Volume 166 — Pennsylvania State Reports

Appeal, No. 262, Oct. T., 1894, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1894, No. 648, on case stated in favor of plaintiff. Case stated to determine liability of sheriff for wrongful distribution of proceeds of sheriff’s sale. From the case stated it appeared that defendant was the sheriff of Allegheny county. In 1898, he sold the real estate of Simon Studle, the defendant in an execution. A schedule of distribution was confirmed by the court.

Appeal, No. 259, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 623, on verdict for plaintiff. Trespass for ejection of passenger. Before White, J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 260, Oct. T., 1894, by defendant, from judgment of G. P. No. 2, Allegheny Co., April T., 1893, No. 207, on a verdict for plaintiff. . Assumpsit to recover damages for failure to deliver flour under contract in writing. The contract in writing was as follows : “ Pittsburg, Aug. 4,1891. “ Mess. Theo.

Appeals, Nos. 263, 264, 265, 266, Oct. T., 1894, by defendant, from judgments of C. P. No. 1, Allegheny Co., March T., 1891, Nos. 581, 582, 583, 584, on verdicts for plaintiffs. Appeals from reports of viewers. Before Slagle, J. At the trial it appeared that plaintiffs are the heirs and devisees of Sarah M. Phillips who died seized of the land in question. On Jan. 1, 1888, a plan of the land was made for partition, showing lots, streets and alleys.

<p> Landlord and tenant—Lease—Rent—Repairs—Evidence. </p> <p>Where a lease provides that all repairs should be made by the tenant and that if the tenant continues to occupy the premises after the expiration of the term, without entering' into any other agreement, the terms of the original lease should be continued for such further time as the tenant might occupy the premises, and it appears that the tenant continued to occupy the premises after the expiration of the time, without any other agreement, evidence in an action for r-ent is immaterial that, before the expiration of the original term, complaints were made by the tenant in regard to the condition of the premises, that repairs were needed and demanded, and that negotiations for a new lease were pending between the parties.</p>

Appeal, No. 268, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1893, No. 823, ou special verdict for defendant. Ejectment.

Appeal, No. 6, May T., 1895, by defendants, from judgment of C. P. Dauphin Co., June T., 1894, No. 810, on quo warranto. Quo warranto.

Appeal, No. 272, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 2, Allegheny Go., Oct. T., 1893, No. 383, on a verdict for. the plaintiff. Ejectment for four-fifteenths interest in land. Before Ma-gee, J. In addition to the facts stated in the opinion of the Supreme Court, Alice Walsh testified as follows: “Q. Under the privilege accorded you in that will you may state whether or not you purchased your brother Edward’s share in that property?

<p> Trusts and trustees—Sale of church property—Deed. </p> <p>An owner of land executed a deed for a lot of land to himself and certain others as trustees of a church, “ their successors in office and assigns as trustees aforesaid; to have and to hold the said described lot of ground in trust for said church and for the sole use and behoof of the congregation organized for the purpose of building on said lot and worshipping in said building.” Subsequently, upon the incorporation of the church, the successors of the trustees other than the original owner executed a deed of the lot to the corporation. It did not appear that at the date of this deed the original owner was a trustee. Held, that the original owner had no standing to object to a sale of the lot by the church.</p>

<p>Appeal, No. 280, Oct. T., 1894, by defendants, from judgment cf C. P. No. 2, Allegheny Co., Jan. T., 1892, No. 52, on a verdict for the plaintiffs.</p> <p>Scire facias sur municipal lien for grading and paving Cliff street in the city of McKeesport. Before Magee, J.</p> <p>The lien was as follows:</p> <p>“ Municipal claim for grading, curbing and paving Cliff street.</p> <p>“ And now, Dec. 28,1891, the city of McKeesport, by Thomas McGraw, its street commissioner, filed this claim for the sum of $1,864.20, with interest from Oct. 30, 1891, against all that certain lot of ground situate in the Third ward of said borough, now the Eighth ward of said city, bounded and described as follows, viz: Fronting 390 feet on the west side of Cliff street and extending back westwardly between lot of Lucy P. Can-field and a line of which the said defendants are the owners or reputed owners. '</p> <p>“ The said sum of $1,864.20 being the assessment upon said lot for the cost of grading, curbing and paving of said Cliff street within six months last past, which said grading, curbing and paving was done and an assessment of $4.78 per foot-front upon all properties abutting on the same, made by the council of said city, by resolution passed Sept. 18, 1891, in pursuance of an act of assembly approved April 3, 1867, and of an ordinance passed July 10, 1890, and approved July 12, 1890, authorizing the same, and demand was made upon said owners on Sept. 30, 1891, and this claim is now filed as a lien against said lot for the payment of said sum with interest thereon, in accordance with the act of assembly above mentioned.”</p> <p>When E. J. Taylor, a witness for plaintiff, was on the stand, he was asked: “ Q. Did the names of the property owners on that petition constitute, at the time the petition was presented and the ordinance was passed, a majority of the property owners on Cliff street, between Fifth avenue and Elm street?” Objected to, on the ground that the opinion of the witness is not sufficient; he must show the means whereby he arrived at the conclusion that the majority had signed. Overruled and exception. [1] The witness answered in the affirmative.</p> <p>Plaintiff offered the petition, marked exhibit A, in evidence, for the purpose of showing a compliance with the act of assembly in making the improvement upon the petition of a majority of the owners on Cliff street between Fifth avenue and Elm street. Objected to, because it is not shown that a Cliff street did or does exist, as stated in this petition, between Fifth avenue and Elm street. Objection overruled and exception. [2] Plaintiff offered in evidence exhibit B, identified by the city clerk, an ordinance dated July 10, 1890, entitled “An ordinance authorizing and requiring the grading, curbing and paving of Cliff street, from Fifth avenue to Elm street.” Objected to, for the former reason, that the city of McKeesport has not yet shown that there is legally a street named Cliff street, between Fifth avenue and Elm street. Objection overruled and exception. [3]</p> <p>Plaintiff then offered in evidence the lien filed in this case. Objected to : (1) Because plaintiff has not yet shown that the property charged in the lien fronts on Cliff street and that the said street in front of the property legally is Cliff street. (2) Because the description of the property in the lien is too indefinite and uncertain and not such as legally to bind the property. Objection overruled and exception. [4]</p> <p>Plaintiff offered in evidence the file of the “ McKeesport Daily News,” showing publication of an ordinance establishing the grade of Cliff street, from Elm street to Fifth avenue. Objected to, on the ground that the ordinance for the grading or paving of a street does not supply the defect of an ordinance as to the creation and naming of the street. Objection overruled and exception. [5]</p> <p>The court charged as follows :</p> <p>“This is a scire facias on a municipal claim for the cost and expense of grading, paving and curbing of Cliff street, from Fifth avenue to Elm street, in the Sixth ward of the city of McKeesport, and which has been filed as a lien against that certain lot of ground in the Third ward of the borough, now the Sixth ward of said city of McKeesport, fronting 390 feet oil the west side of Cliff street, and of which the defendants are the owners or reputed owners. The claim filed is for the sum of $1,864.20, with interest from Oct. 30, 1891.</p> <p>“ This lien is filed under the provisions of the act of April 3,’ 1867, P. L. 732, which, provides for the improvement of the streets in McKeesport. The act, which has been offered in evidence and admitted, provides that town councils have the power to require by ordinance the grading, paving and macadamizing of any street, lane or alley or parts of the same, not less than one square, within such reasonable time as the said councils shall by ordinance direct, and shall have full power to levy and collect the costs and expenses of such grading and paving or macadamizing by a pro rata assessment on the feet-front, etc. Provided, that a majority of persons owning property on the street petition therefor, and after causing demand to be made on the owners and on neglect to pay, may file liens against the property, and such costs and expenses shall be recovered by writs of sci. fa. in the name of the commonwealth, etc., as debts by mortgage are now recoverable, and such sci. fa. may issue at any time after the filing of such statement.</p> <p>“ [The evidence is before you on the part of the plaintiff that there were fourteen persons owning land on the portion of Cliff street, between Fifth avenue and Elm street, and that eight of the fourteen petitioned the councils for the grading, paving and curbing of that portion of the street, being not less than one square, and that the petitioners were a majority of the owners of the land abutting on the street to be improved, as shown by the paper marked exhibit A, supplemented by the testimony of E. J. Taylor, the civil engineer of the borough at the time, and who made an examination into the ownership of the abutting property.] [6]</p> <p>“ [The plaintiff has also given in evidence an ordinance for the grading, paving and curbing of Cliff street between Fifth avenue and Elm street, shown by the paper marked exhibit B, and also the contract between the borough and Sloan & MeIlvaine for the grading, paving and curbing of the street, as shown by the paper marked exhibit C, and bearing date Sept. 26, 1890, and also the assessment made of $4.78 per lineal foot on the abutting property and the assessment on the 390 feet of the abutting land of the defendants to the amount of $1,864.20, their proportion of the cost and expense of the improvement by a pro rata assessment on the feet-front. The evidence thus presented is in compliance with the requirements of the act referred to in relation to the improvement of streets in McKeesport.] [7]</p> <p>“ Now, the measures provided for the enforcement of the lien authorized to be filed for the cost and expenses of the improvement, by the act of 1867, are, that they shall be recoverable by writ of scire facias as debts secured by mortgage are now recoverable, and such scire facias may issue at any time after the filing of such statement. The act of May 16, 1891, P. L. 69, is an act general in its application, ‘ creating and regulating municipal liens and proceedings thereon,’ and by this act it is provided that the lien when filed shall be proceeded upon for collection by writ of scire facias in accordance with the course of the common law. By the act it is also provided that ‘ If an appearance he entered (and such is the case here) the plaintiff shall also be entitled to judgment unless a sufficient affidavit of defence be filed within fifteen days after the return day. If such affidavit be filed, the cause shall then be proceeded with in accordance with the rules of law and the practice of the courts.’</p> <p>“This act, I take it, permits the defendants to present their defences to the scire facias in accordance with the rules of law and the practice of the courts governing the enforcement or collection of liens entered and filed under the authority of existing laws, and, presumably, just and lawful claims as filed. The defence may therefore be made to the want of conformity to the law of the lien authorized to be filed, and such other defences upon the merits of the claim as go to the defective character of the work done on the improvement or extravagant charges for the same, or the non-performance of the work or mistakes in the feet-frontage assessed, or that the property is not the subject of a pro rata assessment by the foot-front from its rural, agricultural or farming character* etc., provided that under the rules of law and the practice of the courts such defences—and only such defences—are set up in the affidavit of defence required to be filed in the case.</p> <p>“ The defences there set up are as follows: First: That the land of the defendants abutting on the street is not the subject of a foot-frontage rule of assessment. The Supreme Court has said that upon a scire facias sur municipal lien for paving, if the jury find the property to be rural—and I will add as connected with it, agricultural or farming—it cannot be charged by the foot-front measure of liability. It is no defence, however, to a claim for street improvements filed according to the foot-front rule, that the property is but a narrow strip along the street, and not worth the amount of the assessment. That is not the character of objection to defeat recovery. [The inequality—if such exists—must arise from a pro rata foot-frontage assessment on rural, agricultural or farming lands, and not on city lots; not that it is hilly, uneven territory, or might be an actual advantage or disadvantage—inequalities that arise from that source do not defeat a pro rata assessment. If it is a city street, the general character of the property and its value is to be regarded in city lots as substantially the same, and these lots in question are in a city—the city of McKeesport— so stated by all the witnesses and the papers filed.] [8]</p> <p>“ [As to the second suggestion of a defence,—that the lien filed is defective and void in that it does not give or definitely describe the boundary or depth of the land, I say to you that the description in the lien is sufficient, and is not defective and void, and that any defence set up on that account will not avail to defeat recovery.] [9]</p> <p>“ [The third defence is that the lien is void because not filed in accordance with the. direction of the act of April 8, 1867. This objection to the form in which the lien has been filed is ■without merit; there has been a substantial compliance with the act, and that will not defeat recovery.] [10]</p> <p>“ Fourth. [Tlie defence set up that the improvement must be made on the petition of a majority of the property owners abutting thereon. This defence, if established by evidence, is a good one, as the act makes such a petition a prerequisite to the making of the improvement. That .fact you will determine from the evidence before you. So far as I recall the testimony —and my recollection seems to be pretty clear upon the subject—I do not remember any evidence to sustain such a claim. The only effort that was made, P thought, in the way of a defence upon that ground was to show no such interest in the property on the line of the improvement as that the signature of the party signing ought to be regarded as one of the property holders along the line of the street in securing the majority of the property owners, but there was no evidence that I can recall that the eight signers of the fourteen owners alleged to be there —no positive assertion that I recall—that they were not a majority of the owners of the property abutting on the improvement.] [11]</p> <p>“[The defence further sets up that‘there never was, nor now legally is, a Cliff street.’ This is a good defence if it be established that the improvement made was not of a public highway or street known and recognized as such and identified as Cliff street. The fact that it was also known as a township road would not make the ordinance for its improvement under the name of Cliff street null and void. The important fact to make the improvement lawful is, was it of a public highway and has it a location and name as Cliff street ? It is in evidence that there was a Cliff street connected with it.] [12]</p> <p>“ [The last suggestion of a defence is that the improvement was made at the instance and request of the Highland Land Company, and that is immaterial, if done on the petition of a majority of the persons owning property on the line of the improvement. It makes no difference as to whose instance it was done at, or whether the parties pestered the lives of the councilmen in order to get it done, or whether they had some interest in having it done, if they succeeded in getting the names of a majority of the property owners on the street.] ” [13] Defendants’ points were among others as follows:</p> <p>“ 2. If the jury find that the improvement of the street in front of the defendants’ property is of a character which can be benefited, if at all, in a degree grossly disproportionate to other property on Cliff street, then the equal charge per front-foot is oppressive and unjust, and plaintiff cannot recover.” Refused. [14]</p> <p>“ 3. If the jury find that the said improvement is of no benefit whatever to said defendants, but solely or mainly for the benefit of other parties owning property on the said street, then the equal charge per front-foot is oppressive, unjust and illegal upon defendants.” Refused. [15]</p> <p>“ 4. If the jury find that the improvement is a public benefit, then the charge per front-foot is an imposition on the defendants, and the verdict should be for the defendants.” Refused. [16]</p> <p>“ 5. If the jury find that the property of defendants is not divisible into town lots, or that it cannot be divided and built upon as on ordinary town lots, then the equal per front-foot charge is unjust and illegal, and their verdict should be for the defendants.” Refused. [17]'</p> <p>“ 6. If the jury find that the said street, in front of defendants’ property, was legally known only as the township or river road, it required an ordinance to change its name to Cliff street, and it was the duty of plaintiff to produce such ordinance.” Refused. [18]</p> <p>“ 7. No ordinance having been produced, the said street in front of defendants’ property is legally still the township or river road, and all proceedings in relation to said part of the so-called Cliff street relating to the paving are void, and defendants cannot be charged with any part of the costs thereof.” Refused. [19]</p> <p>8. Request for binding instruction. Refused. [20]</p> <p>Verdict for plaintiff for $2,078.20.</p> <p>The court subsequently permitted the following amendment of the lien:</p> <p>“ And now, to wit, Nov. 11,1893, comes the city of McKeesport, by R. C. Rankin, its solicitor, and moves the court to amend the lien filed in this ease by adding to the description of the property assessed the following words: ‘ Drawn at right angles to said Cliff street, at the intersection of said Cliff street with the road leading to Demmler, 100 feet.’ ”</p> <p>Judgment on verdict May 10, 1894. Defendants appealed.</p> <p>Errors assigned were (1-5) rulings; (6-20) instructions, quoting instructions and bills of exception but not quoting evidence ; (21) allowance of amendment.</p>

