Volume 165 — Pennsylvania State Reports

Appeal, No. 114, Oct. T., 1894, by defendants, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1894, No. 746, awarding peremptory writ of mandamus. Petition for mandamus to require letting of contract of transcribing to lowest bidder. The facts appear by the opinion of the Supreme Court. The character of the work specified in the resolution recited in the opinion of the Supreme Court was admitted by the pleadings. Error assigned was in awarding writ of mandamus.

Appeal, No. 158, Oct. T., 1894, by defendants, from judgment of C. P. No. 2, Allegheny Co., April T., 1891, No. 296, on verdict for plaintiffs. Scire facias sur mechanic’s lien. Before Magee, J. On Feb. 13, 1891, plaintiffs filed a mechanic’s lien against a lot and building thereon in Wilkins township.

<p>Appeal, No. 177, Oct. T., 1894, by the city of Pittsburg, from order of C. P. No. 3, Allegheny Co., Nov. T., 1893, No. 211, sustaining exceptions to report of viewers.</p> <p>Exceptions to report of viewers appointed to ascertain costs, damages and expenses of grading, paving and curbing Fifty-fourth street from Allegheny Valley Railroad to B utler street in the eighteenth ward in the city of Pittsburg.</p> <p>From the record it appeared that on July 24,1891, an ordinance was passed by councils of the city of Pittsburg authorizing the grading, paving and curbing of Fifty-fourth street from Allegheny Valley Railroad to Butler street, which ordinance was passed upon a petition of a majority in number and interest of the owners of property fronting or abutting upon the line of the improvement. The Frank-Kneeland Machine Co. were not petitioners. Based upon this ordinance was a petition to the court and the appointment of a board of viewers, as provided in the act of May 16, 1891, P. L. 75. The viewers, after personally visiting all the property along the line and in the neighborhood of the improvement, and hearing testimony, assessed benefits upon the property of the Frank-Kneeland Machine Co. in the sum of $750. The latter thereupon filed exceptions on the ground that their property did not abut on the improvement, and the improvement was not on the line of •the property assessed.</p> <p>Fifty-fourth street runs south from the Allegheny river to the property and tracks of the Allegheny Valley Railroad, crosses the tracks of that company and runs thence south to Butler street. The property of the Frank-Kneeland Machine Co. is situate on the eastern line of Fifty-fourth street, between the right-of-way of the Allegheny Valley Railroad and the river, viz: north of the right-of-way of that company. The improvement for which this assessment is sought extends south from the right-of-way aforesaid to Butler street. It was asserted by appellant, and appeared by a blue print, which however was alleged by appellee to be no part of the record, that the only outlet for appellee was over part of this improvement.</p> <p>Exceptions sustained without opinion filed.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 190, Oct. T., 1894,'by plaintiffs, from decree of C. P. No. 2, Allegheny Co., July T., 1892, No. 385, dismissing bill in equity.</p> <p>Bill in equity to cancel deed.</p> <p>The case was referred to James S. Young, Esq., as master. The facts appear by the following opinion of the court below :</p> <p>“ The exceptions to the master’s report filed on part of complainants are to the findings of facts. On a review of the evidence we are of the opinion that the master has correctly found the facts against the contention of the complainants. Adopting his findings, we then have the case of a man fully understanding what he was doing, and without any undue influence, fraud or coercion, and comprehending the effect of his act, and intending to equalize his daughters with his sons as to what he had heretofore given them, had the land surveyed and a plot made, and sent written instructions to his attorney as to what he wanted done, and, having the papers prepared and fully explained to him, deliberately executed the paper in question and delivered it to his daughter, the donee, for recording, and it was recorded.</p> <p>“The only reason we see to doubt that the letter sent to A. M. Brown, Esq., is not wholly the production of Mr. Knowlson, without dictation by any one, is that it expresses so clearly and unambiguously what he wished to do. It indicates a man with accurate knowledge of the business he wishes to transact. We are well satisfied that it was written, signed and sent by him. The letter of instructions is as follows: . . . . ‘ I made deeds to my sons for their shares of my property.; I ivant you to make a deed from Richard Knowlson and Harriet F. Knowlson, my wife, to' my daughter, Elizabeth A. Fleming, for her share of my property. I want you to write an agreement with my daughter that I have the property as long as I live, and at my death my wife and daughter to have the use of the property equally between them, and at my wife’s death all to belong to my daughter. I want you to fix my personal property that at my death it will belong equally to my wife and daughter.’</p> <p>“ The writer linew what he intended as to the land in question. It was a deed to his daughter,—a deed in fee, but with an agreement on part of the daughter that the father should have a life interest in it, etc., and as to the personal property, it was a will. Had the direction of the letter been literally complied with, the deed would have been absolute on its face, and Mrs. Fleming would have executed an agreement as to the conditions. The attorney, intending to carry out the instructions, embodied the conditions in the deed instead of in a separate paper, and prepared a will as to the personalty.</p> <p>“ The intentions of the letter and of the deed were to vest a present title in the grantee. Has that been done ? The master is of the opinion that under the rules of interpretation laid down in Turner v. Scott, 51 Pa. 126, it has not been done; that the interest does not vest until after the death of Mr. Knowlson.</p> <p>“ The principle or rule laid down in Turner v. Scott is that, regardless of the form of an instrument, ‘ a disposition of property to take effect after the death of the grantor, if it vests no present interest, but only directs whát is to be done after the death of the maker, is a will and not a deed. A disposition to take effect after death is a will.’ With this rule we have no contention. Although Turner v. Scott has been cited as a leading case ever since the decision was made, my impression is that the case itself,—not the principle—was never entirely satisfactory, even to the Supreme Court or to the profession. Agnew, J., dissented. The dissatisfaction was and is with the interpretation of the meaning of the paper. Its interpretation was put by Judge Woodward at the time, principally, and in succeeding cases it has been put wholly, on the potency of the words contained in the grant, after reserving a life estate. ‘And this conveyance in no way to take effect until after the decease of the said John Scott, the grantor,’ and in the habendum ‘ to have and to hold the premises after the decease of the said John Scott.’ See Eckman v. Eckman, 68 Pa. 460; Waugh v. Waugh, 84 Pa. 850; Driesbach v. Serfass, 126 Pa. 32; Cable v. Cable, 146 Pa. 451. In the court below these words were construed in connection with the whole instrument; in the Supreme Court as though they stood alone. In numerous subsequent cases in which all the other parts of the instrument are substantially identical with that in Turner v. Scott, except the words above quoted, the instrument has been decided to be a deed. The master is of the opinion that the present case is stronger than Turner v. Scott on the same side. We do not so consider it.</p> <p>“ In our case the words held in Turner v. Scott to be the controlling words are entirely wanting. The habendum has no qualification of the absolute grant contained in the body of the deed. The deed is a conveyance in fee simple, absolute on its face and taking immediate effect, were it not for this condition or reservation, to wit: ‘ But it is expressly understood that the above described conveyances are made subject to the following terms, conditions and reservations, to wit: First. The aforesaid Richard Knowlson reserves to his own use and enjoyment the full interest and estate in the above described properties, the rents, issues and profits thereof for and during the term of his natural life. Second. Should Harriet Foster Knowlson, wife of Richard Knowlson aforesaid, one of the parties of the first part thereto, survive the said Richard Knowlson, then at his death she shall have for her own use the full right, title and estate in the undivided one half of the whole of the above described properties or one half of the rents, issues and profits thereof for and during her natural life.’</p> <p>“ This may be considered a reservation of a life estate in the grantor. But is it a declaration that the interest granted to the daughter is not to vest until the death of the grantor ? We think it is not, but that it is a present grant of .the estate —a vested interest in the grantee. The words ‘ the full interest and estate in the above described properties ’ seem to us to be merely intended to be, and are in fact and law the same as ‘ the rents, issues and profits thereof,’ and each is for the life of the grantor—each or both together mean but a life estate. This is further evident from the clause, reserving a life estate for his wife—where ‘ right, title, interest and estate, ’ is made the equivalent of ‘rents, issues and profits thereof.’ The intention to presently vest a fee in the grantee, subject to the rights for life of the grantor, seems to us very evident from the words of the deed.</p> <p>“ In Turner v. Scott it seems to be doubted—though not decided—whether or not a remainder could be granted with a reservation of a life estate in the grantor in the same instrument. It could not be done at common law.</p> <p>“In Waugh v. Waugh, 84 Pa. 350, the deed provided that possession was to be delivered at the death of the grantor, etc. This was held to be a reservation of a life estate in the land, but the grant was held to be irrevocable—not a will but a deed —and was sustained as such. Woodward, J. (the younger), says: ‘ The provision in the deed for the retention of possession, by Mr. W augh, was an exception from the body of the estate conveyed, and not a reservation of a newly created right of which it is to be the source.’</p> <p>“ In Eckman v. Eckman, 68 Pa. 460, SHARSWOOD, J., says : ‘ It is one of the best established principles, for which no reference to' authorities is necessary, that a deed shall always be so construed as to give it effect ut res magis valeat quam pereat. If it cannot be treated as a deed of bargain and sale because there was in fact no pecuniary consideration, yet if the consideration of blood did exist, it shall be supported as a covenant to stand seized. Quacunque via .data, therefore this deed was good, and conceding that the reservation to the grantor of the rents and profits arising out of the premises was a life estate in the land itself, the remainder to the grantees was not a freehold commencing in futuro, but a future springing use, taking effect under the statute of uses. We may say here that in Pennsjdvania a recorded de,ed will be construed as having the effect of a feoffment with livery of seizin, or as a deed under the statute of uses, as- will best accomplish the intention and design of the parties: Act of May 28, 1715, sect. 5, 1 Smith’s L. 95.’</p> <p>“ There is no doubt that this is a correct statement of the law of Pennsylvania. The portion of the opinion quoted is so applicable to the facts of this case that it might have been written for it, and it seems to us to conclusively rule our case in favor of the defendant.</p> <p>“ The grantor, fully understanding his purpose to vest title in his daughter, for the consideration of love and natural affection, executed and delivered a deed to her for the land in question (and it was recorded) intending to and in words vesting in her a fee in the land, but on a ‘ condition,’ reservation or exception, that he should have a life estate therein. We are of the opinion that it was a valid deed, irrevocable, and not a will, revocable.</p> <p>“ And now, Sept. 23, 1893, after argument and upon consideration, the exceptions filed to the master’s report on part of the complainants are dismissed, and as to findings of fact the master’s report is approved and adopted. The exceptions filed on part of defendant are sustained.”</p> <p>The bill was dismissed with costs on plaintiffs.</p> <p>Errors assigned were (1) dismissal of plaintiff’s exceptions; (2) in adopting the master’s findings of fact; (3) in sustaining defendant’s exceptions; (4) in not making the decree prayed for; (5) entry of decree; quoting exceptions and decree.</p>

<p> Arbitration—Conclusiveness of award—Evidence—Contract. </p> <p>Where a contract contains a stipulation that all questions in dispute arising thereunder shall be submitted to an arbitrator for final decision, the award of the arbitrator is final if no fraud has been practiced upon or by him.</p> <p>A mistake of one of the parties in not submitting to the arbitrator all of the evidence as to payments which he had in his possession, is not sufficient to justify the court in permitting a defence to the amount of such payments, in a suit upon the award.</p>

Appeal, No. 225, Oct. T., 1894, by defendants, heirs of Robert W. Boice et al., from judgment of C. P. No. 3, Allegheny Co., May T.,1892, No: 367, on verdict for plaintiff. Ejectment for undivided interest. Before McClltng, J. At the trial it appeared that, on Oct. 16, 1827, John Me-Michael and wife executed a deed of trust to James MeMichael covering the land in question.

Appeals, Nos. 201 and 222, Oct. T., 1894, by plaintiff and defendants, from decree of O. P. No. 2, Allegheny Co., July T., 1892, No. 130, on bill in equity. Bill for injunction to restrain exercise of acts of ownership in and upon burial lot.

Appeal, No. 242, Oct. T., 1894, by-defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1891, No. 785, on verdict for plaintiffs. Trespass quare clausum fregit.

<p> Married woman—Principal and surety—Opening judgment. </p> <p>A judgment against a married woman may be opened where there is evidence that the bond upon which judgment was entered was executed by defendant as security for her husband’s debt and to save the contents oí the husband’s store from being sold by the sheriff, and that defendant was in no way interested in the store, and was not originally liable for the debt.</p>

<p>Appeal, No. 241, Oct. T., 1893, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1892, No. 113, on bill in equity.</p> <p>Bill to restrain bridge company from interfering with street railway in operation of cars on bridge, etc.</p> <p>The case was referred to James S. Young, Esq., as master, who reported in favor of granting the prayers of the bill.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court below entered the following decree :</p> <p>“ First. The exceptions filed by the parties respectively to the master’s report are overruled, except the defendant’s exception as to the amount of compensation to be paid by the plaintiff to the defendant.</p> <p>“ Second. The Point Bridge Company, the defendant herein, its servants and agents, are hereby restrained and enjoined, until the further order of this court, from any and all interference with the Pittsburg & West End Passenger Railway Company, and its servants and agents, in the preparation of and use of said bridge for the operation of its cars by electricity over and across the same; but such preparation and the use of the bridge shall for the present be as follows: It is ordered that the cars shall not run at a greater rate of speed than four miles per hour while upon said bridge, and that there shall not be more than two cars upon the same span of said bridge at any one time.</p> <p>“ Third. The wires and other apparatus for applying electricity as the motive power in propelling said cars, shall be erected and constructed upon and across said bridge as shown in the testimony of S. L. Tone, one of the witnesses examined before the master, and the plan produced by him and now filed in this case, it being the same plan recommended by the master and to which no exceptions have been filed by the defendant. That in doing the work contemplated under the provisions of paragraphs two, three and four of this decree, the ordinary travel over the bridge shall be allowed and accommodated to the fullest extent reasonably possible.</p> <p>“Fourth. While the Point Bridge Company is restrained from interfering with the Pittsburg & West End Passenger Railway Company in the use of the bridge and the rails as at present laid, it is ordered that the said railway company, at its own expense and within six months from the date, with the consent of the bridge company, lay down, over and across said bridge, girder rails in lieu and place of the rails now on said bridge, and properly plank said bridge to suit said rails. The rails shall be laid and bridge planked under the supervision and care of the engineer of the railway company and also of the bridge company, and the said work shall be done when commenced as rapidly as it can be reasonably done, and with no unnecessary hindrance to travel upon and over said bridge.</p> <p>“ Fifth. That the Pittsburg & West End Passenger Railway Company shall pay to the Point Bridge Company for its use of said bridge the sum of eight thousand ($8,000) dollars per year, payable monthly. This rate shall not control for the use of said bridge for a longer period than five years from this date.</p> <p>“ Sixth. That the Pittsburg & West End Passenger Railway Company shall pay the costs and expenses of stringing the wires across said bridge and of taking up the old rails and laying the girder rails and planking the bridge in connection therewith, and shall pay the costs in this suit to date.</p> <p>“ Seventh. Either party hereto at any time may, during the continuance of this order, make application to the court, and, for proper cause, may move a modification of this decree or such other and further order in this case as may, under the circumstances then existing, be proper.</p> <p>“ Eighth. Before issuance of the injunction, the plaintiff company shall file a bond in the penal sum of ten thousand ($10,000) dollars with sufficient sureties, to be approved by the court, conditioned to indemnify the defendant company for all damages that may be sustained. by reason of such injunction.”</p> <p>Brrors assigned were (1-2) in assuming jurisdiction; (3) decree, quoting it.</p>

<p>Appeals, Nos. 26 and 36, Jan. T., 1894, by plaintiff and defendant, from judgment of C. P. Dauphin Co., March T., 1893, No. 302, on appeal from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>The case was tried without a jury under the act of April 22, 1874, before Simonton, P. J., and McPherson, J.</p> <p>The following opinion was filed 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 year ending the first Monday of November, 1892, and it was tried by the court without a jury under the act of April 22,1874.</p> <p>“FINDINGS OF FACT.</p> <p>“ 1. Defendant is, and was during the year 1892, a corporation of, and doing business in the state of Pennsylvania, chartered in April, 1890, with an authorized capital of $1,000,000, of which $400,000 was paid in prior to June, 1892, and the balance at that time. Its railroad is located in the anthracite coal region of eastern Pennsylvania, and, including branches, is about sixty miles in length. It runs in a devious course, and thus, and by means of branches from the main line, reaches a number of collieries, nearly all of which are owned and controlled by the firm of Coxe Brothers & Company, who also own nearly all the shares of stock in the railroad company ; it was built for the purpose of connecting these collieries with the various railroads which traverse that region, and does connect with the Pennsylvania, the Beading, the Lehigh Yalley, and the Jersey Central railroads; thus giving the owners of these collieries, and of this railroad, not merely access to the various markets for coal,-—east, north and west—but also choice of roads over which to reach these markets, and with which to make traffic contracts. Nearly all the freight carried by the defendant is coal, and should this traffic fail, or be withdrawn, its capital stock would be comparatively valueless; but [there is no evidence in the case tending to show that there is any present prospect that this will occur, and, in view of the fact that this railroad and these collieries are owned by the same persons, it does not seem probable, so long as the coal mines are not exhausted ; nor is there any evidence that this will take place for many years to come.] [8]</p> <p>“ 2. The gross earnings of the defendant during the tax year 1892 were $739,914.15, and its net earnings were $523,248.15, and it made one dividend during the year, on October 15,1892, of forty (40) per cent, amounting to $400,000, out of net earnings realized to June 30,1892; its net earnings June 30,1892, to February 28, 1893, were about '$450,000, and the amount of its surplus on the first Monday of November, 1892, was $242,142.89, in addition to book accounts amounting to about $100,000 in excess of its current indebtedness; and [there is no evidence in the case tending to show that its net earnings will be less in the future, except in so far as they may be affected by the general financial depression.] [9] The total cost of defendant’s railroad, which was completed in February, 1893, including equipment, was $1,159,323.70.</p> <p>14 3. Defendant’s president and treasurer made to the auditor general under the sanction of the prescribed oath, the report and appraisement required by section 4 of the act of 1891, P. L. 229, appraising defendant’s capital stock at $2,000,000, which is double its par value. There were no sales of shares of the stock during the tax year.</p> <p>44 4. ’ The auditor general and state treasurer were not satisfied with, and did not accept this appraisement, but, as they understood to be their duty under the law, made an appraisement and fixed the value of said capital stock at $8,720,719.16. In making this appraisement they had before them no other evidence of its actual value than that contained in the report made by the officers of the corporation, as above stated; and this amount was adopted by them, as the value of the capital stock, because it was the sum which at six per centum would produce $523,243.15, the amount of net earnings made by the defendant, as shown bjr said report. On this valuation, so made by the auditor general and state treasurer, an account was settled against defendant for tax, at the rate of five mills, amounting to $43,603.60 from which settlement defendant duly appealed to this court.</p> <p>“ [5. We find from the evidence that the actual value in cash of defendant’s capital stock, between the 1st and 15th days of November, 1892, was not $8,720,719.16, the amount at which it was appraised by the auditor general and state treasurer; but having in view all the evidence and considering all of the facts which are, in our judgment, relevant, on the principles more fully explained below, we find that the actual value in cash of defendant’s capital stock at the date mentioned was'$4,000,000.] [1]</p> <p>“ [We have decided in opinion recently filed in Commonwealth v. Sharon Coal Co., 23 June Term, 1893, and Commonwealth v. Edgerton Coal Co., 21 June Term, 1893, [affirmed in 164 Pa. 284,] that the intent and meaning of section 4 of the revenue act of 1891, P. L. 229, is that only so much of the income of á corporation—using this word as an equivalent for both net earnings and amount of profit made—as is ‘made and either declared in dividends or carried into surplus or sinking fund,’ is to be taken as the test of minimum value in appraising the capital stock of a corporation; and that the amount and rate per cent of dividends made and the amount carried into 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, but are to be considered with all other relevant facts in determining what is its actual value in cash.</p> <p>“ These decisions settle, for us, the law of this case on the points thus decided, and lead to the result that the appraisement made by the auditor general and state treasurer, and the settlement based thereon, cannot be sustained merely as a conclusion of law, but must stand or fall on the actual facts of the case. In other words, the question we have to decide on this appeal is, what is the actual value in cash of defendant’s capital stock.] [2]</p> <p>“It has been settled by numerous decisions, which are cited and affirmed in Commonwealth v. Standard Oil Co., 101 Pa. 119, that the tax on capital stock imposed by the taxing acts of this state is not a franchise or license tax, but is a tax on the property and assets of the corporation. But it by no means follows that the capital stock and the tangible property and assets are identical either in substance or in value. [The capital stock, it is true, represents the property and assets of the corporation, but it represents also the value of its franchises and privileges and facilities for doing business, and the success with which the business is actually carried on, so far as these are denoted and expressed by the pecuniary results realized; and the tax on capital stock is, by the express terms of the act of 1891, intended to reach those elements of value. See preamble 6, P. L. 1891, p. 229.] [10]</p> <p>“ The case of Commonwealth v. Hamilton Mfg. Co., 12 Allen, 298, contains an admirable discussion and exposition, by Bigelow, C. J., of the difference which may exist between the value of the tangible property and assets of a corporation and the value of its capital stock, which is so apt for our purpose that we make copious extracts therefrom, with the remark that the whole opinion ought to be read in this connection. Assuming that the value of the capital stock of a corporation is equal to the value of all its shares—the theory of the act of 1891, which makes the market price of the shares a test of the actual value of the capital stock—he says: ‘ The aggregate market value of all shares, b3r which we understand the cash price for which the shares will sell in the market, does not necessarily indicate the actual value or amount of property which a corporation may own. The'price for which all the shares would sell may greatly exceed the aggregate of the corporate property, or it may fall very far short of it. Undoubtedly the amount of property belonging to a corporation is one of the considerations which enter into the market value of its shares; but such market value also embraces other essential elements. It is not made up solely by the valuation or estimate which may be put on the corporate property, but it also includes the profits and gains which have attended its operations, the prospect of its future success, the nature and extent of its corporate rights and privileges, and the skill and ability with which its business is managed. In other words, it is the estimate put on tbe potentiality of a corporation, on its capacity to avail itself profitably of its franchise, and on tbe mode in which it uses its privileges as a corporate body, which materially influences and often controls its market value. . . . There may be two corporations organized with similar powers, having the same number of shares, the same amount of property, of capital, and both-may be engaged in the same branch of business. The market value of the shares in one corporation may be double that of the other, because one is prosperous and likely to make large gains, while the other is unsuccessful, and is carrying on a business which may prove unprofitable, or lead to heavy loss. . . . The tax is therefore laid, not on capital stock as signifying the money paid in to cany on the business of the corporation, or the property purchased and owned by the corporation, but on capital stock representing the- aggregate of tbe market value of the shares. The price for which shares may be sold does not depend on the value or amount of property belonging to a corporation, but rather on the capacity of the corporation to use its. property, in connection with its corporate powers and privileges, advantageously and profitably, and upon the present prosperity, prospective earnings and profitable final re-’ suits of the corporate business. . . . Nor are we able to see any reason why the aggregate market value of all the shares' of a corporation, representing as it does the estimate put, not merely on the property of the corporation, but also on the rights, privileges, capacities and present and prospective re-suits of the corporate organization and business—in other words, on its franchise—is not a legitimate and just method of arriving at a basis on which to calculate an excise or tax.’</p> <p>“ These extracts, and still more the whole opinion from which ■ they are taken, abundantly show that the actual value in cash' of defendant’s capital stock is not to be determined solely by ascertaining the value of its tangible property and assets, but that many other elements of value are to be considered. Chief Justice Bigelow’s discussion, it is true, leads him to the conclusion that the tax he is considering is a franchise tax and not: a tax on tangible property; but this view, when the case was¡ considered in the Supreme Court of the United States in Hamilton Co. v. Massachusetts, 6 Wall. 682, was accepted” only be-' cause it was thought to be required by the particular provision of the constitution of the state of Massachusetts and the Construction which had long been put upon it by the Supreme Court of the state, which, as a question of the construction of a state statute, was binding on the federal court. Thus Mr. Justice Clteeord, delivering the opinion and referring to the decision that the tax in question was a franchise tax, at page 639, said: ‘ Separated from the peculiar provision of the state constitution and the long practice under the original decision [in Portland Bank y. Apthorp, 12 Mass. 252], the present decision-of the state court upon the subject might well be criticised as founded in unsubstantial distinctions, but when weighed as an exposition of that peculiar clause [of the state constitution] and in view of the long practice of the state, commencing long before the prior decision was made, it is not possible to withhold from the conclusion a full and unqualified concurrence. . . . Fifty years have elapsed since that decision was made, and the practice in substance and in effect still continues, having been repeatedly sanctioned by the unanimous decision of the highest judicial authority of the state.’</p> <p>“ The Chief Justice and Justices Grier and Miller refused to be bound by the construction put upon the statute by the state court and dissented, on the ground that the tax in question was a tax on property of the corporation and not a franchise tax.</p> <p>“On the subject of taxing corporate franchises as'property, Justice Olieeord said : ‘ Corporate franchises .... are legal estimates and not'mere naked powers granted to the corporation, but powers coupled with an interest which vest in the corporation, by virtue of their charter, and .... the privileges and, franchises of a private corporation, unless exempt in terms which amount to a contract, are as much the legitimate subjects of taxation as any other property of the citizens within the sovereign power of the state.’</p> <p>“And in Wilmington Railroad v. Reid, 18 Wall. 261, Mr. Justice Davis, delivering the opinion of the court, said: ‘ It is insisted, however, that the tax on the franchise is something entirely distinct from the property of the corporation, and that the legislature was, therefore, not inhibited from taxing it. Tliis position is equally unsound with the others taken in this case. Nothing is better settled than that the franchise of a private corporation—which in its application to a railroad is the privilege of running it and taking fare and freight,—is property, and of the most valuable kind, as it cannot be taken, for public use even, without compensation. It is true, it is not the same sort of property as the rolling stock, the roadbed, and depot grounds, but* it is, equally with them, covered by the general term the property of the company.’ . .</p> <p>“ [There is, therefore, no legal principle in the way of holding that the tax on capital stock in this state is a tax on property and at the same time including in the appraisement the value of the franchises and privileges enjoyed and exercised by the corporation, and determining the value o£ these by the material result of their exercise.] [7] . .</p> <p>. “ Acting upon the principles suggested by the foregoing discussion, the members of this court, both of whom sat at.the trial, concur .in the findings of fact above set forth, and in the conclusion that the defendant’s capital stock was between .the 1st and 15th of November, 1892, of the actual value in cash of $4,000,000; and the commonwealth is therefore entitled to judgment as follows:</p> <p>“ Value of capital stock, $4,000,000.</p> <p>Tax, 5 mills ....... $20,000</p> <p>Interest from April 1, 1893, to January 1, 1894, at 12 per cent per annum ..... 1,800</p> <p>Attorney general’s commission, 5 per cent . . 1,000</p> <p>Total..... $22,800</p> <p>“ For which amount judgment is directed to be entered in favor of the commonwealth and against the defendant if exceptions be not filed within the time limited by law.”</p> <p>■ Defendant made a motion for a new trial but it was refused. Exceptions, involving the questions considered in the portions of the opinion in brackets, were filed by both parties.</p> <p>Errors assigned by plaintiffs were, (1, 2) dismissal of exceptions to findings in brackets, quoting them.</p> <p>Errors assigned by defendant were, among others, (7—10) portions of opinion in brackets, quoting them; (11) in overruling motion for new trial; (12) in entering judgment for commonwealth.</p>

Appeals, Nos. 162-174, by defendants, from judgments of C. P. No. 2, Allegheny Co., April T., 1893, Nos. 810-822, for plaintiff on case stated. Case stated in assumpsit on fire insurance policy. Thirteen suits were brought against as many different fire insurance companies. The cases stated in all suits were practically the same.

