liquors for a certain period he should take a fee in the estate. He then provided as follows: “If the life estate of my nephew should'expire before he has enabled himself to become entitled to the corpus, or fee. simple, of my estate, then I dispose of whatever may remain as follows: If the aggregate sum shall then amount to fifty thousand dollars without which no further disposition can be made, I give it all to my trustees to erect, establish, and endow a house of refuge for the relief of the homeless indigent orphans. ... I desire twenty thousand dollars to be expended in erecting suitable buildings. The residue to be secured in government securities.” Belcl, that the gift to the charity was absolute, and not merely contingent upon the estate amounting to $50,000 at the time of the death of the nephew. If the estate did not amount to $50,000 at the nephew’s death, the trustees were to wait until it reached that amount before entering upon their work.</p>

Appeal, No. 351, Jan. T., 1894, by a creditor, from decree of O. C. Lancaster Co., dismissing exceptions to report of auditors. Exceptions to auditors’ report. Held: Paxson, J., delivering the

<p>Appeal, No. 400, Jan. T., 1894, by defendants, from judgment of C. P. York Co., Jan. T., 1891, No. 10, on verdict for plaintiff.</p> <p>Assumpsit for money loaned. Appeal from arbitrators.</p> <p>At the trial it appeared that plaintiff claimed to recover $12,290 alleged to have been loaned at various times to Wm. E. Patterson, deceased, during his lifetime.</p> <p>When James E. Glessner, a witness for plaintiff, was on the stand, defendant made the following offer on cross-examination : The witness having already testified that plaintiff exhibited to him on a number of occasions the $5,000 note spoken of in plaintiff’s statement, and having detailed the facts and circumstances connected with his examination of the note in the presence of plaintiff, and having described from memory the contents of the note, it is now proposed to further test the recollection of what occurred at those times, by asking him to state what plaintiff said at that time to him, if anything, in regard to the moneys for which the note was given, and any other facts and circumstances connected with it, which she may have stated to him at that time. For the purpose of testing his recollection, and for the purpose of ascertaining all the facts connected with the exhibition of the note to him, and his ex-alnination of it. Objected to as not proper cross-examination, because we did not give any declarations at all that she made at the time. It is just opening the door to a lot of collateral matter not in the case. Objection sustained by the court, and exception. [13]</p> <p>Defendants offered to prove that decedent did not make certain investments and expenditures as stated by plaintiff. Objected to, objection sustained and exception. [15, 16, 27]</p> <p>Defendants offered to prove that plaintiff was without property sufficient to make the alleged loan ; objected to, objection sustained and exception. [19]</p> <p>Defendants offered to prove by J. K. P. Fulton and others that during the period from April 1, 1885, to the death of William E. Patterson in September, 1890, the said William E. Patterson, defendants’ intestate, was in the constant habit of visiting plaintiff at the house No. 102 South George street at all hours of the day and night, daily and nightly, when he was in town. That he was accustomed to enter the house without ringing or knocking, and unannounced and unattended walk into said house, upstairs and into plaintiff’s bedroom. This to be followed by proof that the said intestate bought and paid for provisions, and had them secretly sent to plaintiff’s residence, and also articles of clothing for plaintiff. Also by proof that on one occasion, in the spring or summer of 1885, the said intestate and plaintiff spent several hours together in a bedroom at plaintiff’s residence, alone, with closed doors; and, upon another occasion, were surprised by a witness in said bedroom alone together upon a bed. Also, that on one occasion plaintiff and defendants’ intestate met clandestinely in Philadelphia, and went alone to a hotel- together, the- precise times and circumstances to be given by the witnesses. [To be followed by evidence that plaintiff, during the period from April, 1885, to the death of William E. Patterson, did not own, and was not legally possessed of any such sum or sums as claimed by her in this suit, nor of any sum or sums for investment; nor had or owned any other money or property, except such as she received from intestate.] For the purpose of sustaining the issue on part of defendants ; showing the falsity of plaintiff’s claim ; that she did not loan any sums of money to intestate, as claimed, and that the relation between plaintiff and William E. Patterson during said period was not that of creditor and debtor, but that of mistress and lover; and for the purpose of explaining the testimony introduced on behalf of plaintiff of alleged statements and admissions by intestate in regard to plaintiff, and for the purpose of showing that any admissions or notes of said intestate to plaintiff were without legal consideration. Objected to as irrelevant. The Court: We reject that offer for the present, as it stands. There is a great deal of that that certainly is not evidence. Evidence rejected, exception. [20]</p> <p>Defendants renewed The preceding offer, with the partin brackets stricken out, for the additional purpose of contradicting the testimony of Lillie Miller and Harriet Bowles, and all the inmates of the house who were called as plaintiff’s witnesses, and denied knowledge of the frequent visits of William E. Patterson at that house, and of the fact that he carried a night key and went and came unattended. Objected to as irrelevant; objection sustained ; exception. [21]</p> <p>Defendants offered a paper admitted to have been read-by plaintiff’s counsel at the trial of this case before arbitrators; and further offer to prove by the officers and books and records of the York County National Bank that during the period from April 1, 1885, down to the time of the death of William E. Patterson, plaintiff got no moneys out of that bank, or any such sums, or anywhere near approximating the amounts claimed to have been loaned by her to William E. Patterson; that she got no moneys out of that bank in any other way than by checks upon her account; that during that period she had no sums in that bank corresponding, or anywhere near approximating in amount to those alleged to have been loaned to William E. Patterson, and had no sums in that bank, and drew none out, except inconsiderable and trifling amounts. For the purpose of sustaining the issue on the part of the defendants ; for the purpose, of affecting the credibility of the plaintiff; for the purpose of showing the falsity of her claims; and for the purpose of showing that she made to Edward Long false statements in regard to this claim sued upon by her, and statements that were contradictory of the statements made by witnesses produced at this trial on her behalf. Objected to; objection sustained and exception. [22-24]</p> <p>The paper contained an admission that plaintiff had no other bank account except the one mentioned. The admission was stated in the paper to be made to save cost of witnesses to prove this fact before the arbitrators.</p> <p>Defendants offered to prove by the books, records and officers of the York County National Bank that William E. Patterson kept his bank account in said bank at the time of the transactions testified to bj’ plaintiff’s witnesses, and that he did not deposit the sum of $5,000 on or about thé 15th of April, 1885; and to show what the deposits were, and that they were not such sums or amounts as were claimed to have been received by him from plaintiff. For the purpose of sustaining the issue on behalf of defendants, and of showing the improbability of plaintiff’s claim, and that defendants’ intestate did not receive from' plaintiff the moneys alleged by plaintiff’s witnesses.</p> <p>Objected to as irrelevant. The Court: The evidence comes within the decision of Mitchell v. Douglas, 35 Pa. 440, where similar evidence was offered and rejected, and the Supreme Court said it was not competent evidence. We refuse the offer, and seal an exception for defendant. [28]</p> <p>Verdict and judgment for plaintiff for $5,792.50.</p> <p>Errors assigned were, among others, (13, 15, 16, 19-24, 27, 28) rulings on evidence, quoting bills of exception.</p>

Appeal, No. 62, July T., 1894, from decree of Q. S. Northumberland Co., Feb. T. 1894, No. 61, refusing to grant a retail liquor license. Petition for new retail license.* Before Savidge, P. J. The petition was refused in the following opinion : “ This application is in due form. The additional petition certifying to the necessity of the house and the fitness of the application is signed by 85 electors, most of whom are representative citizens of Mt. Carmel.

<p> Contract—Surrounding circumstances—Conduct of parties—Sale of timber—Reasonable lime for removal—Notice. </p> <p>Where an agreement for the sale of timber contains no provision as to the time within which the timber is to be removed, but the circumstances of the parties show that it is to be cut within a reasonable time, the purchaser’s right to cut and remove the timber ceases after the expiration of a reasonable time.</p> <p>Where in such a ease the evidence is undisputed that the purchaser did not assert his light to cut and remove the timber for eleven years, the court may say as a matter of law that such delay is unreasonable.</p> <p>A farmer sold timber on his land to a lumber manufacturer and dealer in lumber. No time was fixed within which the lumber was to be removed. The vendor granted privileges on his land to the purchaser necessary for carrying on the lumber manufacturing business. No provision was made as to the payment of taxes by the purchaser on any interest in the land. An increased price was to be paid should a railroad station be built near the land, either before the purchaser commenced sawing or before he had finished. About five years after the agreement, the purchaser began cutting and removing the timber, and continued manufacturing nearly three years, severing nearly all timber suitable for .lumber. He then removed his mill, and for eleven years did not return to the land, or in any way claim the timber. He then resumed lumbering operations on the land'. Held that, under the above facts, and the circumstances surrounding the contract, which were undisputed, plaintiff was entitled to binding instructions for the value of all the timber cut after the expiration of the eleven years.</p> <p>After the purchaser had begun operations within a reasonable time, and then removed his mill, the owner of the land was not required to notify him to resume operations. He had a right to assume that the purchaser had taken all the timber that passed to him as the consideration of the contract, and that he had no further claim.</p>

<p>Appeal, No. 36, July T., 1894, by plaintiff, from judgment of C. P. Northumberland Co., Sept. T., 1891, No. 380, entering compulsory nonsuit.</p> <p>Trespass for death of plaintiff’s wife. Before Savedge, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Frederick Lorenz, a civil engineer and witness for plaintiff, who had prepared a map given in evidence, was asked on cross-examination : “ Q. You can see from the point B, located on the map in the center of the pavement of the north rail of the north track, to Mullen’s foundry, some 235J feet and beyond it ? ” Objected that, as the witness has’ not been asked anything about Mullen’s foundry, it is not cross-examination. Objection ovei’ruled and exception. The wit2iess answered in the affirmative. [2]</p> <p>Samuel Culp, ■ a witness for plaintiff, having testified that, from the point A on the map, immediately above the steps of the store, one could see up the railroad 41 feet, he having measured it, defendant asked, on cross-examination : “ Q. Suppose you went from the poirxt A south dowxx to withixx three feet of the northbound rail of the railroad, how far could you see up the tx'ack ? ” Objected to as not proper cross-examination. Objection overruled and exception. The witness answered that he might see 100 feet. [3]</p> <p>The court entered a compulsory nonsuit and subsequently refused to take it off.</p> <p>Errors assigned were, (1) refusal to take off the nonsuit ; (2-4) rulings, quoting bills of exception axid evidence.</p>

Appeals, Nos. 64 and 65, July T.y 1894, from order of Q. S. Northumberland Co., Feb. T\, 1894, Nos. 43 and 44, dismissing petitions. Demurrer to petitions under act of June 12, 1893, to make township roads. Before Savidge, P. J. Error assigned in each case was in sustaining demurrer to petition.

<p>Appeals, Nos. 1 and 2, May T., 1894, by administrator, from decree of O. C. Dauphin Co., dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication. Before Simonton, P. J.</p> <p>From the report of the auditor, H. M. Graydon, Esq., it appeared that accountant claimed credit for $110 paid to the American Surety Co., for becoming his surety on his bond as administrator, and for $1,530, for becoming his surety as trustee to sell real estate in proceedings in partition. The auditor refused to allow the credits. Exceptions to the auditor’s report were overruled, and a decree entered confirming the report.</p> <p>Error assigned was above decree.</p>

<p>Appeal, No. 33, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1892, No. 492, in favor of Commonwealth on appeal from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>The settlement appealed from was as follows :</p> <p>Appraised value of capital common stock, . . $4,785,000.00</p> <p>Tax three mills, $14,355.00</p> <p>Dividend seven per cent on special stock, . . 2,400,000.00</p> <p>Tax three and one half mills (one half mill for each one per cent of dividend), .... 8,400.00</p> <p>Due Commonwealth, . , . $22,755.00</p> <p>The facts were found as follows by Simonton, P. J.:</p> <p>“ This case was by agreement of the parties tried by the court, in accordance with the act of April 22, 1874. It originated in an account settled by the auditor general and state treasurer, December 9, 1891, against tbe corporation defendant, for tax on capital stock, under the'act of June 7, 1879, for the year ending the first Monday of November, 1888, for $22,755; from which settlement defendant appealed to this court, as provided by the act of March 30, 1811, relative to public accounts.</p> <p>“1. The defendant was incorporated as the Sunbury and Erie Railroad Co. by a special act passed April 3, 1837, with an authorized capital of $6,000,000, with authority to locate, construct and operate a railroad from Sunbury, via Williamsport, to the harbor of Erie, a distance of about 287 miles, over a route much of which was then an almost unbroken wilderness, crossing the Allegheny range of mountains, and through a region not traversed by any other railroad.</p> <p>“ 2. Soon after its incorporation, the company defendant was organized and proceeded to survey its route and locate its road; but for want of sufficient means, comparatively little of its stock having been subscribed prior to February 18, 1852, not much progress was made in the construction of its road.</p> <p>“ 3. By an act entitled ‘A supplement to the act incorporating the company defendant, passed February 10,1852,’ P. L. 42, the corporate or constituted authorities of any municipal or other corporation in the commonwealth were authorized to subscribe for shares in the capital stock of the corporation defendant, and to pay for the same by issuing certificates'of loans, or bonds, bearing an interest of six per cent per annum; and the company defendant was authorized to pay interest to shareholders at the rate of six per cent per annum, with the proviso ‘ that interest shall not be paid upon any share of stock upon which any installment which has been called -for remains unpaid : Provided further, That the stock of the said company shall not be subject to any tax in consequence of the payment of the interest hereby authorized, nor until the net earnings of the company shall realize at least six per centum per annum upon the capital invested.’ This act was accepted by the stockholders of the company defendant February 13, 1852, and it is hereby referred to and made part of this finding.</p> <p>“ 4. A further supplement to the act incorporating the defendant was passed March 27, 1852, P. L. 186, of which section 11 is as follows: ‘ That inasmuch as the construction of this railroad will tend to develop the resources and increase the revenue of the commonwealth, the property' which the said president and managers hold or may acquire under the charter for the benefit of the stockholders, shall be exempt from taxation for said purposes until the road is completed : Provided, That such exemption shall not extend to a period longer than five years from the passage of this supplement.’ This act was accepted by the stockholders of the corporation defendant May 12', 1852, and it is hereby referred to and made part of this finding.</p> <p>“ 5. After the acceptance of the act of February 10, 1852, the company defendant opened new stock subscription books, and placed on the first page of each a printed slip containing a copy of section 2 of said act, and numerous individuals subscribed, and the following stated municipal subscriptions were made in said books, namely: by the city of Philadelphia $2,000,000; district of Richmond $255,000; county of Erie $200,000 ; city of Erie $300,000; county of Warren $150,000; making a total of municipal subscriptions of $2,905,000, which were paid within a reasonable time thereafter, and the sums thus obtained were applied by the company defendant to the construction of its railroad.</p> <p>“ 6. The act passed March 7, 1861, provided that the corporate name of the defendant should be ‘ changed to The Philadelphia and Erie Railroad Co., by which name and title the business-of said company shall be hereafter managed, with the same effect as if the name thereof had not been changed.’</p> <p>“7. The company defendant completed-the construction of its railroad in 1864 with the aid of the Pennsylvania Railroad Co., which had previously, in 1862, become the lessee of said railroad in its unfinished state ; and said road has ever since, in accordance with the terms of said lease, been managed, controlled and operated, and the rates of tolls, freights and charges have been regulated and determined by said Pennsylvania Railroad Co., which has at all times,, since the date of the lease, furnished and owned the equipment of said road. This lease (for 999 years) is made part of this finding.</p> <p>“ 8. In January, 1870, another lease from the company defendant to the Pennsylvania Railroad Co. was substituted for the lease above referred to, and contained, inter alia, an agreement that the lessee should charge the lessor interest at a rate not exceeding seven per cent upon the cost of the equipment so owned and furnished by the said lessee. The interest on the cost of the equipment used on the road in 1888 was $168,403.75. This lease is hereby referred to and made part of this finding..</p> <p>“ 9. By an act passed March 9,1865, P. L. 291, the corporation defendant was authorized to issue bonds not exceeding in amount $3,000,000, bearing interest at the rate of seven per cent per annum, to be secured by a mortgage on defendant’s railroad, and to be convertible into special stock. Thereafter defendant issued $2,400,000 of said bonds, and they were after-wards, converted into special stock, and this is part of the capital stock taxed in the settlement appealed from in this case. This act was accepted by the company defendant March 20, 1865, and is hereby made part of this finding.</p> <p>“ 10. The officers of the corporation defendant reported, as required by law, to the secretary of internal affairs in 1888, that the cost of the construction of defendant’s railroad up to December 31, 1888, was $26,186,163.35, and the net earnings for the year 1888 were $1,655,850.20. The amount charged for interest on equipment furnished by the lessee under the lease of January 1, 1870, for the year 1888, was $168,403.75 ; and the cost of maintaining the organization of the company defendant for the year 1888 was $8,000. The charge for interest as above stated was not deducted from the net earnings, nor reckoned as part of the expenses of operating the road in the report above referred to.</p> <p>“ 11. In response to a call from the auditor general, the treasurer of the company defendant, November 27, 1888, made a report of the capital stock of the corporation defendant, as required by law, showing the total capital stock to be $10,375,000, of which $2,400,000 were stated to be special stock, and $7,975,000 common stock, and appraising the common stock at $30.00 per share, amounting to $4,785,000, but failing to appraise the special stock and to state that a dividend had been made, upon it. We find, however, that a payment of seven per cent was made during said year by the company defendant upon said special stock. This report was accompanied by a letter fi’om said treasurer to the auditor general, calling his attention to the act of February 10, 1852, claiming exemption from taxation under said act, and stating ‘ as this company is not in a position to pay interest on capital invested, it is not liable under the law quoted.’ Thereupon the auditor general and state treasurer settled an account against the defendant for tax on capital stock, charging it at the rate of three mills on $4,785,000, the appraised value of its common stock, amounting to $14,355, and three and one half mills (being one half mill for each one per cent of dividend) on $2,400,000, the par value of its special stock, amounting to $8,400, making the total tax $22,755, from which settlement defendant appealed, as above stated. There is no evidence in the case tending to show whether the auditor general and state treasurer did or did not claim that the company defendant was liable for tax on capital stock for years prior to 1888, nor any evidence to show that any other account than the one now in question was ever settled against defendant for the year 1888, and we therefore find that none was settled for this year.</p> <p>“ The company defendant claims in the specifications of objections filed with the appeal, that its net earnings did not, in 1888, or in any year prior thereto, realize six per cent on the capital invested ; that therefore its capital stock is exempted from taxation by the supplement of February 10, 1852 ; that this exemption is in the nature of a contract; and that any subsequent taxing act purporting to repeal it would be repugnant to the clauses of the constitution of the United States and of this state, which prohibit the passing of any law impairing the obligation of contracts.”</p> <p>The court held that the exemption clause of the act of Feb. 10, 1852, had been repealed by the act of June 7,1879, or if it was ever valid it has ceased to exist by reason of the lease; and also that the rental paid for the use of rolling stock and equipment should be treated as if it were interest upon money borrowed to purchase such equipment and rolling stock.</p> <p>Exceptions to the findings of facts and conclusions of law were overruled, and judgment was entered in favor of the commonwealth, for the full amount claimed.</p> <p>Srrors assigned were rulings as to rental paid for rolling stock, effect of lease, and construction of statutes.</p>