<p> Road law—Damages—Streets—Constitution. </p> <p>Damages cannot be assessed .for improvements made within the lines of a located but unopened street after approval of the plans of which the street in question is a part; neither does the mere laying out of a street upon a city plan, without any action taken in reference to its opening, constitute such taking or injury as gives the court the power to assess damages therefor.</p> <p>The act of May 16, 1891, § 12, P. L. 80, providing that no damages shall be recovered for buildings constructed within the lines of located streets or alleys, does not violate art. 16, §8, of the Constitution of Pennsylvania. The act is merely declaratory of the common law of the state as recognized in Forbes Street, 70 Pa. 125.</p>

Appeal, No. 300, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1898, No. 492, refusing to take nonsuit. Trespass for death of plaintiff’s husband. The facts appear by the opinion of the Supreme Court.

<p> Negligence—Street railways—Infants—Contributory negligence. </p> <p>In an action to recover damages for the death of a boy between twelve and thirteen years of age, plaintiff’s testimony tended to show that the boy jumped across a ditch which was along side of defendant’s track, and stood in a space between the track and ditch, which was estimated to be about two and one half feet wide, and while looking down into the ditch was struck by a car which was run at an unusually high rate of speed without any bell being rung. The evidence for defendant tended to show that the boy ran parallel with the car for a short distance on the pavement, then jumped the ditch and ran in front of the car and was immediately run over. There was also evidence that the car bell was sounded either constantly or at short intervals. Meld, that the ease was for the jury.</p>

Appeal, No. 305, Oet. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1893, No. 277, on verdict for plaintiff. Trespass for personal injuries. Before Magee, J. The facts appear by the opinion of the Supreme Court. Defendant’s points were among others as follows : “ 5.

<p>Constitutional law—Delegation of legislative power—Fire insurance— Standard policy—Act of April 16,189L</p> <p>The act of April 16, 1891, P. L. 22, entitled “ An act to provide for a uniform contract or policy of insurance to be made and issued by all insurance companies taking fire risks on property within the state,” and directing the insurance commissioner to prescribe a standard policy of insurance, and forbidding the use of any other, is unconstitutional, inasmuch as it involves an unauthorized delegation of legislative power.</p> <p>It seems that the legislature may itself prescribe a form of contract of insurance.</p>

<p> Contract—Municipalities—Water company—Evidence—Conduct of parties—Presumption—Expressio unius exclusio alterius. </p> <p>A city agreed with a water company not to extend the municipal water pipes in the portion of the city lying on the south side of a river, in consideration of the water company making its assessments of all water rents in the stipulated territory at rates not higher than those in each class of water rents assessed by the city in the wards north of the river. The contract further provided that the city should furnish water to her own mains, then laid or being laid on the south side of the river, for the purpose of supplying the fire-plugs and washing the streets along the lines of said mains, and that the water company should supply all the other fireplugs then or thereafter put in by the city without any charge. The city did not assess a water tax upon public schoolhouses on the north side of the river. Held, that the school districts on the south side were not exempt from liability to the water company for water supplied to schoolhouses.</p> <p>In such a case the specification of a limited class of exemptions, such as fire-plugs, shows conclusively that the subject of exemptions was considered by the parties, and that no other class than fire-plugs was to be exempt.</p> <p>The fact that at the time the contract was made the water company was charging schoolhouses, raises a presumption that if exemption of schoolhouses had been intended, if would have been provided for as in the case of fire-plugs.</p>

<p>Appeal, No. 310, Oct. T., 1894, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1893, No. 298£, on appeal from ordinance authorizing the opening of a street.</p> <p>Appeal from ordinance authorizing the opening of a portion of Hamilton avenue in the city of Pittsburg.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court made the following order :</p> <p>“ And now, to wit, September 29, A. D. 1894, the foregoing matter came on to be heard upon petition and answer, and after argument and upon due consideration thereof, the court find and determine that the said improvement, to wit, the opening of Hamilton avenue between Frankstown avenue and Fifth avenue was not petitioned for by a majority in number and interest of the owners of property fronting or abutting thereon as required by law, and the said ordinance is accordingly therefore quashed.”</p> <p>Error assigned was above order.</p>

<p>Certiorari and appeal, No. 186, Oct. T., 1894, by defendant, from judgment of Q. S. Allegheny Co., in favor of plaintiff on appeal from judgment of justice of peace.</p> <p>Appeal from summary conviction.</p> <p>From the record it appeared that defendant was arrested and charged before a justice of the peace with peddling clocks without a license, under the act of Feb. 6, 1830, P. L. 39. At the time appellant was arrested he was canvassing for clocks for the American Wringer Co., a Rhode Island corporation. The so-called lease was in the following form:</p> <p>“ Article No. 11.863. May 21, 1894.</p> <p>“ This indenture witnesseth that The American Wringer Co., successor to the Metropolitan Mfg. Co., the first party, does hereby rent unto Mrs. B. Daly, the second party, one clock the term of 18 months from the date hereof, for the use of which clock said second party agrees to pay to said first party the sum of 25 cents rent per week, in advance, which sum said second party agrees is a reasonable rental therefor; and said second party further agrees, that at any time during the term of this lease when said rent, or any part of it, shall be in arrears and unpaid, the said second party will deliver up said clock to said first party and forfeit the residue, if any, of the term of this rental, said second party to so deliver up said clock in as good condition as when by them received, the natural wear and decay only excepted.</p> <p>“ Husband’s Place of Business: Name, Mrs. B. Daly, [seal.]</p> <p>“ Residence, Turtle Creek.</p> <p>“ We, The American Wringer Co., successor to the Metropolitan Mfg. Co., the first party in the foregoing rental, agree that said second party may purchase at any of the stores of the said first party the above described article at any time during the term of the above described rental for the price of $13.00 in cash, and be allowed as a credit on such cash purchase whatever said second party has paid thereon as rent under the above agreement.</p> <p>“ Signed, The American Wringer Co., successor to The Metropolitan Meg. Co., opposite depot.”</p> <p>It appeared that defendant had admitted that he was selling clocks, and there was evidence that he had given the so-called lease as a receipt for the purchase money of a clock. The evidence as to this appears by the opinion of the Supreme Court.</p> <p>The defendant was summarily convicted before the justice of the peace. On appeal the court, Porter, J., entered the following judgment:</p> <p>“The defendant, Rudolph Harmel, is adjudged guilty of going from place to place to sell and expose for sale clocks without a license so to do being by him first obtained; and the said defendant is adjudged to forfeit and pay the sum of fifty dollars; and in default of payment of said forfeiture it is ordered that the said Rudolph Harmel be committed to the jail of Allegheny county until discharged by due process of law.”</p> <p>Error assigned was entry of above judgment, quoting it.</p>

<p>Wills—Probate—Notice—Parties—Practice, O. G. & G. P.—Aci l856.</p> <p>If no caveat has been filed with the r-egister of wills before the probate of a will has been made, the remedy of one desiring to contest the validity of the will is by an appeal from the decree of probate to the orphans’ court. After an appeal the further proceedings are before the orphans’ court until the precept is lodged in the common pleas. The orphans’ court has the power to award or to issue citation to other persons interested until the issue goes to the common pleas. From that time on until trial and verdict the power and the duty to call in any omitted persons interested passes to the trial court.</p> <p>If the record does not disclose the names of the several persons interested in the estate, and the appellant does not supply the necessary information, the application may be dismissed for that reason. If, however, the record does disclose the names of all necessary parties, or if the appellant offers, when an omission appears, to supply it by amendment or in any other proper way, the application cannot be dismissed for want of parties, for all that is needed in such a case is the process of the court to warn the persons who have not appeared of the pending application, or the issue, as the ease may be.</p> <p>If by any neglect an issue goes to trial and a verdict is taken in favor of the will by agreement without the knowledge of one or more of the persons interested, the verdict is not binding on such persons, but will be set aside at his request; or the omitted party will be allowed to take another appeal, if the time for so doing has not elapsed.</p> <p>It is not necessary to make one of the parties in interest a party to the issue, against his will, but it is the duty of the court to notify him of the pendency of the proceeding, so that he may be able to act intelligently, and to take such position in regard to it as will best protect his own interest in the estate of the alleged testator.</p> <p>Where an appeal has been taken within five years from the probate of the will, a party interested in the estate may be made a party to the proceeding after the expiration of five years from the date of the probate.</p> <p> Issue devisavit vel non—Repayment of legacy by legatee—Estoppel. </p> <p>A legatee who has received his legacy, and afterwards concludes to contest the will, may return the legacy to the executors and so relieve himself from the operation of the general rule that forbids him to take under the will that which testator gave him. and at the same time deny its validity as to others.</p>

Appeal, No. 318, Oct. T., 1894, by defendant, from judgment of C. P. No. 1, Allegheny Co., on appeal from alderman. Appeal from alderman, in suit on insurance policy. The record showed that the suit was against a corporation of the state of New York, doing business in this state. The summons was issued to a constable of Allegheny county who deputized a constable of Philadelphia to serve it upon the duly authorized agent of the company in Philadelphia.