<p> Taxation—Brokers—Glassification—Uniformity—Constitution. </p> <p>Where a municipality has the power to impose a tax upon brokers, it may tax merchandise brokers and real estate brokers without taxing other classes of brokers, and such a tax does not violate the constitutional provision that taxation shall be uniform.</p>

<p>Promise sufficient to toll statute of limitations—Act of 1713.</p> <p>To remove the bar of the statute of limitations, there must be a clear and definite acknowledgment of the debt and a specification of the amount due or a reference to something by which such amount can be definitely and certainly ascertained.</p> <p>A claim for a percentage on the cost price of defendant’s buildings for extra services in supervising their construction will not be taken out of the bar of the statute of limitation by the testimony of the claimant that “I went all over this work I had done lor defendant where he owed me the bill ” and told him that I had not been paid for it, and he thereupon promised to pay every cent, as this conversation fails to specify the amount of the debt or to furnish any basis on which the amount could be definitely and certainly ascertained.</p>

<p> Negligence—Railroads—Grade crossings—Evidence. </p> <p>In an action to recover damages for personal injuries received at a grade crossing, the question whether plaintiff stopped at a proper place, for the purpose of obtaining a view along the tracks, is for the jury where it appears that the view from the highway was obstructed by standing ears and the smoke of a locomotive, and the evidence is conflicting as to whether the plaintiff stopped at the point from which the best view could have been obtained.</p> <p>Where in a negligence case there is evidence that an electric alarm bell maintained by a railroad company at a crossing was out of order, and at the time of the accident rang so lightly that a person within fifteen feet of it could not hear it, it is proper to admit evidence to show that, a day or two after the accident, the bell was repaired by the railroad company.</p>

<p>Appeal, No. 457, Jan. T., 1893, by plaintiff, from decree of C. P. Clearfield Co., Feb. T., 1892, No. 2, on bill in equity.</p> <p>Bill to restrain borough from re-opening alley.</p> <p>The bill is not printed in the paper-books, but is summarized in the following opinion by Krebs, P. J.:</p> <p>“ The bill of complaint in this case charges in substance as follows:</p> <p>“1. That the plaintiff is a corporation created under the laws of Pennsylvania.</p> <p>“ 2. That it acquired title to' certain premises set out in bill by metes and bounds.</p> <p>“ 8. That the tract or parcel of land described in paragraph two of the bill was regularly laid out into cemetery lots, with passageways between according to a general plan.</p> <p>“4. That the burgess and town council of Du Bois borough passed an ordinance which provided for the laying out of and ordaining Cemetery Alley.</p> <p>“ That the alley ordained and laid out passes through the cemetery above mentioned, cutting it into two pieces, and appropriates a tier of burial lots and interferes with the general plan thereof.</p> <p>“ 6. That the alley was laid out without any legal authority, and if opened will cause great and irreparable injury to the complainant, and praying that an injunction issue to restrain the defendants.</p> <p>“ Upon the presentation of the bill a preliminary injunction was issued and the case sent -to an examiner and master, D. S. Herron, Esq., with power to report the facts and a decree appropriate thereto. To the report of the master numerous exceptions were filed both as to his findings as well as to his conclusions of law. In the manner in which the master has stated the facts he did find, in order to examine the report with the exceptions, it becomes necessary to restate the whole facts, so that the case may be passed upon with the facts set forth in the order in which they transpired, and a clean and succinct history be gathered to which the principles of law applicable thereto may be applied,</p> <p>“ THE FACTS.</p> <p>“1. In July, 1872, and for some years prior thereto, John Rumbarger was the owner of a tract of land then situate where the borough of Du Bois is now in part located. This tract contained 175 acres, more or less, and upon the incorporation of Du Bois as a borough was in whole, or the larger part thereof, included within the borough limits.</p> <p>“2. On the day of July, 1872, John Rumbarger had surveyed and plotted a large number of lots, and made and established a plan of a village with streets and alleys; amongst other streets thereon laid out, are Main and State streets, but the plot or plan then made and found entered in Deed Book No. 24, page 449, does not embrace the locus of the dispute in this proceeding.</p> <p>“ 8. In June, 1877, John Rumbarger laid out an additional portion of the premises mentioned in the bill into burial lots and for cemetery purposes. This cemetery plot was bounded along its entire eastern side by what is called Main street, or what is a prolongation of Main street, then in the towns of Rumbarger and Du Bois ; and on the three remaining sides by other lands of'Rumbarger, part of the first mentioned premises ; and at some time (whether before or after the plotting of this burial ground does not appear from the testimony) Mr. Rumbarger subdivided the remaining portion of the premises first above mentioned into lots and blocks, and he or his heirs or executors have had conveyances made in conformity with a regular plan. Whether it was done by actual survey or simply plotted upon paper does not appear. But the fact does sufficiently appear that, before and since the death of Mr. Rumbarger,'sales have been made upon a systematic plan of some kind along Main street and the eastern and northern side of this cemetery property.</p> <p>“4. On May 25, 1880, John Rumbarger conveyed by deed to W. N. Prothero (the deed is not recorded but recited in a later one) a lot or piece of ground situate in that part of his property not covered by the original plot or plan, entered in Deed Book No. 24, page 449, as aforesaid. And W. N. Prothero and wife, by their deed dated March 28, 1881, recorded in Deed Book 19, page 326, conveyed the same to Henry Prothero. The description is as follows, viz: Beginning at a post on Main street and at lot of H. Fireman; thence in line of Main street south 27J degrees west 11 rods to a post at cemetery lot; thence by line of cemetery lot north 51 degrees west 16 rods to post in line of John Rumbarger; thence by line of John Rumbarger north 271- degrees east 9 rods to post at Fireman’s lot; thence by Fireman’s lot south-degrees east 16 rods to post at Main street, and place of beginning, containing one acre.</p> <p>“5. Du Bois borough was incorporated on Jan. 11, 1881, the charter and proceedings being recorded in the office for the recording of deeds in Clearfield county, Pa., in Miscellaneous Book E, page 207, but no plot or plan is attached thereto by which any streets or alleys are designated or set out, but it includes all of the above mentioned premises of John Rumbarger, with lands of John Du Bois.</p> <p>“ 6. Some time after the plotting of the original cemetery lot by Rumbarger, in 1877, and prior to 1883, (the time does not definitely appear from the testimony, so far as we can discover,) Mr. Rumbarger added to the burial plot on the northern end, and this work seems to have been done by J. L. Vosburg, C. E., leaving the cemetery, aside from what has been added by the vendors of the complainant, known as the Prothero lot on Main street, about the same as it has been at any time since the plot surveyed by Vosburg was added; except as affected by the alleged dedication by Rumbarger of the alley in dispute, off the northern side.</p> <p>“ 7. In 1880., and down to sometime as late as 1881 or 1882, the cemetery ground was separated from the lot known as the Prothero lot, and the other lands of John Rumbarger, by an old rail fence, and this fence was the line of the lot known as the cemetery lot proper, on the northern side, and extended north to State street, or beyond, as far as the first cemetery plot extended at that time.</p> <p>“ [8. In the year 1881 or 1882, John Rumbarger, Sr., while the owner, went upon the ground and built a picket fence twenty-five feet, more or less, distant from the old fence and inside of the cemetery plot, in effect cutting- out the tier of lots, beginning at Main street and running north from and including lots Nos. 14 to 35 inclusive, or as far as the original cemetery plot.] [1]</p> <p>“ 9. A short time .prior to July 25, 1883, John Rumbarger contracted to sell and convey to one Patrick Reynolds a lot containing three acres of ground and did on that date execute a deed therefor, which describes the ground sold as follows, viz: Beginning at a post corner of State and Spring street; thence along State street south 22£ degrees west 305| feet to a post 25 feet northeast of cemetery fence; thence by a line parallel to cemetery fence north 48J degrees west 493 feet to a post; thence north 27 J degrees east 37¿ feet to post at Spring street; -thence along Spring street south 62^ degrees west 481 feet to State street and place of beginning. Containing three acres. With this deed, a draft was also delivered.</p> <p>“ 10. Some time between the 28th of March, 1881, when W. N. Prothero sold to Henry Prothero the premises described in paragraph 5, and the 25th of July, 1883, when Rumbarger conveyed to Reynolds as described in paragraph 9, State street had been prolonged westward until it reached the cemetery plot, and Spring street was also laid out,' or plotted, but not opened, on the north side of the Reynolds lot, and running nearly at right angles to State street.</p> <p>“ [11. A short time prior to July 25, 1883, and when there to sell the Reynolds’ lot, Mr. Rumbarger, in company with a surveyor and Mr. Reynolds, pointed out the alley in controversy, and the draft furnished by Rumbarger to Reynolds of his purchase, has it laid down thereon opposite the Reynolds’ property as far south as State street, and it was at that time open and fenced on both sides between State street and Main street, the point in dispute ; the alley was opened and used to some extent at least between the cemetery on one side and the Prothero lot on the other from Main street northward.] [2]</p> <p>“ [12. At the request of John Rumbarger, the borough council directed the street commissioner to do work upon this alley. There was a small amount of work done along this alley between Main street and State street at different times by the borough authorities, and there was an acceptance so far as acceptance can be made by the authorities, other than by an ordinance, of this alley as one of the alleys of the borough of Du Bois. This fact is found by the preponderance of the testimony in the case before the master. The witnesses are not contradicted by any direct evidence, only that which is negative, their reputation is not assailed and so far as we know them they are reputable men.] [3]</p> <p>“13. The deed from W. E. Rumbarger’s executors to J. A. Terpe, G. E. Grier and George Weber, calls for an alley on the northern side of the cemetery plot, between Main street and State street, over the ground in dispute, and the description is as follows, viz: Beginning at a post, corner of land of J. J. Daily on Main street; thence along Main street north 43| degrees east 393 feet to an alley; .thence along said alley north 47| degrees west 812 feet to post at another alley; thence along said alley south 48j degrees west 403 feet to post at land of J. J. Daily ; thence along land of said Daily to post on Main street and beginning. Containing 7 and 56-100 acres.</p> <p>“ [14. The deed of Henry Prothero to J. A. Terpe, G. E. Grier and George Weber, which is for the following premises, viz: Beginning at a post on Main street and at lot of M. Moore (formerly Fireman’s); thence in line of Main street-south 271- degrees west 11 rods to post at cemetery lot; thence by line of cemetery lot north 51 degrees west 16 rods to post at State street (formerly John Rumbarger’s land, vide paragraph 5); thence by State street and land of Patrick Reynolds, (formerly land of John Rumbarger, supra 5), north 27 J degrees east 9 rods to post at M. Moore’s (formerly Fireman’s) thence by M. Moore lot (formerly Fireman), south degrees east 16 rods to post at Main street and place of beginning, containing one acre, does not cover the 25 feet between the line as fixed by deed of W. N. Prothero to Henry Prothero, and the picket fence. The call in the deed for post at cemetery lot, is identically the same as in the deed mentioned in paragraph 5, and is intended for the line of the cemetery as it then was before John Rumbarger moved the picket fence back twenty-five feet to open the alley. This is clearly made to appear by reference to the deeds and the testimony of J. L. Vosburg, and that part of the examination of Robert Davie, relating to the staking done in 1885. He says, ‘ when we drove those stakes over in the alley we drove them down to keep the line,’ and when it is remembered that they only drove eight stakes along there, it becomes manifest that those stakes were driven to preserve the territory line between Rumbarger and Prothero as then existing, and, along the northern side of the twenty-five foot alley, and not the corners and lines of the cemetery lots; and the call in the deed is but a repetition .of the old call in the former deed, and could never have been intended to go beyond the old cemetery line as it existed before the alley was opened.</p> <p>“ [15. The distances and courses in the deed from Henry Prothero to Terpe, Grier and Weber, are the same as in the deed from W. N. Prothero to Henry Prothero, and the deed from W. N. Prothero to Henry Prothero did not include the 25 feet of space that lay between the old rail fence and the picket fence erected in 1882 by John Rumbarger.] [4]</p> <p>“16. An ordinance was adopted by the town council of Du Bois borough as follows, viz :</p> <p>“ ‘ Laying out and ordaining an alley in the first ward of the borough of Du Bois.</p> <p>“ ‘ Section 1. Be it ordained by the burgess and town council of the borough of Du Bois, and it is hereby ordained by authority of the same, that a public alley to be known as Cemetery alley is hereby ordained and laid out as follows: Beginning at a post on west side of Main street at a point four feet from the corner of the original cemetery plot; thence 46 degrees, 45 minutes west to the line of S tate street; thence from a point on the west line of State street directly opposite from the point of intersection aforesaid, north 46 degrees 45 minutes west to a point four feet distant from the northeast corner of the original plot of said Rumbarger cemetery; thence from a point in lot No. 38, as per said plot, twenty-four feet distant from the terminus of the last mentioned line south 46 degrees 45 minutes east, and at all points twenty-four feet distant from the aforesaid line to a post at Main street, 24 feet southwest from place of beginning.</p> <p>“ ‘ In witness whereof, the said town council have caused the same to be signed by the burgess, attested by the clerk and the seal of the borough to be affixed thereto this 19th day of February, A. D. 1892.’</p> <p>“ 17. This ordinance covers four feet of ground that is within the lines and boundaries of the deed from Henry Prothero to J. A. Terpe and George Weber, and by them conveyed to the Cemetery Company.</p> <p>“ 18. J. A. Terpe, G. E. Grier and George Weber obtained title as aforesaid (from John Rumbarger’s executor) to the cemetery plot, containing 7-f-fc acres, by deed dated April 26, 1890, recorded in Deed Book 56, page 358, and also obtained title to the Henry Prothero lot, containing one acre, by deed dated May 15, 1890, recorded in Deed Book No. 60, page 57.</p> <p>“ 19. A charter under the corporation act of 1874 for a corporation of the second class, or for profit, was obtained by J. A. Terpe, G. E. Grier, Geo. Weber, J. E. Grier, Jr., and A. L. Cole, on July 7, 1890. • The whole number of shares of stock is fifty, and J. E. Grier, Jr., and A. L. Cole in the articles of association subscribed for one share each and Terpe, Grier and Weber subscribed for sixteen shares each. The name of the corporation is ‘ The Du Bois Cemetery Company.’ The purposes of the corporation are set out as follows, viz : ‘ 2. Said corporation is formed for the purpose of “ buying, improving and selling real estate.” ’</p> <p>“ 20. By deed dated Aug. 7, 1890, recorded in Book No. 58, page 883, Terpe, Grier and Weber conveyed to the Du Bois Cemetery Co. the following described premises, viz : Beginning at a point on Main street, at comer of Henry Fireman lot, (Prothero lot northeast corner); thence along Main street 589 feet 9 inches (being a southerly course) to lot of J. J. Daley ; thence along line of J. J. Daley 843 feet more or less, to lot of J. J. Ormiston; thence to the line along line of Rumbarger cemetery 397 feet-inches ; thence along P. Reynolds to State street; thence across State street to line of lot sold by John Rumbarger to W. N. Prothero by deed dated 25th May, 1880; thence north 25| degrees east 45x7^feet; thence north 39 degrees east 114feet to line of Henry Fireman; thence south 47 !so degrees east 264 feet to Main street and place of beginning.</p> <p>“ 21. Subsequent to the date of the conveyance, viz., Aug. 7, 1890, these persons, as the cemetery company, closed the alley, at that time being open, as included in the territory covered by the deed to the cemetery company, both at the Main street end and along the land sold by Rumbarger to Patrick Reynolds on July 25, 1883.</p> <p>“ [22. The tier of lots that were thrown out by the erection of the picket fence by Rumbarger in 1882, or thereabouts,'running from Main street westerly, being, so far as it was then plotted, lots 14 to 35 inclusive, were on the outer edge of the plot. To 'cut them off did not then destroy the symmetry of the plot, nor shut up or affect in the least any driveway or footpath as planned in the general.plot, nor would the opening of the alley, as contended for by the borough, affect the original cemetery plot. It is only by the subsequent purchase of the Prothero lot and its addition to the original cemetery that the alley is made in anywise to interfere with the present cemetery as now claimed by the Du Bois Cemetery Company.] [5]</p> <p>“THE LAW.</p> <p>“ Three legal questions are involved in the consideration of this case. They may be stated as follows:</p> <p>“ (a) Did the acts done by John Rumbarger constitute a sufficient dedication of. the alley in question to public use ?</p> <p>“ (5) Did the borough of Du Bois, acting through the municipal authorities, in anj’- way accept the alley for public use ?</p> <p>“ (e) Could the complainant close it by the purchase of the Prothero lot and its annexation to the cemetery property for cemetery purpose, so as to prevent the borough authorities from re-opening the same ?</p> <p>“ 1st. It is a well settled principle of law that where, upon a sale of lots, reference is made to a map or plot upon which they are laid down and which calls for certain streets and alleys, this constitutes a dedication of these wajrs to the use of the purchasers as public ways, and the - map or plan so referred to becomes a material and essential part of the' conveyance, and is to have the same effect as though copied into the deed, and it is not material that the streets and alleys are not opened at the time: Ferguson’s Appeal, 117 Pa. 426,451, and the numerous cases cited by Paxson, Justice.</p> <p>When one sells and conveys lots according to a plan which shows them to be on streets, he must be held to have stamped upon them the character of public streets. This is sufficient to prove a dedication of the street to public use : Pearl Street, 111 Pa. 565; Birmingham v. Anderson, 48 Pa. 258; 2 Dillon, Mun. Corp., 2d ed., 503; Baker v. Chester Gas Co., 73 Pa. 117.</p> <p>“ [Nor can any distinction be drawn between that of a street or alley. It has been expressly ruled that when one, who is the proprietor of a portion of the town in which the lands lie, sells and convej^s the lots according to a plan which shows them to be on a street or alley, it creates an implied covenant of the existence of the street or alley: Trutt v. Spotts, 87 Pa. 339; Transue v. Sell, 105 Pa. 604.] [6]</p> <p>“ It is doubtless true the dedication of a private alley to public use by the owners of the land, will not make it a public alley unless it is accepted as such by the municipal authorities: Beatty’s Alley, 104 Pa. 622.</p> <p>“The reason for this is given bjr Paxson, J., in Commonwealth v. Moorehead, 118 Pa. 344, and it is ‘ because the owners of land in a township or borough cannot, for their own convenience, compel the municipality to accept a street or alley which is not demanded by the public.’ But if the municipality has once accepted it as one of the ways of the municipality it cannot after that be treated as a private way for the use of the vendor and his immediate vendees, but it is a public way open to all and all are alike affected by its existence as such.</p> <p>“ [It was practically conceded that this alley was dedicated by Mr. Rumbarger to the use of his vendee opposite the property of Patrick Reynolds, and northwest of State street, and it would have been futile to deny this fact in view of the plan or draft given by Mr. Rumbarger to Reynolds with his deed. But the great preponderance of all the affirmative evidence is that, at that time, he had opened the alley at the point in question as found in the items of facts.] [7]</p> <p>“And if nothing had been done by the municipality in acceptance of this as one of the public ways of the borough, we might be confronted with a different question than the one before us.</p> <p>“ 2d. Did the municipality of Du Bois accept this alley so as to make it one of the public ways and affected with all the legal incidents of a public alley?</p> <p>“ [Alleys are nothing more or less than highways of less width than streets, but for all practical purposes almost as important to the public enjoyment of property in a town or city as the streets.] [8]</p> <p>' “ [The facts found show that Mr. Rumbarger, after opening this alley, requested the town council, through one of the members thereof, to expend public money thereon, and that this request was favorably acted on by the council in a session held. From that time forward Mr. Rumbarger lost control over it as a private alley, and it was open to all the public. That no minutes of the town council are offered in evidence, and if it be conceded none were made, does not change the legal effect of their action. The authorities subsequently recognized their acceptance by other expenditures subsequently made thereon, and their supervision over it. What can that be but an acceptance ?] [9]</p> <p>“ [The distinction attempted by the learned counsel under the ruling of the court below and seemingly affirmed by the Supreme Court in Borough of Easton v. Rinek, 116 Pa., page 1, can only be taken to apply in questions relating to damages for the opening of streets and alleys. We think that is clearly shown in the opinion of Green, J., Opening of Brooklyn Street, 118 Pa. 640. The rule as to what constitutes dedication by the owner of the land and what is acceptance by the municipality is not affected by the ruling in Easton Borough v. Rinek, supra.] [10]</p> <p>“ [The entry upon a street or alley by the municipal authorities, by directing the proper official to expend of the public taxes and revenues thereon in order to put it in repair, is for all purposes, when done at the request of the owner of the land who originally opened it, a dedication by him to the public, and is also a binding acceptance thereof by the municipality for the use of the public: 2 Dillon, Mun. Corp., 2d ed. § 505.] [11]</p> <p>“3d. Could the complainants, after the purchase of the Prothero lot, close the alley, and, by annexation of the Prothero lot to the main burial ground, deny the authority of the borough to re-open the alley ?</p> <p>“ [The first section of the act of April 5,1849, P. L. 897, sets forth as follows: ‘ It shall not be lawful to open any street, lane, alley or public road through any burial ground or cemetery within this commonwealth, any laws heretofore passed to the contrary notwithstanding; provided that this section shall not extend to the city and county of Philadelphia.’ Under this statute the complainant claims that having succeeded in closing the alley, the court has no power to order it opened.] [12]</p> <p>“ CONCLUSIONS.</p> <p>“ Under the foregoing facts and law referred to, we conclude as follows:</p> <p>“ [l.'That there was a dedication of a space of ground twenty-five feet, more or less, wide, extending from Main street to the western end of the cemetery plot, as including the addition plotted by Vosburg, and lying between the lands sold to Patrick Reynolds and the cemetery plot, west of State street, and between the Henry Prothero lot and the cemetery lot, between State street and Main street, to the use'of the public by John Rumbarger.] [13]</p> <p>“ [2. That the borough council of Du Bois had accepted the same as one of the highways of the borough, and that it could not have been vacated except by legal proceedings only had to that end.] [14]</p> <p>“ [3. That the cemetery company could not, by the purchase of the Prothero lot, and annexing it to the cemetery, acquire the right to close the alley. That the alley, having been opened and dedicated to public use by Rumbarger, and accepted by the borough authorities, could not be closed by the cemetery coni' pany even if the description in the deeds to G. E. Grier, Geo, Weber and J. A. Terpe covered tbe alley way in dispute. Much more have they no right to close it, when these conveyances do not cover the twenty-five feet set apart by Rumbarger.] [15]</p> <p>“ [The act of 1849, § 1, has no application to the present case. That act was only intended to prevent the opening of cemeteries in use, and the desecration of ground in which the dead were buried, and not to close an alley already opened by purchasing ground on both sides of it, and then closing it without any proceedings to vacate the same.] [16]</p> <p>“ 4. That so much of the ordinance of the borough council of Feb. 19, 1891, as undertakes to cut off four feet from the southern side of the Henry Prothero lot, and extending from Main street to State street, is without due authority and therefore illegal. And while there is a remedy to the complainant at law, having assumed jurisdiction for other purposes, we may, and do, make a decree covering this point.</p> <p>“And it is therefore decreed as follows, viz:</p> <p>“ [And now, Feb. 17, 1893, so far as the findings of fact herein and conclusions of law do not agree with the learned master’s report, the exceptions to his report are sustained, and it is ordered :</p> <p>“ 1st. It is adjudged, ordered and decreed that the burgess and town council of Du Bois borough be, and are hereby enjoined and restrained from entering upon the lot of ground belonging to the Du Bois Cemetery Company, and known as the Henry Prothero lot, specifically bounded and described as follows, viz: Beginning at a post on Main street and at a lot of H. Fireman (now M. Moore), thence in line of Main street, south 27J degrees west (11) eleven rods to post at cemetery lot; thence by line of cemetery lot (this line being twenty-five feet from picket fence) north 51 degrees west (16) sixteen rods to post at State street; thence by State street and land of Patrick Reynolds north 27£ degrees east (9) nine rods to post at Fireman’s (now M. Moore) ; thence by Fireman (now-M. Moore) lot south degrees east (16) sixteen rods to post at Main street and place of beginning. And more particularly for the purpose of entering upon and taking four feet from the southern side of said described premises in width, and extending from Main street to State street, until such time as the same shall be taken by clue process of law had for that purpose.</p> <p>“2d. It is further adjudged, ordered and decreed that the preliminary injunction heretofore issued in this bill, be and is hereby dissolved, so far as the same has enjoined and restrained the said burgess and town council of Du Bois from re-opening the alley on the original location and width as laid out and opened, beginning at Main street and extending along the northern or northeastern side of the cemetery, and laid out by John Rumbarger across State street and between the lands of Patrick Reynolds and the said cemetery to the northwestern or western end of said cemetery.</p> <p>“ 3d. That the costs of this proceeding be paid by the complainants, and defendant, the borough of Du Bois, in equal proportions.]” [17]</p> <p>Errors assigned were (1-17) portions of opinion and decree as above in brackets, quoting them respectively.</p>