<p>Appeal, No. 26, May T., 1893, by plaintiff, from judgment of O. P. Dauphin Co., March T., 1892, No. 240, for defendants non obstante veredicto.</p> <p>Assumpsit to recover consideration money for surrender of custody of child. Before Simonton, P. J.</p> <p>The court reserved the following question of law:</p> <p>“ If a verdict be found in favor of the plaintiff, it will be subject to the reserved points on the 'following facts: ‘ Old Mr. Enders, the grandfather, said that he came to fetch the child, and my sister (its mother) did not want to part with the child, who was about three years old ; then he promised her if she would let him have the child, he would give her twenty thousand dollars and the child ten thousand dollars when he should come of age, and at the same time he would give him a good education of some college ; and if she would stay single until he was of that age, he would sooner give her more ; and he said that she could come to see the child whenever she would like to, and the same time that she could have the boy occasionally for a certain length of time, but that the home should be with him. She said she would sooner keep the boy than to have the money, but by consulting a little with her they compromised that he should take the boy along on those terms.’</p> <p>“ On those facts these questions of law are reserved: (1) Whether the contract set forth in the facts is contrary to public policy. (2) Whether the facts show any consideration for the promise.</p> <p>“ The further question is also reserved whether there are any facts in this case that ought to go to the jury upon which they can legally find in favor of the plaintiff.</p> <p>“ These questions are reserved by consent of counsel on both sides.”</p> <p>Verdict for plaintiff for $20,000. The court subsequently entered judgment for defendants non obstante veredicto.</p> <p>jError assigned was above order, quoting it.</p>

<p>Appeal, No. 17, May T., 1894, by defendant, from decree of C. P. Dauphin Co., No. 177, in equity, in favor of plaintiff.</p> <p>Bill in equity to restrain defendant from interfering with the proposed construction by plaintiff of a crossing over defendant’s tracks on Front street, in the borough of Steelton, from Adams street to Trewiek street.</p> <p>The ease was referred to John E. Patterson, Esq., as master, who reported as follows:</p> <p>“1. The plaintiff company proposes to cross two tracks of the defendant company on Front street in the borough of Steelton by a track, extending from Adams street, at or near its intersection with the building line of the first mentioned street, by a curve, practically on a level, of the radius of 45 feet, to be constructed as shown on Exhibit C, and to continue the track on the western side of Front street, parallel with, and at a distance of four and four tenths feet from the outside of the western rail of the western track of the defendant company (being the same interval of space as between the tracks of the last named company) to a point at or near Trewiek street, and thence by a curve of the radius of thirty-one feet and four inches inside measurement, into Trewiek street. The distance from the beginning of the proposed curve at Adams street to the nearest rail of the defendant company’s track will be thirty-three feet and four inches.</p> <p>“ 2. The grade of Adams street, which is about forty feet wide, from Second street to Front street, a distance of about one hundred and ninety feet, upon which the track of the plaintiff company is now laid and used, is five and eight tenths per cent. The grade of Trewiek street, which is about thirty-six feet wide, from the Canal bridge to Front street, a distance of about one hundred and five feet, a portion of which is now occupied by said company’s track, is five and two tenths per cent. The grade of Second street, for about one hundred and fifty feet to Adams street, is greater than that on the latter street, and the track of the Citizens Company is laid and used on that descent, and enters Adams street by a curve, the radius of which is not disclosed by the evidence.</p> <p>“ 8. Front street, between Adams and Trewiek streets, which is about thirty-nine or forty feet wide between curb lines, is occupied by two parallel tracks of the defendant company, .and a cross-over, running from one track to the other, and extending from a point about thirty feet south of Trewick street to a point about one hundred and twenty-five feet north of Adams street. On the eastern side of the tracks of the defendant company there is a space of the roadbed for the passage of wagons. This part of Front street is much used by vehicles and pedestrians. A car of the East Harrisburg Company passes this point about every five minutes. The space occupied by the tracks of the last named company, including the interval between its tracks, is about fifteen feet six and a half inches. The cross-over is used by the defendant company to transfer cars from one of its tracks to the other for the purpose of picking up local passengers, while the lower Steelton traffic is taken directly to Harrisburg without stopping. This portion of the railway is much used by the traveling public in commencing arid ending journeys on the cars of the defendant. The crossover will not be interfered with by the proposed crossing of the plaintiff company. The eastern track of defendant company is used by north-bound cars, which have heretofore been accustomed to stop at the northern sides of Trewick and Adams streets to take on and leave off passengers, and the western track is used by the south-bound cars, which have heretofore stopped at the southern sides of the same streets for the same purpose. The proposed crossing may to some extent interfere with the stopping of these cars at the southern side of Trewick street and the northern side of Adams street for the purpose of loading and unloading passengers of the defendant company, but only when the cars of each company would arrive near these points at about the same time,- and then the delay would be of short duration.</p> <p>“ A person standing on the ground or platform of a car-of the Citizens Company, at the house line of Front street at Trewick or Adams street, can see north and south along Front street about 1000 feet.</p> <p>“ 4. The evidence of the expert witnesses, produced by the respective companies, relating to the ability to operate ears with safety on the tracks of the plaintiff company on the grades of Adams and Trewick streets, under all conditions of track, is conflicting. But the master finds that when the rails are dry the cars can be stopped at will, -but. when the rails are slippery, from any cause, they cannot always.be so stopped with the appliances for that purpose now iú'use'lty the plaintiff company. The latter condition of the rails may be produced by ice, frost, moisture, leaves, grease or mud*-. Since the tracks of the plaintiff company have been operated on -the descents of Adams and Trewick streets, during which time .there were two snowy and wet days, when the tracks were in bad bondition, the motormen have had no difficulty in controlling their cars on these grades.</p> <p>“ 5. The proposed curves at Adams,and Trewick streets are practicable and safe, if the grooves • of' the rails are kept free from obstructions, and the cars-enter and pass around them slowly. Under such conditions.there is no danger of derailment, and there is no such danger to be apprehended to the cars of either company at the Adams street crossiüg by reason of the frogs, if they are kept clean, and ordinary care is observed in passing over them. The curve, at- the corner of Third and Walnut streets in the tracks of-.the plaintiff company in the city of Harrisburg is of less radius than either of the proposed curves at Trewick and Adams, stréets,-- and there a car has never been derailed.</p> <p>“6. At the point of taugency of the.proposed curve at Trewick street, which is the nearest point to the western track of the defendant company, there is no danger of a car of the plaintiff company overlapping that of the, defendant company, for at that point there would be a space of from three to four inches between the widest cars of those mentioned in the testimony of the respective companies, if they would be opposite each other there at the same time..</p> <p>“ 7. There will be no danger from the.'overhead wire crossing at Front and Adams streets if it is properly constructed and kept in reasonably good order. ■- • .</p> <p>“ 8. The tendency of curves is to check the momentum of the cars, but cars entering a curve of short radius, like those proposed, at great speed, or with locked wheels, are liable to derailment, and this sometimes occurs through carelessness or inexperience of motormen.</p> <p>“ From the evidence and the facts as above found the master concludes that the proposed crossing -at Adams street over the tracks of the defendant company, constructed as in Exhibit C,</p> <p>and the proposed track paralleling the said tracks on the west side of Front street, and the curve into Trewick street of the plaintiff company, are practicable, and can be used and operated by it, with reasonable safety, if a person be stationed at the locus in quo, to keep the tracks on the descending grades of Adams and Trewick streets in good condition and the frogs at the crossing and the said curves free from obstructions, and to give warning of danger. This precaution, and ordinary care on the part of conductors and motormen on the two railways at the point in question, will reduce the danger incident to the operation of the same to a minimum.”</p> <p>The following plan, Exhibit C, shows the location of the crossing:</p> <p> </p> <p>Exceptions to the master’s report were overruled by the court in an opinion by Simonton, P. J.</p> <p>The following'decree was entered:.</p> <p>“ This case came on to be heard on exceptions to the master’s report, and on consideration thereof* it is ordered, adjudged and decreed by the court as fellows: ‘</p> <p>“1. [That the plaintiff, The. Citizens Passenger Railway Company, be, and is hereby, authorized, and empowered to construct and operate, at its owu expense, a single track railway, at grade, crossing the roadway and tracks of the East Harrisburg Railway Company, defendant, from the intersection of Adams and. Front streets, to thedntersection of Front and Trewick streets, in the borough of Steelton, in the manner proposed and shown in the plan filed in this case; with overhead electrical trolley wires to be constructed and arranged in the manner proposed and shown in the pap.er filed herein and marked ‘ Plan.’ And the defendant, i©'officers and agents, is enjoined from interfering with the construction or operation of said crossing.] .. ..</p> <p>“ 2. It is further ordered, adjudged and decreed that said plaintiff shall keep and employ at its. own expense a watchman at said crossing at Adam's and Front streets, whose duty it shall be to guard said crossing, keep the rails and frogs of the tracks of both plaintiff and defendant at said crossing free from obstructions of every kind, and enforce the regulations herein prescribed as to the manner in which said crossing is to be operated.</p> <p>“ 3. The cars of the East Harrisburg Passenger Railway Company shall have the right-of way'at said crossing, and all cars of the Citizens Passenger Railway-Company shall come to a full stop before entering on Front street from Adams street, or from Trewick street; and, when the proper signal is given by the watchman in charge, shall proceed at a speed not exceeding four miles an hour, without stopping to set down or take up- passengers between Ada'ms and Trewick streets.</p> <p>“ [It is further ordered, adjudged and- decreed that the costs of this suit be paid one half by .said plaintiff and the other by said defendant.] ”</p> <p>Errors assigned were, among others, to portions of decree in brackets above, quoting them. ■</p>