Appeal, No. 320, Oct. T., 1894, by legatee, from decree of O. C. Allegheny Co., Nov. T., 1892, No. 196, dismissing petition to revoke decree appointing trustee. Petition to revoke appointment of trustee. From the petition and answer it appeared that John Wilbert died July 17, 1889, leaving the following will: “1. I will and direct that all my just debts and funeral expenses be promptly paid. “ 2.

Appeal, No. 322, Oct. T., 1894, by the executor, from decree of O. C. Allegheny Co., May T., 1804, No. 46, distributing decedent’s estate. Exceptions to adjudication. From the record it appeared that the People’s Bank of McKeesport was the owner of the three notes which they presented for payment at the audit.

<p> Executors and administrators—Surcharge—Expenditure of money on foreign property—Devastavit. </p> <p>The mere fact that an administrator expends money in a reasonable effort to save the property of his intestate situated in another state, is not sufficient to convict him of a devastavit.</p> <p>To hold that the representative of the personal estate within the domicile owes no duty whatever, either to creditors or next of kin, with reference to personalty outside the jurisdiction, is to invite neglect and consequent waste and dissipation of assets. ¡By Mr. Justice Dean.</p> <p>Executors and administrators—Use of money in speculative venture— Surcharge.</p> <p>Decedent owned a lease of iron ore property in which he had invested a large amount of money. The undertaking was of a highly speculative and hazardous nature. The ore was uncertain, both as to quantity and quality, and the cost of production was not known with even proximate certainty. The value of the ore when ready for the furnace was certain to be subject to the wide fluctuations of the iron market. The administrator, without consultation with creditors, and with no cautionary order from the court, and simply upon the advice of the next of kin, whose only hope for a share in the estate was in the preservation of the lease, expended a large amount of the money of the estate upon the leasehold. The business proved a disastrous failure, and a large sum was lost to the estate. Held, that the administrator was properly surcharged with the loss.</p> <p> Administrator's commissions—Surcharge—Management of estate. </p> <p>In the above case, apart from the loss on the iron lease, the administrator managed the rest of the estate with such skill as to largely increase the value of the assets. He spent a large amount of time and labor upon the estate, and was compelled to enter security in a large sum. Held, that he was entitled to his commissions.</p>

<p> Road law—Reviewer—Original petitioner. </p> <p>The appointment of one of the original petitioners for a road as a reviewer is an irregularity that is fatal to all proceedings subsequent to the presentation of the petition for the appointment of reviewers.</p> <p>Road law—Decision of court—Practice, Q. S.</p> <p>The decision of the court in a road ease must be based upon the report of either viewers, reviewers or re-reviewers, and not upon testimony taken by a commissioner upon a sort of general appeal from the reports of the viewers, reviewers and re-reviewers.</p>

<p>Assignment for creditors—Trust—Act of April 17, 1843.</p> <p>.Certain creditors of an insolvent placed their claims in the hands of an attorney-at-law to collect and adjust. He took from the debtor, judgment notes paj^able to himself as trustee for his clients. Subsequently the debtor made an assignment to him, as “ trustee of our preferred judgment creditors,” of the debtor’s book accounts, with power to collect the same, pay the debts of the judgment creditors, and return the balance to the debtor. About an hour after this special assignment, the debtor made a general assignment for the benefit of creditors. Held, that under the act of April 17, 1843, P. L. 273, the assignment to the attorney enured to the benefit of all the creditors of the debtor.</p> <p>In the above case an agreement was entered into between the sheriff, who had levied upon the property under the confessed judgments, the general assignee, and the attorney of the judgment creditors, by which the sheriff delivered the personal property levied upon to the general assignee who was to sell, and pay the proceeds to the sheriff to be applied to the executions. The attorney or special assignee authorized the general assignee to collect the book accounts and pay the proceeds to the attorney until the judgments should be satisfied. The general assignee administered upon the entire property and brought the whole proceeds into his account. Held, that each of the funds must bear its own burden of the expense of administration.</p>

<p>Appeal, No. 17, Oct. T., 1895, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1894, No. 413, for defendant on case stated.</p> <p>Case stated to determine whether plaintiffs had authority under a will to sell certain real estate. Before Stowe, P. J.</p> <p>The material portions of the case stated appear by the opinion of the Supreme Court.</p> <p>Error assigned was entry of judgment for defendant.</p>

<p> Municipalities—Debt—Sinking fund—Constitution. </p> <p>Under section 8, article 9 of the constitution, which declares that “ the debt of any city shall never exceed seven per centum upon the assessed ?alue of the taxable property therein,” the debt of a city is properly aseerained by subtracting from its total indebtedness the amount of the certificates of the funded debt of the city held in the sinking fund.</p> <p> Municipal debt—County and city valuation. </p> <p>The language in article 9, section 8, of the constitution, “The debt of any city shall never exceed seven per centum upon the assessed value of the taxable property therein,” and that of section 2 of the act of April 20, 1874, “ Any city may incur debt or increase its indebtedness to an amount in the aggregate not exceeding two per centum upon the assessed value of the taxable property therein, as fixed and determined by the last preceding assessed valuation thereof,” and similar language throughout this act, mean the valuation fixed by the city authorities as a basis of taxation for city purposes, and not the valuation made by county officers for county piurposes.</p> <p> Constitutional law—Title of act—Class legislation. </p> <p>The act of May 5, 1876, P. L. 124, entitled “An act providing for the classification of real estate for the purpose of taxation, and for the appointment of assessors in cities of the second class,” is constitutional, the subject of the act being sufficiently expressed in the title and it being a proper one for class legislation.</p> <p>Increase of municipal debt—Acts of April 20, 1874, and June 9, 1891.</p> <p>Under the acts of April 20, 1874, P. L. 65, and Juno 9, 1891, P. L. 252, an ordinance providing for the increase of the municipal debt is invalid, which does not provide for the levy and collection of an annual tax equal to at least eight per centum of the amount of such increased debt.</p> <p>In such a case the fact that eight per cent annually would more than pay the loan within the time fixed for its payment is no reason for disregarding the mandate of the acts. At least eight pier cent must be actually levied before the bonds are issued.</p> <p>It is not necessary that the loan should be issued redeemable by annual installments. The intent of the act is that a certain sum shall be annually raised in anticipation of payment; and whether paid out in redemption of the bonds annually, or into the sinking fund for the payment of the bonds at the expiration of a term of years, it is, within the meaning of the act, appilied annually to the redemption of the bonds.</p> <p>Municipal debt of Pittsburg—Local act of April 6, 1850—Act of April 20, 1874—Statutes—Implied repeal.</p> <p>The local act of April 6, 1850, P. L. 408, limiting the debt of the city of Pittsburg to $1,500,000, is repealed by the constitution and the act of April 20, 1874.</p> <p>• ■ Whenever any law regulating the municipal affairs of cities of a given class, shall be found to conflict with a previous local statute applicable to any member of the class relating to the subject, the latter must give way, by reason of the nature and purposes of class legislation.</p>

Appeal, Nos. 315, 316, Oct. T., 1894, by plaintiff and defendant, from decrees of C. P. No. 3, Allegheny Co., Aug. T., 1894, Nos. 139, 170, on bills in equity. Bills to restrain construction of electric railway.

Appeal, No. 6, Oct. T., 1894, by terre tenant, from order of G. P. Forest Co., Feb. T., 1893, No. 53, making absolute rule for judgment for want of sufficient affidavit of defence. Rule for judgment for want of a sufficient affidavit of defence in sci. fa. sur mortgage.

<p>Criminal law — Felonious entry—Indictment—Information—Pleading and practice—Act of April 22, 1863.</p> <p>Under the act of April 22, 1863, §2, P. L. 531, it is not necessary to state, in an indictment for entering a dwelling house with felonious intent, whether the offence was committed in the night time or in the day time.</p> <p>An indictment charged that the defendants “ willfully and feloniously did break and enter the dwelling-house of M. J. Baker, there situate, with intent the goods, chattels and property of M. J. Baker, in the said dwelling-house then and there being, then and there feloniously to steal, take and carry away,” and “ did then and there the goods, chattels and property above mentioned in the said dwelling house, feloniously steal, take and carry away.” Held, (1) that the indictment did not charge the crime of burglary at common law, as it did not show that the felonious breaking was done at night; (2) that the indictment was good under the act of April 22, 1863, P. L. 531; (3) that the fact that the commission of the felony intended was also charged in the count, did not vitiate the count; (4) that it was a good count for larceny; (5) that the use of the word “ feloniously” instead of the word “ maliciously” was not fatal to the count.</p> <p>• In the above case the second count of the indictment charged that the defendants “ did willfully and maliciously break, injure and destroy a certain window,” in the dwelling house of M. J. Baker. Held, that there was no misjoinder of counts, since the matters charged in the second were a part of the affairs to which the first related.</p> <p>The fact that the information upon which an indictment is based does not contain as fulband specific a statement of the offence as the indictment, furnishes no ground for quashing the indictment.</p>

<p>Appeal, No. 84, Oct. T., 1894, by defendant, from order of C. P. No. 3, Allegheny Co., May T., 1892, No. 584, 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 to recover the value of sixty barrels of petroleum shipped by plaintiff from Oil City to Richmond, Virginia.</p> <p>Plaintiff’s statement averred that the oil was lost by reason of defendant’s negligence. Plaintiff attached to and made part of his statement the bill of lading under which the oil .was shipped, the sixth clause of which was as follows:</p> <p>“Sixth. In further consideration of the hazardous nature of such merchandise (whereby the cars, tanks and other propeiPy of the line are endangered), and that no extra charge is made for transporting it, the owner, shipper and consignee hereby severally stipulate and agree, that they will cause it to be properly; fully and sufficiently insured from loss or damage by fire, and, in the event of such loss or damage, that they will look for compensation or reimbursement therefor only to the said insurance ; but if such loss or damage shall occur from any cause which shall be held to render this line or any of its agents liable therefor (which is hereby declared to be contrary to the intentions of the parties thereto), it is hereby further expressly agreed that this line shall have the benefit of such insurance, and the owner, shipper and consignee severally agree that it shall be so inserted in the policy of insurance.”</p> <p>The affidavit of defence set up the loss by fire, and averred that plaintiff had failed to insure as he agreed to do in the above paragraph.</p> <p>Rule for judgment absolute, in opinion by McClung, J.</p> <p>Error assigned was above order, quoting it.</p>

Appeal, No. 18, Oct. T., 1895, by-defendant, from judgment of O. & T. Washington Co., Aug. T., 1894, No'. 47, on plea of guilty. Indictment for murder. Plea, guilty. On proceedings to determine the degree of the prisoner’s crime, the court below filed the following opinion by McIl-VAINE, P. J.: “ FACTS. “ The testimony, in our opinion, establishes beyond a reasonable doubt, the following facts: “1.

Appeal No. 455, Jan. T., 1894, by plaintiffs, from order of C. P. No. 2, Philadelphia Co., March T., 1892, No. 245, entering nonsuit. Replevin. Before Fell, J. At the trial it appeared that defendant was the assignee for the-benefit of creditors of Marietta Heller, trading as Adolph Heller. On Oct. 29,1891, and thereafter, plaintiffs sold to Mrs. Heller considerable quantities of dry goods.

Appeal, No. 472,-Jan. T., 1894, by defendants, from judgment of C. P. No. 3, June T., 1893, No. 415, on verdict for plaintiff. Assumpsit for alleged wrongful dismissal of servant from employment. Before Gordon, J. At the trial it appeared that plaintiff was a mechanical engineer, and was originally employed by defendants under a contract which had expired in December, 1891. Defendant’s firm consisted of three partners, one of whom, George L. Harrison, was in Europe.

Appeal, No. 382, Jan. T., 1895. by administrator, from decree of O. C., Phila. Co., Oct. T., 1893, No. 327, dismissing exceptions to adjudication. Exceptions to adjudication. From the adjudication it appeared that decedent died intestate leaving to survive her a husband-, who subsequently took out letters of administration on her .estate, and an illegitimate son of full age who was a resident of- Germany.

Appeal, No. 484, Jan. T., 1894, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1889, No. 659, M. L. D., on verdict for plaintiff. Sci. fa. sur municipal lien. Before Brégy, J. At the trial it appeared that, on March 30,1889, an ordinance ■was approved authorizing the paving of a portion of Woodland .avenue, including that part in front of defendant’s property,, with vitrified paving bricks.

Appeal, No. 507, Jan. T., 1894, by trustee, from decree of O. C. Phila. Co,., July T., 1894, No. 116, removing trustee. Petition to remove trustee.