<p> Contract—Sale of store—Evidence. </p> <p>Defendants purchased from Krumrine, plaintiff’s intestate, a store, and undertook in writing “ to assume and pay a certain judgment or so much thereof as now remains-unpaid, or less any amount thereof that said Krumrine may be liable to pay himself; and also to pay any and all indebtedness belonging to the store, and save him harmless from the payment thereof.” It appeared that Krumrine had paid a portion of a judgment. The owner of the judgment agreed to accept defendants’ note in satisfaction of a certain amount of it. A balance of. the judgment was paid by Krumrine’s estate to the owner of the judgment. Defendants made certain payments in cash and merchandise to Krumrine on account of this balance, and finally gave him their note for the amount remaining unpaid. Held, that Krumrine’s executor was entitled to recover from defendants the amount which they owed to Krumrine on their assumption to pay the judgment.</p> <p> Evidence—Competency of witness—Offer—Act of June 11,1891—Assign-ment of error—'Practice. </p> <p>The Supreme Court will not consider an assignment of error to the rejection of an offer of testimony, if the witness offered-, is only competent under the exception contained in the act of June 11, 1891, P. L. 287, and the offer does not set forth sufficient to enable the court to determine whether or not the witness is within the exception.</p> <p>It seems that the act of June 11, 1891, merely qualifies the surviving party to testify to relevant matters occurring between or in the presence of himself and another person who is a competent witness and has testified against him in reference to such matters. By Mr. Justice McCollum.</p>

<p>Appeal, No. 430, Jan. T.,1894, by defendant, from judgment of C. P. Centre Co., Aug. T., 1890, No. 182, on verdict for plaintiff.</p> <p>Trespass'for personal injuries, caused by falling upon alleged defective sidewalk. Before Furst, P. J.</p> <p>At the trial it appeared that, on April 29, 1890, plaintiff slipped on an alleged defective sidewalk in the borough of Philipsburg, and injured herself. The case had been previously tried, appealed and reported in 156 Pa. 246, where the judgment was reversed, and new venire awarded.</p> <p>At the second trial plaintiff proposed to show by David Lohr, plaintiff’s husband, Wesley Emory and other witnesses that the next day after the accident to Mrs. Lohr, or a day or two afterwards, he and other witnesses went to the place designated by Mrs. Marin as the part of the pavement where the accident occurred, and made an examination of the pavement, to show its condition and the character of its construction and what it was made of, all for the purpose of showing the actual condition or defective and dangerous condition of this board-walk.</p> <p>Defendant objected: (1) Because the condition of the pavement three or four days after the accident occurred, ascertained by a test then made, is incompetent and irrelevant to affect the defendant with notice of its condition. (2) That the evidence does not-purport to show that the defect which occasioned the injury was apparent to all passers-by, or was apparent to observation in the exercise of reasonable supervision on the part of the officers, or had existed such a length of time that they ought to have known its condition, therefore, it is incompetent and irrelevant to affect the defendant.</p> <p>The Court: We think it is our duty to hear the evidence for the reason set forth in defendant’s objection, for the purpose of enlightening the court and jury upon the question whether or not this pavement was in good or safe condition or whether there was any defect therein, which was apparent to the passerby, so as to properly submit the case to the jury; or, in other words, upon .the duty which any municipality owes to the traveling public, not for the purpose of submitting to the jury the test applied to the pavement in order to discover any. defect as a test to fix liability. If the witness had been present when the accident occurred it seems to us the evidence as to the condition of the pavement would be proper for the jury, and would be competent testimony in the case, and an examination immediately after the accident or soon thereafter to show that the condition then was the 'same as when the accident occurred, certainly bears upon the condition of the pavement. While we don’t receive it as a test of liability, we receive it as evidence of the condition or apparent condition of the pavement at that time. Exception. [1]</p> <p>The witness Lohr testified that he had examined the pavement where plaintiff fell and found the boards loose so that if one would step on the end of a board it would tilt. But on cross-examination he testified that “ You couldn’t see anything wrong without examining it.”</p> <p>Other evidence appears by the opinion of the Supreme Court.</p> <p>Defendant’s (4th) request for binding instruction was refused. [6]</p> <p>Verdict and judgment for plaintiff in $1,800.</p> <p>Errors assigned were among others (1) ruling; (6) instruction ; quoting bill of exception, evidence and instruction.</p>

<p>Appeal, No. 127, Jan. T., 1894, by plaintiff, from judgment of C. P. McKean Co., Dec. T., 1891, No. 270, on verdict for defendant.</p> <p>Scire facias sur mortgage. Before Morrison, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above instructions.</p>

<p> Negligence—Railroads— Grade crossings—Infant—Evidence. </p> <p>In an action against a railroad company to recover damages for the death of an infant of tender years, killed at a grade crossing, the case is for the jury where there is evidence that the place where the child was killed was in a populous district at the intersection of the railroad with three streets; that no safety-gates were maintained; that the crossings were guarded by a single watchman only, who was an elderly man, and that the detached cars which struck the child were going at a rate variously estimated by different witnesses at from four to ten miles an hour.</p> <p> Contributory negligence of parent. </p> <p>In such a case where it appears that the child was a boy about four and one half years of age, the question of the mother’s contributory negligence is for the jury, where the mother testifies as follows: “ I last saw my little boy when he left the dinner table about or near one o’clock p. m. We ate in the dining-room. You go from it through the kitchen out in the yard. He said he was going out where Harry Marshall was selling shooting crackers. He had been helping him all morning. Harry Marshall lived a few doors from us, on the same side of the street towards North Queen street. He went out the kitchen way, and out through the alley, and I didn’t see him again until they brought his body home.”</p> <p> Evidence—Action of railroad company after accident. </p> <p>In an action against a railroad company for negligence at a crossing, it is proper to admit evidence to show that the company very soon after the accident erected gates at the crossing.</p> <p> Evidence—Speed of train—Competency of witness. </p> <p>Where a witness testifies that he was five hundred feet west of Lemon street, and did not see the cars after they crossed it, it is not error to refuse to permit him to testify as to the speed of the cars after the brakes were thrown off as they were nearing Walnut street crossing where the accident occurred.</p> <p> Evidence—Speed—City ordinance. </p> <p>Evidence that a city ordinance forbade trains to be run at a higher rate of speed than five miles an hour, may be considered in ascertaining whether or not the train was being negligently run, but such an ordinance is not in itself evidence of negligence.</p>

Appeal, No. 503, Jan. T., 1894, by Henry Martin, a creditor, from decree of O. C. Lancaster Co., confirming appraisement of widow’s exemption. Exception to confirmation of widow’s appraisement. The facts appear by the opinion of the Supreme Court. Error assigned was decree confirming appraisement.

<p> Trespass for deceit—False representations. </p> <p>In an action foi1 trespass for deceit the scienter must be proved, and the onty ground for recovery for the false representations is the bad faith in making them. The reasonableness of defendant’s ground for his belief in his representations cannot be called in question.</p> <p> Evidence—Forgery—Handwriting—Signature—Letters. </p> <p>In an action of trespass for deceit in certifying to the con'ectness of a signature on a check, which was in fact forged, where defendant testifies that he had seen'the depositor write, and was familiar with his signature, and that his statement to the cashier was based upon his belief founded upon this knowledge, letters of the depositor are admissible in evidence, since the resemblance of the admittedly genuine writing to the forgery on the check goes directly to the question of defendant’s good faith.</p>

<p> Lease—Oil and gas lease—Sent—Covenant of title—Outstanding title in wife—Questioning landlord's title. </p> <p>An owner of land executed an oil and gas lease for the term of ten years. The consideration was a portion of the oil, and a money rental for each paying well. The lessee covenanted to begin operations within six months from the execution of the lease, and to complete one well, or pay plaintiff the sum of five hundred dollars, and further agreed to pay one hundred and thirty dollar’s as rental until the completion of the first well. The grant was for the exclusive right to drill and bore for oil and gas. The lessee did nothing in the way of development during the first six months. The lessor demanded the rental and royalty then due, six hundred and thirty dollars. The lessor then disclosed the fact that his wife had an interest in the land. The lessee demanded that the wife should join in the lease, and the lessor assented to this, and it was agreed that the lessee should send an agent to secure the wife’s signature. This, however, was never done. It appeared that the wife was present at the negotiations which led to the execution of the lease, and that she did not then or afterwards make any objection to it. The lessee retained possession of the lease, and did not surrender it until after suit was brought for the rent, when it was unconditionally surrendered. Held, that the lessee was liable for the rent and the royalty for the first six months.</p>

<p>Appeal, No. 25, Oct. T., 1894, by plaintiffs, from judgment of C. P. Westmoreland Co., Feb. T., 1889, No. 428, in case tried by court without jury.</p> <p>Assumpsit by principal against agent’s administrator, to recover price of land sold by agent.</p> <p>The following opinion was filed by Doty, P. J.:</p> <p>“ From the evidence adduced the following facts appear:</p> <p>“ 1. The plaintiffs being the owners of a tract of land containing 151 acres, 152 perches, in Washington township, Westmoreland county, Penna., by their letter of attorney, dated Dec. 23, 1882, authorized James L. Thompson, defendant’s intestate, as follows: ‘ For us and in our names, place and stead to enter into and take possession of, make sale and convej’- all such messuages, lands, tenements and real estate, whatsoever, in Washington township, county and state aforesaid, being bounded and described as follows, to wit: .... containing 151 acres and 152 perches, to or in which we are or may be in any way entitled or interested, and to grant, bargain and sell the same, or any part or parcel thereof, for such sum or price and on such terms as to him may seem meet, and for us and in our names, to make, execute, acknowledge and deliver good and sufficient deeds and conveyances for the same, with covenants and warranty; and until the sale thereof, to let and demise the said real estate for the best rent that can be pro'cured for the same and to ask, demand, recover and receive all sums of money, which shall become due and owing to us, by means of such bargain, sale or lease, and to take all lawful ways and means for such recovery thereof,’ etc.</p> <p>“ 2\ Rjr virtue of said letter of attorney, the said James L. Thompson in his lifetime sold the coal underlying said tract of land to one R. C. McCurdy, by deed dated Jan. 80,1888, for the consideration of six thousand dollars.</p> <p>“ 3. The deed was duly recorded in the recorder’s office of Westmoreland county, on May 3, 1883, in deed book 119, page 374, and purports on its face to have been executed for the consideration of six thousand dollars, lawful money of the United States.</p> <p>“ 4. The sale in fact was made and deed delivered in consideration of the payment to the attorney in fact by the purchaser of $6,000 in the first mortgage bonds of the Westmoreland County Coal & Coke Co.</p> <p>“ 5. James L. Thompson died Sept. 5, 1888, intestate, and letters of administration were duly granted to Simon H. Grimm, the defendant, who, on October 23, 1888, filed in the register’s office an inventory and appraisement of the decedent’s estate.</p> <p>“6. At the time of the decease of James L. Thompson, he had in his custody twelve bonds of the Westmoreland County Coal & Coke Co., of the par value of $6,000, with coupons attached, due and unpaid Jan. 1, 1888, and July 1, 1888. The said bonds were the proceeds of the said sale by defendant’s intestate, as attorney in fact for the heirs of Alex. Thompson, deceased, of the real estate aforementioned.</p> <p>“ [7. The said bonds have no market value. The Westmoreland County Coal & Coke Co. became insolvent and defaulted in the payment of the interest on the bonds. Some coupons, however, were paid by the company to the said James L. Thompson and the proceeds were paid by him to the heirs of Alex. Thompson and their receipt taken therefor on Aug. 14, 1886.] [7]</p> <p>“ 8. The premises described in the deed o'f James L. Thompson, attorney in fact, etc., to R. C. McCurdy, dated Jan. 30, 1883, recorded in Westmoreland county in deed book, vol. 119, page 374, were owned as follows, to wit: Samuel Thompson, 5-16ths; Lucy Thompson, 5-16ths ; Jane Adair, 1-16th; Sarah Paul, l-16th; Alexander Gartlay, l-16th ; William A. Thompson, l-96th ; Agnes J. Thompson, l-96th; Lydia E. Walton,» wife of David Walton, l-96th; Susan C. Thompson, l-96th; Maggie Watt, wife of Georg.e Watt, 1-96th; and Loughrey H. Thompson, l-96th.</p> <p>“ 9. On Jan. 10, 1889, plaintiffs brought suit against the administrator to recover, from his intestate’s estate, the full sum of $6,000 in money. And on May 26, 1891, the parties, by their attorneys, agreed to dispense with trial bjr jury, and to submit the decision, of the above stated case to the court to hear and determine the same.</p> <p>“ 10. The cause was duly heard Oct. 12, 1892, but the decision was withheld at request of counsel, who desired to furnish a .brief of argument, and the papers were not finally delivered to the court until March 9, 1893.”</p> <p>“The following points were submitted by counsel for plaintiffs :</p> <p>“ ‘ [2. That the above named parties, with William Thompson, made and executed a power of attorney, dated Dec. 23, 1882, in which they authorized James L. Thompson to sell the said premises as in said power of attorney set forth; by virtue and in pursuance whereof the said James L. Thompson sold the said premises, for the consideration of $6,000, lawful money of- the United State of America.’ Answer: The first part of the proposition is correct. But we cannot report that James L. Thompson sold the said premises for the consideration of six thousand dollars, lawful money of the United States. The fact is otherwise.] [1]</p> <p>“ ‘ [3. The plaintiffs in this action are entitled to judgment against the said defendant, Simon H. Grimm, administrator of the estate of James L. Thompson, deceased, for their respective shares of the consideration money received by said Thompson in his lifetime, to wit, $6,000, that is to say, in the proportions set out, subject to the credits, as shown by the receipts offered by defendant to the amounts in said receipts set forth, with interest from Jan. 18, 1883.’ Refused. [2]</p> <p>“CONCLUSIONS OP LAW.</p> <p>“ The action is assumpsit, for money had and received. The claim is for the six thousand dollars, the consideration mentioned in the deed. The contention is that the attornej’' in •fact had no authority to sell except for a cash consideration and that he is concluded by the consideration named in the deed.</p> <p>“ The defence contends that in the present action plaintiffs are not entitled to recover more than the attorney actually received. That in fact whatever money was received by the defendant’s intestate, in the shape of interest or as consideration for the land conveyed, was paid to the parties entitled thereto, as is evidenced by the receipts dated Aug. 14, 1886; and that judgment for this reason ought to be rendered in favor of the defendant. To sustain this contention, we are referred to Lee'v. Wright, 14 S. & R. 105, and to Rush v. Hart, lb. 230. These actions were against trustees; and it is expressly decided that the plaintiff in assumpsit can recover no more than the defendant has actually received in money in any action for money had and received. The facts in the present case are somewhat different. The defendant’s intestate was the attorney in fact. As such agent his duties are clearly defined, and so are his liabilities. The principle laid down in Opie v. Serrill, 6 W. & S. 269, applies more certainly to the facts of this case, and the attorney would be liable for the money he ought to have received. If the instructions were clearly violated and the land sold for bonds without authority, an action of assumpsit would likely lie for the amount of the consideration. In the view we take of this case, it is unnecessary to dispose of it on this technical ground.</p> <p>“ [The letter of attorney authorized James L. Thompson to ‘ grant, bargain and sell the same, or any part or parcel thereof, for such sum or price and on such terms as to him may seem meet.’ There was no other authority to make the sale. Both parties are bound by the language of the power of attorney. If the language be doubtful, it would be taken most strongly against the plaintiffs, whose language it is. There was a clear authority to sell. The only question is, whether there was any authority to make a sale for other consideration than lawful money. The word ‘ sum ’ naturally imports a sum of money, and so does the word ‘ price ’ as ordinarily understood. The latter word, however, has not necessarily such a restricted meaning. It is sometimes used in the sense of reward or equivalent. But, without basing a decision on the technical meaning of these words, there is a clause which seem? to give to the attorney ample discretionary power. ‘ And on such terms as to him may seem meet.’ This clause does not necessarily refer to the time of payment, but, we take it, it gives some discretion also as to the manner of payment. ‘ Terms ’ are the equivalent of ‘ conditions ’ in contracts. Webster defines ‘terms ’ as ‘ propositions stated or promises made, which, when assented to or accepted by another, settle the contract and bind the parties.’ The letter of attorney, therefore, if this view be correct, empowered James L. Thompson to negotiate for the sale of the farm and to sell for such price and on such conditions as to him might seem meet.</p> <p>“ Of course, if there was any bad faith on the part of the attorney in fact, the case would be different, and he would have been liable on another principle. But there is no allegation of bad faith, or negligence, on his part. The transaction was in good faith. The uncontradicted evidence shows that the coal was sold at the best price and the best terms obtainable at the time. The attorney in fact sold his own coal on the same terms and an offer was made to show that three thousand acres of adjoining coal was purchased about the same time and on like terms as to price and payment. It is true, this offer was excluded, as it did not seem pertinent under the issues, but, on the question of good faith, it would have been material. Coal fields are not infrequently taken up in this way. The money actually received by Thompson was promptly paid to the parties in interest and releases taken therefor. Part of this was the proceeds of coupons paid by the Westmoreland County Coal & Coke Co. before the default was made.</p> <p>“ We have then an action for money had and received. The evidence shows that defendant’s intestate held no money received for the use of the plaintiffs ; that if there is any liability it is by holding him responsible for what he ought to have received. The consideration mentioned in the deed as $6,000 lawful money of the United States is not conclusive. The fact is, that money was not received but, instead, $6,000 bonds of the Westmoreland County Coal & Coke Co. That James L. Thompson acted in perfect good faith is apparent, as he sold his own coal on the same terms and conditions. Under these circumstances we are not to construe the letter of attorney most favorably to the plaintiffs. The letter admits of the construction we have already given it, and it would be a great hardship to otherwise hold. All were confident of the success of the undertaking at the time, and that the company afterwards failed cannot be charged to the attorney in fact. He was constituted attorney with full discretionary powers, and having acted in good faith, there ought to be no responsibility in this or any other form of action.</p> <p>“ And now, April 8, 1898, judgment is entered in favor of the defendant.] ” [8]</p> <p>Errors assigned were (1, 2, 7, 8) portions of opinion in brackets ; admission in evidence of: (5) contract with purchaser of property for payment in bonds ; (3) finding of bonds in custody- of defendant’s intestate; (4) receipts showing that plaintiffs had received interest on the coupons after the sale and conveyance; (6) inventory and appraisement setting apart bonds for plaintiffs; quoting bills of exception, evidence and findings.</p>

Appeal, No. 45, Oct. T., 1894, by plaintiffs, from judgment of C. P. Westmoreland Co., Feb. T., 1890, No. 414, on verdict for defendant. Issue to determine validity of judgment. Before Dott, P. J. At the trial it appeared that judgment had been entered upon a bond given by defendant to plaintiffs as collateral security for the payment of certain installments of hire of a threshing machine and traction engine.

<p>Married women—Mortgage—Acknowledgment—Evidence—Acts of February 24, 1770, and May 25, 1878.</p> <p>The provisions of the act of Feb. 24, 1770, 1 Sm. 807, relating to the acknowledgment of deeds and mortgages by married women, must be strictly complied with, and this must appear in the certificate of the officer taking the acknowledgment.</p> <p>Where acknowledgments not in the language of the act have been held good, the certificates have shown that what was done was equivalent to what was in terms required, that the compliance was substantial, and that the essentials of a valid acknowledgment—the separate examination of the wife, her full knowledge of the contents of the instrument, and her voluntary consent to the execution of it—in fact existed.</p> <p>A certificate of acknowledgment of a married woman which fails to show that the deed or mortgage was read or otherwise made known to her is fatally defective.</p> <p>The act of May 25, 1878, P. L. 149, does not change the law, but provides only for reforming the certificate so that it shall conform to the facts. It cures a defective certificate, but can give no life to a defective acknowledgment.</p> <p> Equity—Reforming certificate of acknowledgment—Responsive answer —Corroborating evidence—Pleading and practice. </p> <p>A certificate of acknowledgment of a married woman to a mortgage did not state that the instalment had been read, or otherwise made known to her. The only persons present at the taking of the acknowledgment were the mortgagee, the married woman and her husband, and the magistrate. On a bill in equity to reform the certificate, defendant filed an answer denying that the mortgage was executed otherwise than as shown by the certificate of acknowledgment. Plaintiff testified that the mortgage had been read to defendant. Defendant and her husband squarely and directly contradicted plaintiff. The magistrate was dead. Eeld, that the evidence was insufficient to justify the court in reforming the certificate.</p>

<p>Appeal, No. 463, Jan. T., 1894, by plaintiff, from order of Q. S. Luzerne Co., June T., 1893, No. 89, refusing to enter judgment against defendant in default.</p> <p>Rule for judgment in default of appearance in indictment against corporation for nuisance.</p> <p>The facts appear by the following opinion of the court below, by Rice, P. J.:</p> <p>“ On May 26,1893, the constable of Yatesville borough made return that the defendant company had obstructed a public highway by dumping dirt and stones thereon and using the same for their right of way without having reconstructed the same as they are required to do by law. An indictment was sent before the grand jury which was returned a true bill. A rule to show cause why a venire facias should not issue was granted, served on a director of the defendant company, and made absolute. On October 24, 1893, a writ of venire facias issued in the following form :</p> <p>“‘To the sheriff of said county, Greeting: We command you that you cause the Lehigh Valley Railroad Company to come before our court of quarter sessions of the peace to be holden at Wilkes-Barre, in and for said county, on the 15th day of November, next, there to answer the commonwealth of Pennsylvania of a certain indictment for nuisance, and have you then and there this writ. Witness,’ etc.</p> <p>“ The sheriff made return to the writ as follows: ‘ I hereby certif}1- and return that I served this writ on the within named defendant, the Lehigh Valley Railroad Company, on the 27th day of October, 1893, by giving to W. L. Conyngham, a direct- or of said defendant company, a true and attested copy and making known to him the contents thereof, same time giving him, the said W. L. Conyngham, a director of the said Lehigh Valley Railroad Company, defendant, a true and attested copy of the indictment.’</p> <p>“ The defendant company not having appeared, the district attorney, on December 6,1893, moved for judgment by default. The question is whether the court is authorized by a statute or by the common law to enter such judgment.</p> <p>“Section 41, of the act of June 13,1836, provides: ‘That every corporation aggregate or sole, shall be amenable to answer upon a writ of summons as aforesaid.’ The reference by the terms ‘ as aforesaid ’ is to preceding sections of the same act prescribing the form of summons and authorizing judgment for default of appearance, but all these provisions relate to personal actions only.</p> <p>“ Blackstone defines personal actions to be such ‘ whereby a man claims a debt, or personal duty or damages in lieu thereof, and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property.’ Manifestly a prosecution by indictment is not a personal action within the meaning of the act of 1836, and therefore not within its provisions authorizing judgment in default of appearance.</p> <p>But it is argued that at common law, and without any statute on the subject, such judgment may be entered on an indictment against a corporation, and, as authority for this proposition, the case of Boston, etc., R. R. v. State, 32 N. H. 215, is cited. That case does decide that a summons is the only process to be issued to a corporation to appear and answer to an indictment, and that, upon default of appearance after service of such process, judgment may be rendered against the corporation. In this country, although it has always been held that the English colonists brought with them and made part of their laws the common law of England that was not unsuited to their new situation, yet it is also true that every state has its common law varying from the common law of England in greater or less degree, which variances have their source in the usages, habits, manners and customs of its people. What may be the common law of one state may not be of another, although the courts of both states may profess and declare that their unwritten law is based on the common law of England. These differences ma}r result from conflict of opinion as to what the common law of England was, or because of departures therefrom, made necessary by the differing conditions, or which have grown into use by gradual adoption and have received from time to time the sanction of the courts of justice. Undoubtedly, in deciding any common law question, there being no precedent of our own, the decision of the courts of another state, which has adopted the common law of England as the basis of its jurisprudence, is entitled to very great weight; but in determining its weight it is to be considered how far the decision of the question was affected by local conditions and usages. The New Hampshire case, however correct an exposition of the common law of that state it may be, cannot be regarded as authoritative here if we look at it in the light of these general principles. (1) The learned judge who wrote the opinion of the court concedes that at common law a distringas should have issued, and no judgment could be entered until the defendant corporation had first appeared. (2) He says the distringas was never in use in New England. In case of individuals it was a regular step to outlawry, but no process of outlawry was ever used or known there. (3) We think the ground of the decision may be summed up in the following language, quoted from the opinion: ‘We regard it as an historical fact, that judgment by default for want of an appearance after due service of a single proper process, was an original invention in New England and has existed here since a very early date after the first settlement of the country.’ Starting with the same premises, the courts of this commonwealth might possibly reach the same conclusion; although we should hesitate to say that the practice of taking judgment by default for want of appearance in a personal action could be cited as a precedent for such judgment in a criminal prosecution by indictment. But, be that as it may, in Pennsylvania the right to take judgment bjr default for want of appearance even in personal actions is given by statute and does not exist at common law. In Michew v. McCoy, 3 W. & S. 501, Chief Justice Gibson said: ‘ It is evident from this that the common law does not permit a judgment in personam to be rendered against an absent party in any case ; and every judgment for want of appearance, which is not supported by statute, is consequently irregular. . . . The practice of our courts has been modeled after that of the common pleas at Westminster, whose process is summons and distress infinite, according to the usage of the common law, and which consequently does not authorize a judgment by default for want of appearance.’ In civil suits this was long since changed by statute, but there is in Pennsylvania no statute authorizing a judgment by default in any criminal case, unless a judgment in outlawry proceedings may be so called, and certainly it was not allowed at common law. We are therefore compelled to deny the motion.”</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 155, Oct. T., 1894, by defendants, from judgment of C. P. Yenango Co., Nov. T., 1892, No. 1, on verdict for plaintiff.</p> <p>Trespass for tearing down fence and plowing over plaintiff’s right of way. Before Taylor, P. J.</p> <p>Plaintiff averred in his statement: “That he was the owner of a certain piece of land in French creek township, said county, containing four acres, which by deed dated March 5, 1876, he sold to Joseph Henderson, recorded, etc.</p> <p>“ That among other things said deed recites, to wit: 4 Said party of the first part reserves the right of road or lane from said Franklin and Mercer road along said west line and Mc-Elhinney’s east line, eighteen feet wide, to said party of the first part’s fields or orchard.’ That the defendants purchased said land from the said Henderson, with the said reservation attached. That defendants, on the 20th of June, 1892, entered upon the said reserved ground regardless of the rights of plaintiff in the premises, and plowed up the ground so reserved, and so disturbed, tore it up, and otherwise committed depredations therein, that it was rendered unfit for plaintiff’s use as a road, lane, or any other purpose. That plaintiff notified defendants of his right therein, called their attention to the reservation of it, and requested them to desist, and cease trampling ■ upon his rights, and defendants further refused to so repair the said right of way so that plaintiff could use the same. Plaintiff then, to guard and protect his rights therein, under advice, erected a fence along said right of way, for the purpose also of preventing defendants from committing further depredations, but the defendants injured, tore down, and destroyed said fence, and continued to do so, as often as plaintiff erected the same.”</p> <p>Defendants pleaded not guilty.</p> <p>At the trial the court sustained an objection to the following question asked Charles Lytle: “ Q. State whether or not the erection of a fence along the interior line of that right of way would interfere with the use of the barn.” Exception. [1]</p> <p>The court charged in part as'follows :</p> <p>“ Under this reservation in thé deed the defendant was bound to take notice of it. The deed in which the reservation was contained, was made by Moffitt on the 25th day of March, 1876. It was upon record upon the first day of April, 1876, almost twenty years ago. Being so, the defendant purchased with notice of what was in the deed. He was bound to know if there was a reservation in it, and was bound by that reservation. It seems there has never been any controversy about it till lately. [I will not decide whether this reservation is exclusive or not.] [2] Sometimes there are pretty nice questions raised by reservations and exclusions in deeds, but this is not necessary for the decision of this case.</p> <p>“ If you believe the uncontradieted evidence that this land was interfered with, and plowed up in the way testified to by the plaintiff, and the fence torn down that was built by Mr. Moffitt within the line of this right of way, as he has stated here, it is unnecessary to decide whether that right of way is exclusive in him or not. The defendant had no right to interfere with it. He had the right to go over it at any and all times, and without any interference upon the part of the defendant. [And if you find that he has plowed it up and left it in the shape that is testified to, or has taken down a fence that had been erected on that right of way, they had no right to do it, and your verdict would be for the plaintiff. The plaintiff don’t ask for anything here; it is not an item of dollars and cents. He merely wants a small item of damages.] [3] If you find nothing has been done to interfere with it then you would find a verdict for the defendant.”</p> <p>Plaintiff’s points were as follows:</p> <p>“ 1. The reservation in the deed gives to the plaintiff the exclusive right to this road or lane and the defendant would have no right to go upon it to plow it up for sowing in buckwheat or any other purpose, and the verdict should be for.the plaintiff. Answer: Taking out the word exclusive,—with the word exclusive stricken out there, we affirm that point.” [4]</p> <p>“ 2. If the jury finds that the reservation was for a road or lane, it is a reservation separate and apart from the grant of the balance of the land, and to individuate it from the balance of the land by a fence, and if defendant tore down the fence so erected, he is a trespasser and their verdict must be for the plaintiff.” Affirmed. [5]</p> <p>“ 3. If the right of way was not exclusive in plaintiff, then the defendants would not be warranted in entering upon the right, and without the consent of plaintiff plow it up, or tear down the fence erected, and their verdict should be for the plaintiff.” Affirmed. [6]</p> <p>Defendants’ points were among others as follows :</p> <p>“ 2. That if the jury believe that the fence was erected on the land of defendants, or either of them, without their or his consent, or against their or his will, after the plowing complained of by the plaintiff was done, their verdict must be for the defendants as to the trespass alleged by the plaintiff in tearing down said fence. Answer: That would be true if there was a shadow of evidence to warrant it. There is no evidence at all that the fence was erected there except upon the right of way.” [7]</p> <p>“ 3. The plaintiff’s right of way in question was not exclusive, and defendant S. S. Lytle, or defendant Charles Lytle, acting under the direction of the said S. S. Lytle, had a right to enter upon, occupy and use the ground over which said right of way extended, for every purpose not inconsistent with plaintiff’s said right of way, and might in doing so lawfully take down and remove said fence.” Refused. [8]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1) ruling; (2-8) instructions; quoting instructions, but not quoting bill of exceptions.</p>