<p>Appeals, Nos. 22, 23, 24, 25, 27, 28, 29, 30, 32 and 34, May T., 1894, by plaintiff and defendants, from judgments of C. P. Dauphin Co., March T., 1893, No. 301, June T., 1893, Nos. 21,23, 353, Sept. T., 1893, No. 533, March T., 1894, No. 61, June T., 1894, No. 349, on appeals from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>In the case of Com. v. Edgerton Coal Co. the opinion of the court below was as follows, by Simonton, P. J.:</p> <p>“ This is an appeal by the corporation defendant from the settlement of an account against it by the auditor general and state treasurer for tax on capital stock for the tax 3Tear 1892, and it was tried by the court without a jury under the act of April 23, 1874.</p> <p>“FINDINGS OF FACT.</p> <p>“ 1. The corporation is and was during the tax year, 1892, a limited partnership legally organized and doing business in this state. Its officers, on Dec. 27,1892, made to the auditor general, under the sanction of the prescribed oath, the capital stock report and appraisement required by the act of June 8, 1891, § 4 (P. L. 229). It appeared from this report that the par value of defendant’s capital stock was $20,000, divided into 200 shares of the par value of $100 each; that the net earnings of the corporation for the tax 3rear were $46,938.43; that one dividend of 20 per cent, amounting to $4,000, had been paid during the tax year, and that the rest of the net earnings had been applied to the reduction of its floating debt, and there had not been any amount carried into surplus or sinking fund. In the appraisement returned with the report, defendant’s president and secretary declared that, after having duly sworn that tlm}’- will with fidelity, according to the best of their knowledge and belief, estimate and appraise the capital stock of said company-at its actual value in cash, as it exists on the first Monday of November, 1892, not less, however, than the average price for which said stock sold during the year ended on said date, and not less than the price or value indicated or measured by net earnings or by the amount of profit made and either declared in dividends or carried into surplus or sinking fund of said company, they did, in pursuance of their aforesaid oaths, estimate and appraise the capital stock of said company at its actual value in cash as follows, viz: two hundred shares at two hundred dollars per share, amounting in the whole to forty thousand dollars.</p> <p>“2. No evidence was introduced by the commonwealth on the trial, other than the report above referred to, tending to show the actual value in cash of the capital stock. Testimony was given on behalf of defendant, from which we find as a fact that it was in 1892 engaged in mining anthracite coal on leased land at a certain royalty per ton; that it mined about 240,000 tons during the tax year 1892, and that at the end of the year not more than 400,000 tons of coal remained in said land, and at the same rate of mining it will be exhausted within two years; that the coal is of inferior quality and the cost per ton of mining increases as the mine becomes more nearly exhausted ; that defendant has no contingent or other fund to make good losses or depreciation in value of its said leasehold property, and when the coal has been entirely removed, as it will be in the next two years at the present rate of mining,-the company will own nothing except a small amount of personal property ; and we find, as an inference of fact from the evidence, that the actual value in cash of defendant’s capital stock was not, between the first and fifteenth of November, 1892, the time as of which the appraisement is required by law to be made, greater than $40,000, the sum at which it was appraised.</p> <p>“ The question raised by the objection to the settlement specified in the appeal, will be practically decided when we have determined the principle on which the taxing act of June 8, 1891, requires defendant’s capital stock to be appraised. The fourth section of the act, P. L. 229, after requiring a detailed report of the financial operation and standing of each corporation during the preceding tax year to be made by its officers to the auditor general, enacts as follows :</p> <p>“ ‘ The president, chairman, secretary and treasurer, after being duly sworn or affirmed to do and perform the same,with fidelity and according to the best of their knowledge and belief, shall, between the first and fifteenth days of November of each year, estimate and appraise the capital stock of the said company at its actual value in cash. Not less, however, than the average price or value indicated or measured by net earnings or by the amount of profit made and either declared in dividends or carried into surplus or sinking fund, and when the same shall have so truly estimated and appraised they shall forthwith forward to the auditor general a certificate thereof, accompanied with a copy of their said oath or affirmation, signed by them and attested by a magistrate or other person duly qualified to administer the same.’</p> <p>“As stated in the findings of fact, the officers of the corporation defendant reported to the auditor general that, having taken the prescribed oath, they appraised the capitarstock at $40,000, which was twice its par value. But the auditor general construed the act to require the capital stock to be appraised at not less than a principal sum, six per cent of which would equal the net earnings for the year, and, as it appeared from the report that the net earnings of the corporation for this period had amounted to $44,938.48, he did not accept the appraisement made by defendant’s officers, but substituted his own appraisement, made on the principle above stated, and settled the amount appealed from on that basis.</p> <p>“ [We have recently decided in an opinion filed in Commonwealth v. Sharon Coal Company, 23 June Term, 1893, that the construction then put upon.the act by the auditor general is incorrect, and that only so much of the income of the corporation—whether called net earnings or amount of profit made— as is declared in dividends or carried into surplus or sinking fund, is made the measure of the minimum price or value of the capital stock; and, following that decision, we must hold that defendant’s net earnings not divided nor carried into, surplus or sinking fund, but applied to the payment of its debts, did not measure the value of its capital stock.] [1]</p> <p>“But in this case there was a twenty per cent dividend made, amounting to $4,000, and the learned attorney general contends that the minimum value at which defendant’s capital stock can be appraised must be a sum, six per cent of which ■would equal the amount of this dividend. In his very able brief he argues that the officers had a right to appraise the stock, but they are subject to the limitation that its value must be measured by the amount of profit made; not by contingencies, past or present; not by actual value or cost; but by the arbitrary standard of net earnings construed to mean ‘ the amount of profit made and either declared in dividend or carried into surplus or sinking fund.’ ”</p> <p>“ On the other hand it is contended, on behalf of defendant, that the amount of net earnings divided or carried to surplus or sinking fund, is not to be taken as a fixed or arbitrary measure of value, but it is to be considered, with all other pertinent facts, by the officers of the corporation, to assist them in arriving at a correct estimate of the ‘ actual value in cash,’ of the capital stock; and, as we have already suggested, the case will practically be decided when we have determined which of these constructions is correct.</p> <p>“ It is manifest that the conclusion to be reached must depend largely on the relative weight to be given, in construing the clause of the act above quoted, to the one or the other expression ‘ actual value in cash,’ and ‘ the price or value indicated or measured by net earnings or by amount of profit made and either declared in dividends or carried into surplus or sinking fund.’ For if the capital stock is, in point of fact, to be appraised at ‘ its actual value in cash,’ the appraisers must consider all the facts within their knowledge which will aid them to determine what the actual value is, and must appraise the capital stock at what they believe to be its actual value in cash ; but if the amount at which it is to be appraised must be indicated or measured by taking the sum of the dividends made during the year as one term, and six per cent as another, in order to find the third, by the arithmetical rule of proportion, then, certainly, while the appraisement would be easily made, the appraisers might well hesitate to make oath that it represented the ‘ actual value in cash ’ of the capital stock.</p> <p>“ An examination into the purpose and language of the act will perhaps enable us to ascertain which of these apparently antagonistic constructions was in the mind of the legislature^ A brief reference to the prior acts may help us to understand its purpose. The latest of these, which on this subject was identical with those that preceded it, was the act of June 7, 1889, P. L. 420, which provided that where dividends of 6 per cent or more were declared in any tax year, the tax was to be assessed at the rate of one half mill for each one per cent of dividend; and where no dividend, or less than 6 per cent was declared during the year, the capital stock was to be appraised, and be subject to a tax at the rate of 3 mills on its appraised value.</p> <p>“ But it frequently occurred, in the practical application of these two different modes of ascertaining the value of the capital stock and assessing the tax, that the capital stock of some corporations on which less than 6 per cent dividend had been paid, was appraised above par, and was assessed with a large'r tax than that of other corporations, which paid 6 per cent or more in dividends, and there was therefore a want of uniformity in the taxation. This is one of the reasons given in preambles 4, 5 and 6 for the passage of the act of 1891, as follows :</p> <p>“ ‘ Whereas, Experience has shown that the said twentieth and twenty-first sections result, in many cases, in requiring corporations which pay dividends less than six per centum to pay a larger amount of tax than corporations paying dividends of six per centum are required to pay;</p> <p>“ ‘ Whereas, also, It has been shown that the mode, prescribed in the twenty-first section of said act, of taxing corporations paying dividends of six per centum and upwards at a rate of tax to be measured by the dividends, results, in many cases, in corporations with large investments in bonds, mortgages and moneys at interest, paying a less rate of tax than other corporations without capital stock, and individual citizens are required to pay, under the first section of said act, upon the same kind of property;</p> <p>“ ‘ Whereas, also, It appears that the taxes imposed upon corporations and individual citizens by the first and twenty-first sections of said act can be made- much more nearly uniform by taxing all corporations, limited partnerships and joint stock associations, having capital stock, at a fixed rate of five mills upon each dollar of actual value of their whole capital stock, including as well their bonds, mortgages and moneys at interest, as their franchises and property of other kinds.’.</p> <p>“ It is also declared in the title that one of the purposes of the act is to provide ‘for greater uniformity'of taxation by taxing all the property of corporations, limited partnerships and joint stock associations having capital stock, at the rate of five mills on each dollar of its actual value;’ and, as we have already seen, the clause we are now considering, in express terms, makes it the duty of the officers of the corporation to ‘ estimate and appraise the capital stock at its actual value in cash.’</p> <p>“We are unable to see how any other conclusion can be drawn from these reiterated declarations, in the preamble, the title and body of the act, than that they express a deliberate intention to abandon the principle of measuring the taxable value of capital stock by the rate of dividends paid, and to substitute therefor taxation at a fixed rate on its actual value in cash, to be ascertained by an appraisement, made under oath, by designated officers of the corporations respectively.</p> <p>“ Against all this, and in favor of the construction contended for on behalf of the commonwealth, we have merely the requirements that the capital stock shall be appraised at 4 not less than the price or value indicated or measured by ... . the amount declared in dividends or carried into surplus or sinking fund.’ The act does not prescribe that, in order to use the amount of the dividends as a measure, it is to be assumed that a 6 per cent dividend will indicate or measure par value ; nothing is said on this point, and the construction contended for reads it into the act, as the sense an ambiguous expression was intended to convey. This might be permissible, if it would harmonize all the provisions of the act, but, instead, it creates discord between them ; and we think it would violate all the canons of construction to interpret this clause of doubtful meaning in such a way as to neutralize and make of no effect another clause in the same section which is so'plain that its meaning cannot be doubted. We are therefore of the opinion that the weight claimed for the expression ‘ indicated or measured ’ on behalf of the commonwealth, cannot be given to it; and that the fundamental requirement of the act is that the capital stock be appraised at its ‘actual value in cash.’ But, as it is one of the cardinal principles of interpretation that effect must, if possible, be given to every part of the statute, we must not ignore the expression ‘ indicated or measured,’ but must, if possible, construe it in harmony with the other plain declaration that the ’ capital stock is to be appraised at its actual value in cash. We think this can readily be done by understanding it to require the appraisers to give such weight as their sound judgment dictates to the fact that such dividends were made during the year, as a help towards arriving at a just appraisement; and that if it appear to the auditor general on an examination of their appraisement, when returned to him, that they have not so done, he, with the state treasurer, is to supply the omission and correct it accordingly.</p> <p>“ Believing the correct interpretation of the act to be that just suggested, we cannot sustain the settlement made by the auditor general, nor can we say that a settlement based on an appraisement made on the theory that a dividend of 6 per cent would indicate or measure the capital stock to be at par value would be ipso facto correct.</p> <p>“We have therefore to determine whether the capital stock of the corporation defendant for the tax year 1892 has been shown to have been appraised at less than its actual value in cash; and we find from the evidence on file that the correctness of the appraisement has not been impeached. The depositions show that all the net earnings of the year, except the amount divided, were applied to the payment of debts, and that the corporation owns nothing except the right to mine about 400,000 tons of coal at a fixed royalty, and a small amount of personal property. We cannot say, therefore, in the absence of testimony to that effect, that the appraisement is not correct.</p> <p>“We have not thought it necessary to consider the question whether the legislature would have the constitutional right to fix an arbitrary standard of value upon the capital stock of corporations, for the purposes of taxation, for the reason that the act itself, when properly construed and interpreted, shows that it did not intend so to do ; and we refer to this question simply to suggest that the grave doubt whether it would have such light tends to confirm us in the construction which we have given to the act.</p> <p>“ The foregoing discussion leads to the following:</p> <p>“ CONCLUSIONS ON LAW.</p> <p>“ 1. The amount and rate per cent of dividends made, and the amount carried to surplus or sinking fund, during the tax year, do not furnish an absolute indication or measure of the actual value in cash of the capital stock of a corporation, but are to be considered, with all other relevant facts, in determining what is its actual value in cash. [2]</p> <p>“ 2. The capital stock of the corporation defendant, has not been shown to be of greater value than that at which it was appraised by its officers, and therefore the settlement appealed from, in so far as it is based upon a higher valuation, is errone ous. [2]</p> <p>“3. The value of the capital stock of defendant for taxation for the tax year 1892 is $40,000, the amount at which it was appraised by its officers.</p> <p>“ The commonwealth is entitled to recover in this case as follows:</p> <p>Tax, five mills on $40,000.00, .... $200 00</p> <p>Interest, March 24 to December 5,1893, at 12 . per cent per annum, ..... 16 67</p> <p>Attorney general’s commission, 5 per cent, . 10 00</p> <p>Total,......$226 67</p> <p>“ For which judgment is directed to be entered, if exceptions be not filed within the time limited by law.”</p> <p>In the case of Com. v. Sharon Coal Co., no dividends had been made during the year, nor had any amount been carried into surplus or sinking fund, but the net earnings for the tax year were $6,406.79. The opinion of the court below was in part as follows:</p> <p>“ By the-terms of the act the officers of the corporation are required to estimate and appraise the capital stock of said company at its actual value in cash, not less, however, than the average price which said stock sold for during the said year, and not less than the price or value indicated or measured by net earnings, or by the amount of profit made and either declared in dividends or carried into surplus or sinking fund.</p> <p>“ The auditor general and state treasurer construed this clause as if the words net earnings were wholly independent of those which follow; and, indeed, just as they would have construed it if all the words following had been omitted, and the legislature had said only that the capital stock must be appraised at á sum not less than the price or value indicated or measured by net earnings.</p> <p>“But the rest of the clause must have some meaning, and it is well settled that in construing statutes effect must, if possible, be given to every word used to express the legislative will, and that nothing should be rejected, and nothing can be added except by implication from what is expressed.</p> <p>“We must therefore inquire what force and effect is to be given to the rest of the clause. When we attempt to do this, the first question which meets us is whether ‘amount of profit made ’ means the same thing as ‘ net earnings ’ or is a separate and different thing. It is said in Jones Mfg. Co. v. Commonwealth, 69 Pa. 137, that ‘net earnings or income are the products of the business, deducting the expenses only; ’ citing Commonwealth v. Penn Gas Coal Co., 62 Pa. 422, which is to the same effect. And in Eyster v. Centennial Board of Finance, 94 U. S. 503, it is said by Chief Justice Waite, that the receipts of a corporation over and above its current expenses are the profits of its business.</p> <p>“ Both these definitions are undoubtedly correct, and combining them and assuming, what is manifest, that the receipts of a corporation are the products of its business, we arrive at the conclusion that if one of these, less expenses, equals its net earnings and the other, less expenses, equals its profits, the net earnings and profits must equal each other. Any other construction would, in our opinion, involve a manifest absurdity. For if the net earnings and the amount of profit made by a corporation are not the same, then clearly, by the express terms of the act, the price or value of the capital stock is to be measured by one or the other of these only, and not by both; by net earnings or by amount of profit made. But, in this'event, which, in any given case, is to be taken? And who is to determine which ? And how can uniform taxes be assessed when one or the other of two different measures of value may be adopted? As well might the legislature prescribe, as the rule to be adopted by local assessors in appraising real estate, that they must assess it at the price at which it would selL for cash, or else on some other basis, for example, at the amount for which it would be accepted as security by a careful money lender—which would be much less than it would sell for—and leave it to the caprice of the assessor to adopt whichever test he might choose in each particular case. We shall not be willing to believe that the legislature has prescribed alternative tests of value, either of which may be adopted at the will of officers of the corporation, or the auditor general and state treasurer, in assessing capital stock, until it makes its intention so plain that it cannot be mistaken.</p> <p>“ But it is not the total amount of profit made which is prescribed as the test of the minimum value of the capital stock. It is the ‘ amount of profit made and either declared in dividends or carried into surplus or sinking fund.’ The amount so applied may be much less than the whole amount of profit realized from the business of the year, and therefore much less than the whole net earnings. But if only so much of the profit as is so applied is to be used as a test, and if, as we have seen, the profit is the net earnings, then only so much of the net earnings as is ‘ either declared in dividends or carried into surplus or sinking fund ’ is prescribed as a test of minimum value. In other words, the correct construction of the clause in question is, that so much of the income of the corporation—whether called net earnings or amount of profit made—as is either declared in dividends or carried into surplus or sinking fund, is made the test of the minimum price or value of the capital stock; thus applying to the appraisement of the capital stock of all corporations subject to the tax the same rule that was applied in the act of 1889 to those making no dividends or less than six per cent, with a more distinct declaration than was contained in that act, that admissions to sinking fund are to be counted as dividends, and adding additions to surplus.”</p> <p>The commonwealth filed exceptions to (1) that part of opinion in brackets ; (2) its first and second conclusions of law; (3) in not finding that the settlement of the accounting officers was correct; (4) in not entering judgment for commonwealth for full amount claimed.</p> <p>Defendants, and the Sharon Co. et ah, filed exceptions alleging that the court erred in not sustaining their objections to settlement: (1, 2) that the act of 1891 violates art. 9, § 1, of the Pa. constitution and art. 14 of the amendments to the U. S. constitution, in so far as it imposes a tax of five mills upon the appraised value of the capital stock, because it discriminates between property owned by appellants, represented by its capital stock and included in the appraised value thereof, and similar property owned by natural persons and by other corporations, some being taxed at three mills only and other property of the same class at four mills; (3) that §§ 4 and 5 of the act of 1891 are not clearly expressed in the title, as required by art. 3, § 3 of the constitution ; (4,5) and in entering judgment.</p> <p>Errors assigned by the commonwealth were in overruling their exceptions, quoting them, and in entering judgments based upon the amounts found bj^ the court.</p> <p>Errors assigned by the Sharon Coal Co. et al. were in overruling their exceptions, quoting them.</p>

Appeal, No. 90, July T., 1894, by plaintiff, from judgment of Q. S. Phila. Co., March T., 1894, No. 358, for defendant on a special verdict. Indictment for issuing a policy of insurance in violation of act of Feb. 4, 1870, P. L. 14.

<p>Appeals, Nos. 307, 326 and 368, from decree of C. P. No. 2, Phila. Co., March T., 1889, No. 86, on bill in equity.</p> <p>Bill in equity by the trustees of the Metalline Land Co. to determine the parties entitled to participate in the proceeds of the sale of certain lands of the company.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to the master’s findings that the assessments and forfeitures of the stock were legal and that appellants were barred by laches, and in not allowing them to participate in the distribution of the fund.</p>

Appeal, No. 3, Oct. T., 1894, by defendants, from judgment of O. P. Westmoreland Co., Nov. T.,1892, No. 432, on verdietfor plaintiffs. Partition for one third interest. Before Doty, P. J. At the trial it appeared that William Anderson died in 1850 seized of the land in question, leaving to survive him a widow and eight children.

Appeal, No. 11, Oct. T., 1894, by defendant, from judgment of C. P. Westmoreland County, Feb. T., 1898, No. 172, on verdict for plaintiff. Trespass for personal injuries. Before Doty, P. J. At the trial it appeared that, on the night of Sept. 14, 1892, Lydia Biggs, plaintiff, who was a resident of West Newton, was injured by falling into an excavation in Vine street, in that borough.

Appeal, No. 33, Oct. T., 1894, by'defendants, from judgment of C. P. Jefferson Co., Sept. T., 1889, No. 314, on verdict for plaintiff. Attachment execution. Before White, P. J. The garnishees claimed that the fund' in their hands was the proceeds of the sale of lands belonging to R. S. Cathers, a son of defendant, James A. Cathers, under a power of attorney made by the son to the father.

<p> Contract—Evidence—Pleadings. </p> <p>On an appeal from a justice of the peace, the transcript of the justice showed that plaintiff claimed on an order drawn upon defendants. In his statement plaintiff in one clause claimed on the order, and in the second clause claimed the same amount for work done for defendants. At the trial defendants did not appear, and plaintiff testified that lie had performed work for defendants as set forth in his statement, and that, after allowing a certain credit due them, the balance remained due and unpaid. He said nothing as to the order. Held, that it was not improper for the court to submit the case to the jury.</p>

<p>Appeal, No. 292, Oct. T., 1894, by defendant, from order of C. P. Venango Co., Aug. T., 1893, No. 26, discharging rule to strike off judgment.</p> <p>Rule to strike off judgment.</p> <p>From the record it appeared that, on Dec. 27,1893, plaintiff, a municipal corporation of the third class, issued a scire facias sur municipal lien, returnable tiie fourth Monday of the following January, being the 22d day of the month. This writ was served on the defendant Jan. 5,1894. On Jan. 25th, three days after the return day, plaintiff’s attorney, by prsecipe filed in the office of the prothonotary, directed judgment to be entered against defendant for want of an affidavit of defence. On Feb.'5th, defendant’s attorney, on filing an affidavit of defence, discovered the entry of judgment, and at the next court, viz: Feb. 12, 1894, moved to strike it off. A rule to show cause was granted, which, upon argument, was discharged by the court, no opinion being filed.</p> <p>Error assigned was above order.</p>

Appeal, No. 73, Oct. T., 1894, by plaintiffs, from order of C. P. Westmoreland Co., Nov. T., 1893, fi. fa. No. 66, making absolute rule to set aside sheriff’s sale. Rule to set aside sheriff’s sale. The following opinion was filed by Doty, P. J. “We are asked by counsel for exceptant to put in writing our reasons for setting aside the sale.

Appeal, No. 36, Oct. T., 1894, by assignee of defendant, mortgagee, from order of C. P. Westmoreland Co.,'Aug. T., 1893, No. 412, dismissing exceptions to auditor’s report. Exceptions to report of H. W. Walkinshaw, Esq., auditor. The following opinion was filed by Doty, P. J.: “ The fund was paid into court on petition of the mortgagor under the provisions of the act of April 3, 1851, § 14, P. L. 871.

Appeal, No. 283, Oct. T., 1894, from order of Q. S. Westmoreland Co., Feb. T., 1894, No. 8, confirming report of viewers appointed to inspect a bridge. Exceptions to report of viewers appointed to inspect joint county bridge. The following opinion was filed by Doty, P. j.: “ On Dec. 28, 1893, the commissioners of the counties of Westmoreland and Indiana entered into a contract for the erection of a joint county bridge over the Conemaugh river at Bolivar.

Appeal, No. 127, Oct T., 1894, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1889, No. 96, on verdict for plaintiff. Trespass for personal injuries. Before Longenecker, P. J., specially presiding. At the trial it appeared that, on May 30,1882, plaintiff, with a companion, Steele Mechesney, returning from Latrobe borough, drove' over a bridge which was on the boundary line between Latrobe borough and defendant township.

<p> Tax 'deed—Acknowledgment—Evidence—Record. </p> <p>A deed from a county treasurer for land sold at a tax sale, is not valid to pass the title without acknowledgment in open court and a record of the acknowledgment in the minutes of the court.</p> <p>The acknowledgment of a tax deed is a judicial act which must he done in open court, and the minutes of the court are the only proper evidence of the acknowledgment.</p> <p>Parol evidence of the acknowledgment, or the deed itself, with a certificate of acknowledgment indorsed thereon, is insufficient, when the minutes of the court show no registry of the acknowledgment.</p> <p> Tax deeds—Erasures—Evidence. </p> <p>It seems that where, in a tax deed, the printed words “said second Monday in June,” are erased, and the words “ 24th day of Jan. at an adjourned sale ” interlined over the erasure in the same ink and handwriting as the body of the deed, the alteration is not such as requires explanation prior to the admission of the deed in evidence.</p>

<p>Appeal, No. 200, Oct. T., 1894, by-defendant, from order of C. P. Yenango Co., Jan. 7, 1894, No. 16, making absolute a rule for judgment for want of sufficient affidavit of. defence.</p> <p>Scire facias sur municipal claim.</p> <p>The affidavit of defence was as follows:</p> <p>“ 1. This action is brought to recover the cost of certain improvements made under the authority of an alleged ordinance of the said city providing for the paving of Front street, which said alleged ordinance is void and of no effect for the reasons following :</p> <p>“ a. Said city of Oil City is a city of the third class; section 25, article XV, of the act entitled ‘ An act providing for the incorporation and government of cities of the third class ’ approved May 28, 1889, P. L. 325, provides that, where the paving of any street, lane or alley, or any part thereof, has been petitioned for, no ordinance for such purpose ‘ shall be passed until five days’ notice of the improvement prayed for, with the names of the petitioners therefor, has been given in one newspaper published in the city;’ whereas, the improvement, for which claim is made in this case, was petitioned for by eight property holders, by petition presented to council April 10, 1898, but the notice thereof required by said act was not, at any time, given in any newspaper published in said city, although said alleged ordinance was passed in compliance with and in response to the petition aforesaid.</p> <p>“ 5. Section 3, article rv, of the act aforesaid, P. L. of 1889, page 282, provides, that ‘ No ordinance shall be passed by councils except by bill ’ and ‘ no bill shall be considered unless referred to a joint or separate committee, returned therefrom and printed for the use of the members ; ’ whereas the bill embodying the said alleged ordinance, was not referred to any committee after its preparation, nor was it printed at all until after it had passed its first and second reading in the common council on the 22d day of May A. D. 1893.</p> <p>“ 2. The assessment made upon the property of the defendant, which is sought to be recovered in this action, includes the cost of re-grading said Front street as well as the cost of paving the same. Said street was graded by the city authorities and the cost thereof assessed upon the abutting property in the year , and your deponent then paid the amount assessed upon the property now sought to be charged in this action : during the paving of the said street under said alleged ordinance the grade of said street was illegally raised at some points more than a foot, and your deponent is advised and believes that having once been compelled to pay for the grading of said street, he cannot be compelled to pay for the regrading thereof under cover of an alleged ordinance providing for its paving.</p> <p>“ Your deponent is advised and believes that the said improvement having been made under an alleged ordinance which is wholly void for the reasons above stated, and that the assessment having included therein', the cost of improvements for which he cannot be made liable, the plaintiff is not entitled to recover anything in this action.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence. ‘ "</p> <p>Error assigned was above order.</p>

Appeal, No. 138, Jan.T., 1894, by defendant and terre tenant, from judgment of C. P. Northampton Co., June T., 1893, No. 13, on verdict for plaintiffs. Ejectment against defendant and terre tenant. Before Schuyler, P. J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 124, Jan T., 1894, by défendant, from judgment of C. P. Bradford Co., May T., 1889, No. 556, on verdict for plaintiff. Assumpsit to recover portion of proceeds of sale of engine. Before Archbald, P. J., specially presiding. On the trial there was evidence to the effect that the engine was first purchased by one Wallace and placed in an ax factory on land purchased by Wallace from B. S. Bentley.