Appeal, No. 6, Juljr T., 1894, by plaintiff, ¿rom judgment of C. P. No. 2, Phila. Co., June T., 1890, No. 212, on a verdict for the defendant. Sheriff’s interpleader. Before Jenkins, J. [3 Dist.

<p>Appeal, No. 9, July T., 1894, by dgfeijdatijbs, from decree1 of C. P. No. 1, Phila. Co., March T., 1.89$, .No'. 465, on bill in equity.</p> <p>Bill for'injunction'to restrain business of hair dressing within certain limits.</p> <p>The material portions of the contract between the parties were as follows:</p> <p>“ Know all men by these presents, that we, 'William Glass-mire and Alice Glassmire, of the city of Philadelphia, trading under the style and firm name of Mr. and Mrs. William Glass-mire, hair dealers, for and in consideration of the sum of one thousand five hundred dollars, to be paid as hereinafter mentioned, have granted, bargained, sold, assigned and set, over unto Elizabeth L. Brauning and George It. Patterson, trading as Brauning & Co., all the stocks, fixtures, merchandise and good will now owned and conducted at No. 2118 Germantown avenue, in the hair goods business and all the branches thereto appertaining, to have and to hold the same unto the said Brauning & Co., their heirs and assigns forever. . . .'</p> <p>“ It is also herebj^ expressly agreed on the part of the said Mr. and Mrs. William Glassmire as a part of'the consideration moving in said sale, that they or either of them shall and will not, either by themselves or any other person or persons whomsoever, either directly or indirectly engage in, manage or conduct the said business of hair dealing, or any of the branches thereof, sold as aforesaid, within eight squares of said place of business, No. 2113 Germantown avenue, at any time hereafter.”</p> <p>This bill was brought to restrain defendants from engaging in the business at 1931 North Sixth street, within the limits prescribed,- and for an account of profits.</p> <p>The case was referred to J. Percy Keating, Esq., as master and examiner, who summarized his findings of fact as follows:</p> <p>“ 1. The agreement of sale was made on a valuable consideration, and passed to plaintiffs all the stock, fixtures, merchandise and good will then owned and conducted at 2113 Germantown avenue, in the hair goods business and all the brandies thereto appertaining, defendants covenanting that they or either of them shall not of themselves or either of them or any person or persons whomsoever, either directly or indirectly, engage in, manage or conduct the said business of hair dealing or any of the branches thereof, sold as aforesaid, within eight squares of the said place of business No. 2113 Germantown avenue, at any time thereafter.</p> <p>“2. The business conducted at 2113 Germantown avenue prior to the sale was the sole and exclusive business of William Glassmire, his wife, Alice Glassmire, having no interest therein.</p> <p>“ 3. The said Alice Glassmire was, prior to said sale, and has ever since been a married woman.</p> <p>“ 4. The business at 2113 Germantown avenue at the time of the agreement in question, was the sale of artificial hair, toilet articles and the like, as also the business of dressing and cutting the natural hair,</p> <p>“5. The business of cutting and dressing the natural hair constituted, at the time of the said sale, a branch of the business of a retail hair store.</p> <p>“6. Defendant, William Glassmire, was, by mutual understanding contemporaneous with the agreement, permitted to continue the business conducted at 2041 North Front street, notwithstanding the terms of the said agreement; but no other exception or modification of said agreement was ever agreed on between the parties.</p> <p>“ 7. Since the agreement of sale the plaintiffs have continued the business of a retail hair store, including hair-dressing and hair-cutting, at 2113 Germantown avenue.</p> <p>. . “ 8. The business conducted at 1931 North Sixth street is that of dressing and cutting of natural hair, and the selling of .artificial hair goods and curling irons, crimpers, etc., by sample.</p> <p>“ 9. The said business is conducted within the limit prescribed by the agreement of sale and is the business of William Glassmire, one of the defendants.</p> <p>■ “10. Since the establishment of said business at 1931 North Sixth street, the business conducted at 2113 Germantown avenue by plaintiffs has fallen off, but to what extent does not appear, and the circumstances of the case render it impossible to determine how far the plaintiffs’ business has been damaged by defendant’s action in maintaining the business covenanted against. But the proximity of defendant’s store renders it most apt to prejudice plaintiffs’ business, and customers of plaintiffs’ store have been actually diverted to it. . . . '</p> <p>“ The evidence adduced to explain the subject-matter of the sale.established the fact that the business of cutting and dressing the natural hair constituted, at the time of the agreement, a branch of the hair goods business actually conducted at 2113 Germantown avenue. That it accordingly passed under the terms of the sale, and became the subject of the covenant, seems to be conclusively established.</p> <p>“ It appears by tbe evidence that a waiver or concession was allowed by the covenantees, at the time the agreement was entered into, in favor of the Front street store. It was not incorporated in the written agreement, but was simply allowed by mutual understanding. Such waiver does not, in the master’s opinion, tend to render obscure or uncertain the rights reserved by the covenantees under the agreement. It is confined solely to the business done at that particular store, and as such it is clear and precise in its nature, the testimony of all the parties to the contract being singularly in accord with regard to it. The evidence in this respect, therefore, does not offend against the rule that the contract should be clear and distinct and established by satisfactory evidence.</p> <p>“As to the breach, it was established that the dressing and cutting of the natural hair was and is being done at the Sixth street residence, which is within the limit prescribed, and that the business was that of William Glassmire, one of the covenantors and defendants. ' Articles in the hair goods line were also sold there by sample to be furnished from the Front street store.</p> <p>“ It was contended by defendants that the question as to whether the procuring of orders by sample constitutes a breach of the agreement is too doubtful to warrant an injunction, citing High on Injunctions, sec. 1176. The case upon which such ruling was founded, however, is Turner v. Evans, 2 D. M. & G., 740, where one who had contracted not to ‘ carry on ’ business within certain limits afterwards went about within those prescribed limits soliciting orders for his stand, situated outside the limits. Lord Cranworth, in declaring the breach too doubtful to warrant an injunction, expressed the opinion that in the case of a business which consists of keeping a store as distinguished, for instance, from a milk route, a man can only be said to ‘ carry it on ’ at his stand or place of business. The distinction between that case and this is that here a new stand or place of business was selected within the prescribed limits, and the very thing that was wanting to warrant the injunction in that' case is thus supplied here. Moreover, the agreement here extended to the indirect as well as direct carrying on of the business, which would seem to cover this method of selling the goods of the Front street store. Nor does the sale of the goods at the Sixth street store come within the waiver or exception allowed to the business of the Front street store. Consequently the sale by sample constitutes in the present case a breach of the agreement.</p> <p>“ In the master’s opinion, therefore, the essential allegations of the bill are substantiated by the evidence, and the injunction prayed for should issue against William Glassmire to restrain him for all time from conducting the business carried'on at the Sixth street residence and elsewhere within the limits prescribed by the agreement, excepting at 2041 North Front street.</p> <p>“ In view of the finding of fact that the business is that of William Glassmire alone, it becomes unnecessary to examine and define the status of Alice Glassmire, the other defendant, under hér covenant. The injunction will lie against her, but only in her capacity as agent of the husband in the conduct of’ the particular business-complained of. Hilliard on Injunctions, 715; Barrett v. Blagrave, 5 Ves. 555.”</p> <p>The master reported in favor of plaintiff.</p> <p>• Exceptions to the master’s report were overruled and a decree entered restraining William Glassmire, and Alice Glassmire, as agent of William Glassmire, from directly or indirectly engaging in, managing or conducting the business of hair dealing or any of the branches thereof, including the cutting and dressing of the natural hair, at the premises No. 1931 North Sixth street, in the city-of Philadelphia, and at any place within eight squares of the premises No. 2113 Germantown avenue in said city, excepting at the store No. 2041 North Front street, in said city, at any time thereafter; that William Glassmire pay the costs; and that plaintiffs have leave to apply for the appointment of a master to take evidence and state an account of profits from the business conducted at No. 1931 North Sixth street.</p> <p>° Errors'- assigned were (1—45) the dismissal of exceptions; (46) decree; quoting them respectively.</p>

Appeal, No. 53, July T., 1894, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1893, No. 10, 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 foreign attachment in assumpsit against a surety on an account rendered. From the record it appeared that defendant filed a general appearance.