<p>Appeal, No. 69, Oct. T., 1894, by plaintiff, from order of C. P. Westmoreland Co., May T., 1893, No. 670, striking off judgment.</p> <p>Rule to strike off judgment. Before Doty, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error ■assigned was striking off judgment and setting aside service, quoting decree, writ, service and judgment.</p>

<p> Assignment for creditors—Execution—Priority of lien. </p> <p>Where execution is issued under a judgment, and on the same day, but at a later hour, a deed of assignment for the benefit of creditors is delivered by the execution debtor to his assignee, the execution becomes a lien upon all the personal property of the debtor until the following return day; but then, unless an actual levy is made in the interval, the life of the writ expires.</p> <p> Execution—Insufficient return—Parol evidence. </p> <p>In such a case, where a paper, constituting an important portion of the sheriff’s return to the writ, has been lost, parol evidence is admissible to show the contents of the paper.</p> <p>When a writ of execution was issued, a paper enumerating and describing certain bank stock to be levied upon, was placed in the hands of the sheriff. The sheriff made the levy, but left the stock in the possession of the debtor. The sheriff made no indorsement on the writ; the list of stock was lost, and not returned attached to the writ. No other execution was issued against the debtor by other parties after the return day. Held, that parol evidence was properly admissible to prove the contents of the paper which was lost.</p> <p> Execution—National bank stock—Oonstitutional law. </p> <p>There is nothing in the constitution or laws of the United States which forbids the seizure and sale, under state laws, of national bank stock.</p>

<p>Attachment under act of 1869—Trespass—Acts of March 17, 1869 and May 24, 1887—Bond—Action.</p> <p>An attachment under the act of 1869 was issued against two persons. A rule for judgment for want of a sufficient affidavit of defence was made absolute as to a part of the claim against one of the persons, and discharged as to the other. Execution was issued upon the judgment against the first person, and the goods attached were levied upon. The second person notified the sheriff that the goods were his, but the sheriff, on being indemnified, sold them. The attachment proceedings were subsequently discontinued. Held, that the person whose goods were sold had a right to bring an action of trespass against the sheriff for the wrongful selling, and was not confined to an action upon the bond entered in the attachment proceedings.</p> <p>In such a case the sale of plaintiff’s goods was not the result of an attachment against him, but of a judgment and execution against another. It was not in violation of the condition of the bond, but of his rights entirely irrespective thereof.</p> <p>An action may be maintained on a bond given in an attachment proceeding under the act of March 17, 1869, P. L. 8, as amended by the act of Mav 24, 1887, P. L. 197, where there has been a failure to prosecute the attachment with effect, or if the attachment has been quashed, dissolved or ended; but recovery in such an action is limited to legal costs, fees and damages sustained by reason of the attachment..</p>

Appeal, No. 206, Oct. T., 1894, by-defendant, from judgment of O. P. Venango Co., Aug. T., 1891, No. 62, on verdict for plaintiff. Assumpsit for rent under written lease. Before Taylor, Ps J. At the trial there was evidence that, in 1864, D. T. Lane entered into a verbal agreement with J. A. Dewar to pay $100 per year for twenty years for the use of water power to supply and operate a factory known as the Petroleum Machine Works.

Appeal, No. 236, Oct. T., 1894, by plaintiff, from order of C. P. Clarion Co., April T., 1894, No. 146, discharging rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of a sufficient affidavit of defence in assumpsit on promissory note. Before Clark, P. J. The affidavit of defence averred: “ 1.

<p> Charge of Court—Tone of Charge—Judge's comments wpon testimony. </p> <p>While a judge may express to a jury his opinion of the weight of the testimony and its bearing and effect; and, if in his opinion the evidence is not sufficient to sustain a verdict, may give a peremptory instruction, yet whatever he does should be done directly, so that his acts may be fairly brought up for review by the party aggrieved.</p> <p>When the effect of an instruction is to take from the jury ail testimony except that of a particular witness, and to leave to the jury the construction of a paper, properly for the Court, such error is not cured by telling the jury that the whole testimony is for it to pass upon.</p> <p>A charge whose tendency as a whole is to belittle and prejudice one side, and which is not in expression and tone a judicial presentation of the case, is error.</p>

<p>Appeals, Nos. 183 and 184, Oct. T., 1894, by relator and defendant, from orders of C. P. Lawrence Co., June T., 1894, Nos. 1 and 2, on writ of habeas corpus.</p> <p>Habeas corpus to obtain custody of children.</p> <p>In the case of the minor, Glenn B. Parker, the court made the following orders:</p> <p>“Now, April 18, 1894, it is ordered, that the minor, Glenn B. Parker, be remanded into the custody of his grandfather, H. S. Blatt, there to remain until the further order of the court, with this qualification: That the father, Stanford D. Parker, shall have exclusive possession of the said Glenn B. Parker, for one whole week in three, or if the parties agree amicably they may- alternate. The selection of the weeks to be made by. Stanford D. Parker.</p> <p>“ It is further ordered that the writ of habeas corpus stand over as a pending writ, subject to such further action as may hereafter be adjudged by the court to be right and proper, in relation to the custody of said minor. It is further ordered that the wéek which the father of the minor has possession shall be concurrently with the possession of Lois Parker, so that they shall be together two weeks in three.</p> <p>“ And it is further expected that each of the parties in possession of the children, minors, will not in any way prejudice, attempt to prejudice, cause or allow the minds of the minors to be prejudiced against the opposite parties, but must act in good faith each to the. other.”</p> <p>“ And now, June 7,1894, it is further ordered that the minor, Glenn B. Parker, be remanded into the custody of H. S. Blatt, the/respondent,- there to remain until.the further order of the court with this qualification: that' the relator, S. D. Parkér, father of said Glenn B. Parker, be permitted to see said Glenn B. Parker, at all reasonable times and hours; that the writ in this case stand over as a pending writ, subject always to such further order as may hereafter be adjudged for the best interest and welfare of said minor.”</p> <p>Similar orders were made in the case of Lois Parker, remanding her into the custody of her father.</p> <p>Errors assigned were above orders, quoting them.'</p>

<p>Appeal, No. 35, Oct. T., 1894, by plaintiff, from judgment of C. P. Armstrong Co., Dec. T., 1890, No. 73, on verdict for defendant.</p> <p>Issue to determine the validity of a judgment entered on a judgment note. Before Raybubn, P. J.</p> <p>• At the trial it appeared that plaintiff was a niece of Richard Elliott, deceased. Plaintiff claimed that the note upon which judgment was entered, had been given to her in payment for services. Defendant claimed that the signature to the note had been forged. Samuel Thomas, a witness for plaintiff, testified that the note was taken by decedent from a drawer in a stand in a room in decedent’s house ; that the note was filled up by plaintiff, and signed by Richard Elliott in the presence of the witness. The witness also described in detail the furniture of the room. A. J. Elliott, a witness for defendant, and other witnesses contradicted the testimony of Samuel Thomas as to the furniture and appearance of the room.</p> <p>When plaintiff was on the stand the following offers were made:</p> <p>Mr. McCain: Miss Thomas, you have heard Mr. Elliott and Mrs. Elliott testifying about this long room at Richard Elliott’s house; they have stated it was not furnished or used as a bedroom at any time,—how is that? Mr. Patton : That is objected to as incompetent, the witness being interested, and Richard Elliott being dead. Objection sustained and exception.</p> <p>Mr. Leason: We propose to prove by the witness on the stand, Miss Sarah Thomas, the contents of the room described as the long room, for the purpose of contradicting A. J. Elliott and others who were heretofore called. Objected to, first, because it is incompetent; second, because it is not proposed to prove anything that occurred between the witness and another party living, or in the presence or hearing of another party. Objection sustained and exception. [1]</p> <p>Mr. McCain : Miss Thomas, you have heard the testimony of Mrs. A. J. Elliott in which she stated that she had waited upon your aunt in her last illness, and was there, and that you were not there as a nurse or waiting upon her,—how is that ? Mr. Patton : We object to it as incompetent, except the part that occurred with and in the presence of Mrs. A. J. Elliott. The Court: Confine yourself to that. Mr. Leason: We propose to prove, by the witness, who went and took care of Mrs. Richard Elliott in her last sickness, and also the length of time that she remained at the house of Richard Elliott from 1877 until 1887, for the purpose of contradicting A. J. Elliott and Mrs. Melinda Elliott. Mr. Patton: We object to the witness as incompetent to testify to anything, except what occurred between her and another living witness or in the presence and hearing of another witness called on our side. Objection sustained and exception. Mr. Leason: The witnesses Melinda Elliott and A. J. Elliott having testified to their presence at the house of Richard Elliott during the last sickness of Mrs. Richard Elliott, we propose to interrogate the witness as to their presence and what occurred at the house of Richard Elliott during the last sickness of Mrs. Richard Elliott, for the purpose of contradicting A. J. Elliott and Melinda Elliott. Mr. Patton : We object to the witness testifying to anything except what occurred between her and A. J. Elliott and Mrs. Melinda Elliott in their presence or hearing. Objection sustained and exception. [2]</p> <p>Mr. Leason: We propose to prove by the witness on the stand that the testimony of A. J. Elliott as to the inability of Richard Elliott to open the door is not correct. This for the purpose of contradicting A. J. Elliott. Mr. Patton: We object to the witness testifjdng to anything except what occurred between her and some living witness or in their presence or hearing. Objection sustained and exception. [3]</p> <p>Mr. Leason : We propose to prove by the witness that after the death of Mrs. Richard Elliott, the room in which she died, and in which she lay sick, was renovated and the furniture changed to some extent, among other things, that the stand described by the witnesses for the defendant was removed from the room and another square topped stand placed in its stead. This for the purpose of explaining and showing the error into which the witnesses on the part of the defendant fell, either willfully or unintentionally. Mr. Patton : That is objected to, except anything that occurred between the witness and the party already called and testifying, or in their presence or hearing. The Court: We will sustain the objection and grant you an exception. [4]</p> <p>When Mrs. Agnew was on the stand she was asked : Q. Mrs. Agnew, did Sarah Thomas ever tell you of the existence of this contract? Mr. Patton : We object to that as irrelevant, being a conversation between the witness and the plaintiff in the absence of the defendant or his representatives, and being a declaration in their favor. Mr. McCain : We propose to prove by the witness on the stand the declarations of the plaintiff in this case, for the purpose of showing the bona fide existence of the contract leading up to the signing and giving of the note in suit. This for the purpose of rebutting the testimony offered on the part of the defendants, alleging that the note is a forgery or a matter of recent date. This for the purpose of bearing on tbe credibility of the plaintiff. Mr. Patton : It is objected to as irrelevant for the reason above given. Objection sustained and exception. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Frrors assigned were (1-5) rulings on evidence, quoting bills of exception.</p>

Appeal, No. 103, Oct. T., 1894, by Commonwealth, from order of Q. S. Armstrong Co., Dec. T., 1892, No. 79,.arresting judgment on a verdict of guilty. Indictment for fornication and bastardy and for incestuous fornication and bastardy. Before Rayburn, P. J. Defendant’s points were as follows: “ 1.

Appeal, No. 287, Oct. T., 1894, by defendants, from judgment of Q. S. Armstrong Co., Sept. T., 1893, No. 88, on verdict of guilty. Indictment for nuisance.

Appeal, No. 126, Jan. T., 1894, by-defendant, from judgment of C. P. Mercer Co., June T., 1898, No. 66, on verdict for plaintiff. Appeal from justice of peace. Before Mehard, P. J. The facts appear by the opinion of the Supreme Court. JError assigned was, among others, refusal of binding instruction for defendant, quoting instruction. *

Appeal, No. 288, Oct. T., 1894, by Albert McCowin and R. J. Miller, from order of Q. S. Lawrence Co., March T., 1894, No. 39, on petition contesting election. Petition contesting election.- Before Hazen, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was decree, quoting it.

Appeal, No. 67, Oct. T., 1898, by plaintiffs, from judgment of C. P. Butler Co., Sept. T, 1891, No. 28, on verdict for defendants. Ejectment.

Appeal, No. 37, Oct. T., 1893, by defendant, from order of C. P. Butler Co., Sept. T., 1893, No. 92, dismissing exceptions to confirmation of sheriff’s sale. Exceptions to the confirmation of' a sheriff’s sale. Before Greer, P. J. From the record it appeared that, on Sept. 5,1893, 540 acres of land were sold at sheriff’s sale as the property of Robert Vanderlin, and bought in for $8,000 by plaintiffs, who held the first lien against the premises.

<p>Appeal, No. 146, October Term, 1894, by defendant, from judgment of C. P. Butler Go., December Term, 1892, No. 188, on a verdict for the plaintiff.</p> <p>Issue to determine validity of judgment. Before Greer, P. J.</p> <p>At the trial it appeared that, on Oct. 29,1892, judgment was entered against defendant, on a promissory note made on Sunday, March 3, 1889. Defendant set up as a defence the illegality of the date of the note, and also claimed that it was forged.</p> <p>J. B. Flack, a witness for plaintiff, was asked: “ Q. State whether or not your experience and skill in handwriting would enable you to determine whether a given signature was forged, or whether natural, or genuine.” Objected to as being the opinion of the witness. Received and exception noted. [4] The witness answered in the affirmative. '</p> <p>John Berg, a witness for plaintiff, was asked: “Q. State whether or not you have had such skill and experience in that line as to tell whether a note was forged and simulated, or whether it is natural and genuine.” Objected to as incompetent. Mr. Berg does not claim to be an expert. The Court: We will receive this. Exception. [5]</p> <p>The witness answered in the affirmative.</p> <p>The same witness was asked: “ Q. Will you state whether in your opinion the signature of John T. Montgomery to the note in suit, now presented to you, is a forged or simulated signature, or whether it is a natural or genuine signature? ” Objected to for the reason that Mr. Berg is not an expert, has not qualified as an expert, and his answer to this question would be incompetent. Received and exception. [6]</p> <p>The witness answered : “I am of the opinion that it is a genuine signature, that it is natural.”</p> <p>Plaintiff offered in evidence the note in suit, dated March 3, 1889, payable to John Whitmire, and purporting to be signed by John T. Montgomery. Defendant objects to this offer, for the reason that the plaintiff had not proved the execution of the note, that the burden of proof is upon plaintiff here to prove by satisfactory evidence to the jury that the note in suit was executed by John T. Montgomery, and he has not done so, neither has he shown sufficient proof to admit the note in evidence.</p> <p>Mr. Goucher: This to be followed by the genuine signatures of John T. Montgomery, for the purpose of comparison by the jury, and by testimony showing the circumstances surrounding the note in suit, tending to show its existence and genuineness.</p> <p>The Court: We think there is enough proof for the admission of the note; there is sufficient evidence to admit the note. Exception. [7]</p> <p>Peter Whitmire, a witness for plaintiff, was asked: “ Q. State whose signature that is to the first receipt on the note ? ” Objected to for reason that it has not been proven that the receipt was put on in the presence of, with the knowledge or authority of John T. Montgomery, the defendant, and that the signature to the receipt being a part thereof, the whole testimony would be incompetent. The Court: We will receive this and leave it to the jury. Exception asked and bill sealed. [8]</p> <p>The witness answered, “That is father’s.”</p> <p>Perry Gold, a witness for plaintiff, testified that lie saw defendant write his name in a hotel register. Plaintiff offered this register. Defendant objects to it, for the reason that the witness saj^s he is not acquainted with his handwriting and cannot say who wrote this signature. The Court: We will submit it to the jury. Exception. [9]</p> <p>J. B. Flack was further asked: “Q. Will you examine the writing at the top of that note, the first receipt at the top ? State how that writing compares with the signature and writing in the bod3r of the note, and whether or not, in your opinion, it was written by the same hand, with the exception of the signature.” Objected to because an expert is not permitted to compare signatures, the writings are referred to the jury for comparison, and is therefore incompetent. The Court: The witness, as an expert, would have a right to state whether the body of the note was written by the same person that signed the name, and as an expert also would have the right to state whether the receipt was in the same handwriting as that of the person who filled the note. We will receive that. Exception. [10]</p> <p>The witness answered: “I believe that whoever wrote , ‘March 8d, 1890, received on the within,’ it is in the same handwriting as the body of the note.” "</p> <p>The court charged in part as follows :</p> <p>“ One of the rules of law in a case of this kind is to determine by proper evidence the handwriting of the maker of the note, and the law has given three or four ways by which a jury can come to that conclusion. One is by the evidence of experts, [a man who has become so well versed in handwriting that he can tell whether the writing was in a free way or whether it was copied or traced]. [11] Now to a person who has had no experience it would seem1 a pretty hard task, yet we know that experience and labor and training will prepare a man to do almost anything. . . .' [The expert in handwriting takes up the handwriting and looks at the natural signature and takes up the same name where a man tries to counterfeit and from these two writings alone must determine the true from the false.] [12] [For that reason the courts and law have permitted parties in support of handwriting or in opposition to handwriting to swear and put on the stand a man who is an expert and allow his testimony to go to the jury and gives it the same weight and same force and effect as it would give the testimony of any other (expert) witness.] [13] The plaintiff in this ease called two gentlemen as experts, and you heard their testimony. One was Mr. Flack, a man of national reputation as an expert, who has given it many years study and who professes to understand from a signature, to be able to tell whether or not it is free and natural, or whether it shows signs of tracing and copying, and he has given you his opinion. The law allows that. The plaintiff has also called Mr. Berg, a gentleman of intelligence in our town here and who has had some twenty years’ experience in the banking business ; the law does not consider a man an expert who is a banker, but there is no reason that he should not be an expert and banker both. You heard his testimony, and it is a question for you whether or not he has had such experience as would enable him to tell a forged or simulated signature from a true one. Was he mistaken or right? If correct then he is a proper expert, if mistaken then he is not. [Take his testimony and say whether or not he has had such experience as would make him an expert, and would know the difference between a forged signature and true signature. The fact that he is a banker would not take off but would rather add to his knowledge.] [14] An expert is not permitted in giving his testimony to make comparisons; the law will not allow that. His knowledge and skill must be such that he can tell a forged signature from a true one. [Take ’Squire Mc-Gucken; he writes in the usual way, and I sit down and attempt to copy his name, and copy it as near as I can and send the two names to a man who does not know either of us, and does not know the true signature, the stranger is to tell which is the original writing and which is the copied writing.] [15]</p> <p>“ Another way that the law allows the determination of this matter, is by letting the jury compare; you are the Only men who compare the true and genuine signature with the false signature. The plaintiff in this case has submitted several signatures that are admitted to be the signatures of John T. Montgomery, and the second test is to determine from the two-writings, that is, the admitted signature and the doubtful signature; you are to use your own judgment. It is your dufy to take this name here and take the two signatures that Mr.. Montgomery admits he did make, and look at them and see if there is such a material difference as will convince you they are not the same ; that is your duty, gentlemen.</p> <p>“ There is another way we determine, and that is by calling men who know the handwriting of the man, and when they have shown that they have seen the defendant sign his name- and know his handwriting, then the law allows them to state-whether it is the handwriting of the defendant, and that is only their judgment. When the witness is presented and offered, the first thing he must do is to show that he knows the man and knows his handwriting or has seen him write his name. Whenever that is done it is the duty of the court to admit the witness to testify, and then his knowledge must be determined by you. . . .</p> <p>“ You will examine this note. The note is written in purple-ink, and from the appearance of the note it is for you to say whether the man that wrote the body of the note- wrote the-signature. [You will see on the back of the note a receipt. •Ifc is for yon to say whether it is the same handwriting, but from the different color of the ink it was evidently written at a different time.] [17] ....</p> <p>“ [The Supreme Court has decided, in one or two cases at least, that where a man gives a note on Sunday and judgment is entered the court will not step in. It will not interfere.] [18] [But where the note is not executed the court will not step in either, because they say we will not interfere with it. If a man makes a note on Sunday and delivers it, and it is not executed it cannot be collected, unless the man who makes the note does something to approve it. If on Monday morning he says, ‘ I will pay it as soon as I can,’ he can collect it. If a man goes around and pays the interest, that is a ratification.] [19] [If this note was made on Sunday, and if you believe it was signed by Mr. Montgomery, and if you believe that the man who signed the note wrote the receipt on the back of it afterwards on the 3d day of March, 1890, then that would be a ratification of it. If it was signed on Sunday and delivered, and the interest paid on it a year afterwards, that is a ratification of it and it is good •and can be collected.]” [20]</p> <p>Defendant’s points were among others as follows :</p> <p>“ 3. A note given on Sunday is void and there can be' no recovery upon it. Answer:. That we affirm if it has not been ■executed, but if executed the law will not interfere.” [1]</p> <p>“4. If the jury find the note in suit was executed (or given) •and delivered on Sunday by defendant, under the evidence, there •can be no recovery in this case. Answer: If the note was exe«cuted and delivered on Sunday and not executed there could be •no recovery in this case, unless it is shown by the plaintiff in the case that there was a ratification of the note afterwards, >and if Mr. Montgomery paid interest that would be a ratification.” [2]</p> <p>“ 8. The testimony of an expert who has never seen defendant write and who is not acquainted with his handwriting or signature is but an opinion, and must be so considered by the jury. Answer: We cannot affirm that in quite that shape, 'because if men testified only who have had experience as wit-messes where would we get new experts ? ” [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-3, 11-21) instructions, quoting them ; (4-10) rulings on evidence, quoting bills of exception and evidence ; (23-31) instructions, but not quoting them.</p>

Certiorari No. 194, Oct. T., 1894, by defendant, from order of C. P. Butler Co., March T., 1884, No. 12, overruling objections to the appointment of viewers. Petition for appointment of viewers. From the record it appeared that, on Dec. 22, 1883, Joseph B. Bredin petitioned the court to appoint viewers to assess damages for injuries caused by the construction of a railroad in Butler borough.

Appeal, No. 202, Oct. T., 1894, by plaintiff, from judgment of C. P. Butler Go., March T., 1894, No. 14, on verdict for defendants. Trespass for injury to land.

Appeal, No. 205, Oct. T., 1898, by defendants, from judgment of C. P. Butler Co., March T., 1893, No. 219, on a verdict for the plaintiff. Ejectment for an undivided interest in land. Before Hazes', P. J. On the trial plaintiff showed title as purchaser at sheriff’s sale of the interest of Matthew J. Brown, in whom the record title stood.

<p>Boroughs — Chief burgess—Btatutes—Bepeal—Acts of May 23, 189?,, and March 12, 1869.</p> <p>The act of May 23, 1893, P. L. 113, entitled “ An act to authorize the election of a chief burgess for three years in the several boroughs of this commonwealth” repeals the act of March 12, 1869, P. L. 344, “regulating the election of burgess and town council of the boroughs of Indiana and Brookville.”</p> <p>The two acts differ as to the manner of filling vacancies, the time of elections, the veto power and the ineligibility of the burgess for reelection.</p> <p> Public officers—Bight of legislature to abolish offices—Constitution. </p> <p>The legislature has the power to abolish or change offices which are legislative only, and not constitutional, without infringing upon any constitutional right of the possessor of the office, and without violating any duty of the legislative body.</p> <p>The legislature has the right to enact a law, the effect of which will be to deprive the chief burgess of a borough of a portion of the term of his office.</p>

Appeal, No. 303, Oct. T., 1894, by-defendant, from judgment of O. P. Indiana Co., Sept. T., 1894, No. 276, on case stated for plaintiff. Case stated to determine marketability of title to land which plaintiff agreed to sell to defendant. Before White, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was entry of judgment for plaintiff.