Appeal, No. 195, Jan. T., 1894, by-defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1891, No. 476, on verdict for plaintiff. Assumpsit to recover price of boiler.

Appeal, No. 177, Jan. T., 1894, by David E. Williams, a taxpayer, from order of Q. S. Phila. Co., Dec. T., 1892, setting aside proceedings to free a bridge from toll. Petition to free bridge from toll. On Dec. 28, 1892, David E. Williams and others presented a petition to the court of quarter sessions, representing : 1. That they were residents and taxpayers of the city and county of Philadelphia. 2.

Appeal, No. 218, Jan. T., 1894, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept T., 1891, No. 539, on verdict for plaintiffs. Appeal from jury of view.

Appeal, No. 257, Jan. T., 1894, from order of C. P. No. 1. Philadelphia Co., Dec. T., 1891, bio. 444, dismissing exceptions 'to auditor’s report. Exceptions to auditor’s report. Before Bregv, J. Before the auditor, Charles N. Mann, Esq., auditor to pass Upon the account of .

Appeal, No. 5, Oct. T., 1894, by plaintiffs, from decree of C. P. Venango Co., April T., 1891,-No. 2, dismissing bill in equity. Bill to restrain collection of tax.

<p> Receivers—Costs—Paper-books—Commissions—Distribution of fund produced by action of excepting creditors. </p> <p>Where, on an appeal to thé Supreme Court, the compensation of a receiver is fixed, and he is surcharged for the amount of credits which he has improperly taken in his accounts, he is not entitled to any additional compensation for the distribution of the fund covered by his account; but he may be allowed compensation for nec'essary services rendered in distributing the fund created by the surcharge.</p> <p>Where in such a case the fund is created by the action of some of the creditors in taking an appeal to the Supreme Court, the fund belongs to the whole body of creditors, and not merely to those who took the appeal. The appealing creditors, however, are entitled to the cost of printing the paper-book in the appeal, together with a reasonable sum for the services of counsel.</p>

<p>Appeal, No. 139, Oct. T., 1894, from ■decree of O. C. Clarion Co., Aug. T., 1890, No. 38, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>From the report of the auditor, David Lawson, Esq., it appeared that Boston Gardner, a brother of Lot Gardner, presented a petition to the register of wills, in which he averred that Lot Gardner died on Nov. 20, 1889, having first made his will on or about Nov. 6, 1889, and that said will, after diligent search, could not be found. Attached to the petition was a paper purporting to be a copy of the will. The petitioner prayed that this paper should be admitted to probate, and that letters of administration previously granted should be revoked. Certain of the next of kin filed -an answer to the petition denying that the decedent ever made a will, in the manner and form alleged by petitioner. The register certified issues of fact to the orphans’ court, and that court referred the matter to the auditor.</p> <p>The auditor reported, inter alia, as follows:</p> <p>“ Petitioners have offered testimony for the purpose of proving that the decedent thought the will was in existence until after he was so feeble that he could not have destroyed it, and that it must have been destroyed bjr his brother Dr. James Gardner or his sister Mrs. Nancy Fulton. There is however no direct evidence of this. They depend on a number of circum stances which they say sustain their position. Sdme four or five days before his death he expressed a desire to have Mr. Summerville come; he said he had. some business he would like to have fixed, or changes made '■ in his business or will; and, on the witness offering to go for him, he said the roads were muddy and he thought his brother James would be there that night and he would have him write. James Gardner did come that night, and the next morning asked him if he had his business finished, and if he wanted Mr. Summerville. He replied that he did, and on that day James Gardner wrote to Summerville to come up. He says he wrote to ‘ come and finish Lot’s will business,’ and Summerville says he wrote to ‘ come and finish the unfinished portion of brother Lot’s business which you have already commenced.’ Summerville did not receive the letter until after the death of Lot Gardner, and the letter cannot be found. On the second evening before he died he said he did wish Summerville would come. On the Saturday before his death L. T. Baker went to his house for the purpose of lifting a note, and Dr. James Gardner got the key of his trunk to get the note, but the trunk was not opened. The key remained in the possession of James Gardner and Mrs. Nancy Fulton from that time until the day after the funeral, when the search was made for the will. When the undertaker was there to lajr out the body, Dr. Gardner had some one help to take the trunk to another room to look for clothes to dress him in, and Mrs. Fulton opened the trunk and took out a suit of clothes. On the same morning P. H. Bailey and another witness saw Dr. Grardner standing by the window in.the room to which the trunk was carried, reading a paper; the paper was about the size of a sheet of foolscap; he was there five or ten minutes, and could have seen the persons who saw him if he had looked. Part of the time there was an old lady standing beside him. One witness says it was not a newspaper he was reading; the other says he cannot tell whether it was a newspaper or writing paper. On the same morning another witness says he went into the house and heard some persons in the room overhead, in the room in which James Gardner was seen standing by the window reading a paper; he heard their voices but could not tell who they were, and does not know whether it was the voice of man or woman that he heard; he also says that he heard them rummaging among papers. Another witness says that before the death of- Lot Gardner, Dr. Gardner intimated that there were some of the people Lot had forgotten in his will. On the day after the funeral, when the}’ were searching for the will, Mrs. Fulton said she had heard many stories about wills being lost and destroyed, and that she almost knew that her poor brother’s will was lost; she said that if it should not be found she did not want them to blame her. From the testimony of Summerville it would appear that this was before they looked for the will; he also says that she did not want to open the trunk because she felt positive that the will was not there ; she was afraid that everything would be disturbed in the trunk. Jesse F. Gardner also testifies that she spoke of having heard of wills being destroyed ; but he says that she also said she had the key of his trunk and would open it, and if the will was there they could have it. When they opened the trunk Summerville picked up a note or check, and Mrs. Fulton said that she jhad seen that paper. Mrs. Fulton had said that she had never been in the trunk ; but in her testimony she says she opened the trunk to get a suit of clothes and that she then saw a check for $1,000.</p> <p>“There is some testimony that Mrs. Crow told a witness that Dr. James Gardner had said that he had a notion to burn the will, but Mrs. Crow denies having said so or that she ever heard Dr. Gardner say anything of the kind; and, if she did tell the witness, it is only hearsay and entitled to no weight. There is also some evidence that Mrs. Fulton saw some one have a paper which was said to be Lot Gardner’s will. This is too indefinite to be taken into consideration, and besides it is contradicted by Mrs. Fulton.</p> <p>“ This is a pretty full synopsis of the testimony relied upon by the petitioner to prove that the will was destrojmd by Dr. Gardner and Mrs. Fulton ; and in reply both Dr. Gardner and Mrs. Fulton deny having lost or destroyed the will. Dr. Gardner testifies that he ‘never saw any will made by Lot Gardner;’ that' he ‘ never destroyed Lot Gardner’s will,’u that he has ‘ no knowledge of any other person having destroyed it.’ He further says, ‘I never knew of the existence of Lot Gardner’s will except by report.’</p> <p>“ Mrs. Fulton says she never saw a letter of a will about the house; if it was in the trunk when she took the clothes out she did not see it. She further says, ‘I never destroyed a will that Lot Gardner made, either before or after his death.’ She says that she did not know that he had made a will, but that she knew Summerville was there, and she did not know but that was what he was doing.</p> <p>“ Dr. Gardner also denies that he told any one before the death of Lot Gardner that he had forgotten some of the people.</p> <p>“ If the evidence on part of petitioners, uncontradicted by the testimony of respondents, is sufficient to rebut the presumption that Lot Gardner destroyed his will with the intention of revoking it, the denial of Dr. Gardner and Mrs. Fulton, the only persons who had access to his papers, raises an issue that should be referred to a jury. How is that? They are brother and sister to the decedent and would receive more of his estate under the intestate laws than under the alleged will; but that being the case, and the fact that they had the key of his trunk, unless followed by evidence going to show that they, or one of them, destroyed the will, is of but little or no weight.</p> <p>“ That Lot Gardner was anxious to have Mr. Summerville may be explained by the fact that he was not strong enough to make the gifts that he intended to make, and that he may have wished to provide for them in his will; and does not prove that he may not have destroyed the will himself. Neither is the fact that Dr. Gardner inquired who should read the will of any weight, unless it would go to prove that he thought there was a will.</p> <p>“ That Dr. Gardner was seen reading a paper and that a witness heard persons talking, and a noise as of some one rummaging among papers in the room where the trunk was taken to, are not evidence on which a jury could determine anything. Mrs. Fulton’s conversation when looking for the key might be construed to indicate that she knew more than she was willing to admit; but, unconnected with other circumstances, it was too vague and unsatisfactory to mean anj'thing definite. She was at that time an old lady, and was evidently nervous and somewhat excited.</p> <p>“ [Your auditor is of the opinion that there is no such evidence as should be submitted to a jury,] and that, under all the testimony in the case, the presumption is that Lot Gardner destroyed his will animo revocandi, and that the petition should be dismissed. Your auditor further recommends that the cost of this proceeding be paid by the estate of Lot Gardner, deceased.”</p> <p>■ Exceptions to the auditor’s report were dismissed by the court, and a decree entered dismissing the petition, in an opinion by Clark, P. J.</p> <p>Frrors assigned were in dismissing exception to part of report in brackets, quoting it; in confirming the reoort and in dismissing the petition.</p>

<p> Liquor laws—License—Associate judges. </p> <p>Associate judges unlearned in the law may grant a liquor license notwithstanding the dissent of the president judge.</p> <p> Appeal—Review—Liquor laws. </p> <p>On an appeal from an order granting a liquor license the. appeal is a substitute for a certiorari, and brings up nothing but the record. In such a case the Supreme Court cannot consider the merits, but- can only determine whether the license court has proceeded according to law.</p> <p> Liquor laws—Bonds—Stibstitution of bond. </p> <p>It is no ground to reverse an order granting a liquor license, that the record shows that the bond originally filed was not accepted, but that another bond filed on the day the license was granted, was accepted.</p> <p>In all cases, exceptions to the sufficiency of bail may be taken, both before and after the bond has been filed, and the question of sufficiency may be heard upon testimony, and decided, and, if adjudged adversely, the bail may be perfected by new bonds or recognizances.</p>

Appeal, No. 251, Oct. T., 1894, by plaintiffs, from judgment of C. P. Cambria Co., Sept. T., 1898, No. 262, on verdict for defendants. Ejectment. Before Barker, P. J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 34, Oct. T., 1894, from order of C. P. Armstrong Co., June T., 1892, No. 297, refusing to set aside sale by assignee. Exceptions to confirmation of assignee’s sale.

<p>Tax collector ■— Filing of bond—Liability of surety — Warrant and tax duplicate—Public officers—Acts of April 15, 1834, and June 25, 1885.</p> <p>Under the act of June 25,1885, P. L. 187, which provides that the court shall declare the office of tax collector vacant if the collector fails to file his bond before the fourth day of the term of the court of quarter sessions next ensuing his election, the sureties on the collector’s bond, filed after the fourth day, cannot allege that the collector was not regularly qualified. Under the act the office is not vacant until the court declares it to be so.</p> <p>Under the act of June 25, 1885, P. L. 187, the sureties on a tax collector’s bond are liable for school taxes collected by him, although the school directors did not deliver to the collector their warrant with the tax duplicate of the year.</p> <p>Such a collector, when lawfully possessed of the duplicate for collection, would, without a warrant, have authority to demand, receive and receipt for the taxes embraced in the duplicate, although he could not enforce his demand by seizure of property or person. What he would so receive, he would receive by virtue of his office, and it would be covered by his bond.</p> <p>A tax collector who has received a duplicate for school taxes under the act of June 25,1885, P. L. 187, is liable for the whole amount of the duplicate remaining unpaid and unexonerated after three months from the time the collector receives the corrected duplicate, as provided by the act of April 15, 1834, § 29, P. L. 518.</p> <p> Appropriation of payments. </p> <p>Where a tax collector expressly appropriates payments to the duplicate of one year by cheeks drawn on his general fund, and it is impossible to ascertain whether the money so paid was collected in that or the following year, the sureties on the collector’s bond for the following year are not entitled to have any of the payments credited to the duplicate of the year for which they are liable.</p>

Appeal, No. 17, Oct. T., 1894, by plaintiff, from decree of G. P. Armstrong Co., Dec. T., 1893, No. 43, dissolving a preliminary injunction. Bill for injunction. Before Rayburn, P.J. The bill averred that plaintiff corporation, engaged in manufacturing iron stone china and decorative ware, desiring to' diminish their stock of ware, on Aug. 9, 1893, ordered the-clay department of the works closed, whereupon the kiln hands- and other employees who were juembers of the “ Local.

<p> Contract—Breach of contract—Forfeit money—Waiver. </p> <p>Plaintiff covenanted to sell to defendants “ ten thousand dollars of his present stock of goods, etc., and deliver possession of the same between the first and fifteenth of March, 1898,” and defendants agreed “ to purchase the same at the cost price thereof, and pay for the same in cash.” Plaintiff further agreed that, between the execution of the agreement and the fifteenth of March, he would “ reduce the stock of goods nowin hand so that the value of the same shall not exceed the sum of ten thousand dollars.” Each of the parties agreed to deposit a certified check for one thousand dollars in a bank, “ and in case either party should fail to carry out faithfully the agreements and covenants to he by them or him kept and performed,” the other party should receive “ said sum of one thous- and dollars,” so deposited by the defaulting party. There was some delay in the delivery of the goods, but all parties agreed to waive the delay and abide by the contract. An invoice of the goods was then made, and it was found the stock in hand amounted to more than $14,000. Plaintiff offered to take out of the stock at cost price the excess of the goods over ten thousand dollars or to sell the excess to defendants, if they desired to purchase it. Defendants then declared the contract off on the ground that plaintiff had failed to reduce his stock. Held, that defendants were not entitled to rescind the contract, and that plaintiff was entitled to the forfeit money.</p>

<p>Appeal, No. 112, July T., 1894, by defendants, from decree of C. P. Delaware Co., March T., 1894, No. 2, on bill in equity.</p> <p>Bill for injunction to restrain removal of railroad tracks from bridge. Before Clayton, P. J.</p> <p>The bill averred that plaintiff was a corporation organized under the act of May 14, 1889, to build a street railway, to be operated by electricity, from Cobb’s creek along the Baltimore turnpike to the Springfield road in Clifton Heights borough.</p> <p>That, on March 21,1893, as required by said act, it obtained the consent of the supervisors of the township of Darby to construct its road along said turnpike, in said township, from the middle of Cobb’s creek aforesaid, west to the line of Upper Darby township. That there is a bridge across Cobb’s creek at the point where the turnpike crosses the creek, which bridge is partly in the county of Delaware and partly in the city and county of Philadelphia. That on Sept. 4, 1893, defendant company obtained the permission • and consent of the commissioners of Delaware county to lay its rails, ties and wires along and over so much of said bridge as lies within the county of Delaware.</p> <p>That, under and by virtue of its charter and the authority and consent of the supervisors and commissioners, it has constructed and built its road along said turnpike and has also laid its rails, ties and wires on so much of said bridge as lies within the county of Delaware.</p> <p>That the company has received notice that the city of Philadelphia, acting by James H. Windrim, director of public works of said city, is about to remove the tracks, rails and wires of the company from said bridge, and has ordered the said John B. Reilly, the contractor who built said bridge, to remove the said tracks, rails and wires from said bridge.</p> <p>The bill prayed for an injunction.</p> <p>Defendants in their answer averred that the bridge over Cobb’s creek was being jointly built by the city of Philadelphia and Delaware county, and that plaintiff had no right or authority to lay tracks upon the bridge without the consent of the city of Philadelphia as well as of the commissioners of the county of Delaware.</p> <p>The court granted a preliminary injunction for five dajrs, which, on Dec. 2, 1893, it continued until further order; on April 6, 1894, continued for ten days, and on April 16, 1894, continued until further order.</p> <p>Errors assigned were (1) in assuming jurisdiction against the city of Philadelphia, a municipality outside of the county of Delaware; (2) in assuming jurisdiction against Edwin S. Stuart, Mayor, and James H. Windrim, Director of the Department of Public Works, officials of the city of Philadelphia, a municipality not within the jurisdiction of the county of Delaware; (3) in refusing at the hearing on April 16, 1884, to hear the evidence orally, as required by the amendments to the equity rules; (4-7) above orders, quoting them; (8) in not refusing injunction and dismissing bill.</p>

<p>Constitutional law—County controllers and auditors—Title of act—Act of June 8, 1893.</p> <p>The act of June 8, 1893, P. L. 393, entitled “ An act creating the office of county controller in counties containing one hundred and fifty thous- and inhabitants and over, and prescribing his duties,” is defective in title and unconstitutional, as there is no indication in the title of the purpose and effect of the act to abolish the office of the county auditor, as is done in the body of the act by providing for the election of a controller in place of county auditor. Com. v. Samuels, 163 Pa. 283, followed.</p>