<p>Appeal, No. 378, Jan. T., 1894, by-defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1892, No. 529, for plaintiff on report of referee.</p> <p>Appeal from report of viewers assessing land damages.</p> <p>By agreement of the parties the case was referred to Richard C. Dale, Esq., as referee, who reported as follows:</p> <p>“ 1. In 1845 Benjamin S. Janney became seized of a tract of land in the county of Philadelphia, of which the two lots for which damages (caused by change of grade) are claimed, were part.</p> <p>“ 2. In the year 1847 the district of Richmond was incorporated, including within its limits the lots in question.</p> <p>“ 3. In the year 1850 the said Benjamin S. Janney sold lots described as on Janney street, running through to Weikel street, which is the Weikel street in question.</p> <p>“4. Since 1850 to the present day said Weikel street has existed as a street laid out by Benjamin S. Janney, and a public highway, and lots have been sold as bounded thereby.</p> <p>“5. No confirmed grade of Weikel street had been established prior to that under which the grading complained of was done, and no street pavement had been made thereon or other construction effected by the public authorities prior to the grading which is the present cause of action.</p> <p>“ 6. No improvements have at any time been placed upon, the premises of plaintiff.</p> <p>“ 7. In 1847, P. L. 389, an act was approved March 15, to incorporate the Gunner’s Run Improvement Co., authorizing said company to construct a canal one hundred feet wide, commencing at the northwest side of Queen street, now Richmond street, in the district of Kensington, and to terminate at a point at or near where the Phila. & Reading Railroad crosses Gunner’s run.</p> <p>“ 8. A supplement to said act was passed March 10, 1848, authorizing said company to. construct said canal to the river Delaware by the best practical route in the district of Richmond,</p> <p>“ 9. Said canal was never constructed north of Huntingdon street, although ditched further north, and the part south of the said street has been long since abandoned by the company.</p> <p>“10. The following ordinance, applying to the district in question, was duly passed Feb. 25, 1884:</p> <p>. “ ‘ That the department of surveys be, and they are hereby authorized to make a re-survey of the streets in the Sixth Survey District and to secure the same bjr suitable landmarks, and to revise the lines and grades thereof.’</p> <p>“11. On Sept. 2, 1886, the following action was held by the board of health :</p> <p>'• “ ‘ The special committee to which was referred a complaint i'n regard to the condition of Gunner’s run, made a report in connection thereto, setting forth its filthy condition, and that there can be no doubt the high mortality for which that section of the city is noted, is due, in a large measure, to this shallow and open latrine, as it may be called, the poisonous emanations from which escape unhindered into the surrounding air. The nuisance seems to be one so prejudicial, to the public health that the committee recommends the board to call the Special attention of the city councils to it, by submitting to councils a copy of this report, with the suggestion that a brick culvert take the place of the open stream, or if that is impracticable at this time, that the canal be dredged of its disgusting contents.’ Signed by R. A. Cleeman, M. A. Davis, H. G. Sickel, committee. Resolution adopted.</p> <p>“ The subject-matter of this resolution was by councils referred to the board of surveyors, who appointed a committee of their number to examine the locality.</p> <p>“12. On Jan. 11, and June 27, 1887, a committee of counoils stated the condition in reports to the select and common councils, of which a copy, together with ordinances thereafter passed, is attached hereto as Exhibit ‘ A.’</p> <p>“ 18. The following ordinance, one of the above referred to, was duly passed Feb. 25, 1887:</p> <p>“ ‘ That the department of surveys be, and is hereby authorized to strike from the city plan, Aramingo canal, from Huntington street to Frankford creek, and in lieu thereof to substitute a street of the same width, and to revise the lines and grades of all streets in the vicinity that may be affected by such change.’ “11. That in pursuance of said ordinances, the board of surveys struck Aramingo canal off the plans, and revised and changed the said lines and grades by certain plans which were confirmed by said board of surveys, on Dec. 2, 1889, and on other dates at or about the same time.</p> <p>“ 15. All the plans thus confirmed, and particularly the plan which includes Weikel street, prescribed grades upon streets crossing the former line of Aramingo canal, of such a nature as to afford continuous slopes for the sewage system in its1 course from the upper side of Gunner’s run and Aramingo canal to the Delaware river. The slope of the surface of Westmoreland street was also continuous from the upper side of former Aramingo canal, all the way to the river. Southwest of Westmoreland street the transvei’se streets are not continuous in the slope of their surface to the river. Below Aramingo canal they show a slight hollow running parallel with its line; below this hollow they rise to a summit; beyond which the slope continues to the river. The sewers on these streets preserve their continuous slope to the river by plunging some ten feet or more below the street surface after passing the hollow referred to. The grade of the sewers is the least practicable to admit of the necessary height above the canal to enable them to discharge at low tide.</p> <p>“ 16. All of these plans had place in a general scheme of grade regulation, then adopted and since pursued, calculated to eliminate from the system of street levels in the locality, the water shed and general depression of Gunner’s run and Aramingo canal.</p> <p>“ 17. By said revised plan, the lines and grades of the streets in said portion of the sixth survey district, in which the property in question is situate, bave been changed and are raised and made higher than the grades which had been theretofore established, or existed naturally upon such streets where there was no confirmed plan.</p> <p>“18. By an ordinance approved April 7, 1890, the director of the department of public works was authorized and directed, inter alia, to grade Weikel street, from Allegheny avenue to Clearfield street. Ordinances, 1890, page 112.</p> <p>“ 19. Pursuant to said ordinance of April 7,1890, said Weikel street was graded from Allegheny avenue to Clearfield street.</p> <p>“ 20. The depreciation in market value of the plaintiff’s property, consequent upon the change of grade, was $1,221.</p> <p>“ 21. The territory adjacent to and within the water shed of Gunner’s run, including the plaintiff’s lots and an area of several square miles, lies low, and with the growth of the city Gunner’s run became a nuisance prejudicial to the health of that portion of the city.</p> <p>“22. The nuisance referred to as existing in the locality whereof the street grades were thus established was occasioned by the sluggish nature of Gunner’s run and of the same stream in its passage through the canal, by the depression of the entire localitj', and by the general confluence of all drainage along streets and over ground surface into the stream.</p> <p>“ 23. The object of the general re-arrangemeut of grades referred to, was the abatement of this nuisance bjr such alteration of street slopes as to make them cease carrying fluid and other refuse where the presence of such discharge was constantly stimulating the noxious influences.</p> <p>“ 24. The foregoing findings of fact were accepted as correct by counsel for both plaintiff and defendant. Counsel for the city also asked the referee to make the following finding:</p> <p>“ ‘ According to the weight of evidence, the action taken by the municipal authorities was that directly adapted to relieve the evil,—was the expedient towards such end least injurious to private property, and in fact, the only practicable course for readjusting slopes in general so as to abate the nuisance in question.’ ■</p> <p>“ 25. The referee cannot affirm this proposition in the language in which it is framed, but does find that the municipal action taken was calculated to abate the nuisance, and was adopted for that purpose as shown by the report of the committee of councils hereto appended.</p> <p>“ The counsel for the city asked the referee to affirm the following proposition of law:</p> <p>“ ‘ [The effect of art. 6, sec. 8 of the state constitution is merely to withdraw the prerogative immunity of the commonwealth and its agencies against redress for injuries recognized independently of that provision, but irremediable save under it. Its terms cannot be held to impose a liability for such a measure as that here in question if coming under the police power.]’ [1]</p> <p>“ The referee declines to affirm this proposition so far as he is asked to apply it to the circumstances of this case.</p> <p>“ Upon the foregoing statements of fact, which are not the subject of dispute, the city contended that it was not liable for the injury done to plaintiff’s lots, because the change of grade was a step in a great public improvement designed by the municipal authorities to abate a nuisance prejudicial to the health of the neighborhood, and the removal of which would tend eventually to enhance the value of all the property in the district affected by the change.</p> <p>“The rights of property owners to damages for injury to property consequent upon a change of grade are derived from article 6, section 8 of the constitution, which provides : ‘ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction and enlargement of the works, highways or improvements.’</p> <p>“ This constitutional provision was adopted to relieve property owners from the hardship which the court sought, but was unable to allow compensation for in O’Connor v. Pitts-burg, 18 Pa. St. 187, where Mr. Chief Justice Gibson said: ‘ We have had this cause re-argued in order to discover, if possible, some way to relieve the plaintiff consistently with law, but I grieve to say we have discovered none.’ ‘ The modification of the remedy would be for the legislature, which can turn compensation for a permanent detriment into the price of a prospective license, but to obtain complete justice, every damage to private property ought to be compensated by the state or corporation that occasioned it, and a general statutory remedy ought to be provided to assess the value.’</p> <p>“ The duty of the court to afford the protection thus given by the constitution to the rights of property holders is thus recognized by Mr. Chief Justice Stekrbtt, in O’Brien v. Phila., 150 Pa. St. 589; a case where the city sought to escape responsibility for damages to a house built in conformity with the then existing grade of an old and open public highway, and where the grade was subsequently changed to conform to a plan confirmed after the building of the house, the plan being the first official regulation of the grade of the highway.</p> <p>“ The Court said: ‘ If any regard is to be had for the constitutional mandate that “ municipal and other corporations .... shall make just compensation for ¡property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements,” we are at a loss to see how the learned judge could do otherwise than decide the reserved question as he did. Nobody conversant with the history of the constitutional provision above quoted can entertain any doubt that it was intended to provide, inter alia, for the class of cases of which O’Connor v. Pittsburg, 18 Pa. 187, is a conspicuous example. It has uniformly been so regarded from the date of its adoption until the present time. It is a fact, conclusively established by the verdict, that, as a direct consequence of the elevation of grade immediately in front of plaintiff’s property, its market value is lessened at least to the extent of $240 ; but it is gravely suggested that “such a damnum is not necessarily an injuria,” and hence plaintiff is remediless. That principle has no application to the class of cases to which this belongs. To hold that it has, would defeat one of the objects of the constitutional mandate in question, and virtually overrule several well considered cases. We do not propose to do either.’</p> <p>“ The referee was asked, however, in this case to hold that no damages were recoverable, because the change of grade was made to enable sewers to be laid through the territory adjacent to Gunner’s run, which would relieve the district from the noisome influences which have prevailed ever since population had increased. The referee does not find any warrant in the authorities for the defence.</p> <p>“ In Plan 166,143 Pa. 414, Mr. Justice Mitchell, in reviewing the legislation controlling rights of action for changes of grade, recognizes that the drainage problem is one of the principal factors included in changes of grade. ‘ Among these evils, not the least was the necessity for a uniform system of streets, street-grades, sewers, etc., for a population already approximating half a million, located on a site where the general level was so little above tide water as to make the problem of drainage one of difficulty as well as importance.’</p> <p>“ Our knowledge of the moving cause for change of grade in a very large proportion of instances is that the change is made to enable the laying of sewers which will cany off the increasing drainage of neighborhoods where the population is becoming more dense. The fact that the need in the vicinity of Gunner’s run was greater than in some other places does not change the rule.</p> <p>“It was further contended on the part of the city that the removal of the noisome influences from this district by the completion of the improvements covered by the report of the committee of councils would eventually enhance the value of all property within these limits. This may be true, but the city is not entitled to set off against the special damage done to this particular property a subsequent increase of value, common to the entire neighborhood. The measure of damage is the difference in the market value of the lot consequent upon the change of grade.</p> <p>“ The attention of the referee was also called to the line of cases of which Fertilizing Co. v. Hyde Park, 97 U. S. 659, is a leading example. In that ease an ordinance of the village of Hyde Park prohibited the conveyance of any offal or offensive matter through the village. The effect of the ordinance was to close the business of the plaintiff. It was held that the company had no right to recover damages for the destruction of a business which was a nuisance, through the exercise of the police power of the state.</p> <p>“ There is no analogy between the case thus cited and that before the court. The plaintiff is seeking to recover damages for an injury, the right to payment of which is guaranteed by the constitution and provision for which is made by statute. No such element existed in the Hyde Park case or in the cases ■of similar character. The referee would, therefore, report that the plaintiff is entitled to judgment for the amount of damages shown, to wit, the sum of $1,221. All of which is respectfully submitted.”</p> <p>Exceptions to the referee’s report, alleging error (1) in refusing to affirm the point in brackets, and (2) in allowing damages, were dismissed by the court, and judgment entered for plaintiff for $1,221.</p> <p>¡Errors assigned were (1, 2) dismissal of exceptions; (3) en try of judgment; quoting them respectively.</p>