Appeal, No. 12, Oct. T., 1894, by defendant, from judgment of C. P. Washington Co., May T., 1891, No. 510, o.n a verdict for the plaintiff. Assumpsit to recover death benefit. Before McClung, J., specially presiding.

Appeal, No. 282, Oct. T., 1894, by defendants, from judgment of O. P. Butler Co., June T., 1892, No. 95, on verdict for plaintiff. Assumpsit on book account for services, rendered by plaintiff’s intestate, as physician, to defendant, a married woman.. Before Greer, P. J. This action came by appeal from the judgment of an alder-' man. Rose Copley is not named in the appeal as a married’ woman.

Appeal, No. 240, Oct. T., 1894, by defendant, from judgment of C. P. Butler Co., June T., 1898, No. 51, on case tried by court without a jury. Assumpsit on policy of fire insurance,. The case was tried without a jury, before Greer, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was among others entry of judgment.

<p>Appeal, No. 244, Oct. T., 1894, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1893, No. 128, on verdict for defendant.</p> <p>Assumpsit on promissory note. Before McIlvaine, P. J.</p> <p>At the trial it appeared that the action was brought upon a promissory note under seal, dated June 3,1893, at ninety days, for $750, made by defendant to the order of R. Burford, by him assigned on that day to J. M. Braden and A. S. Sprowls, Esqrs., and assigned by them on the same day to Samuel Hazlett, the use plaintiff. The execution of the note and the assignments for a valuable’ consideration were admitted. Defendant, under’ the plea of set-off, offered in evidence a judgment note of R. Burford to Town Brothers, dated May 31, 1893, for $859.40, and assigned by Town Brothers and R. A. Town to defendant, on June 3, 1893.</p> <p>The court charged in part as follows :</p> <p>“ [But now come the plaintiffs and in reply to this claim of the defendant say, granting that this $859 note was assigned on the 3d day of June, 1893, and that the title actually did pass to Mr. Fergus, the $750 .note of Burford which S. P. Fergus signed and became bound to pay, was not the property of R. Burford at the hour or time that this $859 note that is offered as a set-off became the property of Mr. Fergus. They say that R. Burford’s $750 note, which he held against S. P. Fergus,-was assigned to Messrs. Braden and Sprowls before Samuel Fergus got the title to this $859 note. Now, the law, as we understand it, casts the burden on the use plaintiff, if there is a dispute as to the hour of the assignment on this 8d day of June, to show that the assignment of the $750 note was before the time the $859 note was assigned to Fergus. We say the burden of proof is on the use plaintiff.] [1] The law allows a man who owes money on a note to buy the payee’s paper for the purpose of setting it off until he has notice that the title to the note he gave, and the right to collect the money thereon, has passed from the payee into somebody else. He can presume that his note remains in the hands of him to whom he became obligated to pay the money. The defendant in this case had a right to presume that the $750 note was still in the hands of Burford until he had notice that it had left them. Now, the question that arises on this branch of the case is, was this note that Fergus signed and gave to Burford, or the claim or the debt that the note represents, assigned to Mr. Braden and Mr. Sprowls, on a day or at an hour preceding the time that Fergus got the legal title to tile Town note. You have heard the testimony in regard to this dispute and the comments of counsel, and if you are satisfied that Mr. Fergus bought the Town note so as to put the legal title into him, and are satisfied that he bought it and got title before he had any notice of the assignment of the R. Burford note of $750 to Braden and Sprowls, then we say he would have a right to make such purchase, believing that his note still remained in the hands of Burford, and to use it as a set-off against the same. On the other hand, if you are satisfied that Mr. Fergus, or Mr. Don-nan, who appears to have been his active agent in the whole transaction, had notice of the assignment of the Burford note to Mr. Braden and Mr. Sprowls before this title vested in Fergus, then your verdict ought to be for the plaintiff, because Mr. Fergus would be too late in making his purchase, and he could not use his note as a set-off, because, after he had notice, he had no right to buy the note for that purpose.”</p> <p>Plaintiff’s points were among others as follows :</p> <p>“ 1. Before the defendant can use the Town note as a set-off in this case, he must satisfy the jury by a preponderance of evidence that he was the bona fide holder of that note before he or his attorney had notice of the assignment of the Burford note to Braden and Sprowls. Answer: This point, as drawn, is refused, as an unqualified affirmance might mislead the jury. It is true that the jury must be satisfied by a preponderance of the evidence that the defendant was a bona fide holder of the Town note before he or his attorney had notice of the assignment of the Burford note to Braden and Sprowls, but if the defendant has shown to the satisfaction of the jury that he was the bona fide holder of the Town note before his note to Burford became due, then the plaintiff must show that the Burford note was assigned to Braden and Sprowls (if the note does not already appear in the evidence) before the defendant became the bona fide owner of the Town note.” [2]</p> <p>“ 2. The burden of proof is on the defendant to show that he had a right to use the Town note as a set-off before he or his attorney had knowledge of the assignment of the Burford note to Braden and Sprowls. Answer: Refused. The burden of proof is on the defendant to show that he became the owner of the Town note before his note to Burford became due, and before suit was brought; this will entitle him to his set-off unless it appears in the evidence that he or his attorney had notice of the assignment of the Burford note to Braden and Sprowls before he became the owner of the Town note.” [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) instructions, quoting them.</p>

<p>Petition for mandamus to Hon. Nathaniel Ewing, P. J., Q. S. Fayette Co. Before Sterrett, C. J., Green, Williams, McCollum, Mitchell, Dean and Thompson, JJ.</p> <p>The petition was as follows :</p> <p>“The petition of David D. Johnson, of Wharton township, Fajmtte county, Pennsylvania, respectfully represents :</p> <p>“ That he is the owner of the ‘ Hart Distillery,’ known in the Internal Revenue Regulations of the United States as Distillery No. 19, situate in Wharton township, Fayette county, Pennsylvania, one of the oldest distilleries in said county, and Avhich has been used and operated for almost or quite a half century with few intermissions.</p> <p>“ That on February 11, 1893, at No. 121 March Sessions, 1893, in the Court of Quarter Sessions of Fayette county, Pennsylvania, your petitioner filed his petition, bond and justification of sureties for a distiller’s license in the first Avard of the borough of UniontoAvn, said county, for the year beginning May 1, 1893, and ending April 30, 1894, in compliance with the acts of assembly, and the rules of court of said county, in such cases made and provided. That said petition was signed by a large number of the leading citizens of Faj-ette county, asserting that the applicant was a citizen of the United States, of temperate habits, and of good moral character, and praying the court to grant petitioner a distiller’s license, authorizing him to manufacture, distill and sell spiritous liquors and admixtures thereof in quantities not less than one gallon, in such manner as is provided by the laws of this commonwealth. That said petition set forth specially all matters required by the various paragraphs of section 4, of the act of assembly of June.9, 1891, P. L. 257, under which said application was made. That an additional petition was filed March 8, 1893, signed by a large number of the qualified electors of Wharton township, certifying to the good moral character of the applicant and to his fitness to be intrusted with such a license. That no remonstrance or objection of any kind was filed or made against the granting of the license, and that the fitness of the applicant to receive and hold such license was in no way questioned.</p> <p>“ That on April 10,1893, the said court, Hon. Nathaniel Ewing, refused to grant said license, without finding or alleging that the papers of the applicant were not in accordance with the requirements of the act of assembly under which the application was made, or that the said applicant was not a fit person to have such license, but intimatiug that his reason for refusing said license was because the place for which said license was asked is not in the immediate vicinity of the distillery. That the applicant took an exception to this refusal and assigned the same for error and for redress appealed the matter to this Honorable Court. That a copy of the order of the court below refusing said license, and of the exception thereto, and of the assignment of error, is hereto attached and made a part hereof.</p> <p>“ That on May 10, 1893, the matter was argued before this Honorable Court in the city of ^Philadelphia, and on July 19, 1893, in an opinion by his Honor, Mr. Justice Green, reported in 156 Pa. 322, a copy of which opinion is hereto attached and made a part of this petition, this court expressed it as their opinion that the appellant’s petition for a license should have been sustained and the license granted, and your Honors thereupon made an order reversing the order of the court below refusing the license, and awarded a procedendo.</p> <p>“That on September 6, 1893, a motion to have said license granted in accordance with the opinion of this court, was filed in the court below by counsel for the applicant, and that the arguments of counsel on said motion were heard by said court on September 11, 1893, at which time the opinion of this court was fully presented to the court below.</p> <p>“ That on October 3, 1893, the court below, in an opinion and order filed, after having the opinion of this court called particularly to his attention, denied the motion to grant the license applied for and again refused to grant said license. That a copj'- of said opinion and order is attached to this petition and made a part thereof.”</p> <p>The petition prayed for a writ of mandamus.</p> <p>The opinion of the court below, referred to in the petition, was as follows:</p> <p>“ The decree of this court of April 10, 1893, refusing this application for a distiller’s license, was reversed by the Supreme Court by opinion filed July 19th last and a procedendo awarded; and we are now, by motion filed Sept. 6th, asked to grant the license. A procedendo is a direction by the court of review to the lower court to proceed to render judgment in the case in accordance with the law as laid down in the opinion accompanying the writ, and is not a command to render judgment in any specified form. Were it the latter, all we could do would be to enter the designated judgment or decree; but, as it is, we are required to examine said opinion and thereupon pronounce a decree based upon grounds therein recognized as legal and valid. We think such was our decree of April 10th last, but we then committed the error of not filing an opinion giving the reasons which influenced it, of which reasons the Supreme Court were not advised upon the ex parte hearing liad upon the appeal, and the conclusion was reached that the license was arbitrarily refused. Such is very far from being the case, and we propose here now to give, as briefly as possible but clearly, the reasons which induced our action.</p> <p>“ In disposing of license applications just prior to the passage of the acts of May 18 and 24,1887, this court had decided and determined that no wholesale or eating-house licenses were necessaiy in this county for the accommodation of the public, and all such applications were refused. This conclusion was not reached hastily or arbitrarily, but after hearings had upon the petitions and remonstrances, and upon consideration of all the facts and circumstances, and due regard had for the prevailing sentiment of the community and for the public good. This judgment'was popularly approved, and any changes in circumstances and conditions and public sentiment since have been, it is believed, largely -in its favor. When the act- of May 24, 1887, placed the licensing of distillers and brewers in the hands of the court, a grave responsibility was imposed by reason of the amount of money invested in such manufactories, and the consequent large property interests involved. We were then, and still are, of the opinion that so far as any necessity for the accommodation of the public is concerned there is no practical difference between wholesale and manufacturers’ licenses, the privileges being so nearly the same, and, consequently, that both should be refused as unnecessary. But we were unwilling to be made the instrument of injuring private property to the extent which that ruling would require, since it would have almost destroyed the distilleries and breweries then in existence in the county. So, when the owner of this distillery made application in 1888 for a license for a place in Uniontown, we granted the license, notwithstanding it was remonstrated against as unnecessary for the accommodation of the public, and such was our judgment and opinion. And we did likewise in similar cases. But we soon found that practice to be productive of public evil and very objectionable, and we sought diligently for some solution of the problem. After study of the question and of all interests involved, we found that the existing manufactories were so located and distributed over the county as to probably occasion the least public injury, and yet be able to carry on business, if their licenses were asked and granted for places only in the immediate locality of the respective manufacturing establishments. This would largely conserve such manufacturing interests, and yet would prevent the multiplying of licensed places in those localities where decidedly the greatest injury to the welfare of the general public would follow. We, therefore, determined to enforce our judgment as to the lack of any necessity for such licensed places for the accommodation of the public, except in those cases where the licenses were asked for places in the immediate neighborhood of the distilleries or breweries, and in those cases alone to make a concession and grant the licenses. And in the spring of 1889, while still following the course pursued the previous year, we announced this conclusion as our practice for the future, so that all would be advised of it, and could act accordingly. We thought this was fully understood by every one interested, either as attorney or applicant, and have ever since maintained that position, with the single exception presently stated. It will thus be seen that our discretion has been exercised in favor of the manufacturers, instead of against them; but such action has never been intended as any encouragement to new enterprises of that character. And since the passage of the act of June 20, 1893, permitting distillers to sell liquors of their own manufacture in original packages of not less than forty gallons without obtaining a license therefor, it is very probable that we will hereafter refuse to grant them license, the reason for our doing so in the past having thus ceased to exist. It will be noted that this late act makes the only practical distinction between wholesalers and distillers that has existed in the laws, outside of Philadelphia and Allegheny counties, at least since the passage of the act of May 24, 1887, and is evidence of the correctness of our position in classing them together. It also shows approval of our course in using our discretion in the interests of the distillers, for it must have been about the same view of their rights which we entertain that occasioned the enactment of this law.</p> <p>“ The exception referred to above was made in 1890, when the owner of this same distillery—which is a small one located in Wharton township—made application for a license for a place in Uniontown again, and, when about to be refused for the reason already stated, became so importunate and promised so faithfully to restrict his sales entirely to original packages if license were granted him, that we finally concluded to accommodate him for that year and granted him a license upon the faith of his promise. . After obtaining the license he habitually violated his promise, and when we learned that fact we took advantage at the first opportunity to announce that, by reason of said violation, no license would in future be granted that distillery; and subsequent applications were refused. The present applicant is well informed on all such matters, and must have known all this before he and Thompson purchased the distillery and entire premises of five acres, as shown by the deed, in March of last year, for $500.</p> <p>“When, therefore, this application was made last spring we refused the license because, in our opinion, it is not necessary for the accommodation of the public, and for no other reason. The former owner had forfeited any claims the distillery had to our favorable consideration by breaking faith with the court, and the present owner added to the unfavorable attitude b3r seeking the license for a place far distant from the distilleiy. There remained nothing then to move us to disregard our judgment and opinion on the question of the necessity of the license.</p> <p>“We might say much and assign many good reasons in support of our opinion that this license is unnecessary, but that is not required. It is sufficient to declare that opinion and to call attention to the fact that it is based not only upon our own knowledge of the facts, but also upon that obtained from the consideration of the case as originally presented upon the petition and remonstrances in the spring of 1888, and from the contests had over the wholesale licenses generally, then and in prior years. Where, as here, the question is one of public necessity, and the circumstances and conditions remain practically unchanged, it would be useless to require remonstrances each year, and we have so announced. To go through the form of deciding the case anew at each application upon the same facts would be a mockery. And the mere change of owners could not change the view of the court on the question of the necessity.</p> <p>“ The opinion'we held last spring we still entertain, and, if it be found sound and legal in the light of the principles laid down in the opinions of the Supreme Court, it must determine our action now. After a careful examination and study of the opinion of the Supreme Court,' we believe it to fully sanction and approve our position, and to warrant us in again refusing this application. And to do otherwise would give approval to the idea that our former action was without reason. The motion will, therefore, be denied and the license refused.</p> <p>“ In conclusion we may be pardoned for stating the reasons why we did not think it necessary before to file an opinion, or to have the record disclose why the license was refused. Prior to May, 1887, both wholesale and retail licenses in this county were regulated by the acts of 1856, 1858, 1859 and 1867, and those acts remained in force as to wholesale and manufacturers’ licenses under the act of May 24,1887, by virtue of the provision therein that such licenses should be granted as is provided by existing laws. The retail act of May 13, 1887, embraces substantially the same provisions as to the power, duty and discretion of the court as the earlier acts mentioned. And the act of June 9, 1891, supplying that of May 24,1887, is identical in the title and in the section prescribing the powers and duty and discretion of the court in acting upon license applications, with the title and the similar section of said retail act, saving only that in the title it applies to wholesale (recognizing brewers and distillers as such) instead of retail dealers, and that it omits, in § 6 the words ‘ and the entertainment of strangers or travelers,’ and allows the petitioners for and against from the county at large instead of limiting them to ‘ residents of the borough or township.’ Nor is it merely a revenue act, for it is entitled: ‘An act to restrain and regulate the sale of vinous, spiritous, malt or brewed liquors, or any admixtures thereof, by wholesale.’ It seemed, therefore, that every power, duty and discretion which the court possessed in regard to the disposition of applications for retail license was also possessed with reference to all wholesale applications, unless the provision of § 6, of said act of June 9, 1891, about the necessity for the license, 'were held inapplicable in cases of brewers and distillers by reason of the proviso in the 5th clause of the 4th section. But we are advised that this very question was raised by the appellant in this case, and yet the Supreme Court say that ‘it is true that the act of 1891 does give the court power to consider the question of the necessity of the license for the accommodation of the public,’ etc.</p> <p>“ Now under said earlier acts it was held, in Conway’s Petition, 1 Atl. R. 727—an application for a wholesale license which was' refused, and there was no remonstrance and the court declined to assign any reason—that ‘ Much must be left to the discretion of the court to which an application is made for license to sell liquor. Nothing is shown in this case to prove that discretion was not reasonably and properly exercised.’ In Knarr’s Petition, 127 Pa. 554, an application for a brewers’ license under the act of May 24, 1887, where no remonstrance was filed and the license was refused and no reason assigned, an alternative writ of mandamus was refused because the granting or refusal of licenses continues, therefore, to be within the discretion of the courts of quarter sessions of the proper county, except Philadelphia and Allegheny, precisely as before. To the same effect is Nordstrom’s Petition, lb. 542.. And we did • not think the case of Prospect Brewing Co.’s Petition, lb. 523, applicable, because, in Nordstrom’s Petition, supra—when referring to Reed’s Ap., 114 Pa. 452, and other cases which decide that the act of 1867 ‘ places wholesale and retail licenses upon the same plane,' and confers upon the courts of quarter sessions the same discretion in granting or refusing a wholesale license as in the case of a retail license ’—it was said: ‘ This and some other cases were not referred to in Pollard’s Case and that of the- Prospect Brewing Co. for the reason that they had no application; we were then considering the local acts in force in Allegheny county and the city of Philadelphia; not the act of 1867, which is a general law.’ Raudenbusch’s Peti- . tion, 120 Pa. 328, and Sparrow’s Petition, 188 Pa. 116, although decisions under the retail act of May 13,1887, were considered authority because of the same provisions, as we have seen, being incorporated in the act of 1891, and they decide not only that discretion rests in the courts, but, quoting now from the syllabi, that the courts ‘Must exercise their own judgment and discretion, in the light afforded by the petitions, remonstrances and other evidence,’ and that they ‘ May in some instances act of their own knowledge, and this court will not review the manner in which such discretion is exercised.’ This power in the court is also recognized in the opinion of the Supreme Court in the case at bar, where, referring to the absence of any remonstrance, it is said: ‘ The court has not stated that they had any opinion upon these questions, or either of them,’ but we here first learn that it is necessary to state such opinion. Relying upon the other cases cited, we believed that, as in Conway’s Petition, supra, where the record disclosed no reason, the presumption would be in favor of the proper exercise of discretion by the court, and that upon appeal it would be the duty of the appellant to show the contrary. We are sorry if this is not the law. The whole license business is most troublesome and disagreeable, and it only makes it more so if, in every case where a license is refused, the reasons must be stated; for cases must and do occur where the applicants are deemed unfit to be trusted with license, and it is not pleasant in any case to be obliged to formally declare and record that fact.”</p>

<p>Lease— Oil lease—Abandonment—Ejectment.</p> <p>In an action of ejectment to recover possession of land leased under an oil lease, where defendants claim that plaintiffs had abandoned their rights under their lease, but this is denied by plaintiffs in their abstract of title, the question of abandonment is a mixed question of acts and intention, which must be submitted to the jury.</p> <p>As against any but the grantor, an abandonment is not complete until the statutory period of limitation, or the end of the term granted, and possession may be resumed by the grantee at any time previous.</p> <p> Evidence—Oil lease—Due diligence—Parol evidence. </p> <p>Where an oil lease provides that the work shall “ be prosecuted with due diligence until completion or abandonment,” the question of what is due diligence is a question of fact upon which the parties may agree apart from the writing, and parol proof of the understanding and agreement of the parties upon the subject, is proper evidence.</p> <p> Oil lease—Forfeitures—Parties—Ejectment. </p> <p>The clause of forfeiture in an ordinary oil lease is for the benefit of the lessor, and no act of the lessee can terminate the lease under the forfeiture clause without the lessor’s concurrence.</p> <p>An action of ejectment cannot be maintained against a lessee in an oil lease by a stranger on the ground that the lessee had abandoned the premises, where there is no evidence that the lessor had exercised his right to forfeit the lease.</p> <p> Ejectment—Abstract of title—Nonsuit—Evidence. </p> <p>In an action of ejectment to recover an oil lease, where the defendant set up an abandonment by the plaintiffs, and avers title in himself under the lessor, the court cannot enter a nonsuit on the ground that defendant’s title under the lessor appeared by his abstract of title, when the abstract of title had not been offered in evidence by plaintiffs. An entry of nonsuit under such circumstances would be a premature determination of the issue.</p>

<p> Decedents1 estates—Expense of tombstone. </p> <p>The expense of a suitable tombstone over the grave of a decedent is a legitimate item of credit in the account of an executor even when no provision on the subject was made in the will of the testator.</p> <p> Executors and administrators—Surcharge—Negligence. </p> <p>Executors and administrators are not liable beyond what they actually receive except in cases of gross negligence.</p> <p>Where executors employ, for the collection of a judgment, the same attornejr whom testator employed to procure the judgment, and the attorney, after collecting the debt, becomes insolvent and fails to account for it, the executors are not liable for the loss.</p> <p>It seems that if, after the executors were informed of the payment of the judgment to their attorney, they failed to take steps to collect it from him when it was possible to do so, they would be liable for the loss.</p>

<p>Appeal, No. 302, Oct. T., 1894, by plaintiffs, from judgment of C. P. Washington Co., Nov. T., 1892, No. 58, on demurrer in favor of defendant.</p> <p>Trespass for negligence.</p> <p>Plaintiffs’ amended statement was as follows:</p> <p>“ T. F. Birch and J. W. Rowland, executors of the last will and testament of Mary V. Taylor, deceased,—substituted by leave of the court under the.provisions of the 18th section of the act of April 15,1851, as plaintiffs herein in place of the said Mary V. Taylor, by whom this action of trespass was brought in her lifetime against the Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, to recover damages for injuries sustained by her through the negligence of the said Pittsburg, Cincinnati, Chicago and St. Louis Railway Company—by their attorney, T. F. Birch, complain of the said Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, defendant in this case, which has been summoned to answer the said plaintiffs in an action of trespass:</p> <p>“ For that whereas the defendant company, before and at the time of the committing of the grievances hereinafter mentioned, to wit, on the 29th day of June, 1892, was engaged in the operating of a certain railroad for carriage and conveyance of passengers between Pittsburg, Penna., and Washington, in the county .of Washington and state of Pennsylvania, for hire and reward, and whilst so operating its certain railroad, to wit, on the 29th day of June, 1892, Mary Y. Taylor was a passenger for a certain fare and reward to the said defendant company, paid by the said Mary Y. Taylor, in a certain passenger railway car of the defendant company running upon the line operated by the defendant company, between Pittsburg, Penna., and Washington, in the county aforesaid, the' car and train being the property of and operated by the said company ; thereupon the said defendant company undertook to safely carry the said Mary Y. Taylor for hire to her destination at Washington, Penna. Nevertheless, the said defendant company, its duty in this respect wholly disregarding and neglecting, so carelessly and negligently operated the said car and train that as the same was leaving Chestnut Street station on its way to Main Street station on the line of its said railroad, to wit, at the county aforesaid, the said car upon which the said Mary Y. Taylor was a passenger, by reason of its negligence was allowed to be run into and collide with another car belonging to the said defendant company. By reason of the said collision due to the negligence and carelessness of the defendant company, and the total disregard of its duty to safely carry the said Mary Y. Taylor for hire as aforesaid, the said Mary V. Taylor was suddenly and violently thrown from her seat in the said ear to the floor, by reason whereof she was injured in her spine and back, and thereby then and there became and was sick, sore, lame and disordered, and so remained and continued for a long space of time, to wit, up to the date of her death which occurred on the 28th day of March, 1893, and was'caused by and the result of the injuries she received upon the said 29th day of June, 1892; during all of which time, to wit, from the date of her injury on the 29 th day of June, 1892, to the date of her death on the 28th day of March, 1893, she, the said Mary Y. Taylor, suffered and underwent great pain and was thereby then and there hindered and pre-> vented from performing and transacting her lawful affairs or business by her during that time to be performed and transacted ; and also by means of the premises, she, the said Mary V. Taylor, was thereby then and there put to great expense, costs and charges, in the whole amounting to a large sum of money, to wit, to the sum of five thousand dollars, in and about endeavoring to be cured of the said wounds, sickness, lameness and disorders, so occasioned as aforesaid, and was by means of the premises otherwise greatly injured • and damaged. To the damage of the said Mary Y. Taylor in the sum of fifty thousand dollars.”</p> <p>Defendant demurred as follows :</p> <p>“ And now, September 22,1894, the said defendant, by Todd & Wiley, its attorneys, comes and says .that the statement is not sufficient in law to maintain the plaintiffs’ action, and it demurs thereto for the reason that the said statement discloses the fact that the said Mary Y. Taylor died as a result of the injuries averred or alleged to have been sustained at or on the 29th of June, 1892, and avers the said death to have been caused by and the result of the alleged negligence of the defendant, and that under the facts so stated, and there being no allegation that there are no minor children, the right of action did not survive to the plaintiffs, executors of the said Mary Y. Taylor, but that damages for any injury causing death shall belong to the husband, widow, children or parent of the deceased and to no other relative.”</p> <p>The court sustained the demurrer, and entered judgment for defendant.</p> <p>Error assigned was entry of judgment as above.</p>

Appeal, No. 18, Oct. T., 1894, by defendant, from order of O. P. No. 2, Allegheny Co., Oct. T., 1893, No. 225, making absolute a rule for judgment for want of a sufficient affidavit of defence. Rule for judgment for want of sufficient affidavit of defence in assumpsit for price of car load of cabbage.

Appeal, No. 26, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1890, No. 452, on verdict for plaintiff. Trespass for personal injuries. Before White, J. The facts appear by the charge of the court below, which was in part as follows : “ The first question is: Was the defendant guilty of any neg ligence ? And that, of course, is as to the driver, whether he was guilty of negligence by which the horse ran away.