<p>Appeal, No. 82, July T., 1894, by defendant, from decree of C. P. Crawford Co., May T., 1894, No. 1, granting preliminary injunction.</p> <p>Bill for injunction to restrain managers of limited partnership association from selling business and property of company.</p> <p>The court below stated the facts as follows :</p> <p>“ A partnership association entitled ‘ Producers Oil Company, Limited,’ was formed on June 4, 1891, under the provisions of the act of June 2, 1874, P. L. 271, with a capital stock of $600,GOO, divided into shares of $10.00 each, of which capital complainant owns $3,000.</p> <p>“ The business to be conducted was stated in the articles of association to be : ‘ The producing, storing, buying, selling, piping and transporting of petroleum, crude and refined, and the products of petroleum, and the acquisition and holding of such property, real, personal or mixed, as may be necessary for these purposes or any of them, or incidental or auxiliary thereto.’ The duration of the partnership was fixed at twenty years. The company has five managers.</p> <p>“ The company entered into the business of buying, selling and transporting oil in Allegheny and Washington counties, and, for the purpose of promoting the business of the company, constructed a pipe line from a portion of the Allegheny and Washington county oil field to Coraopolis, on the Ohio river.</p> <p>“ The business of the company not proving entirely satisfactory to the management, a plan was developed in connection with refiners of oil in Venango and Crawford counties, for the construction of a pipe line from Coraopolis to Titusville, via Reno and Oil City.</p> <p>“ To accomplish this undertaking, and for the other purposes stated in the articles of association, another partnership association was formed on the 13th day of May, 1892, called the ‘ Producers and Refiners Oil Company, Limited,’ with a capital stock of $250,000, divided into shares of $100 each; the duration of which association was fixed at twenty years from June 4, 1892. Five managers of the association were chosen.</p> <p>“ Of the capital of the association last named the Producers Oil Company, Limited, contributed $170,000. Substantially all of the capital of the Producers and Refiners Oil Company, Limited, was invested in right of way, pipe lines, tanks, telegraph lines, etc., necessary for the construction and operation of the pipe line referred to, from Coraopolis to Titusville.</p> <p>“ After the organization of the last named association, a lease was executed to it by tbe Producers Oil Company, Limited, of tbe tanks and pipe lines of the latter company. J. W. Lee, George H. Torrey and A. D. Wood are managers in each of the associations.</p> <p>“ A corporation known as the United States Pipe Line Company has a system of pipe lines in operation from Oil City and Bradford to Wilkes-Barre. On Dec. 14, 1893, the board of managers of the Producers and Refiners Oil Company, Limited, at a meeting then held, adopted the following resolutions :</p> <p>“ ‘ Resolved that, whereas a combination of the several independent pipe lines doing business in the Pennsylvania oil field in a single organization is highly desirable, therefore</p> <p>“ ‘ Resolved, that the managers of this company will take into consideration at any time the question of uniting the several companies, in any feasible plan mutually satisfactory to all parties concerned.’</p> <p>“And, on Jan. 27, 1894, at a meeting of the board of managers of the said association, another resolution was passed, reciting that of Dec. 14, 1893, and continuing as follows: ‘ Now, therefore, to carry out the purpose expressed in the above resolution, we hereby authorize the following proposition to be made to the United States Pipe Line Company, subject to confirmation by majority of number and right of interest of the members of the Producers and Refiners Oil Companjq Limited, viz: The Producers and Refiners Oil Company, Limited, to sell to the United States Pipe Line Company all of the rights of way, pipe line, telegraph line, tankage, real estate, gas wells, etc., comprising all of the property owned hy them, and used in and belonging to the business of transporting and storing oil, but not to include crude oil; for which the United States Pipe Line Company is to pay the Producers and Refiners Oil Company, Limited, in the stock of the United States Pipe Line Company the sum of $250,000; and also, as part of the consideration for the said sale, shall pay or secure to be paid, before the transfer of the property is made, all of the outstanding indebtedness of the said Producers and Refiners Oil Company, Limited. And the said United States Pipe Line Company, as a condition precedent to said sale, shall agree to extend its pipe line forthwith from Bradford, Pa., to Titusville, Pa., and to connect with the line of the Producers and Refiners Oil Company, Limited. And the United States Pipe Line Company shall assume and carry out the existing contracts of the Producers and Refiners Oil Company, Limited, with certain refiners at Titusville, Oil City and Reno, Pa., as to the delivery of crude oil, storage and pipeage of the same.’</p> <p>“ This resolution was adopted by the managers present, four in number.</p> <p>“ The complainant sought to restrain the proposed sale of the property of the Producers and Refiners Oil Company, Limited, alleging that it was in violation of the articles of association of the said company, and prejudicial to his interest therein.”</p> <p>. The court—citing Bedford R. R. v. Bowser, 48 Pa. 29; Balliet v. Brown, 108 Pa. 546 ; 1 Morawetz on Corp. §§ 249, 513; Beach on Corp. § 357; Martin v. Ry., 14 Phila. 10 ; McCurdy v. Myers, 44 Pa. 535 ; Lauman v. R. R., 30 Pa. 42 ; Abbott v. Rubber Co., 33. Barb. 578; Sloan v. Moore, 37 Pa. 217; McNair v. Wilcox, 121 Pa. 437 ; Wallace v. Yeager, 4 Phila. 251; Taylor on Corp. §§ 226, 288; Hoole v.-Ry., L. R. 3 Ch. Ap. 262; Dodge v. Woolsey, 18 Howard, 341; Peabody v. Flint, 6 Allen, 52; Gray v. Lewis, L. R. 8 Eq. 526 ; Green’s Ultra Vires, 647 ; March v. Ry., 40 N. H. 548; Spelling, Ext. Rel. §§ 590, 760 ; Ry. v. Rushout, 10 E. L. & E. Rep. 72; Ryan v. Ry., 12 Randolph, 365, to the effect that directors are limited to the management and not the sale of the business— awarded a preliminary injunction and subsequently continued it until further order.</p> <p>Errors assigned were 'above orders, quoting them.</p>

<p> Mortgage—Payment—Release of pari'of land—Pale—Notice—Equity. </p> <p>Pieces of land subject to a common';incumbrance when sold successively are liable for the incumbrance in the inverse order of alienation.</p> <p>A mortgagee who, with knowledge of a sale and conveyance by the owner of a portion of the mortgaged premises, subsequently releases other portions of the land, cannot levy his debt out of the portion of the land first sold.</p> <p>In such a case it is not necessary that-the mortgagee should have seen the deed or been informed of the exact date or terms of the sale. It is enough if he had knowledge of the fact that the purchaser was in posses-’ sion claiming under a previous sale from the mortgagor.</p> <p>If the question of knowledge is involved in doubt, it should be submitted to the jury with instructions to find for defendant if they found that the mortgagee knew of the prior sale when he executed the subsequent release.</p> <p> Mortgage—Presumption of payment—Evidence. </p> <p>On a scire facias sur mortgage, where it appears that the writ was issued twenty-eight years after the date of the mortgage, evidence of payments on account of the mortgage made three years before the date of the writ, is admissible.</p>

<p>Appeals, No. 200 and 201, July T., 1894, by defendants from decree of C. P. No. 4, Phila. Co., June T., 1894, Nos. 496 and 497, awarding injunction.</p> <p>Bill to restrain awarding of contract.</p> <p>From the proofs it appeared that the Department of Public-Works of the City of Philadelphia was authorized by ordinance to pave and repave certain streets with vitrified clay bricks, and the Director of Public Works accordingly advertised for bids for said paving and repaving. A schedule was prepared for the proposed bidders, showing the streets to be paved and repaved, and containing the specifications as to the character of the work, etc. These specifications were printed and were furnished to the bidders by the Department of Public Works, and, among other things, required that samples of vitrified bricks or blocks, properly labeled, should be submitted at least one day before the bids were opened and receipted for by the clerk in the Bureau of Highways. On May 29, 1894, the bids were opened by the Director of Public Works, and were scheduled, as is the custom. Among the bidders were the Mack Paving Company, one of the defendants and appellants, and the Interstate Vitrified Brick & Paving Company, plaintiffs and appellees.</p> <p>When the bids were opened publicly by Director Windrim on May 29, 1894, it was found that the Interstate Vitrified Brick & Paving Company were the lowest bidders for almost all of the paving and repaving advertised for. Both the Mack Company and the Interstate Company offered to do the paving and repaving with shale brick as well as with fire-clay brick. The Interstate Company furnished a sample of shale brick which the director said would be satisfactory if the company would repress and bevel-edge it. The brick was changed as suggested, and the director expressed himself as satisfied with it. One of the emplees of the department communicated these facts to the Mack Paving Company. The evidence on behalf of the plaintiff tended to show that the Mack Paving Company then .presented a sample of a shale brick, and represented to the director that it was taken from one of the samples in the boxes which were required by the specifications to be submitted with the bids of the Mack Paving Company. Plaintiff alleged that this representation was false. The director awarded the contract to the Mack Paving Company.</p> <p>The case was heard on bill, answer and proofs.</p> <p>The court, on the authority of Gutta Percha Co. v. Stokely, 11 Phila. 219, granted a preliminary injunction, in an opinion by Arnold, J., 8 Dist. R. 544.</p> <p>Error assigned was decree, quoting it.</p>

<p>Appeal, No. 15, Oct. TV, 1894, by defendant, from order of C. P. Washington Co., Aug. T., 1887, No. 51, discharging rule to open judgment.</p> <p>Rule to open judgment.</p> <p>The following opinion was filed by McIlyatne, P. J.:</p> <p>“ UNDISPUTED PACTS.</p> <p>“ (a) William F. Smith, the petitioner, at the beginning of this controversy, was a resident of Greene county, Pennsylvania. F. G. Kammerer was a resident of Chicago, 111,, a member of the Board of Trade, and as such bought and sold grain and pork on commission. He did business in the name of F. G: Kammerer & Co. These parties were not personally acquainted. In January, 1886, William F. Smith wrote to F. G. Kammerer & Co., about trading on the Board of Trade, and in his letter inclosed a note of introductioh from J. C. Smith, an ac1 quaintance of F. G. Kammerer, who lived at McKeesport, Pa.</p> <p>On January 19, 1886, after a letter and .a telegram or two had passed between the parties as to the state of the market, Wm. F. Smith sent to F. G. Kammerer the following letter :</p> <p>“ ‘ Dear. Sir :</p> <p>“ ‘ Yours of the 14th received ; also telegram in reference to May wheat and pork. I inclose you draft on N. Y. from my bank-at Waynesburg, Pa., which you may place to my account. If you have not bought as advised by telegram, buy me five thousand (5000) bushels May wheat at 84 cts, and as much below as you can, and hold until I advise you to sell. You have a good fat margin to hold on. Will put up more if necessaiy, don’t sell at a loss but advise me by telegram. I will go to Boston to-morrow. You telegraph there. Yours truly,</p> <p>“ ‘ Wm. Smith.</p> <p>“ ‘P. S.—Draft is for ($1,000) one thousand. Wm. Smith.’</p> <p>“ F. G. Kammerer bought the 5000 bushels of wheat as directed, and for about fourteen months continued to act as Mr. Smith’s broker on the Board of Trade; sometimes he bought and sold on orders received from Mr. Smith by wire, and at other times on orders received from him in person, as he spent part of the time in Chicago. I give a few of the telegrams, taken at random, from the large number of exhibits returned by the examiner :</p> <p>“ ‘ Jan. 20, 1886.</p> <p>“ ‘ If May wheat is lower buy five thousand bushels. Wire.’</p> <p>Feb. 1, 1886.</p> <p>“ ‘ Will be in Chicago on Thursday. If I do anything before I come will wire you. Buy the five thousand wired you on the 29th at 85.’</p> <p>“‘Feb. 2, 1886.</p> <p>“ ‘ Buy twenty-five thousand May corn at forty ; will be there Thursday. Answer, Benwood, W. Va., Price.’</p> <p>“During the fourteen months, F. G. Kammerer & Co. bought and sold, on the orders of Wm. F. Smith, 1,370,000 bushels of wheat, 25,000 bushels of corn and 12,000 barrels of pork, worth about one and a quarter million dollars. He received from time to time, including the note in question, less than $13,000 to pay commissions and losses on sales, and paid him less than this sum at different times on gains on sales. No other money or valuable consideration passed between them on account of the purchases and sales of this wheat, com and pork. None of the wheat, corn or pork bought was ever delivered to Smith, and he never delivered any to those who purchased. The amount of wheat, corn and pork bought by Kammerer & Co. for Smith equalled the amount sold by him for Smith, and Smith was credited with the gains on sales and charged with the loss on sales. The accounts rendered were in the following form: I give two, taken at random from the exhibits returned by the examiner:</p> <p>“ ‘ Account purchase and sale of 40,000 wheat by F. G-. Kammerer & Co., Chicago, for account and risk of Wm. F. Smith, Wavnesburg, Pa.</p> <p>No. 5830.,</p> <p>Feb’y 8, Sold 40 M. May wheat, 85£ Contra. $34,100.00</p> <p>Jan’y 9, Bot 5 M. May wheat 82| “ 21, “ 5 “ “ “ 84 4143.75 4200</p> <p>Febry 3, “ 5 “ “ “ '85 “ 5, “ 25 “ “ “ 83J 4250 20958.75 33,562.50</p> <p>Gain 537.50</p> <p>Corns. 50.00</p> <p>Net gain $487.50</p> <p>E. & O. E. . Chicago, Feb. 8, 1886.5</p> <p>“ ‘ Account purchase and sale of 25,000 bushels of wheat by F. G. Kammerer & Co., Chicago, for Account and Bisk of Wm. F. Smith, Waynesburg, Pa.</p> <p>No. 6206.</p> <p>June 21, Bot.25 M. Aug. wheat 75| $18,843.75 Contra.</p> <p>“ “ Sold 25 M. Aug. wheat 75^- 18,781.25</p> <p>Loss 62.50</p> <p>Corn’s 31.25</p> <p>Net loss 93.75</p> <p>E. & O. E. Chicago, June 21,1886.’</p> <p>“ In buying and selling this wheat, corn and pork, F. G. Kammerer & Co. dealt with other members of the Board of Trade, and their accounts were kept and settled daily in accordance with the rules and regulations of the board. Smith was not a party to the settlements Kammerer made of his purchases and sales from and to other brokers, and Smith did not know from whom the purchases were made, or to whom the sales were made. ,On the board Kammerer dealt in his own name, and each day m.a¡de settlements through the Board of Trade clearing house. Sec. 1 of rule 14 of the Board of Trade provides as follows: ‘ A member of the association may act as a broker only between other members. A broker shall reveal the name of his principal when a transaction is made, if demanded, otherwise he may not be considered and treated as a broker but as a principal.’</p> <p>“ (5) On Oct. 6, 1886, Wm. F. Smith was behind in his account with Kammerer & Co. §2,700; that is, to keep his margin up to what was required by the rules of the board he needed §2,700 to save the November wheat he then had from being sold. To pay this §2,700, and to provide a margin for future deals, F. G. Kammerer & Co. took from Wm. F. Smith a note for §6,500, at 60 days, payable to F. G. Kammerer & Co., with warrant of attorney authorizing the confession of judgment for that sum by an attorney in any court of record, in favor of the holder of the note. At the same time, and to secure the payment of this note, he took from Wm. F. Smith an assignment, first, of a mortgage given byr Wm. Lippencott on a tract of land in Greene county, Pennsylvania, and ten' accompanying notes for about §4,500 ; second, of a judgment note of Adamson and •Hoge for §2,100. The proceeds of this §6,500 note was credited to Smith’s account. On Feb. 2,1887, he paid §500 on the note, and on Feb. 10,1887, he paid §1,000. On or about March 1, 1887, he stopped dealing with F. G. Kammerer & Co., and they had a final settlement and adjustment of their accounts, which showed that F. G. Kammerer & Co. owed Smith §487.50; this amount was, on March 8, 1887, credited on the §6,500 note to which we’have referred.</p> <p>. “ (<?) On May 16,1887, J.. F. McFarland, Esq., a member of our bar, as attorney for Wm. F. Smith, to No. 51 Aug. Term 1887-, of this court, confessed judgment against him and in favor of H. C. Champlin for the sum of §4,957.55i'the balance shown to be due and unpaid on this §6,500 note,—H. C. Champlin claiming to be ‘the holder of the note.’ Judgment was also entered on July 21,1887, in this court to No. 296 Aug. Term, 1887, on the Adamson and Hoge note for §2,100 and accrued interest, less the credits. The mortgage of Wm. Lippencott and assignment thereof were duly recorded in' Greene county, Pennsylvania, and on Aug. 2, 1887, a scire facias was issued out of the court of common pleas of that county to foreclose it.</p> <p>“ On June 1, 1887, Wm. F. Smith filed his petition in this court and the rule we are now considering -was issued.</p> <p>“ On Sept. 8, 1887, Wm. F. Smith filed his bill in the cofirt of common pleas of Greene county, sitting in equity, against F. G. Kammerer et al., for the purpose of having the assignment of the Wm. Lippencott mortgage and notes and the assignment of the Adamson & Hoge §2,100 note and the §6,500 note, given by him on Oct. 6,1886, to F. G. Kammerer & Co. canceled, on the ground that the assignments and note were given in a gambling contract, and were therefore void. •</p> <p>• “ All proceedings, at the request of the parties, on the present rule, were suspended until the Greene county equity case should be finally determined, it being agreed that the testimony taken in the equity case could be used on the hearing of this rulé'. - ■</p> <p>“The master in the equity case recommended the dismissal of the plaintiff’s bill for the reason that the court had no jurisdiction of the Illinois parties, who appeared de bene esse, nor of the judgments in Washington county, and that Wm. F. Smith, being in pari delicto with F. G. Kammerer (if the note and assignments were given in a grain gambling transaction), and the contract, so far as the assignment of the mortgage-was concerned, being executed, had no standing in a court of equity. The court'concurred in the recommendation of the master; and decreed the dismissal of the bill. On appeal the Supreme Court affirmed this decree : Smith v. Kammerer, 152 Pa. 98.</p> <p>“DISPUTED EACTS.</p> <p>“ Wm. F. Smith'was examined in his own behalf and testified that he had a contract with Kammerer that he was to trade on margins and was not to take ‘ the stuff itself; ’ that he told him that he did not want to receive or handle any grain, but wished to deal in the differences, the fluctuations of the market, to buy ‘ risks and margins ; ’ that Kammerer said he- would fix that, and that t'hat was the- proper way to. speculate. He says- that he ‘ told Hammerer that he did not have enough of money to pay for any quantity of wheat but that he would put up money as margins only.’ He says this is the contract he had with Hammerer.</p> <p>F. G. Hammerer was examined and positively denied such a contract. He says that he, as Smith’s agent, bought wheat, corn and pork on the Board of Trade, as Smith ordered it bought, that his contract with those from whom he bought, under the rules of the board, was such that the delivery of every bushel and barrel of it was contemplated and could have been demanded when the time for delivery arrived; that all his purchases were for future delivery and that there was no option in the contracts he made except that relating to the time of delivery;—for instance, the seller of May wheat had all the mouth of May in which to deliver it. He said, further, that it is true that no wheat was ever actually delivered, on his purchases, to Smith, because Smith ordered him to sell it before the time of delivery came around. He says that for his purchases and sales he made daily settlements in accordance with the rules of the board, and that none of his transactions on behalf of Smith were in violation of the statutes of Illinois. He testified further that Smith had been furnished a printed copy of the rules and regulations of the Board of Trade and was familiar with the manner of doing business under these rules; that, before the note in question was given, he had been present when some of his deals were made, and gave personal direction in regard to the same; that he knew of the right of brokers to make daily settlement by setting off their purchases against sales and accounting for the differences.</p> <p>“ [A number of attorneys and business men of Chicago testified that under Hammerer’s statement of the character of his deals for,and with Smith, there was no violation of the rules of the board or the law of Illinois. [8]</p> <p>“CLAIM OE THE PARTIES.</p> <p>“ (a) The petitioner claims (1} that this judgment in controversy should be stricken from the records for the reason that it is entered in favor of H. C. Champlin when the note is payable to F. G. Hammerer & Co. (2) That the note in question-was given to pay Smith’s losses in a gambling contract, which was against public morals and in violation of the statutes of; Illinois.</p> <p>“(5) The respondent claims (1) that the Board of Trade is incorporated under the law of Illinois, that its rules and regulations are in conformity thereto and that his dealings with Smith were bona fide purchases and sales as his agent, of wheat, corn and pork, for future delivery; (2) that the question here in controversy is res adjudicata, and (3) that the petitioner cannot successfully invoke the aid of a court of equity by setting up an illegal act to which he was a party.</p> <p>“CONCLUSION ON THE FACTS AND THE LAW.</p> <p>“ [We are of the opinion, and so find, that the deals and settlements made by F. G. Kammerer & Co. (under the orders of Wm. F. Smith) with other members of the Board of Trade for the purchase and sale of wheat, corn and pork, were made in accordance with the rules and regulations of the board, and were not illegal under the law of Illinois: Perm v. Parker, 126 111. 203; Samuel v. Oliver, 13Ó 111. 79; Pixley v. Boynton, 79 111. 352; Corbett v. Underwood, 83 111. 326; Wolcott v. Heath, 78 111. 436; Peters v. Grim, 149 Pa. 163; Smith v. Bouvier, 70 Pa. 330; Oldershaw v. Knole, 4 Bradwell, (111. Ap.) 63.] [5, 6]</p> <p>“We are of opinion, and find, that, notwithstanding this fact, F. G. Kammerer and Win. F. Smith could have had a contract between themselves that would be illegal. If F. G. Kammex’er agreed with Wm. F. Smith that he would not x-eveal his name on the Boax’d of Trade, but would himself stand as principal in the deals he there made with his fellow brokex’s and would assume all responsibility as to the delivery of the grain, etc., but would allow Smith to have the benefit of the deals he ordered without being bound to receive or deliver any wheat, com or pork, and agreed to pay him all the gains he made oxx sales provided Smith would pay him his commissioxis and make good all losses on sales, and would keep deposited with him sufficient maxgins to protect him against the losses,, then the contract between Kammerer and Smith would be a gambling contract. In such a case Smith would not be ixxtex-ested in the contract of purchases and sales made by Kaxnmerer on the board but would be only interested in the rise or fall of th'e maiket between the time of purchase and sale. The stipulation betweeix them would simply be that Smith would gain if the wheat' Kammerer bought from a broker should be sold by Kammerer to some other broker at a higher price, and would •lose if sold for a lower price. In other words, Smith would be betting with Kammerer that purchases and sales that he made with other brokers on the board, at his direction, would be profitable; if Smith won, he took the profits, less Kammerer’s commission; if he lost, he paid Kammerer the loss and commissions. In such a case Kammerer would be dealing with Smith as a principal, and not as his agent: Schneider v. Turner, 130 111. 28; Pearce v. Foote, 113 111. 228; Tenney v. Foote, 4 Bradwell, 594; Fareira v. Gabell, 89 Pa. 89; North v. Phillips, 89 Pa. 250; Brua’s Ap., 55 Pa. 294; Gaw v. Bennett, 153 Pa. 247.</p> <p>“(e) We are of opinion, and so find, that if the contract between Smith and Kammerer was of the character that Smith testifies it was, then it was a gambling contract and illegal, and the note upon which judgment was entered in this case was void for want of a legal consideration, notwithstanding Kammerer’s contracts of purchases and sales on the Board of Trade with other brokers were legal; but if Kammerer was not acting under an independent contract such as Smith sets up, wherein they were both principals, but was acting only as Smith’s agent in making bona fide purchases and sales on the •Board of Trade, such as we have found he did make, then the contract between them would not be illegal, and the note in question would not be void.</p> <p>■ ' “ [ (d) This brings us to the point where we must determine between the credibility of the two principal witnesses, or rather determine whether the petitioner, in the face of the denial of the respondent, has made out such a case as entitles him to equitable relief. Kammerer’s story is consistent with and upholds the legality of the transaction in which he was engaged. Smith’s story brands the transaction in which he was a party as illegal, and necessarily puts him in a position where he must plead his own turpitude. The undisputed facts in the case are as consistent with Kammerer’s stoiy as they are with Smith’s, 'and on the whole testimony we are of opinion that the petitioner has not supported his petition, its material averments being denied by the respondent, with sufficient proof to warrant the court in opening-the judgment and sending the case to a jury-] [7]</p> <p>“ (e) We are of opinion that the question here involved is not res adjudieata. The plaintiff’s bill in the equity case, Smith v. Kammerer, 152 Pa. 98, was dismissed for want of jurisdiction.</p> <p>“ (/) Although we are not fully satisfied that the maxim ‘ No man shall plead his own iniquity in order to obtain equity,’ applies to a case of this kind where a question of public interest is involved, still that fact should have its weight in passing on the petitioner’s prayer for relief. Griffith’s Appeal, 16 W. N. 249, is the only case we have been able to find where a judgment entered on a note given in a wagering contract was opened and the defendant let into a defence. In Ruchizky v. De Haven, 97 Pa. 210, and Stewart v. Parnell, 147 Pa. 527, are dicta which appear to be on the other side of the question. See also Marriam v. Grain and Stock Exchange, 1 Pa. C.’C. R. 478.</p> <p>“ [ GO We are of opinion that the power in the warrant of attorney to confess judgment ‘ in favor of the holder of the note,’ was sufficient warrant to J. F. McFarland, Esq., to confess judgment in favor of H. C. Champlin,- who was then the holder of the note, and that judgment was not irregularly entered in his favor.] [1] Rule discharged.”</p> <p>Errors assigned were, among others, portions of opinion in brackets, and decree, quoting them.</p>