<p>Appeal, No. 513, Jan. T., 1894, by testamentary guardians, from decree of O. C. Philadelphia Co., April T., 1890, No. 52, awarding custody of children.</p> <p>Petition for an allowance for the maintenance and support of minor children.</p> <p>The case was referred to J. E. Carpenter, Esq., as examiner and master, who reported as follows:</p> <p>“ Joseph Brown, the father of the minors, died Nov. 21,1889, having first made his will, in which he left his estate to his wife, Mary Jane Brown, the mother of the minors, ‘in trust that she will use, enjoy and dispose of the same or such part thereof as, in her judgment, may be necessary or proper for the maintenance of herself and my children, and upon her death then whatever may remain of my said estate shall go to my children absolutely. I appoint my said wife to be guardian of the persons and estate of my minor children during her life, and my esteemed friends, William H. Park and William Loan, to be guardians of the persons and estates of my minor children after the decease of my wife.’</p> <p>“ Mary Jane Brown, the widow of Joseph Brown, the testator, survived her husband until Dec. 5,1890, when she died, having first made her will, in which she directs: ‘ That all the estate of which I die possessed may remain in the custody and possession of Messrs. Corbin and Goodrich, who were the employers of my husband, and who have had charge of his money since his decease. I direct that the money remaining in their hands shall be paid out by them for the use of my three children as their necessities may require from time to time. It is also my desire that my said children shall remain in the care and keeping of their aunt, Sarah Jane Derr, as long as she may be able and willing to care for them, and that such necessary expenses as may be incurred in maintaining and caring for them shall be paid out of the funds in the hands of Messrs. Corbin and Goodrich. And I desire that they shall remain in their present residence, No. 2018 Abelina street,' Philadelphia, but in case Mrs. Derr should desire to be relieved of their care, it is my desire and I direct that the said children shall be placed in the care of their aunt, Mrs. Margaret Price.’</p> <p>“ It does not appear that Mary Jane Brown, the widow of Joseph Brown and mother of the minors, had any separate estate of her own other than that which she received under the will of her late husband.</p> <p>“Joseph and Mary Jane Brown left three children surviving them; Margaret, who became 16 years of age Oct. 14, 1893 ; Joseph James, who became 14 years of age Oct. 8, 1893, and Samuel, who became 8 years of age Sept. 13, 1893.</p> <p>“Sarah Jane Derr, the petitioner, who is the aunt of Mary Jane Brown, the mother of the minors, came to live with Joseph Brown and his wife and children at Mr. Brown’s request, and nursed and cared for both Mr. and Mrs. Brown, who were sick with consumption, until Mr. Brown died, and afterwards she continued to live with Mrs. Brown and the children until Mrs. Brown died, and since then she has continued in charge of the minors until the present time, supporting and keeping the family together, partly with funds contributed by the custodian of the estate of the minors, partly from her own funds.</p> <p>“Shortly after the death of Mrs. Brown an effort was made by Messrs. Loan and Park, the guai’dians under Mr. Brown’s will, to obtain the custody of the persons of the minors. Mrs, Derr, the aunt to whose custody Mrs. Brown had in her lifetime, and afterwards by her will, committed the minors, declined to deliver them into the care of the guardians, whereupon a writ of habeas corpus was issued at the instance of the guardians under the father’s will, the minors were brought into the court of quarter sessions, and were, by the order of that court, remanded to the custody of the aunt, Mrs. Derr.</p> <p>“ The minors are satisfied with the present arrangement and happy in their present family relations, and the eldest, Margaret, who is over sixteen years of age, declared unequivocally that she would not go to live with the guardians.</p> <p>“ The father, Joseph Brown, was a Protestant in religious belief. During his lifetime his children attended the Presbyterian church, and his wife, who was a Roman Catholic, occasionally accompanied her husband to the Presbyterian church. After the father’s death the children were brought under Roman Catholic influences, and have remained so until the present time. Margaret, the eldest minor, in her testimony announced that she is a confirmed Catholic, and that she would never go to a Protestant school.</p> <p>“ The testimony of Messrs. Loan and Park was to the effect that Joseph Brown, the testator and father of the minors, had informed them before his death that he had named Messrs. Loan and Park in his will as the testamentary guardians of his children, and that he desired them to be brought up in ‘his way,’ meaning in the Protestant faith.</p> <p>“ The will of the testator, Joseph Brown, makes no allusion whatever to any religious instruction to be given to his children. Nor does the will of his widow, Mary Jane Brown, refer to the religious training of the minors.</p> <p>“The petitioner, Sarah Jane Derr, prays for an allowance of $40 per month from the date of the death of the mother, Mary Jane Brown, for the maintenance and support of the minors. To this the testamentary guardians under the will of Joseph Brown, by their answer, object: that they are able and willing to take care of, educate, and train the minors; that ever since the death of the mother of the minors they have endeavored to obtain possession of their persons, but have been resisted by the petitioner, who refuses to allow the minors to be removed from her custody and care; that the best interests of the minors are not attained by leaving them in the custody of the petitioner; and that the amount asked for by the petitioner is excessive.</p> <p>“ It is well settled that the right of the father to appoint a testamentary guardian is paramount to that of the mother: Com. v. Hamilton, 1 Pitts. 412. Indeed, the act of June 10, 1881, P. L. 96, which gives the mother authority to appoint a testamentary guardian, expressly reserves the right of the father by providing ‘ that the father be not living or being deceased he has not appointed such guardian.’</p> <p>“ Undoubtedly the testamentary guardians appointed by the will of the father, are entitled to the custody and care of the estates of the minors, but the English common law doctrine which gave to the father the possession of the person of his minor child, even in infancy and against the claim of the mother, has never been received in Pennsylvania, where the more liberal doctrine obtains that the state is the paramount guardian, and will look to the interest of the minor, and to the interest which society has in the proper care and training of children upon whom it is to depend for its future existence.</p> <p>“In the case of Com. ex rel. v. Hart, 14 Phila. 852, Allison, P. J., collects the authorities on this subject, both in England and in Pennsylvania, and in an able and interesting opinion shows the progress of the breaking away from the old doctrine in England to the extent that it is now recognized there that the interests of the minors are to be regarded, not, however, as a controlling consideration, and showing the wide difference between the law of England in this respect, and that which has been from the beginning held and enforced in Pennsylvania, where a more liberal application of the principle of the controlling power of the state as parens patriae has been adopted, looking more to the defence of those unable to help themselves and to the interest of society. The law as now enforced in Pennsylvania on this subject is stated in this language: ‘At any time during minority the court will make such disposition of a minor child, whose custody is in dispute, as the circumstances of the case demand, having always in view, first and last, and controlled mainly by the consideration which will best promote the welfare of the infant.’</p> <p>“Applying these rules of law to the present case and taking into consideration the surrounding circumstances, the master reports that in his opinion the best interests of the minors will be preserved by allowing them to remain in the custody of their aunt, the petitioner, with whom they are happy and form a united family. It is true that according to the testimony of the guardians under Joseph Brown’s will the religious training of the children is different from what it might have been if the children had been left in charge of the guardians. But the will of Joseph Brown consigned them to the care of their mother, and it was while the minors were under her care that the present religious training was adopted.</p> <p>“ The petitioner was a member of the family during the lifetime of Joseph Brown, and remained in charge of the minors during his last illness, and the illness of his widow, and she has remained in charge of them; endeavoring to keep the family together ever since. The religious training of the minors was not changed by her, but any change made, was made by the mother of the children in her lifetime. It is too late, on this account, to tear up the family surroundings, and against their wills to drag these minors away from a home in which they have lived happily for several years, although in more poverty than their guardians, in view of the circumstances, should have permitted.</p> <p>“ Moreover, the court of quarter sessions, upon the hearing of a writ of habeas corpus, issued at the instance of the guardians, shortly after the mother’s death, which occurred Dec. 5, 1890, remanded these minors to the care of the petitioner, so that she has had them in her custody by the actual order of that court.</p> <p>“ The master further reports and recommends that a proper allowance be made out of the funds of the estate of the minors, in the hands of the guardians, to the petitioner, to be devoted to the proper care, maintenance, and education of the minors, and inasmuch as the guardians have offered to take charge of them for the sum of thirty dollars per month, and as two of the minors are able to contribute toward the support of the family, the master believes that the petitioner will be able to support the minors with economy upon thirty dollars per month, which he accordingly recommends as an allowance to be paid by the guardians out of the estates of the minors to the petitioner, until the further order of the court, for the purposes aforesaid.</p> <p>“ The master further reports and recommends that the sum of thirty dollars per month from Dec. 5, 1890, the date of the death of the mother of the minors, until the present time, be allowed the petitioner for money of her own already expended by her in this behalf, or borrowed by her for this purpose, or to pay rent accrued and not paid, less the sum of $465, already received by her from the estates of the minors.”</p> <p>A decree was entered accordingly by Hanna, P. J.</p> <p>Error assigned was in confirming report.</p>

Appeal, No. 425, Jan. T., 1894, by plaintiff, from order of C. P. No. 3, Phila. Co., September T., 1893, No. 1109, discharging a rule for costs. Rule for alias ca. sa. for costs. From the record it appeared that, on March 29, 1893, plaintiff’s husband leased a store and dwelling No. 1942 Columbia avenue, in Philadelphia, to the defendant.

<p> Arbitration— Suit on award—Building contract. </p> <p>Where' a building contract provides that two arbitrators named therein shall determine all questions arising under the contract, and that no action shall be sustained by either party until the arbitrators shall .have certified that there is a cause of action, one of the parties, who has been properly notified of the time and place of meeting of the arbitrators to hear and consider matters in dispute, cannot, after failing to appear before the arbitrators, raise questions which he might have presented to the arbitrators, or re-open, in an action on the award, questions upon which they were authorized to pass, and did in fact determine in making up their award.</p> <p>Where parties to an executory contract agree that all disputes, arising in relation thereto, shall be first submitted to the arbitrament of one or more persons named, they are bound by the terms of the submission, and cannot seek redress elsewhere until the person or persons so chosen have been discharged by having made an award, or otherwise.</p>

Appeal, No. 25, July T., 1894, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1894, No. 280, making absolute a rule for judgment for want of a sufficient affidavit of defence. Assumpsit for money due under written contract.

<p>Appeal, No. 81, July T., 1894, by defendant, from order of C. P. No. 2, March T., 1894, No. 421, 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 for paving footway.</p> <p>Plaintiffs’ statement was as follows :</p> <p>“ Plaintiffs claim to recover the sum of $114.30, with interest from April 22, 1893, being the amount due by defendant to plaintiffs for work and labor done and performed, and material furnished, in repaving footway in front of premises 410 and 412 South Front street, and resetting curb in front of same, and which said work and material were as follows:</p> <p>45.13 square yards of block pavement, with</p> <p>pebble and pitch cemented joints, . $2 00 $90 26</p> <p>38.4 square yards of repaving old block pavement, . . . . . . . 50 19 20</p> <p>24 feet 2 inches of curb reset, . . > 20 4 84</p> <p>$114 30</p> <p>“ Plaintiffs aver that the said Irene M. Young is the owner of the said premises, 410 and 412 South Front street; that she authorized Charles W. Young, her husband, as her agent, to. contract with the plaintiffs to do the said work and furnish the said materials as set forth, and that the said Charles W. Young, acting as agent for the said Irene M. Young, and by her authorized and at her instance and request, did employ said plaintiffs to do the said work and furnish the said materials, and at the time the said work was done and materials furnished, the said Charles TV. Young did not disclose to plaintiffs that he was acting as the agent for the said Irene M. Young, his wife. Plaintiffs aver that the said work, as done and the materials as furnished, were necessary work and material done and furnished to and for the repair and improvement of the separate estate of the said Irene M. Young, and that the whole amount of the said claim, with interest from April 22, 1893, is justly due and payable to plaintiffs.”</p> <p>Defendant in her affidavit of defence averred :</p> <p>“That deponent never employed or authorized any other-person to employ the plaintiff to do the work, 38.4 square yards repaving old block paving,'$ .50—$19.20, mentioned in plaintiffs’ statement, and is not indebted to the plaintiffs for the same.</p> <p>“ That the work done in the paving with pebble and pitch was not done in a proper way nor in accordance with the directions given to the plaintiffs to do said work. That the plaintiffs, in doing this work, did more than twenty per cent more work than they were ordered, directed and empktyed to do, which was unnecessary and for which the defendant claims a credit herein. That a part of the work done in the laying of said blocks was improperly done, not being laid according to the proper grade of the city regulations and the survey department of the city and that part must be taken up and relaid. The cost of which the defendant is entitled to set-off in this case.”.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defence.</p> <p>Error assigned was above order. •</p>

<p> Will—Lapsed devise—Residuary clause—Intestacy. </p> <p>A testator dies intestate as to a lapsed devise or bequest contained in a residuary clause.</p> <p>Testator gave her residuary estate to four persons to be equally divided between them. One of these persons died in her lifetime. There was no provision for a survivorship among the residuary legatees nor gift over in case of the death of any of them. The person who was entitled to take under the intestate laws was a niece, as to whom the testatrix used the following language in her will: “ I entertain a feeling of love and affection for my niece, Susan Gorgas, of West Chester, and my sole reason for not making her a legatee under this will is the fact that she is already in receipt of a large income derived from her father’s and uncle’s estates.” Held, that the lapsed share of the residuary estate went to the niece, notwithstanding the clause in the will above quoted.</p>

Appeal, No. 102, July T., 1894, by plaintiff, from judgment of C. P. No. 2, Philadelphia County, Dee. T., 1889, No. 526, on verdict for defendant. Assumpsit to recover board alleged to be due under an agreement in writing. Before Jenkins, J. At the trial it appeared that plaintiff and defendant lived with their sisters in a house left by their parents as a common home.

Appeal, No. 103, July T., 1894, by the trustee, from decree of O. C. Phila. Co., sustaining excep tions to adjudication. Exceptions to adjudication.

<p>Rule for penalties under act of May 25, 1874, in appeal and certiorari, No. 176, July T., 1894, from C. P. No. 4, Phila. Co.</p> <p>Plaintiff in his petition for the rule averred that he recovered a verdict and judgment for $96.03; that after judgment was entered, defendant offered him $55.00 in settlement of the case, declaring that, if the same was not accepted, he would appeal the case ; that plaintiff declined the offer, whereupon defendant took an appeal to the Supreme Court, the record being certified on August 14, 1894, defendant making affidavit that his appeal was not for delay. Plaintiff further averred “ that, notwithstanding defendant’s affidavit, said cause was appealed to this court solely and entirely for the purpose of delaying plaintiff in recovering the amount justly due him. In support of said allegation plaintiff is informed by his counsel, and believes and so avers that the record of said suit, although taken out of the court of common pleas by defendant, has never been filed of record in the Supreme Court. Defendant is therefore unable to set out the exceptions taken or the reasons assigned by defendant for his appeal. That plaintiff is also informed by his counsel, believes and avers, that defendant has never printed any paper-book or made any effort to prepare the case for argument before your honorable court. That plaintiff’s counsel was present on the first day of the present term of court when the list was called and that notwithstanding the fact that defendant’s attorney had not served any paper-book on plaintiff’s counsel, defendant’s attorney answered argument on the call of the case. That since then and up to the time of the entry of the non pros., Jan. 23, 1895, no paper-book has been served on plaintiff’s counsel, nor has defendant’s attorney manifested any intention to argue the case when called. Plaintiff av.ers that this de^ has worked great hardship upon him, has caused his counsel to attend the several sittings of your honorable court, and in other ways has greatly embarrassed deponent.”</p> <p>Defendant filed an answer denying that the appeal was taken for delay, but admitting the proposition as to settlement, and that the record had been taken out of the common pleas, but averring that he had not been able to prepare and file the record and paper-book “ by reason of severe illness of himself and famity.”</p>

Appeal, No. 138, July T., 1894, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1893, No. 220, on verdict for plaintiff. Assumpsit to recover share of profits resulting from manufacture of patented invention. Before Thayer, P. J. At the trial it appeared that a patent for an improved tension to be used on cop winding machines, was issued to plaintiff and defendant Jan. 19,1886. Plaintiff assigned one half of his interest in the patent to defendant.

Appeal, No. 128, July T., 1894, by plaintiff:, from order of C. P. No. 2, Philadelphia County, Sept. T., 1890, No. 16, entering compulsory nonsuit. Attachment execution.

Appeal, No. 5, July T., 1894, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1890, No. 129, on verdict for plaintiff. Trespass for personal injuries. Before Pennypacker, J. At the trial it appeared that plaintiff, a girl about twenty years of age, was injured in defendant’s laundry while working at a mangle. The mangle consisted of a large cylinder, some sixteen inches in diameter, smooth upon the surface, and heated and run by steam.