<p>Appeal, No. 39, Oct. T., 1894, by defendant, from judgment of O. P. No. 2, Allegheny Co., April T., 1893, No. 640, on verdict for plaintiff.</p> <p>Trespass for loss of horse and buggy. Before White, J.</p> <p>The jury returned the following special verdict:</p> <p>“ We find for the plaintiff $365, and also find the following facts : The accident to the plaintiff was caused by the blowing of steam on a tug boat passing near the ferryboat, which frightened the horses on the ferryboat, causing the team in front of plaintiff to prance and back against plaintiff’s horse, thereby causing plaintiff’s horse to rear and back and in a frightened condition whirl around suddenly, strike the guardrail across the entrance of the wagon way with his body, breaking the rail and plunging into the river.</p> <p>“ The verdict, subject to the opinion of the court on the question of law reserved, to wit, whether upon the facts stated the proximate cause of the accident was the blowing of steam on the tug boat, in the sense that the defendant was not responsible for the accident, although the guard-rail may have been defective ; and if so, judgment to be given for defendant non obstante veredicto.”</p> <p>The following opinion was filed by White, J.:</p> <p>“ The only legal question raised at the trial and the only point presented was that of the defendant, that under all the evidence the verdict should be for the defendant, which was refused. The question of the plaintiff’s contributory negligence was submitted to the jury and found in his favor. The negligence of the defendant was alleged to be a broken and defective rail across the wagon entrance which was an insufficient guard, and in consequence thereof the plaintiff’s horse and buggy broke through and fell into the river. The evidence showed that the rail had been broken and spliced and that a new rail had been ordered before the accident, but was not furnished until a day or two afterwards. The defendant’s contention was that, admitting a defective rail, the plaintiff could not recover, because the proximate and controlling cause of the accident was the blowing of the tug’s whistle, which frightened the horses, and for which the defendant was not responsible. This is the legal question, upon the facts stated in the special verdict, which was reserved.</p> <p>“ The defendant, on the question of proximate cause, relies upon Township v. Wagner, 127 Pa. 184, and the subsequent cases of Worrilow v. Township, 149 Pa. 40; Herr v. City of Lebanon, lb. 222 j Schaeffer v. Township, 150 Pa. 145, and Kieffer v. Hummelstown Boro., 151 Pa. 310. But all these cases may be distinguished from the one at bar.</p> <p>“ In Township v. Wagner, the plaintiff’s horse was frightened at two donkeys on the road, suddenly turned roundj broke off a wheel of the wagon, ran back some distance, when the hub of the broken wheel struck a stone pile and the hind wheel dropped into a depression in the road, overturning the wagon and injuring plaintiff. The road was in good condition for a width of fifteen feet at the place of the accident and safe for all ordinary purposes. It was held that ‘ if the plaintiff’s injury was not due to any unsafe condition of the road, but to the successive accidents which befell her, and which had no connection whatever with the road or with the doings or misdoings of the supervisors,’ the township was not liable.</p> <p>“In Worrilow v. Township, the plaintiff was driving in a wagon, and to avoid two bulls that were fighting in the road he drove close to one side, when his wagon struck' a tree projecting over the road; he was thrown out and injured. As the road was sufficiently wide and safe for all ordinary purposes, the fact that the tree projected somewhat over the road, it was held, was not negligence in the township.</p> <p>“ In Herr v. City of Lebanon the plaintiff was a passenger in an omnibus going up a hill, when one of the horses fell and in his repeated struggles to get up dragged the other horse and vehicle to the side of the street and the omnibus and team went over a steep declivity, injuring the plaintiff. The street was twenty feet wide and in good condition. It was held that the proximate and efficient cause of the accident was the fall and struggles of the horse, that even if there was negligence iu not having a guard-rail at the declivity, the city was not liable, because this was such an accident (the fall and struggles of the horse) as the city was not bound to anticipate or guard against.</p> <p>“ Schaeffer v. Jackson Township was another case arising out of the same accident as Jackson Township v. Wagner, where the horse was frightened by the donkeys. It was held that although the township may have been guilty of negligence in not remedying a defect in the highway, yet in this case the township was not liable because there was a concurring outside cause (scaring at the donkeys), which was not a natural or probable consequence of not remedying the defect in the road, and not such an event as might be foreseen by ordinary foresight and to be guarded against.</p> <p>“ In Kieffer v. Hummelstown Borough the plaintiff’s horses became frightened at the firing of guns, and the horse he was riding fell on a pile of stones at the side of the road, crushing bis leg. It was held that as the road was sufficiently wide and safe for all ordinary purposes the borough was not liable, because the frightening of horses by the firing of guns was not a danger that could reasonably be anticipated, imposing a duty on the borough to guard against it. It was said that to enable a plaintiff to recover ‘ he must show that the ordinary needs of the public travel, conducted in the ordinary way, had not been anticipated and provided for, and that his injury was a natural and probable consequence of the neglect of this duty.’ J ackson Township v. Wagner, Worrilow v. Township and Schaeffer v. Jackson Township were cited and approved.</p> <p>“ This brief review of those cases shows that they were all decided on the ground that there was no responsible negligence on part of the defendants; the accident occurred from outside or extraordinary causes, against which the defendants were not bound to provide, because they were not to be anticipated or foreseen by ordinary foresight.</p> <p>“ In the case at bar it was undoubtedly the duty of those in charge of the ferryboat to guard against accidents from horses becoming frightened on the boat, for that might fairly and reasonably be anticipated. It was something that might naturally and probably be expected. No doubt for this purpose the guard-rail at the wagon entrance was provided. Horses might be frightened by the shaking and moving of the boat on the water. They might be frightened by passing boats or steam whistles on the river, and these were matters to be expected and provided against.</p> <p>“ Whether the ordinary rail used on this ferryboat was sufficient for all ordinary purposes, or was such as would have prevented this accident, we do not certainly know. I am inclined to think that the ordinary rail would have given way from the force with w'hich the horse struck it. In his fright he whirled suddenly round and struck it with his body. It would have required a very heavy and strong rail to have prevented him from plunging into the river. But the rail was defective. It had been broken and was spliced temporarily until the new rail could be procured. The very fact that a new rail had been ordered indicates that the men in charge thought it was not safe or sufficient.</p> <p>“ Upon the facts stated in the special verdict we are of opinion, on the question of law reserved, that the law is with the plaintiff, and order judgment on the verdict for the plaintiff on payment of the verdict fee.”</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2) entry of judgment on special verdict; quoting instructions, special verdict and opinion.</p>

<p> Hoad law—Streets—Ordinance—Municipalities—Practice, Q. S. </p> <p>The councils of a oity passed an ordinance for the change of grade of a street. This was done upon the assumption that the street was a city street and had an established grade under proceedings begun many years before. The object of the proceeding was to restore substantially the grade of the surface across some excavations made by the owner of the fee. As a matter of fact no street had ever been adopted or opened. Held, that, as the ordinance had been passed under a wrong assumption, and as it was impossible to change a grade upon a street which had no existence, the act of the city in attempting to do so gave the landowner no right of action under the ordinance.</p> <p>In such a case the city should pay the costs, counsel fees and expenses to which the landowner was subjected by reason of the proceedings under the ordinance, and the city should then be permitted to discontinue the proceedings to assess damages for the change of grade.</p>

<p>Appeal, No. 51, Oct. Term, 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1891, No. 320, on verdict for defendant.</p> <p>Assumpsit for goods sold and delivered. Before Collier, J.</p> <p>The court charged as follows:</p> <p>“ Under our rules of court, the plaintiffs having filed their affidavit of claims, and set out the items, and the defendant not having by his affidavit denied the items, but set up a distinct defence by way of confession and avoidance, the plaintiffs’ claim as sworn to in the affidavit, $94.25, is made out by a prima facie case. That is to say, unless the defendant makes out a defence to your satisfaction, you would find a verdict for the plaintiff, because the bill is not disputed, the bill was right and lie got the goods. Since the affidavit was filed, $39 was paid and tendered in the affidavit of defence. So the plaintiffs now would be entitled to your verdict for $55.25, unless you are satisfied that the defendant has made out its defence.</p> <p>“Now, the bill is not denied by the defendant, but he says certain items were not as they should have been and were returned. The defendant must satisfy you of that. He got the plaintiffs’ goods and it now devolves upon him to show there was something wrong with them. He cannot keep them and not pay for them; that would not be business here nor anywhere else; but he has a right to show what was the matter with them. He makes that claim, and gives you the items in his affidavit of the goods returned and reasons for it.</p> <p>“ Now, did he return these goods ? W ell, if you believe that , evidence, it is pretty strong proof he did, because you have the young lady here who put them up, and who knows the numbers, and then they follow that by a receipt of the express company, and the tracers showing that the goods were actually returned. That is the one side; and on the other, you have a denial. You determine that question, remembering Mr. Latimer must satisfy you they were returned.</p> <p>“ It is not necessary for me to go over the items of the returned goods; you have the items and can count it up. That is the first matter. If those goods were properly returned, they ought to come off this account. The defendant, in his affidavit, says those items amount to $64.50. If he has satisfied you'on that point, you will allow that on the bill, and if it comes to more than the bill, the balance you certify to the defendant. If it comes to the same, you would find for the defendant. If it does not, you give the plaintiffs the balance left.</p> <p>“ Now, we come to the large item in the ease, which is more important than the other. These black lace goods amount to $144.08, and those goods the defendant has now in his possession. He claims that he ought to have a reduction on those goods to at least what they were worth. [Now, it is undisputed that these goods were paid for shortly after they were delivered; he sent the money for them and got the discount. It is said they were only to be paid for when they were approved, and that he approved them. Well, when he paid the bill, he did not look at them to examine them. His allegation is that to get the discount he paid for them immediately.] [1] Without anything else in the case, if you get a bill of goods on approval or inspection, and you choose to pay for them and send the money, you cannot recover that money back, unless you show some good reason why, because you ought not to have sent the money until the goods were approved. Hence, it devolves upon the defendant to satisfy you that the circumstances were such as would enable him to recover that money. [He says that, by paying in a certain time, he got a discount, and that afterwards he found out the goods were not as represented, and he immediately notified them; that the plaintiffs, through their agent, agreed that they would make it all right, and that they should stay there, they did not want them sent back. If he has satisfied you of that, he would be entitled to a reduction for what was the reasonable worth of those goods, and that is all there is about it.] [2] You have the testimony on both sides, and it raises a question for you business men to determine.”</p> <p>Plaintiffs submitted 'orally the following point:</p> <p>“Under all the evidence in the case, the defendant is not entitled to his set-off.” Refused. [3]</p> <p>Verdict and certificate for defendant for $115.27, and judgment thereon. Plaintiffs appealed.</p> <p>Errors assigned were (1-3} instructions, quoting them.</p>

Appeal, No. 58, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1893, No. 79, on verdict for plaintiff. Trespass for personal injuries. Before White, J. The negligence complained of was the maintenance of a wire across defendant’s tracks by which plaintiff was struck while working on the top of a car. The facts appear by the opinion of the Supreme Court.

Appeal, No. 79, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1893, No. 666, on verdict for plaintiff.' Assumpsit on fire insurance policy.

Appeal, No. 81, Oot. T., 1894, by property owners, from order of C. P. No. 2, Allegheny Co., July T., 1891, No. 497, dismissing exceptions to report of viewers. Exceptions to report of viewers. Appellants, in their history of the case, state that the appeal is from a final decree confirming the viewers’ report in proceedings under the so-called curative act of May 16, 1891.

Appeal, No. 102, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny County, March T., 1892, No. 314, for defendant non obstante veredicto. Appeal from alderman.

Appeal, No. 106, Oct. T., 1894, by defendants, from order of C. P. No. 2, Allegheny County, Oct. Term, 1898, No. 535, making absolute a rule for judgment for want* of a sufficient affidavit of defence. Assumpsit to recover contract price for paving a portion of Versailles avenue in the city of McKeesport. From the record it appeared that the contract under which the work was done, contained a clause making the city engineer’s decision final.

Appeal, No. 107, Oct. T., 1894, by defendants, from judgment of C. P. No. 1, Allegheny County, Sept. T., 1892, No. 576, on a verdict for the plaintiff. Assumpsit for coal delivered. Before Stowe, P. J. At the trial it appeared that plaintiff, who was an owner and operator of coal mines, sold to defendants two retail coal yards in Pittsburg.

<p>Appeal, No. 112, .Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1894, No. 57, on verdict for plaintiff.</p> <p>Assumpsit to recover commissions on alleged sale of oil leases. Before Magee, J.</p> <p>At the trial it appeared that, on Nov. 12, 1892, plaintiff was employed by defendant to offer to the Eastern Oil Co. certain oil property which defendant desired to sell. On Monday, Nov. 14th, plaintiff offered the property to O’Neil, superintendent of the Eastern Oil Company at Buffalo, N. Y. Forman, the president, was in New York city. He was telegraphed to. Plaintiff telegraphed the fact of Forman’s absence to defendants, Tuesday, Nov. 15, 1892, adding that he would telegraph again that afternoon. On Wednesday plaintiff telegraphed defendant, “ Everjdhing is favorable. Will go on property Friday. Will go to Pittsburg to-night.”</p> <p>Plaintiff testified: “ Q. What did the Eastern Oil Co. say about purchasing the property ? A. They said if the property was as it was represented, they would purchase the property. Q. You mean in these statements and maps? A. Yes, sir. Q. That they would purchase the property? A. Yes, sir; I then received a message from the Woodland Oil Co. Q. Is this the message? A. Yes, sir. Message dated Nov. 16,1892, read as follows: ‘No second message from you yesterday. Must have an answer before to-night.’ Q. You say you received this message? A. Yes, sir; I received that message at half-past seven o’clock in the evening. I immediately went .to the telegraph office and wired the Woodland Oil Co. Q. State the cause of the delay. A. That message had been sent in care of George Y. Forman’s residence and had been taken to his house, and then it was taken from there to Mr. O’Neil’s house, where I was. It was delayed an hour or so. On receipt of that message I went to the telegraph office and wired the Woodland Oil Co. Q. State if this is the message you sent? A. Yes, sir. Message read as follows: ‘Your message just received. I leave for Pittsburg to-night and consider trade closed.’ ” On Thursday plaintiff went to defendant’s office and “ told Mr. Underwood, vice president of defendant company, that I had sold the property.” Then, later, when Vandergrift, president of defendant company, came in, plaintiff testified: “ I told him I had sold it, and he says ‘ They will have to pay more money for it, $50,000 more than when you went up there.’ I says, ‘I can’t help that, that is between you and them, I have ' nothing to do with that.’ I told him that I had arranged for Mr. O’Neil to come the next day and go over the property, and he said, ‘ All right, you bring Mr. O’Neil up here to-morrow morning into the office.’ ”</p> <p>No sale was subsequently made.</p> <p>The court charged in part as follows :</p> <p>“ If the authority to sell at the sum of $150,000 was withdrawn, with notice thereof given to the plaintiff,—because he ought to have notice,—before a sale had been made by him on the terms authorized, then his compensation for service based upon a sale would not be earned, but would depend upon other considerations for its ascertainment. Now Mr. Weil has stated in his argument that they do not ask anything- except the whole amount claimed, but it is dependent upon what the jury find as to whether there was a commission of 2¶ per cent agreed upon, or no agreement as to 2% per cent or to any compensation, and that it depends on the circumstances what in jmur judgment the verdict should be; if you find evidence to warrant any other consideration as a reasonable and proper compensation for the services rendered, you disregard what the parties say as to that.</p> <p>“ [It cannot be well said that, if the sale had been negotiated and agreed upon, subject to the examination of the property to be made by the purchaser as to the correctness of the representations made, and accomplished within three or four days or a week under the circumstances of this case, it would be open to the objection that the operation lacked promptness in execution, or that it was not accomplished within a reasonable time to be allowed for the exercise of the privilege conferred. upon the plaintiff. The authority conferred, however, was subject to recall at any time before sale was made, but if delayed until the purchaser had been secured, the compensation for the services would then be earned.] ” [1]</p> <p>Plaintiff’s point was among others as follows :</p> <p>“ 3. If the jury believe, from the evidence, that J. W. Vincent, the plaintiff, was authorized by the Woodland Oil Co., to offer their property to the Eastern Oil Company, for the present price of $150,000, said Eastern Oil Company were entitled to a reasonable time in which to accept or reject this proposition, and what was such reasonable time, is a question of fact for the jury.” Affirmed. [2]</p> <p>Defendant’s points were among others as follows :</p> <p>“1. If the jury believe that the price named by defendant was by the plaintiff agreed to be subject to change at any time, he is not entitled to recover, unless before he was notified by the defendants of a change in the price, he had secured a purchaser, who was willing to close the bargain on the terms proposed, without condition or delay. Answer: This point is affirmed, with the qualification that the bargain be closed on the terms proposed, without condition or delay, inconsistent or at variance with the reasonable import or terms of the authority conferred.” [3]</p> <p>“ 3. That as between the plaintiff and defendant, the plaintiff had no authority, under the evidence in the case, to hold the offer open pending investigation of the property by O’Neil, on behalf of the Eastern Oil Company. Answer: Refused. I will not say that under the evidence it was a holding, or that I could properly affirm that point.” [4]</p> <p>" 4. That under the plaintiff’s testimony to the effect that the Eastern Oil Company had agreed to purchase at $150,000, provided it became satisfied by the investigation of O’Neil of the truth of the representations as to the property, there was not such an acceptance of the defendant’s offer as would entitle the plaintiff to recover. Answer: Refused. The matter is substantially submitted to you as a matter of fact, as to whether the plaintiff is entitled to recover.” [5]</p> <p>“ 5. That under the plaintiff’s testimony to the effect that the Eastern Oil Company had agreed to purchase at $150,000, provided that it became satisfied by the investigation of O’Neil of the truth of the representations as to the property, the defendant had the right, prior to or pending such investigation, to withdraw the offer to sell at $150,000. Answer: Refused. He had the right to withdraw it, and the question is whether it was prior to, or whether he was notified; and I could not affirm that without, perhaps, misleading. By Mr. Sanderson : It does not assert as a fact, that which it is for the jury to find. Bjr the Court: I do not say that the point is vicious, but I say that the words ‘ under the plaintiff’s testimony ’ have that effect. It says under these statements, that that is the fact, and I decline to affirm it.” [6]</p> <p>“ 6. That under the defendant’s testimony, to the effect that the Eastern Oil Company had agreed to purchase, provided it became satisfied by the investigation of the truth of the representations as to the property, and under the undisputed evidence that the defendant telegraphed on Wednesday, before the time fixed for the-investigation, requiring an answer that night, the defendant was entitled in reply to a definite, complete and final acceptance of their offer. That the reply of the plaintiff was not such an acceptance, and that, as between the plaintiff and defendant, the defendant had the right to declare the offer no longer open ; and if the juiy believe that, in connection with the foregoing, the defendant did so declare to the plaintiff on Thursday, the plaintiff is not entitled to recover. . Answer; This point I decline to affirm. X am willing, however, to say to you that if, under all the evidence in the case, you find as a fact that the defendant did declare to the plaintiff that the offer was no longer open, before sale made by him of the property, there can be no recovery in this case of a commission of 2£ per cent on a sale of $150,000.” [7]</p> <p>“7. That if O’Neil had notice, prior to leaving Pittsburg, after his investigation of the property and before reporting the result to the Eastern Oil Company, that the defendants were no longer willing to sell for $150,000, the plaintiff is not entitled to recover.” Refused. [8]</p> <p>8. Request for binding instructions. Refused. [9]</p> <p>Verdict and judgment for plaintiff for $3,940.10.</p> <p>JErrors assigned were (1-9) instructions, quoting them.</p>

Appeal, No. 118, Oct. T., 1894, by garnishee, Crescent Pipe Line Co., from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1893, No. 386, on verdict for plaintiff. Attachment execution.

<p>Appeal, No. 119, October Term, 1894, by defendants, from judgment of C. P. No. 3, Allegheny Co., May T., 1893, No. 1, on a verdict for the plaintiff.</p> <p>Feigned issue to determine ownership of contents of jewelry-store. Before Porter, J.</p> <p>At the trial it appeared that, early in 1893, Edward J. Black, a retail jewelry dealer-in the city of Allegheny, was indebted to Leopold Weil & Co. He was also indebted to Goddard, Hill & Co. in the sum of $2,810. On Jan. 23,1893, Black executed and delivered to Goddard, Hill & Co., a bill of sale of the contents of his store, the consideration named in the bill of sale being $3,710. A subsequent inventory of the stock taken at cost showed the value of the stock to be about $5,200. On the day the bill of sale was executed, Black delivered the keys of the store to a member of the firm of Goddard, Hill & Co., and two employees of the firm went to the store, took charge and began the work of making the inventoiy. Black remained in the store. Plaintiffs claimed that he remained as an employee. A few days after the sale the signs bearing Black’s name were removed. On Jan. 25, 1893, Leopold Weil & Co., recovered a judgment against Black and issued an execution under which the sheriff levied upon the stock of the store. Plaintiffs claimed the property and this issue was framed.</p> <p>Defendants’ points were among others as follows:</p> <p>1. Bequest for binding instruction. Refused. [1]</p> <p>“ 3. If the jury find that the property covered by the bill of sale was worth $5,200 or thereabouts, and that the total indebtedness of Black to Goddard, Hill & Co. did not exceed $3,710, then they will be justified in inferring from this fact that the sale was not absolute and unconditional, and if they so conclude the alleged sale was fraudulent and void in law, and the verdict must be for the defendants.” Refused. [2]</p> <p>' “ 5. That the retention of Black upon the premises, and in and about the business carried on therein, and the keeping up of the signs of said Black, were circumstances from which the jury may infer that the sale was not absolute and unconditional, and that said Black was not excluded from all interest in the property in question, and if the jury so conclude, then the alleged sale was fraudulent in law, and the verdict must be for the defendants. Answer : The point as here stated is refused. If the retention of Black upon the premises was simply as an employee, without indications of ownership or control of the property, then such retention would not be improper. The removal of the signs from the building and the time when they were removed are questions for the jury to consider, with all the other testimony in the case. The purchaser would be required to remove such evidences of ownership from the building, and would only have a reasonable time to do so. If you find that the signs were permitted to remain an unreasonable time, then you will consider that fact in connection with all the other evidence in the case. And if you find that Black was retained upon the premises and continued in possession of the goods as an owner, then your verdict must be for the defendants. If you find that Black continued in concurrent possession with the purchaser, your verdict must be in favor of the defendants. If you find that the possession of the purchaser was not exclusive of any ownership or control by Black, then your verdict must be for the defendants. But if you find simply that Black was retained on the premises as the agent, and with all the indications that he was so retained, then his retention would not be fraudulent.” [8]</p> <p>Yerdict and judgment for plaintiffs. Defendants appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p> Bond—Parlies—Action—Widow and heirs—Agreement—Evidence. </p> <p>Defendant, having in his hands money derived from the estate of an intestate, executed a bond to the widow of the intestate conditioned to pay to the widow, her executors, administrators or assigns, the said sum of money with legal interest payable semi-annually. The principal of the fund belonged to decedent’s children. Held, (1) that after the death of the widow, her administrator was entitled to bring suit on the bond, and (2) that in such a suit evidence was inadmissible that the giving of the bond was in pursuance of an agreement with the children that the interest should be paid to the mother during life, and at her death the principal to the children, and that some of the children had arranged with defendant to settle concerning their respective shares, severally.</p>

<p>Appeal, No. 122, Oct. T., 1894, by-plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1891, No. 218, distributing fund in hands of sheriff.</p> <p>Petition for subrogation.</p> <p>The petition of the Phcenix Assurance Co. of London and the Western Assurance Co. of Toronto averred in substance that a verdict was rendered in the above case, March 13, 1893, for $5,675.89, and judgment entered thereon. [159 Pa. 64.] That a dispute has arisen between them and W. B. Stoughton as.to the amount of said judgment petitioners are entitled to, and that the amount has been paid to the sheriff. That the cause of action was a claim for damages against defendant for the destruction by fire of certain houses and personal property of said Stoughton, which were covered by policies of insurance held by Stoughton, being one of $2,000 on a house, made by the Phoenix Co., and three made by the Western Co., being $800 on said house, $300 on another house, and $1,500 on personal property. That said Phoenix Co. paid to said Stoughton on its policy $1,980.64, and the other company paid on its policies $792.25, $300 and $1,454.50 respectively, aggregating $4,527.36.</p> <p>That at the time of said payments said Stoughton assigned and transferred to said companies said several amounts by subrogation receipts (copies of which are attached to the petition), transferring all claims against any person arising from such loss, and subrogating said companies to his rights to the extent of the amount named in said subrogation receipts; that said action was carried on for the benefit of petitioners as well as said Stoughton, he being entitled to any loss he had sustained over and above the amount covered by the policies. That petitioners actively participated in prosecuting the suit, and that it was carried on with the understanding that Stoughton was to have whatever was recovered over the sum of $4,527.36. That Stoughton now claims the whole of the fund, but that petitioners believe they are entitled to the sum of $4,527.36 out of the fund.</p> <p>The petition prayed that $2,676.21 may be decreed to the Western Assurance Co., and $2,081.29 to the Phoenix Co.</p> <p>W. R. Stoughton filed an answer averring: That his said property was worth at the time it was destroyed by fire the sum of $9,972.77, and that his whole loss by said fire much exceeded that amount, and that he furnished proofs of loss to said companies showing his loss to be $9,972.77. That said companies then paid him the several sums alleged by them. That said policies being in the standard form contained the following clause:</p> <p>“ If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.”</p> <p>That said companies having claimed that the fire was caused by the negligence of other parties, he gave them subrogation receipts as alleged, said receipts being in the form prescribed by the insurance department. That he thereupon brought an action against the Manufacturers’ Natural Gas Co. to recover for the loss occasioned by the fire both to propertjr insured and other property not covered by the insurance,’ upon the allegation that it was caused by their negligence, and recovered a judgment for $5,575.89. That said action was marked in part for the use of said companies, but they were not parties to it in any other sense.</p> <p>He denied that there was any understanding that the companies should receive whatever might be recovered to the extent of the amounts paid to him, if it is meant that they were to ■receive the same before he should be compensated for his loss.</p> <p>He admitted that petitioners took an active part in the prosecution of the suit, and that in addition to his loss by fire he has expended the sum of $1,192.88 for counsel fees in the prosecution of said suit; that he is advised that he is entitled to the whole of said judgment, less the amount, if any, which the same and the payments of the said insurance companies exceed his loss.</p> <p>The subrogation receipts, signed by Stoughton, after acknowledging the receipt of the money paid by each insurance company, continued: “ And in consideration of such payment the undersigned hereby assigns and transfers to the said company each and all claims and demands against any person, persons or property, arising from or connected with such loss or damage, (and the said company is subrogated in the place of, and to the claims and demands of the undersigned against any person, persons or property in the premises) to the extent of the amount above named.”</p> <p>The court entered the following decree:</p> <p>“ And now, to wit, March 22,1894, this cause came on to be heard, on petition and answer, as set down by consent of parties, and was argued by counsel, and the court being of opinion that the equitable plaintiffs are entitled to receive of verdict and judgment to the extent of the several sums assigned to them by W. R. Stoughton, the legal plaintiff, to wit, the Phoenix Assurance Co., $1,980.61, and the Western Assurance Co., $2,646.75 (but not to interest prior to verdict) ; "it is hereby adjudged and decreed that the amount remaining in the sheriff’s hands, to wit, the sum of $4,771.53, being the amount of debt and interest of judgment, less $1,192.88 paid by consent of parties to J. M. Garrison, Esq. (or $5,964.41 less $1,192.88), be distributed to, and the sheriff is directed to pay said sum of $4,771.53 as follows:</p> <p>“To the Western Assurance Co., of Toronto, $2,140.97.</p> <p>“ To the Phoenix Assurance Co., of London, $1,665.03.</p> <p>“And to W. R. Stoughton, the balance of said sum, viz: $965.53.</p> <p>“ Said payments to be made at the expiration of twenty days from this date, unless an appeal shall be taken in the meantime from this decree to the Supreme Court.”</p> <p>Plaintiff, W. R. Stoughton, took this appeal.</p> <p>Error assigned was above decree.</p>