<p>Appeal, No. 22, Oct. T., 1894, by defendants, from order of O. P. Butler Co., June T., 1892, No. 19, making absolute rule on plaintiffs to pay costs.</p> <p>Rule on plaintiffs to pay costs. Before Greer, P. J.</p> <p>' From the record it appeared that the action was assumpsit to recover for a breach of covenant in a lease of land for oil and gas purposes. • Defendants filed an affidavit of defence in which they admitted $74.57 to be due, and offered to confess judgment for that amount. Plaintiffs filed a counter affidavit as follows: “The plaintiffs refuse to accept the amount of $74.57, for which judgment was tendered in full of their claim, nor are they bound to take notice of said tender, as the money was not paid into court, nor did the plaintiffs issue execution therefor.” The affidavit was filed April 4, 1892, the counter affidavit Sept. 19, 1892. On Feb. 10, 1893, defendants paid into court $84.12, being the amount tendered with interest and record costs to date. The case was on the list for the term commencing Feb. 6th, but was not called for trial until Feb. 15th. A verdict for plaintiffs for $74.57 was rendered Feb. 16, 1893. On May 9,1893, the court made absolute a rule on plaintiffs to pay all costs on the proceedings to recover the balance of their claim sued on. The rule of court is stated' in the syllabus.</p> <p>Error assigned was above order.</p>

Appeal, No. 48, Oct. T., 1894, by defendant, from judgment of C. P. Butler Co., June T., 1891, No. 10, on verdict for plaintiff. Assumpsit on oil lease.

<p> Contract—Evidence—Lease—Presumption. </p> <p>Plaintiff and the three defendants were lessees in an oil lease. Plaintiff claimed a one fourth interest. An agreement was offered in evidence signed by the three defendants, but not by the plaintiff, by which it appeared that one of the defendants was to have a one eighth interest. There was also evidence tending to show that there was a prior parol agreement, by which plaintiff was entitled to one half of the one eighth interest held by one of the defendants. Held, that the evidence was sufficient to overcome the presumption arising from the lease that the parties were to share equally, and that plaintiff was entitled to one sixteenth interest only.</p>

Appeal, No. 220, Oct. T., 1894, by defendants, from judgment of C. P. Washington Co., May T., 1894, No. 75, on verdict for plaintiff. Trespass for personal injuries. Before McIlvaine, P. J. At the trial it appeared that, on Sept. 24, 1892, plaintiff, a boy fourteen years old, and employed by defendants as a trapper, was injured in defendants’ mine. A mule drawing a train of empty pit cars ran away, and the cars jumping the track, crushed plaintiff’s leg against a rib of coal.

<p>Appeal, No. 228, Oct. T., 1894, by-plaintiff, from judgment of C. P. Butler Co., Sept. T., 1892, No. 62, for defendants, non obstante veredicto.</p> <p>Ejectment. Before Greer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff. The court subseqúently entered judgment non obstante veredicto for defendants.</p> <p>Error assigned was entry of judgment.</p>

<p>Appeal, No. 2, May T., 1894, by defendant, from O. & T. Dauphin Co., on verdict of guilty.</p> <p>Indictment for murder.</p> <p>At tbe trial evidence was offered by the commonwealth which tended to show that, prior to April 10,1893, the prisoner, James E. Bell, a colored man, lived with Ellen Miller, a white woman, in the borough of Steelton; he had frequently threatened to kill her, and on several occasions had choked her, and threatened to throw her into the canal. On the evening of April 10, 1893, he brought some liquor to his house, and gave it to Ellen Miller and her sister Mrs. Emma Eichelberger, who was in the house at the time. Later in the evening a loud scream was heard in the house, and shortly afterwards Bell came out, left the house and went to Maryland where he was arrested four months afterwards. Early the next morning the dead body of Ellen Miller was found on a bed in the front room, with well defined thumb and finger marks upon her neck above the windpipe. Emma Eichelberger was found in a drunken stupor, her head resting on her sister’s side.</p> <p>The court submitted the case to the jury. No points were presented.</p> <p>Verdict, guilty, and judgment of sentence thereon.</p> <p>Errors assigned were, (1, 2) that the evidence was not sufficient to warrant the verdict; (3) in not fully instructing the jury on the law and facts.</p>

<p>Appeal, No. 4, Oct. T., 1894, from decree of 0. 0. Venango Co., sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>From the report of C. A. Myers, Esq., auditor, the following facts appeared:</p> <p>Florence Hopkins, a widow, in contemplation of a marriage about to be solemnized between herself and James N. Craft, on Sept. 30, 1886, made her last will and testament, in which she provided for the disposition of her whole estate. James N. Craft, her prospective husband, on the same date, by a writing attached to said will, gave his consent to the disposition therein made. On Oct. 6th, following, the parties were married.</p> <p>On Sept. 16, 1887, a child was born to them, Florence Mildred, and on Oct. 12th, following, the mother, Florence Hopkins Craft, died. On the 27th day of the same month the writing made by Florence Hopkins, prior to her marriage with James N. Craft, was admitted to probate as the will of Florence Hopkins Craft, and upon request of Craft, W. J. Bleakley was appointed administrator c. t. a. of the estate of the decedent.</p> <p>Jan. 30, 1890, the administrator filed his first and partial account, to which exceptions were filed by the guardian of the children of the said decedent by her former husband, and the present auditor was appointed to pass upon the exceptions filed and report distribution of the amount in the hands of the administrator as shown bj- the account restated.</p> <p>Pending the hearing before the auditor James N. Craft filed with him a release or relinquishment of all claims he had or might have on the estate of his deceased wife.</p> <p>The auditor, in his report, admitted the child Florence Mildred to participation in the fund in question and directed that one fourth of the moneys in the hands of the administrator be paid to H. H. Martin, guardian of said child.</p> <p>Exceptions were filed to the report of the auditor by the children of the former marriage, and by legatees under the alleged will, all of which exceptions were directed to the admission by the auditor of the child Florence Mildred to a participation in the fund for distribution'.</p> <p>The court below, in an opinion filed, sustained the exceptions and ordered that the whole fund be distributed to the three children of the former marriage. From this order or decree H. H. Martin, guardian of Florence Mildred Craft, appealed.</p> <p>Errors assigned were sustaining exceptions and entering decree, quoting them.</p>

<p>Appeal, No. 85, Oct. T., 1894, by plaintiff, from judgment of C. P. Venango Co., Jan. T., 1892,. No. 38, entering compulsory nonsuit.</p> <p>Ejectment. Before Taylor, P. J.</p> <p>At the trial it appeared that both parties claimed under the-will of Peter Stoyer.</p> <p>Peter Stoyer died in 1887, shortly after making his will,, leaving a widow and six children, among whom were Marietta,, his daughter, named in the first clause quoted, who is the plaintiff, and George Washington, his son, named in the third clause,, who is the defendant. Frances died in the same year shortly after her father, and the widow in 1891. After the widow’s death defendant took possession of the house and thereafter-has refused to permit plaintiff to occupy it with him.</p> <p>The material portions of Peter Stoyer’s will are as follows :</p> <p>“ Item 1. I give, devise and bequeath to my beloved wife, Susannah, the dwelling house in which we are now living and all there is therein, to have and to hold the same until her death» when it shall go to my two daughters, Marietta and Frances, with the exception of the organ, which shall go to my son Charles Irwin. I also give to her two cows and one horse, to have and to hold the same forever. I further give and bequeath to her one fourth of all the grain and fruit raised upon the farm on which I am now living and also a garden, the product of which she is to have; the said portion of grain and fruit and garden stuff to be held and possessed by her, until she shall no longer be able to take care of herself, and must be kept, eared for and boarded by my son George Washington as hereinafter stated.</p> <p>“Item 2. I give and bequeath to my son Peter Augustus forty acres from the east end of my farm which is situated in Canal township, Venango county, Pa., and is bounded as follows: On the north side by land of Vm. Smith; on the south by public road; on the east by land of Rhode’s sons and on the west by Wm. Smith; the said Peter Augustus to give to his mother, as already mentioned, the one fourth in the bushel, of all the grain and fruit raised on the above forty acres until the time herein already stated. I further give and bequeath to the said Peter Augustus, the adjoining dwelling house, in which my son, George Washington, is now living; also a flock of sheep, should I possess such at the time of my decease, to have and to hold the same to him, his heirs, executors and administrators and assigns forever, provided he pay to my daughter Marietta five hundred dollars one year after my death.</p> <p>“Item 8. I give and bequeath to my son, George Washington, the remainder of my farm, herein already described, after the forty acres are cut off; also all machinery, farming utensils, wagons, buggies, etc., etc., that may be here at my decease, to have and to hold the same to him, his heirs, executors and administrators and assigns forever—provided the said Geo. Washington pay to my son Charles Irwin five hundred dollars; to my son William Henry five hundred dollars and to my daughter Frances Christiana two hundred dollars, to be paid to them respectively one year after my death; and be it further provided that the said George Washington give to his mother, one fourth of all the grain and fruit, in the bushel, raised on the above mentioned portion of the farm as long as already herein stated; and that he keep and take care of her cows and horse, and that he take care of and provide all things needed for the •comfort of his mother during her life time.”</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>

<p>Appeal, No. 27, Oct. T., 1891, by defendant, from judgment of C. P. Westmoreland Co., May T., 1887, No. 424, on question reserved for plaintiff.</p> <p>Trespass for personal injuries. Before Doty, P. J.</p> <p>At the trial it appeared that plaintiff was a freight conductor on the West Penn Division of the Pennsylvania Railroad, and that, on March 19, 1890, he was injured by his train running into a slide of land upon the railroad track.</p> <p>On JuljT 21,1886, plaintiff signed an application to the relief department of the Pennsylvania Railroad Company, which, on July 31, 1886, was approved by the assistant superintendent of this department. He continued in good standing up until the time of his accident. One stipulation of this contract is as follows:</p> <p>“ And 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 arising from such injury or death, which could be made by or through me, and that I or my legal representatives will execute such further instruments as may be necessary formally to evidence such acquittance.”</p> <p>On April 16,1890, plaintiff received his first payment from the relief department, amounting to $12.00, by reason of his injuries received on March 19th, prior. On May 12th, following, he received a payment of $30.00, and each month thereafter received payment at the rate of one dollar per day until April 7, 1891, at which time the amount of benefits was reduced to one half dollar per day, and he thereafter continued to receive from the said relief department payments at the rate of one half dollar per day until Jan. 18, 1892.</p> <p>Plaintiff brought this action Dec. 22, 1891.</p> <p>Defendant’s points were as follows :</p> <p>“1. Under all the evidence and the law we instruct you to return a verdict in favor of the defendant. Answer: We decline to give such instructions at this stage of the case, and as already indicated submit the matter to you to pass upon the questions of fact, but we shall reserve the question subsequently arising in this proposition, whether under the whole case the plaintiff is entitled to recover, and, as we have already said, whatever may be your verdict it will be subject to this question of law reserved.” [1]</p> <p>“ 2. The evidence being undisputed that the plaintiff became a member of the relief department by agreement dated July 21, L886, and that the plaintiff received benefits under said relief certificate for a year and nine months, in which certificate plaintiff agreed that the acceptance of benefits from said relief fund should operate as a release for all claims for damage against the defendant company, we instruct you to return a verdict in favor of the defendant. Answer: The evidence is undisputed as recited in this proposition, and the facts are correctly stated as we understand them, and the question which is reserved, as we have stated in your hearing, is a question of law for further consideration. We shall determine hereafter whether or not these facts operate to divest the plaintiff’s action.” [2]</p> <p>Plaintiff’s point was among others as follows:</p> <p>“5. We instruct you that the alleged release presented by the defendant is void for want of consideration, and is against public policy, and will be disregarded by you. Answer: We reserve this proposition as a question of law for the further consideration of the court.” [8]</p> <p>Verdict for plaintiff for 18,750, reduced by the court to $4,850. The court subsequently entered judgment for plaintiff on the questions of law reserved.</p> <p>Brrors assigned were, (1-3) instructions; (4) reservation contained in 2d point; (5) entry of judgment for plaintiff; (6) refusal to enter judgment for defendant; quoting points, answers and decree.'</p>