<p>Affidavit of defence—Parties—Partnership.</p> <p>In an action to recover the price of coal, against defendant and twenty-eight other persons “now or late doing business as the Central Coal Dealers’ Association,” an affidavit of defence is sufficient which avers that defendant was not a member of the association during the period within which the coal was sold and delivered, and that this fact was known to one of the plaintiffs.</p>

Appeal, No. 190, July T., 1894, by the National Bank of the Republic, from order of C. P. No. 4, Phila. Co., June T., 1892, No. 481, sustaining exceptions of the commonwealth to the report of the auditor on the account of Hector T. Fenton, assignee for the benefit of creditors of Goodwin Gas Stove and Meter Company. Exceptions to report of auditor, distributing proceeds of the sale of an assigned estate.

Appeal, No. 156, July T., 1894, by Charles P. Bradley, from decree of O. C. Phila. Co., April T., 1881, No. 187, sustaining exceptions to adjudication. Exceptions to adjudication.

Appeal, No. 173, July T., 1894, by Edward Pepper, from decree of C. P. No. 4, Phila. Co., Dec. T., 1890, No. 705, dismissing exceptions to auditor’s report. Exceptions to auditor’s report, From the record it appeared that Henry Flanders, Esq., was appointed auditor to settle and adjust the account of Joseph Norris, trustee under a .deed of trust executed by Charles Rockland Pepper on July 2,1868. The auditor reported as follows: “1.

<p>Appeal, No. 214, Jan. T., 1894, by the Administrator, from decree of O. C. Phila. Co., April T., 1893, No. 610, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The following adjudication was filed by Penrose, J.:</p> <p>“ Claims were presented and duly proved or admitted to be correct, as follows:</p> <p>By Daniel Hengen for moneys loaned June 7,1890, $2,000</p> <p>Int. from June 7,1890.</p> <p>By Louis Blank for moneys loaned Aug. 15,1890, ' 3,000</p> <p>Int. from Aug. 15,1890.</p> <p>By Edward R. Wood on due bill of decedent of Aug. 8,</p> <p>1890, for 450</p> <p>Int. from Sept. 10,1890.</p> <p>“ The collaterals held by Mr. Hengen and Mr. Blank (bonds of the Philadelphia and Sea Shore Railroad Company, $2,000 by the former and $3,000 by the latter), will be surrendered to the administrator de bonis non upon payment of the amounts to be awarded as above.</p> <p>“ The due bill held by Mr. Wood was admitted to have been given by the decedent, but in defence there was offered, on the part of the estate, a paper, of which the following is a copy:</p> <p>“Philadelphia, Aug. 8,1890. “Due George H. Becker fifty shares capital stock of Phila. & Sea Shore Railway Co., on completion of the subscription to securities of the Co., now being paid by syndicate Nos. 3 & 4.</p> <p>(Signed) E. R. Wood.”</p> <p>“ This instrument was given to the decedent in consideration of his services in procuring the subscriptions referred to. The par value of the stock was $50 per share, and it was contended by Mr. Gorman- that there was thus created a liability on the part of Mr. Wood to the decedent for $2,500, which was available as a set-off against a claim upon the due bill for $450. There were several objections to this, however; first, it appeared that the subscriptions, by the syndicates mentioned, or by one of them at least, had not been completed, and the stock, therefore, had not yet become demandable; second, the obligation is to deliver certain shares of stock, the value of .which was not shown, and there is nothing, therefore, by which to measure the damages even had performance by the decedent been fully established. It is true that it was alleged by Mr. Gorman that the subscription was not completed because Mr. Wood, having a contract with the railway company to complete the road by a certain time, failed so to complete it, and, as a result, the company became unable to meet its obligations and thus passed into the hands of a receiver; but there was no proof of these assertions, the contract was not produced, and there was no evidence that, as between the company and himself, Mr. Wood was in any default. But if this had been shown it would by no means follow that the syndicates referred to in the paper of August 8, 1890, were relieved of the obligation to complete their subscriptions; on the contrary, it may well be that the inability to finish the road was occasioned by the fact that the subscriptions were not paid. Moreover, the contract of Mr. Wood with the decedent called'for the delivery of fifty shares of the stock to the decedent when the subscriptions of the syndicates were completed, and certainly the whole number of shares could not be demanded if the subscriptions were not completed, whether the course of the syndicates was or was not justifiable in stopping when they did.</p> <p>“ It is ordered and adjudged that the account, corrected as hereinbefore set forth, be confirmed nisi on payment of clerk’s fees, and that the balance, with all the securities coming into the hands of the said administratrix, be paid and transferred to the said administrator de bonis non of the decedent, leave being given to make all necessary transfers.”</p> <p>The following exception among others was filed to the adjudication: .</p> <p>“ 1. The learned auditing judge erred in awarding to Edward R. Wood tbe sum of $450.00, with interest on due bill of Aug. 8,1890.”</p> <p>The court dismissed the exceptions.</p> <p>JSrrors assigned were in dismissing exceptions, quoting them.</p>

<p>Appeal, No. 195, July T., 1891, by defendants, from decree of C. P. No. 2, Phila. Co., June T., 1893, No. 152, in favor of plaintiff on bill in equity.</p> <p>Bill in equity to restrain construction of fence, and obstruction of private street.</p> <p>The case was referred to Bobert Alexander, Esq., as master, who reported as follows:</p> <p>“ The complainant obtained title to a large tract of land by two deeds, one dated Oct. 5, 1883, and the other dated Feb. 2, 1884, both deeds being duly recorded. The complainant conveyed a part of said large tract to John Bozorth by deed dated July 24,1884, and also conveyed another part of said large tract to John Bozorth by deed dated Oct. 8, 1883. The complainant conveyed to Henry T. Suplee a part of said large tract of land by deed dated May 25, 1887, reserving thereout a yearly ground-rent of $660.</p> <p>“ Bicking street was laid out by the complainant prior to the conveyances to John Bozorth, who acquired by said conveyances the free use, right, liberty, and privilege of Bicking street at all times forever, and the conveyance to Henry T. Suplee as referred to above, carried with it the soil or bed of said Bicking street, subject to the rights granted to said John Bozorth, his heirs and assigns in said street.</p> <p>“ The premises conveyed by complainant to Henry T. Suplee were subsequently, by divers conveyances, conveyed unto Elizabeth Suplee, wife of Henry T. Suplee.</p> <p>“ On July 26, 1887, an agreement in writing, duly recorded, was entered into between the complainant and his wife of the first part and John Bozorth of the second part, and Henry T. Suplee and Elizabeth, his wife, of the third part, a copy of which agreement is hereto attached. This agreement recites that the complainant had laid out and opened a certain street called Bicking street, and tliat he had conveyed to John Bozorth two tracts of land with the right to use Bicking street, and that he had granted to Henry T. Suplee a tract together with the bed of Bicking street, subject to the right of John Bozorth, his heirs and assigns, etc., to use Bicking street, and had reserved out of the latter tract the ground-rent of $660, and that Elizabeth Suplee had become the owner in fee, subject aforesaid as to the latter tract, and that the three parties to said agreement were all persons entitled to the use of said Bicking street. That in consideration of the premises and the sum of one dollar, each to the other paid, they agreed to waive and quitclaim all right, use and privilege of Bicking street, and that the same should be vacated and closed up, and that Henry T. Suplee and Elizabeth, his wife, for the aforesaid consideration, with the consent of the other parties, had agreed to lay out and open, for the mutual use and accommodation of all parties to the agreement, their heirs and assigns, two certain streets, known as Yocum street and Lincoln square. And the agreement further provided as follows:</p> <p>“ ‘ And the said Henry T. Suplee and Elizabeth, his wife, do hereby grant and convey unto the said parties of the first and second parts, their heirs and assigns, the free use, right, liberty and privilege of the said Yocum street and Lincoln square, as and for streets, passage-ways and water courses, in common with them, the said Henry T. Suplee and Elizabeth, his wife, and their heirs and assigns, owners, tenants and occupiers of the ground bounding thereon, at all times hereafter forever.’</p> <p>“In the said agreement the exact location and width of said streets, and the .length thereof, is particularly mentioned, and the said Lincoln square is described as ‘running to line of ground of said Charles Benjamin Wilkinson.’ This agreement was entered of record May 28, 1888.</p> <p>“ On April 20, 1888, Henry T. Suplee and wife made a deed of dedication to the city of Philadelphia in the usual form, of the strip of ground located and described in the agreement aforesaid, ‘ to and for the only proper use and behoof of the said city of Philadelphia, its successors and assigns forever, for a public street or highway.’ This deed of dedication was approved by the city solicitor, and was accepted by the board of surveyors, Oct. 5,1888, and recorded Nov. 30, 1888.</p> <p>“ Bicking street as laid, out did not touch the property of the complainant, nor does Yocum street touch the property of the complainant. According to the uncontradicted testimony, Henry T. Suplee, acting as the agent for Elizabeth Suplee, his wife, before he began the erection of the houses, changed the plan of laying out the ground, in order to better adapt it to building purposes, and he prepared a plan which was submitted to Mr. Jones, a surveyor, who afterwards prepared the plan finally adopted.</p> <p>“ Mr. Suplee was advised by the complainant, who was then acting as his counsel and'conveyancer, that it would be necessary, in order to make the change in the streets, to have the consent of all parties who subsequently signed the agreement above referred to.</p> <p>■ “ The complainant, or the firm of Wilkinson & Brother, of which the complainant was á member, prepared the agreement in question and also the deed of dedication.</p> <p>“ The city of Philadelphia placed upon the confirmed plan of the city said Yocum street of its entire length, and Lincoln square from Greenway avenue to the lower side of Yocum street, but the blind end of Lincoln square from Yocum street to the line of the rear end of complainant’s property has never been put upon the city plan.</p> <p>“Mrs. Suplee built houses on both sides of Lincoln square and some houses upon Yocum street. Two brick houses were built on the east side of Lincoln square, south of Yocum street. There is a house at the corner of Yocum street and Lincoln square, fronting on Yocum street and extending back toward the complainant’s ground, leaving a space however, on the west side of Lincoln square, sufficiently large to permit of the erection of a house fronting on Lincoln square. The only land of the complainant which abuts on Lincoln square is about ten feet of the rear of complainant’s lot, and at the west side of the square.</p> <p>“ A water pipe was laid by the city in Lincoln square, extending its entire length, and. a plug was placed by the city on the east side of the street -dose to the south end of the said street, on that portion not on the city plan.</p> <p>“ At the time Lincoln square was laid out a fence already existed across the rear end of the complainant’s lot, separating it from Lincoln square. After the houses were built on Lincoln square, by Mrs. Suplee, and about a month before the filing of the bill, she caused another fence to be put across the blind end of the square. Lincoln square has the usual curb and sidewalk on both sides of the street, extending to the extreme blind end. Without driving upon the sidewalk there is not sufficient room for a wagon to pass from the rear of the complainant’s lot to Lincoln square.</p> <p>“The complainant produced a number of water-pipe bills for pipe laid in Lincoln square. The receipts are in the name of Elizabeth Suplee. Lincoln square was at one time called Hansom street.</p> <p>“ The purpose of dedicating Lincoln square, according to the testimony of the complainant, was to enable Mrs. Suplee to obtain water-pipe. This, however, Mr. Suplee denies and says he could have obtained water-pipe without dedication.</p> <p>“ The fence which the complainant tore down, is the fence which was constructed bjr Mrs. Suplee. This fence, it is alleged, Mrs. Suplee proposes to restore. It is the purpose of the bill in question, to prevent the reconstruction of this fence and to prevent any obstruction on the part of the Suplees, with the free use of Lincoln square by the complainant.</p> <p>“ [The allegation in the answer of respondents filed, that if the agreement of July 26, 1887, conveyed to complainant the right to use Lincoln square, the agreement was obtained by fraud by the complainant concealing the true intent and meaning of the contract from respondents, is not supported by the evidence, and the master finds that there was no fraud and no concealment in the matter.] [1-4]</p> <p>“ FINDINGS OF LAW.</p> <p>“The act of June 6, 1871, § 3, P- L. 1355, provides: ‘No street shall hereafter be added to any confirmed plan of the city of Philadelphia and called a public street, until the same shall have been approved by the board of surveyors as to location, width and grades, and shall extend from street to street as a thoroughfare.’- So much of Lincoln square therefore as extends southward from Yocum street cannot for the present be placed upon the city plan without violating the act of assembly. There has, however, been a legal dedication to the public and a legal acceptance by the city of the strip of land called Lincoln square as far as the southerly side of Yocum street. The approval of the city solicitor of the deed as to form for the entire strip of land called Lincoln square, and the acceptance of the deed of dedication by the board of surveyors, and the entry of the city upon that land for the purpose of lay-' ing down water-pipe, would be construed as an acceptance of the dedication by the city of said land throughout its entire length for a public highway were it not for the act of 1871 above referred to: City v. Thomas, 152 Pa. 494.</p> <p>“ The question here is not what rights have the public at large in the ground called Lincoln square, south of the south line of Yocum street, but what rights has the complainant. That the respondents did by a deed duly recorded grant to the complainant, as a part of the public, the right to use said strip of land for all purposes‘for which a street is generally used, and that the respondents did by a duly recorded agreement, also grant to complainant the right to use said ground for á street, passageway and watercourse, are facts found hy the master. [So long as the grant in this deed remains unrevoked, and the written contract remains in force, it seems to the master that the complainant has, without regard to the general public, rights and easements in the land which the respondents cannot ignore.] [5]</p> <p>“It is contended bjr the counsel for the respondents that, inasmuch as the blind end of Lincoln square was not legally accepted bjr the cit)r, it is within the power of the grantor to revoke the dedication of so much of the land as has not been accepted, and he has cited authorities from other states to support this contention. While this may be true in some states, it is by no means clear that it is the law in Pennsylvania. Thus in Patterson v. Harlan, 124 Pa. 67, Chief Justice Paxson says: ‘We need not discuss the question how far the deed was a dedication of the street to public use, nor the extent to which such dedication would be effective without an acceptance on the part of the municipal authorities. It is sufficient to say that there was a dedication of the street to the use of the grantees, and neither the grantor, nor those claiming under him, can now be allowed to repudiate such dedication.’</p> <p>“ Even if the respondents could revoke the dedication, so far as the public are concerned, on the theory that no legal rights have before acceptance of dedication been acquired bjr the public, it does not follow that the grant to the respondents in the written contract can be revoked. If so, any written contract can be destroyed to suit the convenience or pleasure of a dissatisfied party.</p> <p>“ Counsel for respondents contend that they joined in the agreement only at the request and upon the advice of the complainant, who acted as counsel for them; that i,t was never the intention of the respondents to grant any permanent easements to complainant in Lincoln square, and that they signed the agreement without understanding its legal effect. So far as the master understands the testimony [the respondents were not deceived by the concealment of any fact, nor were they wrongly advised or overreached; on the contrary, all the parties seem to have acted in good faith and with a perfect understanding of what they were doing.] [6] If the respondents were willing to grant to complainant the use of Lincoln square in consideration of the complainant arrd of Bozorth relinquishing their rights in Bieking street, and enabling the respondents to open Yocum street and Lincoln square, there seems to be no good reason why the master should inquire into the value of the consideration passing between the parties. The consideration was considered by the parties at the time as adequate. [The contract, so far as the evidence shows, was clearly understood and the intent was clearly expressed. The rights which the complainant acquired thereunder have not been forfeited or lost in any manner, and there is no reason why the rights so acquired should not be enforced and maintained.] [7]</p> <p>“In the opinion of the master [the complainant has a right, in common with the public at large, under the deed of dedication, to use so much of that strip of ground called Lincoln square as extends from the southerly line of Yocum street to Green way avenue as a public highway, and he has right under the contract of July 26, 1887, and also under the deed of dedication, to use the blind end of said Lincoln square from the southerly side of Yocum street to the northerly line of the complainant’s lot, which fronts on Woodland avenue, for all the purposes mentioned in the deed of dedication and in the said contract, and respondents have no right to construct or maintain a fence or other obstruction interfering with such use.] [8]</p> <p>“As the material facts in this case are notin dispute and the contention is really upon the construction and effect of written documents, the authorities cited by the respondents, that no injunction can issue until the rights of the parties are established in an action of law, are not to the point.</p> <p>“ The complainant is entitled to the relief prayed for.” Exceptions to the master’s report were overruled, and a decree entered in favor of plaintiff.</p> <p>Errors assigned were (1-9) overruling exceptions and entry of decree, quoting them.</p>