<p> Deed—•Vendor and vendee—•Incumbrances—Private way. </p> <p>Where an agreement to sell land “in fee simple clear of all incumbrances,” contains no description of the land, but refers to a deed on record which describes the land by courses and distances, and as containing “ ten acres, including a private road of twenty-five feet width, and said road containing sixty-one perches,” the use of said road being conveyed, but not the fee, the agreement is sufficiently complied with by a tender of a deed describing the land exactly as it is described in the deed on record.</p>

<p> Set-off—Gircuity of action—Equity—Practice. </p> <p>In general, in order to support a set-off there must be cross demands-between the same parties and in the same rights, such as would sustain, mutual actions against each other, yet wherever there is the practicability of avoiding circuity of action and needless costs, with safety and convenience to all parties, or where there is a special equity to be subserved, andi no superior equity of third parties will be injured, a set-off will be allowed upon equitable principles, though the case does not come within the language of the statute.</p> <p>Where one of two several sureties on a bond is sued on the bond, the-defendant, with the consent of his co-bondsman, may set off a judgment in favor of the eo-bondsman against the plaintiff.</p>

<p>Appeal, No. 133, Oct. T., 1894, by-plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1889, No. 465, on a verdict for the defendant.</p> <p>Assumpsit to recover purchase money of real estate alleged to have been sold by plaintiff to defendant. Before White, J.</p> <p>The case was originally tried in 1890, and resulted in a verdict for defendant. On appeal the judgment was reversed, and a new venire awarded: Reed v. Klaus, 152 Pa. 341.</p> <p>The facts as they appeared at the second trial are stated in the opinion of the Supreme Court.</p> <p>Mrs. Reed having died before the present trial, her deposition taken before the first trial was offered and received in evidence.</p> <p>Defendant then offered in evidence the testimony of Klaus taken on the trial of this case in January, 1890. Plaintiff objected to any testimony as to any contract or dealings with W. A. Reed respecting the property in question, ,as generally incompetent and irrelevant, he being a third party and there being no evidence in the case so far and none offered, that he was either the agent of his wife in the matter or that she was present at any of the conversations or transactions with her husband. Objection overruled and exception. [1]</p> <p>Defendant then offered Klaus’s testimony on page 82 of the printed paper-book, as follows, referring to an indebtedness and settlement with Reed, before notice of Mrs. Reed’s claim, as alleged: “ Q. Just state whether at the time of that foreclosure he settled with you or gave you anything for your services ? A. You are speaking of the ten thousand dollar matter? Q. Yes, sir. A. Well the foreclosure was made some time previous to the settlement of it; there was a suit pending. Q. How much did that realize eventually ? A. Ten thousand dollars; that was the Myers mortgage ; April 25, 1878, was the date of it. Q. Do you know where the money went to ?' A. Yes, sir; it went to the credit of Mrs. Reed in R. Patrick & Co. Q. Do yo.u know where it went from there ? A. Yes, sir; it was checked out by her from R. Patrick & Co. Q. At that time did you have a settlement with Mr. Reed for your services? A. Yes, sir. Q. And what did you get? A. I got two judgment notes. Q. What did you do with them ? A. On my visit to see him in reference to the promise of a settlement I mentioned to him the matter of allowing me to have something out of this wreck for past services, and we talked the matter over, and the conclusion of it was that he sent me by mail two judgment notes. Q. I show you a paper and ask you if that is one of the notes ? A. Yes, sir. Q. What was done with the other one ? A. The other one was entered up and is still on record in this county. Q. Have these notes ever been paid? A. No, sir.” Objected to. Objection overruled and exception. [2]</p> <p>Defendant also offered the fifth, sixth and seventh questions and the answers on page 85 as follows : “ Q. And were all the transactions, about the renting of the house, with Mr. Reed? A. Yes, sir. Q. And was the rent all paid to him? A. Yes, sir. Q. Ever a dollar paid to Mrs. Reed ? A. No, sir.” Objected to. Objection overruled and exception. [8]</p> <p>Plaintiff offered in evidence the testimony of Wm. A. Reed taken at the previous trial of this case, so far as it is competent in rebuttal. The entire testimony objected to as incompetent and as not rebuttal. Objection sustained and exception; [4]</p> <p>Plaintiff then offered in evidence the testimony of Wm. A. Reed, on page 19, appendix of the paper-book, for the purpose of contradicting defendant that he did not know the beneficial ownership of the mortgage in question was in Mrs. Reed, and for the further purpose of contradicting him as to an interview being had with Mrs. Reed in the fall of 1888, as follows: “ Q. Will you state whether at any time prior to the year 1884, you had any conversation with Mr.*Klaus in reference to purchasing this property, and what that was ? A. I had; he desired to buy the property. Q. When, first ? A. I think I was approached three or four or five times on the subject. Q. The question is when first Mr. Klaus spoke about buying tliis property and what occurred ? A. T think possibly in 1882 first, or perhaps in 1888, I can’t fix the exact date, but it was at her home in Montgomery county, and it was in thé yard outside of the house, or rather in the rear of the house ; I know it was a pleasant day and he introduced the subject, and he says, ‘ that mortgage of yours is held in trust by Mr. Patrick, but it is not as secure as it ought to be; Mr. Patrick is frequently hard up at times and quite likely you will waken up some day and find that he don’t have that,’ and then he proposed to buy it, said he would give five thousand dollars for it. Q. Do you know whether he saw Mrs. Reed about it? A. Yes, sir, he saw' her about the same time, on the same day either before or immediately after the conversation with me. Q. Did Mrs. Reed agree to sell the property ? A. She did; she thought it was best to be sold. Q. Were you present when there was any agreement to sell the property ? A. Certainly.” Objected to as not rebuttal and as incompetent. By the court: The first part of the offer will be admitted, down to the question beginning: “ I think possibly in 1882 first, or perhaps in 1883, I can’t fix the exact date.” Down to that point is admitted and the other portion of the offer is refused, because it is not in rebuttal, but was what ought to have been given as evidence in chief. Exception. [5]</p> <p>Plaintiff then offered in evidence the testimony of Wm. A. Reed, page 20, at the last question and answer, for the purpose of contradicting Mr. Klaus, as to the knowledge of the manner in which the mortgage was held, as follows: “Q. You can state whether, while in Pittsburg at that time, anything further was done with reference to this propertjq and whether you conversed further with Mr. Klaus about it? A. I did ; I saw Mr. Patrick and explained the matter to Mr. Patrick at the request of Mr. Klaus; of course, after having seen Mr. Patrick, and talking the matter over as to how we proposed to proceed in the matter, Mr. Klaus agreed to buy the property for five thousand dollars and have the title made through Mr. Hahn as I have already stated.” Objected to, first as incompetent and irrelevant and not rebuttal, and second, as not sustaining the purpose of the offer. Objection sustained and exception. [6]</p> <p>Defendant offered the testimony of Albert L. Klaus, page 91, third and fourth questions and answers, as follows, in surrebuttal: “Q. Was it (stock in the Fulton Mfg. works) transferred to Mr. Reed? A. Yes, sir; only as we agreed upon; our agreement in the first place. Our agreement was in the first place that in order to save it from attaching creditors of his, I was- to carry it and he to take a few shares of stock in his name to enable him under the law to act as president—to make him eligible as president. Now at the time of the Canton Tool Co. arrangement there was a further arrangement, and it was agreed that we were to organize a new company known as the Fulton Tool Manufacturing Co., and this stock which he was to have in that was to follow the same proportion as in the Canton Co. The capital stock was to be increased to $25,000, and I was to make up in cash, or rather the cash that I was to put in to run the works was to be a credit-for capital stock, and the balance was to be sold, but if we could sell the stock to any outside parties we were to sell it in order to increase its capital to $25,000. Q. What was the object in carrying him in your name ? A. To protect it from execution.” Objected to as not surrebuttal. By the Court: We will admit that portion of the long answer down to the words, “ to make him eligible as president,” and also the last question and answer. [7]</p> <p>The court charged in part as follows:</p> <p>“ [The contention on the part of the defendant is that he never made any contract at all with Mrs. Reed; that Mrs. Reed did not own that mortgage, but that'he bought the property under an arrangement with Wm. A. Reed, the husband. He does not claim to hold this property and not pay for it to anybody. He admits his liability to pay Wm. A. Reed for the property. It seems that since he got the sheriff’s deed, sometime after that, he sold the property, and sold it, perhaps, at an advance over the $5,000, but he does not stand here claiming to keep this property and pay nothing for it. Under his own testimony he would be liable to pay to Wm. A. Reed the price agreed upon, $5,000. If the plaintiff should be defeated in this action, it does not enable him to keep that property and pay nobody for it. Under his testimony he would be liable to pay Mr. Reed himself for it. It has cropped out, although we have not gone very extensively into the testimony, that the defendant alleges he paid Mr. Reed a portion of the consideration money at the time, or shortly after he made the contract, and that through dealings with Mr. Reed he would have a good defence against the whole- of this purchase money. That is his position.] [8]</p> <p>“ I intimated to the counsel before they commenced their argument—because I frequently do that—what the rulings of the court would be, so that the counsel could address the jury in view of what the rulings of the court would be. I said to them that there were three questions in this case. [First, did Mrs. Reed own that mortgage ? If she did not, then the plaintiff cannot recover here, because the very foundation of her claim is that she owned that mortgage of $2,800 against her husband. It was on the basis, according to her own testimony, of being the owner of that mortgage—making the arrangements with the defendant for the sheriff’s sale, and that finally he should get the title when he would pay the $5,000—that she brings this suit. Hence if the foundation of her whole claim falls to ruin, her claim falls.] [9] That is the first question for you to consider. She testifies that her money was invested in that mortgage of her husband. The mortgage was originally given to Heckman, who was the owner of the property and sold it to William A. Reed. I believe the mortgage was payable in three annual installments. Heckman transferred the mortgage, it seems, to a building and loan association, arid it passed through two or three assignments before it was assigned to a man by the name of Handel. That was in 1875, and Mrs. Reed testifies that the money was paid to Mr. Handel; I think she said in her house, or perhaps she handed it to him, and that he was to act as her agent, for that reason the mortgage was transferred over to Mr. Handel. As I have said, that was in 1875. Two years after that, I believe in 1877, Handel transferred that mortgage to W. W. Patrick, and it stood in the name of W. W. Patrick until 1884; some time in January, I believe, or perhaps about the 1st of January, Patrick transferred the mortgage to a man by the name of Hahn, and then Hahn, under arrangements with counsel, had proceedings instituted by attorneys Miller and Erskine, when judgment was obtained against Reed, the husband, on the mortgage, and execution issued, and finally the property sold about the 1st of March of 1884. The 27th of March, 1884, I believe, is when Hahn made the title over to Klaus. [Now there was no reason why the mortgage should not have been transferred directly to Mrs. Reed in 1875. If her money paid the person who held the mortgage at that time, there was no reason why she should not have had the mortgage transferred directly to herself. There was no illegality in that; it would have been a valid claim. Perhaps it may be said that she did not want to appear as holding the mortgage against her husband.] [10] So when Handel transferred that mortgage in 1877 to W. W. Patrick it could then have been transferred directly to Mrs. Reed, or it could have been understood that it was transferred to Patrick as trustee, but it remained in Patrick’s hands until 1884, when it was transferred to Hahn, nothing then appearing on the face, pf the paper that it was to Hahn as trustee. Hahn testifies he, did not pay Patrick for the mortgage, except $500, which money he got from Klaus, and he gave three notes of $1,000 each,, nominally to pay Patrick for the transfer of the mortgage, and after the sheriff’s sale these notes were handed back to him,, so that in point of fact Hahn never paid one cent of his own money on the transfer of the mortgage from Patrick. The money he did pay was furnished by Klaus, and the three notes given to Patrick were, after the sale, handed back to Hahn. I cannot see why that arrangement was made, but still, if it was made there was nothing illegal in it. [I refer to these notes as bearing on the question whether this mortgage in 1884, or December, 1888, was the mortgage of Mrs. Eliza J. Reed. Was she the owner of that mortgage at that time, or was it still a claim against Wm. A. Reed? If her money was not invested in that mortgage, if she did not own that mortgage, then I say to you she cannot sustain this action, because her action is based upon the allegation that she owned the mortgage, the money was coming to her, and this arrangement with Klaus was made to secure her money—perhaps secured more. No difference about that, however. The mortgage was for $2,800. It had a great many years to run. If no interest was paid in the meantime, of course the interest would accumulate. That is the plaintiff’s, claim.] [11]</p> <p>“ Now the defendant denies that- he made any contract whatever with Mrs. Reed. She said in'her deposition that that contract was made in Montgomery county; that he came there to ■ see her and suggested to her that she had betteT gpt this mortgage out of Patrick’s hands because he was shaky; she might wake up some morning and find the property gone, and that he would buy it and pay her $5,000 for it, and suggested this plan of a sheriff’s sale by which he could get the title. [It has cropped out in the testimony that Mr. Reed himself was involved. Mr. Klaus testifies, and I believe that is not contradicted, that he could not hold property in his name, and that was the reason why he explains that he, Klaus, held an interest in the tool works in Ohio in his name, because Mr. Reed could not hold it in his own name. Of course, if the property had been sold at sheriff’s sale for more than would pay off the mortgage, and it had never been transferred to Mrs. Reed, the balance would be coming to Mr. Reed, and if he was in debt, perhaps creditors might get hold of it, but Mr. Klaus says he made the arrangement directly with Mr. Reed in December, I believe, of 1883. Mr. Reed, it seems, was out of business, according to some of the testimony. He had been a prominent man in Allegheny and had gone to his wife’s farm in Montgomery county.] [12] According to Mr. Klaus’s testimony, and some others, he wanted to get into some kind of business, and the son-in-law, Mr. Klaus, was willing to help him. Mr. Klaus says he made the arrangement with Mr. Reed to buy this property, and accomplished it through the same process, by having the mortgage transferred to Hahn, sheriff’s sale, and then the title came to him. He denies that he ever had any conversation at all with Mrs. Reed; denies that he was in Montgomery county at the time she specifies. Patrick’s bookkeeper testifies that he thinks Klaus was every day in the banking house of Patrick except some days in August. These are questions for you, because these two statements are utterly irreconcilable. [If Mrs. Reed’s statement is true, then Mr. Klaus’s statement is utterly untrue. If Mr. Klaus’s statement is true, then Mrs. Reed’s statement is utterly untrue. I cannot see how they can be reconciled. If you cannot reconcile them, then you look at all the other testimony in the case, and at the reasonableness and probability of the theories or explanations made by the different parties.] [13] [If Mrs. Reed did not own the mortgage and she never made a sale to the defendant, of course there can be no recovery.] [14]</p> <p>“ {Row .there might be a recovery even if Klaus did make a contract with Reed, for at least a part of the consideration money, if, after he made the contract with Reed, he discovered that the wife claimed that she owned that mortgage, and claimed the consideration from Reed. Even admitting, for the sake of argument, that her money was in that mortgage, if Klaus did not know that fact, not being of record, and the title being in Reed., he might make the arrangement he did with Reed, and with the mortgagee, or the holder of the mortgage.] [15] If he paid Reed before he knew of her claim, he would be protected, because she, not having the mortgage assigned to her or put upon record, showing tha^ she claimed that mortgage or had an interest in that mortgage, he would not be put on notice or inquiry, but if he got notice from her, or in any way learned that she claimed that mortgage and that it was her mortgage, and the sale being in favor of her, and for her protection and interest, then he would be bound to take notice of it, and he would not then be entitled to any credits against Wm. A. Reed after he obtained that notice.</p> <p>“ [But we come back almost to the original question, was the contract made with her or with Wm. A. Reed, because there is no testimony that any notice was given to Klaus of her title or her claim except her own testimony as to the contract in Montgomeiy county in December of 1883, until the spring of 1886. The sheriff’s sale took place in March, 1886, and Klaus got title in 1886, and it seems that for two years after that she never said a word to Klaus about paying the money. That is my recollection of the testimony; if I am not correct you will take your own recollection.] [16] By Mr. Breck: The sale was in 1884. By the Court: 1884 was when the sale took place, but in the spring of 1886, she says, in the house in Allegheny, I believe, Mr. Klaus was angry at something, and complaining that there would be a settlement in the spring—he would settle in the spring, and pay her all that he owed her. True, she did not testify that he referred to this case. She says that he owed her nothing except for this, and of course she supposed he referred to this, but, according to her own testimony, nothing was said to him after he got the title, in March, 1884, until this time, the spring of 1886, two years afterwards, when this .conversation took place, and when, she says, he said he would settle in the spring, and pay her all he owed her. Then what took place after that ? I do not recollect of any other claim upon Klaus by her until about the time this suit was brought, some time in 1889. I believe Klaus sold the property in 1888.</p> <p>“ [All of these are facts tobe considered by you bearing on the plaintiff’s claim, whether she was the owner of that mortgage, and whether she made the contract, as she testifies; and the burden of proof, I may say to you, is on the plaintiff, to show her right to recover in this action.”] [17]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-7) rulings on evidence, quoting bills of exception; (8-17) above instructions, quoting them ; (19) that the charge taken as a whole did not adequately present appellant’s case, and misled the jury.</p>

Appeal, No. 140, Oct. T., 1894, by defendants, from judgment of G. P. No. 2, Allegheny Go., April T., 1893, No. 520, on verdict for plaintiff. Trespass to recover money paid by plaintiff for injuries caused by negligence of defendants. Before White, J. At the trial it appeared that in November, 1889, an explosion occurred from gas leaking through a broken pipe of plaintiff company into the cellar of Mary A. Glass. Mrs. Glass’s house was destroyed and a servant injured.

<p>Appeal, No. 141, Oct. T., 1894, by defendant, from decree of C. P. No. 1, Allegheny Co., Oct. T., 1893, No. 270, on bill in equity.</p> <p>Bill in equity for an account.</p> <p>The case was referred to C. S. Fetterman, Esq., as master. From the master’s report and the record, it appeared that plaintiff and defendant were married Sept. 27, 1883. On Sept. 25, 1883, defendant took an option to purchase land in the Fourteenth ward in the city of Pittsburg. He had at first intended for business reasons to take title in the name of a friend, but after his marriage he directed that the deed should be made to his wife, the plaintiff; she to make a will to protect him. She contributed out of her own estate $1,125 of the purchase money. Plaintiff and defendant occupied the propertj' as a home from October, 1888, to May, 1890. In January, 1889, the tract was laid out in building' lots known as the “ Mary E. Moore Plan of Lots.” These lots were sold a short time thereafter by defendant, who invested the proceeds in other real estate in his own name, and generally dealt with the money as his own for several years. Mrs. Moore knew of these transactions and acquiesced in them. This bill was filed Oct. 5,1892.</p> <p>The master reported in favor of dismissing the bill for want of sufficient proof.</p> <p>Exceptions to the master’s report were sustained by the court on the ground that a gift was presumed on the authority of Earnest’s Ap., 106 Pa. 310, and Robert’s Ap., 85 Pa. 84. A decree was entered awarding plaintiff $12,165.76. The court refused to allow interest.</p> <p>Errors assigned were (1) above decree; (2) in not dismissing bill.</p>

Appeal, No. 142, Oct. T., 1894, by defendants, from decree of C. P. No. 1, Allegheny Co., Dee. T., 1891, No. 443, on bill in equity. ■ Bill bjr stockholders of the Mount Oliver Inclined Railway Co. against that company and the Pittsburg & Birmingham Traction Co., to cancel lease. The case was referred to Marshall Brown, Esq., as master.

<p>Taxation—Exemption — Charity— Municipal assessments — Benefits — Paving street—Estoppel—Constitution.</p> <p>The exemption from taxation of places of public worship authorized by art. 9, § 1, of the constitution of 1874, does not extend to a municipal charge or assessment against a church for paving a street.' '</p> <p>The constitutional exemption relates to taxes proper, ‘or general public contributions, levied and collected by the state or by its authorized municipal agencies for general governmental purposes, as distinguished from peculiar forms of taxation or special assessments imposed upon property, within limited areas, for the payment of local improvements therein, by which the property assessed is specially and peculiarly benefited and enhanced in value to an amount at least equal to the assessment. By Mr. Ohiee Justice Sterrett.</p> <p>It seems that where a church joins in the petition for the paving of a street, and the frontage owned by the church was necessary to make up the required majority in interest and number of abutting ownqrs, and the paving was done in accordance with the prayer of the petition, the church is estopped from setting up a claim of exemption under the constitution and acts of assembly.</p>

<p>Appeal, No. 151, Oct. T., 1894, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 10, on bill in equity.</p> <p>Bill by taxpayers to restrain collection of tax. Before Ewing, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>-Errors assigned were the findings (1) that the levy of the three mill tax was legal; (2) that the constitutional limit of indebtedness was not exceeded by such levy ; (8, 4) dismissal of bill as to all other matters except restraining defendants from using the three mill tax for any other purpose than payment of principal and interest of bonded indebtedness.</p>

Appeal, No. 23, Oct. T., 1894, by Hays et al., stockholders, defendants, from decree of C. P. No. 2, Allegheny Co., April T., 1888, No. 361, on bill in equity. Bill to enforce payment of stock subscription.

Appeal, No. 152, Oct. T., 1894, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1890, No. 783, on verdict for plaintiff. Assumpsit to recover amount of check.

Appeal, No. 161, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1893, No. 410, on verdict for plaintiff. Assumpsit to recover balance alleged to be due on building contract. Before White, J. Plaintiff claimed to recover the sum of 11,946.95, with inter-, est, the final payment upon a written contract for the erection of a dwelling bouse for defendant, in the Nineteenth ward of the city of Pittsburg, under a written contract.

<p> Attachment execution—Duty of garnishee—Negligence—Judgment—Suit on bond—Evidence. </p> <p>A garnishee in an attachment execution must, in good faith to the owner, contest every inch of the ground, or he will not be discharged from liability for the debt.</p> <p>In an attachment execution, a person other than the defendant in the execution, claimed to own the goods. The garnishee took from the claimant a bond conditioned to save the garnishee harmless from the attachment, sold the goods, retained his own charges and counsel fee, and delivered the balance to the claimant. Subsequently the attachment came on for trial. The garnishee did not notify claimant, although he knew where he was. The garnishee also knew the witnesses who could prove the true ownership of the property, and that they were within reach, but he did not summon them. An irregular money verdict was entered against the garnishee, who permitted it to stand, and allowed judgment to be entered upon it. Held, that the garnishee was grossly negligent of the duty he owed to the claimant, and that neither he nor the plaintiffs in the execution could use the judgment against the garnishee as evidence of a right to recover on the bond</p>

Appeal, No. 178, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1893, No. 84, for defendant non obstante veredicto. Sci. fa. sur municipal lien. Before Stowe, P. J. The following facts were agreed upon in the nature of a special verdict: “ The plaintiff, in the year 1890, constructed a sewer, known as Haights street sewer, being the improvement upon which its claim in this case is based.

<p>Appeal, No. 197, Oct. T., 1894, by defendant, from judgment of C. P. No. 3, Allegheny County, Nov. T., 1892, No. 547, on verdict for plaintiff.</p> <p>Ejectment. Before Me Clung, J.</p> <p>At the trial it appeared that, on Aug. 21, 1886, John Lynch executed an oil lease to T. J. Vandergrift covering the land in question. This lease became by sundry assignments vested in defendant. John Lynch died in 1891, having devised the land to plaintiff. The lease provided that if oil was found, Lynch was to get one-eighth; “and should gas be found in sufficient quantities to justify the party of the second part in marketing the same, the consideration in full to the party of the first part, instead of the one-eighth petroleum royalty, shall be three hundred dollars per annum for the gas from each well so long as it shall be sold therefrom.” And further, “ that the party of the second part shall complete a well on the above described premises witbin one year from the date hereof, and in case of failure to complete such well within such time, the party of the second part agrees to pay to the party of the first part, for such delay, a yearly rental of one dollar per acre on the premises herein leased, from the time of completing such well as above specified, until such well shall be completed, the said yearly rental, amounting to one hundred and sixty dollars, shall be deposited to the credit of the party of the first part in the People’s Bank, McKeesport, or be paid direct to said first party. And a failure to complete such well, or to make such deposit or payment as above mentioned, shall render this lease null and void, and to remain without effect between the parties hereto.”</p> <p>The lessees did not operate the land for several years, but paid the annual rental each year. On July 2, 1892, defendant began to drill a well,, and soon obtained oil in paying quantities. On Aug. 20,1892, the rent for the year fell due, but by an oversight the lessee failed to pay it. On Aug. 26th, the lessor notified defendant’s contractor to remove his machinery from the premises, and on the following day declared his election to forfeit the lease. The lessor lived upon the land, and saw the work as it progressed. There was some evidence that in previous years the rent had not been paid upon the precise day when it was due.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 3. The lessor having stood by and permitted work to be done upon the well, involving the expenditure of quite an amount of money, from the last day of the year until the 27th of August, when notice of his election to claim forfeiture was given, waived his right of forfeiture, and the verdict must be for the defendant.” Refused. [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was inter alia above instruction, quoting it.</p>

Appeal, No. 198, Oct. T.,1894, by legatee, from decree of O. C. Allegheny Co., Feb. T., 1894, No. 48, overruling exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of the Supreme Court.