<p>Appeal, No. 208, Oct. T., 1894, by Oil City Electric Co., garnishee, from order of C. P. Yenango Co., Aug. T., 1893, No. 82, entering judgment against garnishee.</p> <p>Rule to strike off judgment.</p> <p>From the record it appeared that plaintiff, W. H. Longwell, recovered adjudgment in the Court of Common Pleas of Yenango county, against C. F. Hartwell, Feb. 18,1891, for $1,273.75. On June 23, 1893, he issued an execution attachment upon this judgment against the defendant in the judgment, summoning, inter alia, the Oil City Electric Company, as garnishee. The writ was made returnable to the next term. It was served, upon the defendant and the garnishee, the sheriff returning that he attached “ goods and chattels, debts, rights and credits and shares of stock” of defendant in the garnishee’s hands. No rule or interrogatories were served upon garnishee.</p> <p>The court subsequently entered judgment as follows:</p> <p>“ And now, October 12, 1893, on motion in open court, by Ash & Speer, attorneys for the plaintiff, for judgment against the Oil City Electric Company, one of the garnishees, in default of an appearance, the amount thereof to be liquidated by the prothonotary, being the debt, interest and cost of the plaintiff’s judgment against C. FI Hartwell in the case. And that the plaintiff have execution of so much of the debt, etc., due by the said Oil City Electric Company to the said C. F. Hartwell and attached in its hands, as will satisfy the judgment of the said plaintiff, W. H. Longwell, against the said C. F. Hartwell, with interest and cost, and if the said Oil City Electric Company refuse or neglect, on demand by the sheriff, to pay the same, then the same to be levied of its goods and lands, according to law as in case of a judgment against it for its own proper debt, and that the said garnishee, the Oil City Electric Company, be thereupon discharged, as against the defendant, C. F. Hartwell, as of the sum SO’attached and levied.”</p> <p>“ October 18, 1898, judgment entered • and liquidated in favor of the plaintiff and against the defendant, C. F. Hart-well, and against the Oil City Electric Company, garnishee, for the sum of fourteen hundred seventy-three dollars and costs.”</p> <p>The court subsequently refused to strike off the judgment.</p> <p>The following is a rule of court:</p> <p>“ Rule 38. The plaintiff in a foreign attachment, or an attachment in execution to levy on the stock, debts, deposits, etc., on or after the issuing of the scire facias, may at any time file interrogatories in the case, and enter a rule, of course, for the garnishees to answer the same under oath or affirmation, on or before the return day of the scire facias—or at any subsequent time named, not less than ten days after the service of the rule— which rule, with a copy of the interrogatories filed, may be served with the scire facias, or at any time thereafter; and, on failure to answer, judgment may be entered on motion in court as in cases of default; provided, that the rule and interrogatories shall have been served ten days before the time fixed for answering.”</p> <p>Errors assigned were (1) entry of judgment; (2-3) refusal to strike off judgment; quoting decrees.</p>

<p> Negligence—Townships—Bridges—Traction engines—Ordinary travel. </p> <p>In an action against a township to recover damages for death caused by a traction engine breaking through a township bridge, it is proper to leave to the jury the question whether or not traction engines had become a usual and ordinary mode of travel when the supervisors reconstructed the bridge about five years before the accident. Clulow v. McClelland, 151 Pa. 583, followed.</p> <p> Negligence—Damages—Life insurance—Evidence. </p> <p>Damages for death caused by negligence, are not reduced by the amount of insurance on the life of the deceased.</p>

Appeal, No. 233, Oct. T., 1894, by defendants, from order of C. P. Washington Co., May T., 1894, No. 166, making absolute rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence.

<p> Partnership—Dissolution—Accounts. </p> <p>Partnership articles contained the following provision: “In the event of a dissolution of the firm, from any cause, all the personal property, books, papers, maps, plans and unexecuted orders belonging to or in the possession of such partnership shall become the property of the said first party, for the purpose of enabling said first party to continue the business, previously done by said partnership, in his own name and for his own benefit.” The business consisted of buying and selling real estate and collecting rents. About six months after the agreement was made, the rent-collecting part of the business was sold, and a provision in the agreement as to the method of ascertaining the value of the partner’s interest upon a dissolution, based upon the gross receipts of that department, became inoperative. Upon a subsequent dissolution, Held, that the party of the first part was entitled to the personal property, books, papers, etc.</p> <p> Equity—Partnership—Costs. </p> <p>On a bill in equity against one partner by another for an account; where it appears that proceedings have been necessary to the settlement of matters in dispute between the'parties, each one should bear his share of the costs in proportion to his interest in the firm.</p>

<p>Appeal, No. 247, Oct. T., 1894, by defendant, from judgment of O. & T. Allegheny Co., June T., 1894, No. 6, on verdict of guilty of murder of the first degree.</p> <p>Indictment for murder.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant proposed to prove by David Bankard and divers witnesses that for a long period, not less than four or five years, defendant had been addicted to excessive drinking habits, to such an extent that he was an habitual drunkard, being drunk a great deal more frequently than he was sober, and being of a quarrelsome disposition when he was drunk; that within the last two years he twice took the Keeley cure unsuccessfully. 'For the purpose of showing, in connection with the testimony already produced on the part of the commonwealth as well as on the part of the defence, the state of the prisoner’s mind at the time of the killing charged in the indictment, to the end that the jury may determine whether or not at the time of the killing he was in such state of mind as to be capable of the deliberation and premeditation necessary to constitute murder of the first degree, and also to determine generally whether at that time he was in such state of mind as to be responsible criminally for his act. Objected to : (1) As incompetent and irrelevant; (2) that the offer is not directed to the condition of the defendant at the time of the alleged offence, and (3) so far as the witness on the stand is concerned it appears by his testimony that he had not seen him subsequently to August, 1893, eight months prior to the commission of the offence. Objection sustained. Bill sealed. [4]</p> <p>A similar offer, by other witnesses, was rejected. [5]</p> <p>. Defendant proposed to prove that about 10 o’clock on the morning of April 7, 1894, while the witness was employed at housework in the house of Mrs. Heinrich, defendant’s sister, defendant came to the house very pale and agitated; broke into the house suddenly where his sister was sitting and said he had been up at home and his house was locked up and everything gone; inquired what it meant, asked where his clothing was and was told by his sister that it had been taken to his mother’s house, which was next door to his sister’s house; that he got his clothing, changed his apparel and said he would go down to the market to see Barbara, the deceased, to see what this all meant, and that the sister advised him to go to see his brother Louis at the market first. Objected to as irrelevant to prove abnormal condition of mind. Objection sustained and bill sealed. [6]</p> <p>The court charged in part as follows, by Slagle, J.:</p> <p>“ Every man is presumed to be capable of forming a purpose and acting rationally, and therefore to be responsible civilly and criminallj7 for his deliberate acts, and this presumption remains until it is removed by evidence. It is not the duty of the commonwealth to prove affirmatively that this man is sane, because that is presumed, but where it is claimed it devolves upon the defendant to prove that he is insane and incapable of rational action to such an extent as to render him irresponsible. This proof, as I say, must be furnished by the defendant. He is not bound to prove it beyond reasonable doubt, but simply by the weight of evidence, simply by the preponderance of evidence, to satisfy you that he is insane and therefore irresponsible. ...</p> <p>“ [An insanity which would relieve him from responsibility for the offence is such derangement of mind as carries away his will and prevents him from acting in a rational manner. Upon this subject our court has said: ‘ Insanity is mental or moral, the latter being sometimes called homicidal mania, and properly so. A man may be mad on all subjects and then, though he may have a glimmering of reason, he is not a responsible agent. This is general insanity; but if it be not so great in its extent or degree as to blind him to the nature and consequences of his moral duty it is no defence to an accusation of. crime. It must be so great as to entirely destroy his perception of right and wrong, and it is not until that perception is thus destroyed that he ceases to be responsible. It must amount to' delusion or hallucination controlling his will, making the commission of the act, in his apprehension, a duty of overruling necessity.’</p> <p>“ Again, partial insanity is confined to a particular subject, being sane on every other. In that species of madness it is plain that he is a responsible agent if he were not instigated by his madness to perpetrate the act. He continues to be a legitimate subject of punishment although he may be laboring under a moral obliquity of perception, as much so as if he was laboring under air obliquity of vision. Again, the law is that, whether the insanity be general or partial, the degree of it must be so great as to have controlled the will of its subject and to have taken from him the freedom of moral action.</p> <p>“ Now that is the principle upon which you will act and you will apply the evidence of the case to that. If jrou find under the testimony of the commonwealth that he is guilty of murder of the first or second degree, as I have indicated, then you are to ascertain whether he is responsible under the principles that I have just read, or, if he is not wholly exonerated, whether his mental condition was such as to reduce the grade of the crime from murder of the first degree to murder of the second degree, by reason of the fact he was incapable of that deliberation and premeditation which the law requires.] ” £3]</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1) in failing to instruct the jury that defendant was entitled to the benefit of any reasonable doubt respecting his guilt or the degree of his offence; (2) in failing to instruct the jury that there is a distinction in the law between the mental unsoundness that renders its possessor entirely irresponsible for a homicide, and that frame or condition of mind which incapacitates its possessor from the deliberation and premeditation essential to constitute the crime of murder of the first degree; (3) portion of charge as above, quoting it; (4-6) rulings on evidence, quoting bills of exception.</p>

Appeal, No. 43, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1893, No. 646, on verdict for plaintiff. Assumpsit on promissory note given by married woman for first premium on life insurance policy.

Appeal, No. 62, Oct. T., 1894, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1892, No. 136, on verdict for plaintiff. Assumpsit for milk sold and delivered. Before Porter, J. At the trial it appeared that plaintiff claimed to recover for milk furnished during April and May, 1892, at specified rates.

Appeal, No. 86, Ocfc. T., 1894, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 505, making absolute rule for judgment for want of a sufficient affidavit of defence. Assumpsit to recover stock subscription. The affidavit of defence was as follows: “ 1.

<p>Appeal, No. 299, Oct T., 1894, by defendant, from judgment of C. P. No. 8, Allegheny Co., August Term, 1894, No. 18, on case stated.</p> <p>Case stated to determine marketability of title to real estate.</p> <p>The case stated was as follows :</p> <p>“That Mary A. Reece (who was then and for years prior had been the wife of the plaintiff) died on the 22d day of March, 1890, intestate, and leaving her surviving husband, the said plaintiff, and two minor children, seized and possessed in fee simple, at the time of her death, of lots 3 and 4 in McClelland’s plan of the borough of Turtle Creek; her deed for said lots being recorded in deed book, vol. 662, page 187, which is made part hereof. That at the time of her death a separate dwelling house had been erected upon each of said lots, under contract made by her, and one of the contractors and material men having been unpaid for work and labor done and material furnished in and about the construction and erection of said dwelling houses, filed, after her death, a certain mechanic’s lien in the Court of Common Pleas No. 2, of Allegheny county, on August 29,1890, for work done and materials furnished subsequent to October 1, 1889, entitled: “Jobe & Meanor v. The Administrator of Mary Reece, deceased, owner or reputed owner,” at No. 12 October Term, 1890, which mechanic’s lien is made part hereof. That a writ of scire facias was issued thereon at No. 212 January Term, 1891, of said court, and prosecuted to judgment, and a writ of levari facias having been issued at No. 207 January Term, 1891, by virtue of which the sheriff advertised and sold the said buildings and premises to plaintiff for the sum of $2,625 ; a sheriff’s deed was executed and delivered therefor to said plaintiff, recorded in deed book, vol. 722, page 609: That the record of all proceedings by writ of scire facias and levari facias above referred to and the said sheriff’s deed are made part of this statement.</p> <p>“ That the plaintiff and defendant did, on April 15, 1894, enter into a lawful and binding contract wherein and whereby the plaintiff covenanted and agreed, by deed of general warranty, to well and sufficiently grant, convey and assure unto the defendant, in fee simple, clear of all incumbrances, the said lots of ground, with the buildings thereon, for and in consideration of the sum of #6,000 cash, to be paid bjr the defendant to the plaintiff upon delivery of the aforesaid deed on or before May 1, 1894, the plaintiff further covenanting that he possessed a good and sufficient marketable title to said premises. That the plaintiff did, on or before May 1, 1894, tender the defendant a deed in proper form, for said premises, but the defendant refused to accept the same and pay the purchase money agreed upon, alleging and insisting that the plaintiff did not have a good and sufficient marketable title thereto, for the following among other reasons:</p> <p>“ 1. That the mechanic’s lien through which plaintiff derives title avers that ‘ The name of the owner or reputed owner of said building is the estate of Mrs. Reece, deceased,’ instead of averring that the owner was the said Mrs. Maiy A. Reece as if living; or averring that the names of the owners were the names of the husband and heirs at law.</p> <p>“ 2. That the said mechanic’s lien does not contain the necessary averments to charge the estate of the said Mary A. Reece, she being, at the time the said debt was contracted, a married woman.</p> <p>“ 8. That the said mechanic’s lien was void because the amount due thereon was not apportioned between the two houses, they being separate and distinct buildings upon separate lots of ground.</p> <p>“ 4. The writ of scire facias upon said lien was issued against and served upon the administrator of said Mary A. Reece alone, and without her husband and heirs at law being either named or served; by reason whereof the interest of her minor children in said property was not divested.</p> <p>“ 5. That by reason of other irregularities and informalities in said proceedings plaintiff’s title is not good and sufficient and marketable.</p> <p>“ If thé court be of opinion that the plaintiff’s title to said premises is good and marketable and in accordance with his agreement, then judgment to be entered for the plaintiff; but if not, then judgment to be entered for the defendant, the costs to follow the judgment. And either party reserving the right to sue out an appeal therein to the Supreme Court.”</p> <p>The following opinion was filed by Kennedy, P. J. :</p> <p>“ Upon the argument of this case the first three objections to the plaintiff’s title, as reasons given in the case stated, for not considering the same marketable, were not seriously urged or insisted upon, nor do we think them well taken.</p> <p>“ In the mechanic’s lien as filed the owner was named : "Estate of Mary Reece, deceased.’ While this may not be considered the name of a person, it is sufficient to give notice and put al? on inquiry, and is substantially the same as if filed against Mary Reece, or as if she were named as owner. The superfluous words used serve only to inform that Mary Reece had died after the lien attached.</p> <p>“ 2. The lien as filed shows that the work was done and material furnished in the improvement of separate real estate of Mary Reece, viz: the erection of a building thereon. Any other averments, in order to charge her property, would seem to be unnecessary since the married woman’s act of 1887.</p> <p>“ 3. As to the failure to apportion the claim between the two houses, we think it too late, after judgment, execution and sale of the premises, to raise this objection. At all events, it is not a sufficient reason for striking off the lien.</p> <p>“ 4. The most serious objection raised is the fourth in the case stated, viz, that the scire facias upon the lien was issued against the administrator of Mary Reece alone, and without her husband and heirs at law being either named or served. The question raised by this objection does not seem to have been passed upon by the Supreme Court. The act of assembly upon which defendant relies to sustain this objection is that of February 24, 1834, which provides that ‘In all actions against the executors or administrators of a decedent who shall have left real estate, where the plaintiff intends to charge such real estate with the payment of his debt, the widow and heirs or devisees and the guardians of such as are minors shall be made parties thereto.’</p> <p>“ Is the proceeding on a mechanic’s lien an action within the meaning of this act ? It has been decided that a scire facias on a mortgage is not such an action, because it is a proceeding under another act of assembljr making special provision therefor. The mechanic’s lien act also makes provision for proceeding thereon, and for the same reason that proceeding may not be considered an action within the meaning of the act of 1834.</p> <p>“ It has also been decided that a scire facias to revive a judgment against a decedent obtained in his lifetime does not come within the act, for the reason that the lien was obtained before the death of the defendant. So in the case of a mechanic’s lien, the lien attaches from the date of furnishing the material and doing the work, and the filing is for the purpose of preserving it, and for the same reason it would seem to be unnecessary to make the heirs at law parties.</p> <p>“ The lien, too, as filed, is against the building—in rem and not in personam—and it would seem that the act was intended to apply when a judgment is sought to be obtained. A mechanic’s lien is not such an action, but, as stated, is a proceeding in rem. It is not sought therein to charge real estate of decedent generally, the lien is against the building, and the only real estate charged is incidental to the building.</p> <p>“ It is suggested that the heirs, not having been made parties, could, in an action of ejectment, set up a defence to the mechanic’s lien. But there is no suggestion in the case stated of any defence to the lien. Judgment has been regularly entered thereon, and are we then, in determining the marketable character of the title, to assume that there is a defence and de-' clare the title not marketable ? Must we not, in the absence of any such suggestion, assume that none exists and refuse on any such ground to determine the title not marketable ?</p> <p>“ It is held to be unnecessary to make the heirs at law parties to a proceeding to sell real estate of decedent for the purpose of pa3dng his debts, for the reason that the proceedings and sale are sufficient notice to them. We have the same character of notice in the proceedings and sale on a mechanic’s lien, and if the notice is sufficient in one ease why not in the other ?</p> <p>“ It has been held, too, that a title under the statute of limitations, although subject to attack, is a marketable one. We think no other or greater objection can be raised to this one.</p> <p>“We are therefore of the opinion that the plaintiff’s title to the premises in question in this case is a good and marketable one ; and, in accordance with the agreement mentioned in the case stated, and that judgment in said case stated should be entered for plaintiff, it is so ordered.”</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeal, No. 145, Oct. T., 1894, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1892, No. 648, on verdict for plaintiff.</p> <p>Trespass to recover damages for alienation of wife’s affection and for crim. con. Before Stowe, P. J.</p> <p>At the trial the evidence for plaintiff tended to show that defendant seduced plaintiff’s wife, and that on Nov. 19, 1892, defendant and plaintiff’s wife were discovered together in bed in an assignation house, by a detective employed by plaintiff. Defendant testified that he had been solicited by plaintiff’s wife but did not have carnal relations with her.</p> <p>Plaintiff, under objection and exception, gave evidence to show defendant’s financial condition. [5, 6]</p> <p>The court charged in part as follows:</p> <p>“ In' this case the alienation is alleged to be the result of the copulation, and before you can find a verdict for the plaintiff here you must be satisfied that there was actual illicit intercourse commenced—not that they were simply lying in bed together, but that they had actually commenced that which was copulation, even if they were stopped before the whole matter had been accomplished in the natural way. If you believe that then the plaintiff is entitled to your verdict for damages. If you are not satisfied of that under all the testimony, j'ou ought to find a verdict for defendant. But if you do believe it, as I said, the plaintiff is entitled to your verdict, and then the question arises upon what basis you must estimate or calculate those damages.</p> <p>“ [There is no fixed rule, and there cannot be, in compensating a man for a wrong done him by acts of this kind. You cannot measure it by dollars and cents as you would any commodity sold in the market; it has to be determinedunder all the circumstances by the good judgment of the jury, and they are to take into consideration in that view the social relation of the parties, the apparent affection that existed between the husband and wife, the actual misconduct of the plaintiff who was alleged to be the seducer.] [1]</p> <p>“ I do not think, where a man enters a house under the guise of friendship, and there takes advantage of his position and deliberately seduces a man’s wife, that it should be or would be looked upon by a jury in the same way as in a case where a man simply meets a married woman, and she, by insinuations thrown out by her to him, induces him to believe he can-have intercourse with her and he does it. I do not think the jury ought to look upon those matters in the same light and find verdicts of damages to the same extent.</p> <p>“ [Nor where a man is poor, although he may be found guilty, should the jury,-in that part of their verdict which we call punitive damages, based upon merely penal damages, impose the same amount as they would in a case where the man is well off. As has been said in a case read to you, there is a very great difference in a penalty as between a rich man and a poor man ; what would be absolutely ruinous to a poor man worth probably a few hundreds or thousands of dollars, would not amount to anything by way of penalty to a man worth hundreds of thousands of dollars.] [2]</p> <p>“ These remarks are only by way of suggestion. I do not mean to insinuate that there is anything in this case to justify the jury in finding a verdict for the plaintiff. That is entirely for you. Nor do I mean to insinuate whether your verdict, if you find for plaintiff, ought to be large or small. That is also for yourselves; you are to take all these matters, you are to take all the testimony and find as you believe it to be under the evidence and form your verdict in accordance with the wrong done the plaintiff, and also with a view to the acts on the part of the defendant. Did he go there as'a seducer? Did he hunt up this woman ? Did he, with the intent of gratifying his own lust, step into a happy household and break it up? If he did, that is one point of view. Did he meet this woman, and did she commence complaining to him about the conduct of her husband ? Did she seek him out; did she actually invite him to do that which he undertook to do whether he accomplished it or not ? If she did, it is not to be treated in the same way as though he had gone there intentionally, a deliberate seducer trying to break up the household of the plaintiff.</p> <p>“ [Now, you are, in a general wajq to look at the wounded feelings and affections of the plain tiff; you are to look at the wrong done to his social and family relations, jrou are to consider the dishonor brought upon his family. If he is entitled to a verdict, all those matters are to be considered. How much were his feelings wounded? That depends very much upon the relations between him and his wife, and his affections. A man that cared nothing for his wife, treated her unkindly and brutally, cannot be wounded very much as far as affections are concerned by the fact that his wife may make a false step, but notwithstanding that, there may be a serious injury to his social relations; he maybe occupying such a position that the fact that his wife committed this wrong upon him'would very much injure his standing among his friends and acquaintances, notwithstanding he may not have been the husband he ought to have been. And so the dishonor is part of the same idea. The degradation which causes the distress, and the mental anguish which follows, are the real grounds of recovery.] [3]</p> <p>“ [And I may say, in addition to that, that the plaintiff is entitled to recover, if for anything, what we call penal damages, that is, an amount of money outside of that which would actually compensate him, if there is any such thing as compensation, as we call it in law, for his wounded feelings and loss of social position and character. You are entitled to consider what we call damages by way of penalty, an imposition upon him for his misconduct. The idea seems to be to operate as a sort of detriment to others to prevent their doing things of this kind. It is not the policy of the law to confine the recovery of the injured party to mere compensation for the injury done by the loss of his wife’s services. An additional amount may be given by way of what is called punitive damages, that is damages in the nature of a penalty for his offense.] ” [4]</p> <p>Verdict and judgment for plaintiff for 18,500.</p> <p>Errors assigned were (1-4) instructions as above, quoting them; (5, 6) rulings on evidence, quoting bills of exceptions.</p>