<p>Married women—Principal arid, surety—Promissory notes—Accommodation indorser—Act of June 8, 1893.</p> <p>A husband, having a time draft indorsed by himself, was refused a discount at a bank without another indorser. The bank agreed to accept the wife of the holder, if she would draw a cheek for the proceeds. The wife indorsed the draft and drew a check on the bank for the proceeds, payable to her husband’s order. When the draft matured, the husband was able to pay only part of it. The wife gave her own promissory note for the balance. This note was discounted by the bank, and she drew another check in favor of her husband for the proceeds. Held, that the wife was an accommodation indorser for the husband on the draft, and accommodation .drawer for him on the note, and that she was withiu the protection of the proviso of the act of June 8, 1893, P. L. 344, forbidding a married woman to become accommodation indorser, guarantor or surety for another.</p>

Appeal, No. 207, Oct. T., 1894, by defendant, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1893, No. 173, on verdict for plaintiff. Assumpsit for tubing and other articles used in drilling and' operating oil and gas wells, plaintiffs being dealers in’such articles. Before McClung, J. Defendant claimed to set off damages caused by defective tubing.

<p> Covenants for title—Incumbrance—Lien. </p> <p>An incumbrance is any right or interest in land which may subsist in third persons to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance. It is not necessarily a lien determinate in amount.</p> <p>The curative act of May 16, 1891, P. L. 69, providing that certain improvements made under unconstitutional acts shall be valid, and that the city should be authorized to ascertain, levy, assess and collect damages for the same, creates an incumbrance within the meaning of a stipulation in an agreement to convey land “ free and discharged from all liens and incumbrances.”</p> <p>A burden or incumbrance was imposed upon the land for the improvement, to be made a specific lien in amount as soon as the proceedings to ascertain the amount were completed.- In such a case it is immaterial that the exact amount of the burden on the land was not ascertained at the time of the sale.</p>

<p> Principal and agent—Deceit—Evidence—Fraud. </p> <p>In an action of deceit against a principal to recover damages for misrepresentations made by an agent, the fraud should be clear, and there should be in addition some evidence of participation or knowledge on the part of the principal, or circumstances which should have put him upon inquiry.</p> <p>An action of deceit by a vendee against a vendor, to recover damages for misrepresentation made by the vendor’s agent as to the quantity of land conveyed, cannot be sustained where it appears that the vendor authorized her agent to sell only the laud described in the deed, and no more, and that she had no personal communication with the vendee.</p>

Appeal, No. 216, Oct. T., 1894, by-defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 15, on verdict for plaintiff. Assumpsit on paving contract. Before Porter, J. At the trial it appeared that on Sept. 10, 1892, defendants, who had a contract for rebuilding the track of a street railway in Wheeling, made a subcontract with plaintiff to do a portion of the work, including the paving.

<p> Assignment for creditors—Banks—Checks—Contract—Marshaling assets —Distribution. </p> <p>The Germania- Bank having a check for $88,000 upon the Penn Bank, which the latter was unable to pay in full, agreed to lend the Penn Bank $40,000, the proceeds of the discount of four notes made by the directors of the Penn Bank, and look to the makers of the notes for payment. The Penn Bank was then to pay the whole amount of the check. The Ger-mania Bank received the four notes and drew checks in favor of the Penn Bank for the proceeds, but before they wore paid it was found that the Penn Bank would not be able to pay the $88,000 check. Payment of the cheeks for the proceeds of the notes was then stopped. Held (1) that the proceeds of the notes was in equity a partial payment of the $88,000 check, and (2) that the Germania Bank, as against other creditors of the Penn Bank, was not entitled to include the amount of the four notes in its claim, and to receive a dividend on the full sum of $88,000.</p>

Appeal, No. 226, Oct. T., 1894, by defendant,from judgment of C. P. No. 3, Allegheny Co., Fob. T., 1893,»No. 10, on verdict for plaintiff. Trespass for malicious prosecution. Before McClung,. J. Plaintiff, after proof of signature, offered the information in evidence.

<p>Appeal, No. 230, Oct. Term, 1894, by defendant, from order of C. P. No. 3, Allegheny Co., Not. T., 1893, No. 388, making absolute a rule for judgment-for want of a sufficient affidavit of defence.</p> <p>Rule for judgment for want of sufficient affidavit of defence in assumpsit on oil lease. ■</p> <p>Plaintiff’s statement averred that, on July 17, 1890, plaintiffs executed and delivered to defendant an oil and gas lease for a. tract of land in Morris township, Washington Co., Pa., containing 190 acres, more or less, upon an expressed consideration of $300.</p> <p>By this lease, defendant’s company was to complete one well on said farm within twelve months from the date thereof, or in default thereof to pay to plaintiffs the sum of $350, for yearly delay in completing the well, on July 17, 1891, and annually thereafter on that date, until the said well should be completed.</p> <p>The lease also contained this clause: “A failure on the part of the second parties to make any of the payments within ten. days after the time hereinbefore stated, and in manner provided for, renders this lease null and void, and to remain without effect between the parties hereto, and it can be renewed only by mutual consent, and no right of any action shall, after such failure, accrue to either party, by reason of the breach of any promise or agreement herein contained.”</p> <p>Defendant never entered upon nor drilled a well on the premises, and paid no rental. Plaintiffs claimed to recover three installments of $350 each for three years’ delay in completing the well.</p> <p>The affidavit of defence was as follows :</p> <p>“ W. E. Taylor being duly sworn, says that he is agent for defendant, and took the lease sued on : at the time of taking the lease he paid to the lessors therein $1,295 cash. The defendant never exercised any acts of ownership on said land, and affiant, on June 9,1891, for defendant, made a tender and offer of surrender of said lease to both lessors, but they refused to accept the same, and defendant claims that thereafter there was no right of action or liability upon it under the lease, but if there was, submits that said liability was only for the first year’s rental and interest thereon and no more.”</p> <p>Rule for judgment absolute. Defendant appealed.</p> <p>Error assigned was above order, quoting it.</p>

<p>Appeal, No. 232, Oct. T., 1894, by defendants, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1893, No. 515, on verdict for plaintiff.</p> <p>Assumpsit to recover money alleged to be due under contract for paving bricks. Before McClunh, J.</p> <p>The contract in suit, Exhibit No. 1, was as follows, dated Aug. 4, 1892, signed by plaintiffs and accepted by defendants:</p> <p>“We will furnish you from nine to ten hundred thousand No. 1 paving brick, on board cars at Uniontown, Pa., for $12.50' per one thousand, and guarantee 57 to lay a yard of pavement.”</p> <p>Some 219,000 bricks were delivered and unloaded at Union-town. Not having been paid for, this suit was brought to recover the price of those bricks, and damages for loss on the balance of the contract. There were 50,000 that were delivered on board the cars which were not accepted and were taken back by plaintiffs.</p> <p>Defendants proposed to prove by J. Q. Yan Swearingen, to be followed by other witnesses, that prior to the acceptance by defendants of the writing, Exhibit No. 1, the borough of Uniontown, Pennsylvania, had in contemplation the improvement of certain streets, Fayette- street and others, and with that end in view called for samples and bids of different manufacturers of vitrified brick, among others from plaintiff; that plaintiff presented to councils a sample of fire brick proposed by said company to be furnished for the improvement of said streets, and gave to councils the price at which they would be delivered; that councils adopted the fire brick of plaintiff as brick to be used in the improvement of said streets, and ordered all bidders on the street improvements to bid upon the basis of using the fire brick of the plaintiff, and that this fact was known to the plaintiff; that the plaintiff company assured the authorities of the borough that the fire brick to be furnished for the improvement of the streets aforesaid should be in all respects similar to the sample furnished to the borough at the time that the brick of the plaintiff company was adopted by the borough authorities as the brick to be used in the improvement of the streets, and further, that they were in all respects to conform to the specifications made by the borough authorities with the contractor, and subject to the inspection of the borough authorities, as provided for in the contract between the contractor and the borough; that shortly after these arrangements were entered into between the plaintiff company and the borough of Uniontown bids were called for by the borough from contractors for the making of the improvements aforesaid, and defendants, among others, bid for the work upon the basis of procuring the fire brick of the plaintiff, according to the terms and conditions agreed upon between plaintiff and the borough authorities; that prior to the making of the bid by defendants to the borough, it was distinctly understood and agreed between plaintiff company and defendants that the brick to be furnished by plaintiff should in Jill respects conform to the requirements of the borough authorities and be subject to their inspection, as provided in the contract between the contractor and the borough authorities; that about July 19,1892, defendants were notified by the borough that their bid had been accepted by it, and thereupon defendants notified plaintiffs to ship the brick to be used in that contract; that the contract was reduced to writing, and dated July 20, 1892, that is, the contract between defendants and the borough; that the paper, Exhibit No. 1, offered in evidence by plaintiff in this case, was merely for the purpose of a guaranty upon the part of plaintiff that 57 of his brick would lay a yard of pavement, and to determine the times when the brick were to be paid for, and did not contain the whole of the contract, but the contract was as hereinbefore mentioned in this offer: This to be followed by evidence that the brick delivered by plaintiffs were not such bricks as they had agreed with the borough authorities should be delivered for the purpose of making the improvements upon the streets of the borough for which the contract was subsequently entered into between the borough and defendants in this case; that the rejection of the 50,000 was because said brick were not according to the contract, and was made by the inspector and proper authorities of the borough.</p> <p>By Mr. McMullen: We object to the offer. (1) Because the contract between plaintiff and defendants that was reduced to writing Aug. 4th, shows for itself what the contract between them was. (2) That the offer does not tend to show that at the time of the making of the contract in writing on Aug. 4th, there was any contemporaneous agreement or parol agreement made that was not put in the paper. (8) That the offer does not tend to show that plaintiff was present at the time of the making of the agreement between the borough and defendants, or had any knowledge of its contents or knew anything about it. (4) That there are no allegations or proof of any fraud,.accident or mistake in making this agreement. (5) As generally incompetent and irrelevant.</p> <p>By the Court: As I understand the offer, it is to modify the written agreement by parol. If there is any offer to show that there were brick delivered under another agreement outside of that agreement, that is, that any of these brick were delivered under another agreement, we will receive it, but as the matter now stands and with our present understanding of it, we sustain the objection and seal a bill for the defendants. [2]</p> <p>Defendants then proposed to prove that, at the time the sample brick was presented by Warren, the agent of plaintiffs, at councils, he represented and explained the sample brick to be a No. 1 vitrified paving brick, and broke the brick, some of the samples, explaining why it was a No. 1 vitrified paving brick; that he knew that the brick adopted by the councils must of necessity be used by the paver or the party getting the contract for the improvement; that he was present when the contract was awarded tó Ott Bros, for the use of the brick, being the same meeting of councils. This, for the purpose: First, of meeting any allegations on the part of plaintiff in this case that a light colored brick or a brick differing as to the amount of burning and color from the sample, is a No. 1 vitrified paving brick. Secondly, for the purpose of showing that the brick meant by the contract sued upon in this case was a brick of the description of the sample. Objected to as irrelevant and incompetent.</p> <p>The Court: The plaintiff admits that the sample in evidence was made by them, and furnished by their agent. That of itself is a representation that they could make brick as good as that one is, and hence affords evidence that any brick of a lower grade than that is not No. 1 brick. The transactions between Warren, plaintiff’s agent, and the council, cannot go beyond this; Warren’s declarations outside of these declarations made to the members of council are not evidence. We, therefore, sustain the objection. Bill sealed for defendants. [8]</p> <p>Mr. Ferguson: We propose to show by Charles Ott, that, at the time of the making of the paper-agreement, all of the items of the agreement between plaintiff and defendants were not incorporated in that agreement, but in addition to what is therein expressed it was agreed and understood that the brick to be furnished by plaintiff to defendants were brick that were to be satisfactory to the council of Uniontown, and were to be such brick as would be accepted by the city councils under the terms of the contract between Ott Bros., defendants in this case, and the borough of Uniontown. Objected to as incompetent and irrelevant. Objection sustained and exception. [4]</p> <p>The court charged in part as follows :</p> <p>“ I should say further, gentlemen, that there is one aspect of the case in which, even if some of these bricks that were thrown out were fit bricks for use, the plaintiff would not be entitled to pay for them. [If Mr. Park made an agreement there that an inspector should be put on and that whatever bricks that were not fit should be thrown out, then he would be bound by it; but it would not follow from the mere fact that the inspect- or threw the bricks out that he would be bound by it. If good bricks were thrown out by the inspector, then he would be entitled to pay for them.] [1] He, of course, could make a bargain by which he would be bound absolutely by the judgment of the inspector. If he had agreed to submit to the judgment of the inspector and take back whatever bricks the inspector would not pass, then, as a matter of course, he would be bound by it, but I recollect no testimony that goes to that extent. The testimony in the case is to the effect that it was agreed, he denying this allegation of course, that an inspector should be put on there, and that he would not claim for the bad bricks. But if he made the arrangement for an inspector with the borough councils,, or some of them, and after the inspector had thrown out these bricks he put them into the hands of Mr. McCormick, as is alleged by the testimony, for sale, then that was a receiving back of these brick. It was a rescission of the contract, so far as they wei*e concerned; and whether they were good or bad, he would not be entitled to pay for them. It would be just the same, practically, as these cars that went to Johnstown. They were first shipped there and then shipped away. The plaintiffs could not recover for them even if they were good brick; and so, even if they allowed the inspector to throw out these brick and then put them into the hands of Mr. McCormick for sale, of course they could not recover for them.”</p> <p>Verdict and judgment for plaintiff for $3,500.</p> <p>Errors assigned were (1) instruction as above, quoting it; (2-4) ruling on evidence, quoting the bills of exception.</p>

<p>Appeal, No. 238, Oct. T., 1894, by terre tenant, from order of C. P. No. 8, Allegheny Co., Feb. T., 1893, No. 14, making absolute a rule to strike off entry of satisfaction of a judgment.</p> <p>Rule to strike off satisfaction of judgment, with notice to M. H. Stevenson, terre tenant.</p> <p>From the record, it appeared that Frederick Maul had loaned defendant $700, and had taken a judgment note for the same which was duly entered up by Whitesell & Sons, attorneys at law. The judgment was taken in the name of the Whitesells, and by them subsequently assigned to Maul. Stevenson bought the property and Whitesell agreed to accept certain securities in satisfactioh of the judgment, and thereupon entered satisfaction as “attorney for plaintiff and use plaintiff.” Suit was brought on these securities in Maul’s name and with his knowledge. Maul asked for above rule on the ground that he had not authorized or ratified the satisfaction.</p> <p>Rule absolute without opinion filed. Stevenson appealed.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 239, Oet. T., 1894, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1892, No. 246, on verdict for plaintiff.</p> <p>Assumpsit on fire insurance policy. Before McOlung-, J.</p> <p>At the trial it appeared that plaintiff owned a house in Oakdale. His father lived in Washington, Pa., and, a few dajrs before the date of the policy, sent an agent named Hughes to Oakdale with a view of having him place insurance on plaintiff’s property and that of his sister. Plaintiff simply pointed out the property to Hughes. Hughes returned to Washington and either because he was an agent for life insurance only, or because his company did not insure property in the oil district (both reasons seem to be given by him), he turned the matter over to defendant company, describing the property orally as a dwelling house, and this is the description given in the policy. It was, in fact, a feed store. It was not claimed by defendant that there was fraud or deceit in representing the property as a dwelling house. It was simply a mistake on the part of Hughes, probably arising from the fact that the adjoining property, belonging to plaintiff’s sister and upon which insurance was effected at the same time, was occupied as a dwelling.</p> <p>Plaintiff’s point was among others as follows:</p> <p>“1. The mere fact that the building is mentioned in the policy as a dwelling implied no warranty either that the building was then occupied as a dwelling or would thereafter be so occupied; but the word used is merely descriptive.” Affirmed. [3]</p> <p>Defendant’s point was among others as follows:</p> <p>“ 1. The description of the building insured as a ‘ dwelling ’ was a warranty on the part of the plaintiff that the building was in fact at the date of the policy in use as a dwelling; and it appearing from the evidence that it was then in use as a feed store, there was a breach of the warranty, the policy became void, and'the plaintiff is not entitled to recover.” Refused. [4]</p> <p>The court charged in part as follows:</p> <p>“ There seem to be perhaps only two questions of fact at most for you to pass upon in this case. The one is the question of this property becoming vacant or unoccupied and remaining so for the space of ten days ; and the other, if you determine that in favor of the plaintiff, the question of the amount of his loss.” [1]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 3, 4) instructions, quoting them; (2) in not submitting to the jury the questions of fact as to what, if any, representations were made to defendant by plaintiff or his agent as to the character or use of the property proposed to be insured, and whether or not they were material to the risk.</p>

Appeal, No. 241, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1892, No. 311, on verdict for plaintiff. Assumpsit for price of leather. Before Magee, J. At the trial defendant claimed that the leather furnished by plaintiff was not thoroughly tanned, and that it was unmerchantable.

Appeal, No. 91, Oct. Term, 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1894, No. 729, on verdict for plaintiff. Trespass for personal injuries. Before White, J. At the trial it appeared that plaintiff, a girl thirteen years and eight months old, was employed by the defendant to run towels through a mangle in a laundry. The machine at which she worked consisted of a cylinder, about six feet long, and three smaller cylinders above it.

Appeal, No. 134, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1893, No. 83, on verdict for defendants. Held: in connection with the disposition of his property, are to be considered by the jury as bearing upon his testamentary capacity.

<p>Appeal, No. 76, Oct. T., 1894, by defendant, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1892, on verdict for plaintiff.</p> <p>Assumpsit on building contract. Before Kennedy, P. J.</p> <p>At the trial it appeared that plaintiffs agreed to build a dwelling house for defendant for the sum of $2,218. Payments were to be made as follows: $200 when the foundation walls were completed, $600 when the roof was on and $700 when the plastering was done, and the balance after the house was completed in accordance with the terms of the contract, and accepted by the defendant. It was also agreed that “all deductions by reason of improper labor done or inferior materials used ” should be made from the final payment, and that “ no sum shall be due to or collectible by ” plaintiffs, under the terms of the contract, unless all work done and materials furnished were done and furnished in strict compliance with the plans and specifications, and to the satisfaction of the owner. This action was brought to recover the installment of $600 due and paj'able when the roof was on. This suit was begun May 28, 1892, at which time, it is admitted, the roof was completed. The house was finished about the latter part of July, 1892. On July 25, 1892, plaintiffs gave defendant the keys of the’ building, and about two weeks thereafter he took possession and moved his family into it. The evidence was conflicting.</p> <p>The court left it to the jury to determine whether the contract had been substantially complied with, and to say what deductions if any, should be made from the contract price.</p> <p>Defendant’s points were among others as follows:</p> <p>“ 2. There can be no recovery by the plaintiffs in this case under the proviso in the contract, to wit: ‘That no sura shall be due to, or collectible by said contractors, under the terras of this, con tract, unless all work done and materials furnished shall be done and furnished in strict compliance with the plans and specifications and to the satisfaction of the party of the second part.’ ” Refused.</p> <p>“ 3. The contract between the plaintiffs and the defendant, which is the subject of controversy, is an entirety, and an action for a partial payment cannot be maintained thereon.” Refused.</p> <p>Verdict and judgment for plaintiff for $566.</p> <p>Errors assigned were (1) in not entering compulsory non-suit; (2) in refusing defendant’s 2d and 3d points, quoting points and answers; (3) as stated in the opinion of the Supreme Court.</p>

Appeals, Nos. 77 and 78, by defendant, from judgments of C. P. No. 3, Allegheny Co., Aug. T., 1892, No. 339, and Feb. T., 1893, No. 98, on verdicts for plaintiff. Assumpsit on building contract. Before Kennedy, P. J. The facts appear by the preceding case.

<p>Will— Codicil—Life-estate—Marketable tille.</p> <p>Testator by his will directed as follows: “To my daughter Margaret I will the mansion, house, already mentioned, and with it fifty acres of land and twenty-three pei'ches, more or less, to be used and controlled by her and her husband during her lifetime for their own benefit and advantage, subject, however, to the dower already mentioned, and to the legacies yet to be mentioned (and in case she dies without children her husband, if he survive her, shall have the use of it for his benefit during his lifetime, and then it is my will that it shall go to and be inherited by my grandchildren, viz: The children of my son Alexander and daughter Rachel, both deceased, to be theirs and their heirs after them forever, and to be divided amongst them in equal proportions.) ” By a codicil he directed as follows: “Codicil. 1st. I hereby alter that part of the will at the end of the twenty-second line, that now is canceled, to the middle of the thirty-second line, marked in parenthesis, so that it shall read that my son-in-law, Samuel Fife, instead of only having a life estate in it, shall possess it as his own without let or hindrance, except as subject to the legacies, of which he is to bear his part, as mentioned in the body of this will.” Held (1) that, under the will, Samuel Fife would only be entitled to take in case he survived his wife, or she died without children, and that no change was effected by the codicil as to the contingency upon which he should take; (2) that Mr. and Mrs. Fife could not together make a marketable title to the land.</p>

Appeal, No. 116, Oct. T., 1894, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1893, No. 71, on verdict of plaintiffs.

Appeal, No. 93, Oct. T., 1894, by defendant from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 609, on verdict for plaintiff. Trespass for personal injuries. Before Kennedy, P. J. The facts appear by the opinion of the Supreme Court. Defendant’s request for binding instructions was refused: Verdict and judgment for plaintiff for $800. Brror assigned was above instruction, quoting it.

Appeal, No. 246, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 126, on verdict for plaintiff. Sci. fa. sur municipal lien. Before White, J. At the trial it appeared that a lien was filed against defendant’s property for grading, paving and curbing Fifth avenue for the sum of $10,394.31, the assessment being made according to the foot-front rule.

<p>Appeal, No. 248, Oct. T., 1894, by-defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1894, No. 933, on bill in equity in favor of plaintiff.</p> <p>Bill to restrain school controllers from depositing school funds in a certain bank.</p> <p>From the record it appeared that, in 1894, four banks made bids to secure the deposits of school funds of defendant school district. The German National Bank offered to pay two and one quarter per cent interest on current daily balances. The First National Bank agreed to pay one and one half per cent interest, and the Third National Bank agreed to pay one per cent interest. The Second National Bank refused to pay any interest, but agreed to lend to the school district $50,000 without interest, if it should need to borrow. On March 6, 1894, the board of controllers selected the said 'Second National Bank as the depository of the school funds.</p> <p>The court entered the following decree through Ewing, P. 3</p> <p>■ “ And now, to wit, May 23, 1894, this cause came on to be heard on bill, answer, replication and testimony taken in open court, and was argued by counsel, whereupon, upon consideration thereof by the court, it is ordered, adjudged and decreed that the selection of the Second National Bank of Allegheny on March 6, 1894, by the board of controllers of Allegheny City School District, as the depository of school funds under their control for the ensuing year is illegal, null and void.</p> <p>“ And it is further ordered, adjudged and decreed that the boai'd of controller’s of the School District of Allegheny City shall proceed, within thirty days after notice hereof to its president, to select a bank or banking institution with which to deposit all school funds under their control; and, in so doing, they shall, in a reasonable manner, by advertisement or other notice to such banks or banking institutions which they may deem safe and convenient, invite full and fair competition so as to receive from the bank or banking institutions selected the highest rate of interest they can obtain on current balances of such deposits, under the provisions, terms and conditions provided in the act of April 17, 1870, P. L. 1219, entitled, ‘An Act enlarging the powers of the board of controllers of Allegheny School District in Allegheny county.’</p> <p>“ And it is further ordered, adjudged and decreed that the costs of this proceeding, to be taxed by the prothonotary, be paid by the board of controllers of the Allegheny City School District.”</p> <p>Error assigned was among others above decree, quoting it.</p>

Appeal, No. 250, Oct. T., 1894, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1893, No. 278, in favor of defendant on bill in equity. Bill for account and for cancellation of sale of partnership interest.

<p>Appeal, No. 256, Oct. T., 1894, by-defendant, from judgment of C. P. No. 2, Allegheny Go.-, April T., 1893, No. 530, on verdict for plaintiff.</p> <p>Assumpsit for share of commissions. Before Ewing, P. J.</p> <p>Tbe facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s offer to prove that plaintiff was doing business as a broker without a license, and that the contract in suit arose out of his business of real estate broker, was rejected. Exception. [4]</p> <p>Defendant’s points were as follows:</p> <p>“ 1. No cause of action is set forth in plaintiff’s statement of claim, and therefore the plaintiff cannot recover.” Refused. [1]</p> <p>“2. No contract with defendant by plaintiff whereby plaintiff agreed to pay any money or perform any obligation has been proven, and therefore the verdict must be for the defendant.” Refused. [2]</p> <p>“3. The alleged contract between plaintiff and defendant is void for want of consideration, if the jury find from the evidence that the property had been withdrawn from the market by Mr. Pew at the time of the alleged agreement between plaintiff and defendant, and their verdict must be for defendant.” Refused. [3]</p> <p>Verdict and judgment for plaintiff for $2,467.25.</p> <p>Krrors assigned were (1-3) instructions; (4) ruling; quoting instructions and bills of exception.</p>

<p> Will—Devise—Preamble of will. </p> <p>Where a testator who died prior to the wills act of 1833, stated in the preamble of his will that he was desirous of making a distribution of his property, and then in the body of the will devised land without words of inheritance, the devisee takes an estate in fee.</p> <p>In such a case the introductory words are carried down into the corpus of the will to show that the testator meant to dispose of his whole interest in the particular devise.</p> <p>Testator gave certain city lots to Amanda Stephens. He further directed as fellows: “In the event of Amanda dying unmarried, or, if married, dying without offspring by her husband, then these lots are to be sold and the proceeds to be divided equally amongst the heirs of John Barber, of Columbia, Penna.” Held, (1) that the word “offspring” is synonymous with “issue; ” (2) that the testator contemplated a definite failure of issue at his own death; and (3) that Amanda took a fee.</p> <p>In the above case the suggestion that because Amanda was only five years old at the date of the will, testator could not have had in contemplation the contingency of her marriage and death without issue in his lifetime, is without merit.</p>

Appeal, No. 258, Oct. T., 1894, by-defendant, from order of C. P. No. 8, Allegheny Co., May T., 1894, No. 357, making absolute a rule for judgment for want of a sufficient affidavit of defence. Assumpsit for rent.