<p>Appeal, No. 284, Jan. T., 1894, by defendants, from decree of C. P. No. 2, Phila. Co., Sept. T., 1891, No. 710, dismissing bill in equitjn</p> <p>Bill in equity for discovery, etc.</p> <p>The bill averred as follows:</p> <p>“ I. Plaintiff is the surviving assignee of the Shackamaxon Bank under, an assignment made for the benefit of the creditors of the bank in the month of May, 1885.</p> <p>“II. On Jan. 30, 1886, your orator and his then co-assignee brought an action in this court, Dec..Term, 1885, No. 703, against the defendants Mary E. Yard and her husband Benjamin H. Yard, executors of the will of one Charles S. Murphy. In this action a judgment was recovered by the plaintiffs on Oct. 5, 1891, in the Supreme Court of this state upon appeal and certiorari.</p> <p>“ III. This action was brought upon a bond given by said Murphy for the faithful performance of duty by one Iiuggard. The bond was dated May 1,1878, and the breach was unknown, saving to the parties to a fraud upon the bank, until the assignment of the bank above mentioned. The amount recovered was $5,000.</p> <p>“IV. Charles S. Murphy (who was a surety) died June 8, 1876. His will was proved before the register of Philadelphia. The defendant, Mary E. Murphy (afterwards Yard) settled an account as executrix of this will in the Orphans’ Court of Philadelphia, and the personal estate was awarded to her as the legatee by a decree absolute November 8, 1879. The amount thus awarded consists of securities and cash of the valueof $37,809.11.</p> <p>“V. In 1883 the said defendant, then bearing the name Mary E. Murphy, being about to marry with the defendant Benjamin H. Yard, joined with 'liim in conveying, by three several indentures, all her real and personal property to the defendants, the Guarantee Trust and Safe Deposit Company, in trust as to the personal property for herself, the said Mary, for life, remainder to Alma H. Murphy, her daughter, for life, remainder to the children, issue of the said daughter, and if there is no issue, to the persons entitled to the estate of the daughter under the intestate laws, with power to the trustee to change the investments. The trusts as to the real estate were the customary trusts in a marriage settlement.</p> <p>“ VI. By one of these deeds, dated Nov. 6, 1883, personal property to the value of $18,000 was thus conveyed. By other deeds of the same date real property of great value was conveyed on similar trusts. In one there is a power of revocation given to the said M. E. Murphy, and in the other a power to sell is given to the trustee. The value of the personal property thus conveyed far exceeds the amount recovered against the defendants, by the judgment above recited, as éxecutors of Charles S. Murphy, and inasmuch as the defendant, Mary E., had received assets which were and are liable, and more than sufficient to pay this debt and the costs of the suit, the conveyance by her to the Guarantee Trust and Safe Deposit Company was a legal fraud on your orator as a creditor of Charles S. Murphy, the testator. The settlement on Alma H. Murphy and her issue was voluntary. At no time did Mary E. Yard give a refunding bond, as required by the act of assembly.</p> <p>“VII. Inasmuch as the legal title-to the assets has been, as your orator is advised, transferred to the Guarantee Trust and Safe Deposit Company, and as the securities have all been changed, your orator is advised and avers that he requires the aid of a court of equity to compel an application of so much of the property received from the said Mary E. Murphy, now Mary E. Yard, by the said Guarantee Trust and Safe Deposit Company, to the payment of the debt due by her testator, Charles S. Murphy, and to the costs of the action.</p> <p>“VIII. Your orator therefore requires the defendants, as directed by the memorandum agreement, to answer specifically:</p> <p>“1. Whether in an action on a bond of Charles S. Murphy, deceased, your orator recovered a judgment for $5,000 and costs in the Supreme Court upon-a writ of error to the judgment of this court in the action brought in Dec. Term, 1885, No. 703.</p> <p>“ 2. Whether Mary E. Yard, then being Mary E. Murphy, and the executrix and legatee of Charles S. Murphy, did, on Nov. 6,1879, obtain a final decree of the Orphans’ Court for the City and County of Philadelphia, awarding the balance in her hands as executrix on the final settlement of her account as executrix of the said Charles S. Murphy, to herself as the widow and sole legatee of the said Charles S. Murphy.</p> <p>“ 3. Whether the assets thus awarded and received or retained did not consist of cash and personal securities of the value of $37,809.11. If the value was different, what was the value of the said securities.</p> <p>“4. Whether the said Mary E. Yard, then being Mary E. Murphy, did not join in three deeds conveying her real and personal estate, or the bulk of said estates, to the Guarantee Trust and Safe Deposit Company in trust for herself upon her intended marriage with Benjamin H. Yard, the defendant.</p> <p>“ 5. Whether by the said conveyance of the personal estate the trusts declared of the property so conveyed were as stated in the bill, and, if not, in what respect do they differ from that statement, and what were the trusts that were declared.</p> <p>“ 6. Whether the property thus conveyed consisted in whole or in part of property derived by her under the said adjudication either specifically, or was the. proceeds of property so derived, or was purchased with said proceeds.</p> <p>“ 7. Whether the said Mary at the time of conveying the property awarded by the said decree, or at any time, entered into any and what bond for refunding the property awarded her in case debts of the testator should, be made to appear.</p> <p>“ 8. What was the age of Alma H. Murphy in November, 1883, and what value or consideration was given by her for the settlement on her in the deed of that date mentioned in the bill.</p> <p>“ And that the defendant may answer the premises, and especially the specific interrogatories above mentioned as required by the inemorandum annexed, and that your orator may be declared to be entitled to be paid the debt, interest, and costs of the judgment recovered by him out of the assets of the said Charles S. Murphy.</p> <p>“ 2. That the funds held by the Guarantee Trust and Safe Deposit Company under the indentures above recited and which were received from the said Mary E. Murphy may be declared applicable to pay the said debt, interest, and costs.</p> <p>“ 3. That the said trust company be directed to sell so much thereof as may be required for this purpose and apply the proceeds to the payment of the said debt, interest, and costs.</p> <p>“ 4. And that your orator may have such further and other relief as to your Honorable Court shall seem meet.</p> <p>“ 5. And that process may issue to compel the defendants to appear and answer the premises.”</p> <p>Defendants demurred to the. whole bill for the following reasons:</p> <p>“ 1. Because Benjamin H. Yard is improperly joined as a party to said suit, inasmuch as he is not interested in any way in this litigation, nor is any relief sought as against him.</p> <p>“ 2. Because said bill is drawn in direct violation of sections 17 and 39 in the equity rules.</p> <p>“ 3. Because it does not appear that judgment has been recovered against any of the defendants individually, and, therefore, plaintiff has no standing to ask that he be decreed to have a lien upon the property referred to in the bill.</p> <p>“ 4. Because it does not appear that the judgment recovered against said Mary E. Yard, as executrix, cannot be paid out of the undistributed assets of the estate of said Charles S. Murphy, deceased.</p> <p>“ 5. Because' there is no averment that any of the assets convejmd to the Guarantee Trust and Safe Deposit Company were, or ever had been, assets of the estate of Charles S. Murphy, deceased.</p> <p>“ 6. Because the real estate conveyed to said Guarantee Trust and Safe Deposit Company, even if, at one time, it had been part of the assets of the estate of Charles S. Murphy, deceased, was at the time it was conveyed, and is now, freed and discharged from all claims upon the part of said Shackamaxon Bank, or on the part of plaintiff as its assignee.”</p> <p>7. Same averment as to personal estate.</p> <p>“ 8. Because a distributee who has personally received assets under an absolute decree of the orphans’, court is not required to repay the same because of the judgment recovered against the estate of the decedent.</p> <p>“ 9. Because no refunding bond is required on a decree absolute on a distribution by the orphans’ court.”</p> <p>The following decree was entered by Pennypackeb, J.:</p> <p>“And now, January 8,1894, this cause came on to be heard at this term, and was argued by counsel, and the court being of opinion that, under section 24 of the act of Feb. 24, 1834, all claims of plaintiff against the real estate of said Charles S. Murphy, deceased, have been lost by lapse of time; and that the distribution actually made of the personal estate of said decedent, under and by virtue of the absolute decree of the orphans’ court, dated Nov. 8,1879, which said decree to this day stands unappealed from and unreversed, protects the personal property now in the hands of the Guarantee Trust and Safe Deposit Company, as trustee, no part whereof ever belonged to said decedent, from any claim thereon by plaintiff in this proceeding. It is ordered and decreed that the demurrer be sustained, and that plaintiff’s bill be and the same is hereby dismissed at his costs.”</p> <p>Errors■ assigned were (1) in sustaining the demurrer; (2) in holding orphans’ court decree conclusive ; (3) in holding property at no time property of decedent ;■ (4) in not overruling demurrer ; (5) in not decreeing property liable for testator’s debts.</p>

<p> Contract—Construction of contract—Ambiguity—Deed. </p> <p>Where the meaning of an agreement is doubtful, its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of an ambiguous contract.</p> <p>A grantor in a deed reserved the right to build “ over and above ” a narrow strip or alley “ in like manner as the same is now done.” At the time the deed was executed the narrow strip or alley was built over its entire length and constituted a covered private way from a front street to a back street. The building over the narrow strip from the back street for a distance of eight feet was a mere platform, the top of which was twelve feet and six inches above the ground and the building over the balance of the street was a dwelling nineteen feet and eight inches higher than the platform or thirty-two feet above the ground. Held, that the reservation in the deed, construed by the surrounding circumstances, related merely to the point and manner of the location of the structures over the alley, and not to the height of such struotur'es.</p>

<p>School laws—Residence of pupils—Act of May 8, 1864.</p> <p>The taxes levied by a school district are for the education of the children of that district, and are not applicable to the education of the children of another district.</p> <p>Children who are inmates of the “ Children’s Industrial Association of Harrisburg, Pa.,” the buildings of which institution are situated in Upper Swatara Township, Dauphin county, have no right to admission to-the common schools of that township, where their parents are residents of other school districts.</p> <p>The mere physical presence of such children in the district, considered in connection with the act of May 8, 1864, P. L. 617, requiring school directors to establish a “ sufficient number of public schools for the education of every individual between the ages of six and twenty-one years, in their respective districts,” does not give them such right.</p>

<p>School laws—Residence of pupils—Inmates of charitable institutions— Act of April 18, 1893—Glass legislation—Constitution.</p> <p>Non-residents of a school district do not acquire a residence therein for common school purposes by becoming inmates of a charitable institution for their care, support and education.</p> <p>The inmates of the Pennsylvania Memorial Home, located in the borough of Brooltville and chartered for the purpose of providing comfortable homes and maintenance for the children of deceased and permanently disabled Union soldiers, are not entitled to admission to the common schools of the school district of the borough, where the state has made an adequate appropriation for the education of the inmates in the home itself.</p> <p>The act of April 18, 1893, P. L. 23, relating to the education of the children of Union soldiers, was intended to secure common school privileges to the children of soldiers who were obliged to seek employment and homes in families outside of the district of their parents’ residence, but there is no manifestation of a purpose in the act to include the children of any class for whose education in the charitable institution of which they are inmates the state has made adequate provision.</p> <p>Not decided whether the act of April 18, 1893, P. I/. 23, is class legislation, and therefore unconstitutional.</p> <p>The misconduct of the managers of the institution is no ground for entitling its inmates to the benefits of the common schools of the district in which the institution is located.</p>

<p>Appeal, No. 109, Oct. T., 1894, from order of C. P. Westmoreland Co., Nov. T., 1893, No. 181, Fi. Fa., distributing fund arising from sheriff’s sale of real estate.</p> <p>Exceptions to report of Jesse Cunningham, Esq., auditor distributing fund raised by sheriff’s sale of real estate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling exceptions to the auditor’s report, alleging error, in not awarding distribution to the Fullerton judgments and costs.</p>

<p> Mortgage—Judgment—Irregular return—Scire facias. </p> <p>Where two writs of soire facias are issued upon a mortgage, and a return of “ non est ” is made to the first, and of “ nihil habet ” to the second, the irregularity of the return to the first writ will not render void the judgment entered upon the second writ, but only voidable at instance of defendant if he acts within a reasonable time.</p> <p>Such a judgment cannot be attacked by a person other than the defendant in an action of ejectment thirty years after the judgment was entered.</p> <p> Mortgage—Soire facias—Amendment of sheriff's return—Practice, O. P. </p> <p>An irregular return of “non est” to a scire facias sur mortgage may be amended on motion.</p> <p> Judgment—Irregular entry—Buies of court—-Collateral attach. </p> <p>A judgment irregularly entered by the attorneys, and not taken in open court as required by the rules of the court, is voidable only at instance of defendant, and cannot be attacked by a stranger in a collateral proceeding.</p> <p> Tax sale—Assessment—Title. </p> <p>The lien of unpaid taxes is coextensive with the tract against which they are assessed, .and the land which passes under the sale is that only which is covered by the assessment.</p>

<p> Trespass—Purchaser at sheriff's sale—Unlawful entry. </p> <p>As there is no contract relation between the purchaser at sheriff’s sale, and the defendant in the execution dr tenant in possession, the latter may dispute the title of the former, and is. not bound to submit to a forcible •ouster as a tenant at will. The purchaser may enter, if he can do so peaceably, but the tenant is bound to surrender only when proceedings under the statute, or a judgment in ejectment, require it. In such a case the character of the entry is for the jury.</p> <p> Mortgage—Description—Land in two counties—Deed—Estoppel. </p> <p>Where a mortgage describes the 'land as lying in a particular county, but refers to the deed by which the mortgagor acquired the land, wherein the land is described as lying in two counties, the mortgagor is not es-topped from asserting that a portion of the land was beyond the county line. In such a case the description in the deed was part of the description of the land covered by the mortgage; if the description taken together was self-contradictory, the mortgagee was bound to take notice of it.</p> <p> Trespass—Sheriff—Unlawful entry. </p> <p>In an action of trespass against a purchaser at sheriff’s sale and the sheriff and his deputy .for unlawfully entering upon defendants’ lands and tearing down a house thereon, the sheriff and his deputy are not liable for the destruction of the house unless they are shown to have some other connection with it than merely that of putting the purchaser at sheriff’s sale in possession: By Mr. Justice Williams..</p> <p> Trespass for unlawful entry—Damages—Ouster. </p> <p>Damages for an ouster are for th,e loss of possession, and not for the value of the freehold or any part of if: By Mr. Justice Williams.</p>

Appeal, No. 295, Oct. T., 1894, by plaintiffs, from decree of C. P. Cambria Co., June T., 1894, No. 1, on bill in equity. Bill to restrain employment of sisters of charity in public schools. Before Barker, P. J. The case was heard on bill, answer, and proofs taken by the court without an examiner or master.