Appeal, No. 209, July T., 1894, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1892, No. 957, on bill in equity. Bill in equity for reconveyance. The case was referred to G. Harry Davis, Esq., as master, who reported as follows: “ It appears from the testimony, that the complainant, Emeline Unruh, first met the defendant, Benjamin F. Lukens, in the spring of 1883, when he visited her professionally.

<p>Appeal, No. 53, Oct. T., 1895, by defendant, from judgment of 0. & T., Westmoreland Co., Aug. T., 1894, No. 14, on verdict of guilty.</p> <p>Indictment for murder. Before Doty, P. J.</p> <p>At the trial, after the prisoner had been duly arraigned and pleaded not guilty, and thirty jurors had been called, four of whom were selected and sworn, the prisoner moved .to quash the-indictment, the array of grand jurors and the array of petit jurors, “ for the reason that the sheriff and the jury commissioners of Westmoreland county, at the time of selecting and placing in the wheel of the jurors, did not secure the wheel in the manner required bj^ law, they having failed to secure the said wheel and sealing the same with their respective seals, the said wheel being secured with only one seal, if any; and for the further reason that the jury wheel and the key thereof were both £ept in the custody of the sheriff, whereas the act of assembly requires one to be in the custody of the sheriff and the other in the custody of the jury commissioners; and for the further reason that the jury wheel has not been kept in a secure place under lock and key by the jury commissioners; the motion having been made as soon, as these facts came to the notice of the defendant.”</p> <p>The court refused the motions, as too late. [1-4]</p> <p>The court also refused defendant’s offer to prove the facts alleged in the motion, [5] and refused challenges. [6]</p> <p>Verdict, guilty of murder of the first degree. The court refused a motion for a new trial, [7] and in arrest of judgment, [8, 9] and passed sentence upon the verdict. [10]</p> <p>Errors assigned were (1-10) above rulings and orders, quoting them in substance.</p>

Appeal, No. 59, Jan. T., 1894, by Fayette R. Plumb, from order of C. P. No. 2, Phila. Co., March T., 1893, No. 538, setting aside report of viewers. Appeal from award of viewers. The facts appear by the opinion of the Supreme Court.' The following diagram shows the situation of the property: The viewers awarded Plumb $9,750 damages. The following exceptions among others were filed by the city: “ 6.

<p> Broker—Commissions—Sale—Principal and agent. </p> <p>Where a broker procures a customer for goods, and the seller accepts the customer as a purchaser, receives his order and undertakes to execute it, the broker has earned his commission, and is entitled to recover it.</p> <p>In such a case where the purchaser refuses to receive the goods, alleging that they were not properly made, the seller cannot relieve himself of liability to the broker for the commission by saying that the commission was not to be paid until the goods were delivered and paid for.</p> <p>If the goods were properly made, the seller could compel the purchaser to pay for them; if they were not properly made he could recover nothing from the purchaser. The broker had no concern with either of these questions.</p>

<p>Trusts and trustees—Resulting trust—Trust ex maleficio—Statute of limitations—Act of April 22, 1856—Evidence.</p> <p>A trust ex maleficio can only result from some act of bad faith, and a mere refusal to perform a parol contract to hold or convey land is not sufficient to create such a trust.</p> <p>An owner of ground rents conveyed them to another and placed the deed on record. Two years afterwards he conveyed the same ground rents, as his own, to a third party, whose title by various conveyances devolved upon defendant. The grantee under the first deed died, having devised his estate to plaintiff. Defendant acquired title about ten years after the death of the grantee in the first deed. In an action for arrears of ground rent defendant offered to show that the conveyance to plaintiff’s testator was without consideration, and upon an agreement that the ground rents were to be sold subject to the exclusive ownership of the grantor, and that the grantee had no interest in them, and that the grantor after the conveyance received the interest on them. Held, that the evidence was properly excluded because it was insufficient to establish a trust ex maleficio, and, even if it did, the trust was barred by the act of April 22, 1856,P. L. 533.</p> <p>In such a case if the offer had gone further and alleged a breach of the parol agreement, it would not have been sufficient to establish a trust ex maleficio.</p> <p>The act of 1856 applies as well to resulting trusts which arise ex maleficio, as to those which are founded upon the payment of purchase money.</p>

<p>Appeal, No. 19, July T., 1894, by B. A. Hoopes, from decree of C. P. No. 2, Phila. Co., March T., 1889, No. 86, confirming report of master.</p> <p>Bill in equity to ascertain persons entitled to share in distribution of partnership fund.s.</p> <p>The case was referred to Joseph J. Broadhurst, Esq., as master, from whose report it appeared that B. A. Hoopes was the owner of two hundred and fifty shares of the Metalline Land Co. of Lake Superior, and that the}^ were forfeited in the same manner as the shares of William H. Stevens were forfeited as stated in Morris v. Metalline Land Co., 164 Pa. 326.</p> <p>The master decided that the forfeiture was proper, and that Mr. Hoopes was not entitled to participate in the fund. Exceptions to master’s report were overruled, and his report confirmed.</p> <p>JSrror assigned among others was in confirming the master’s report.</p>

<p>Appeal, No. 172, July T., 1894, by defendants, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1891, No. 528, on verdict for plaintiff.</p> <p>Assumpsit for goods sold, etc.</p> <p>At the trial it appeared that plaintiff agreed to make for defendants a large quantity of perforated tops for salt bottles. Defendants claimed that the articles were to be made in one piece. Plaintiff averred that they could not be made in one piece so that they could be sold at a low price; and that this fact was communicated to defendants before the contract was made, and in consequence the order was given to make them in several pieces. Defendants called Miss Helen B. Dickson to testify as to statements made by William R. Grange, president of the Mason Fruit Jar Co., to George H. Paine, in the latter’s office.. The conversation alluded to took place in an adjoining room to where Miss Dickson was at the time. Miss Dickson testified that she knew Mr. Grange by sight, and that she had overheard a conversation between him and Mr. Paine. In the court room however she could not identify Mr. Grange as being the person whom she heard. She said the reason she thought it was defendants’ representative was because a card was always taken to the back office, but she could not remember the name given that day. Mr. Paine was then recalled and testified -that there never was but one conversation about the sample with a representative of the jar company, and that was with William Grange. The offers to prove the conversation were renewed, objected to, objections sustained, and bills sealed. [1-4]</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting questions, but not quoting bills of exception.</p>

<p>Appeal, No. 223, July T., 1894, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1892, No. 194, entering compulsory nonsuit.</p> <p>Trespass for personal injuries. Before Reed, J.</p> <p>At the trial it appeared that plaintiff, a boy eighteen years of age, on June 10,1892, was struck by defendant’s train at the intersection of Eleventh and Nevada streets, in Philadelphia. Plaintiff’s evidence tended to show that the gates were always lowered and only raised when a vehicle approached •to cross. It did not appear that the view of the track was obstructed at the point of the accident. Plaintiff testified that he stopped, looked and listened. The evidence also tended to show that no whistle or bell was sounded. The court entered •'a compulsory nonsuit and subsequently refused to take it off: ■3 Disk R. 325.</p> <p>JError assigned was refusal to take off nonsuit.</p>

Appeal, No. 203, July T., 1894, by plaintiffs, from order of C. P. No. 2, Phila. Co., June T., 1894, No. 177, discharging a rule for judgment for want of a sufficient affidavit of defence. Assumpsit for rent.

Appeal, No. 191, July T., 1894, by plaintiff, from decree of C. P. No. 4, Philg,. Co., June T., 1893, No. 1025, sustaining demurrer to bill in equity. Bill for decree continuing lien of mortgage. The bill averred in substance as follows: 1. Plaintiff is assignee for the benefit of creditors of the Order of Vesta. 2.

Appeal, No. 64, Jan. T., 1895, by plaintiffs, from order of C. P. No. 1, Phila. Co., June T., 1892, No. 540, dismissing exceptions to auditor’s report. Exceptions to report of W. Rudolph Smith, Esq., auditor, on account of John Sidebotham, receiver of estate of Samuel J. Campbell, deceased.- The facts appear by the opinion of the Supreme Court.

Appeal, No. 228, July T., 1894, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1893, No. 39, for defendant, on case stated.

Appeal, No. 146, July T., 1894, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1898, No. 172, M. L. D., 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 sci. fa. sur municipal lien for paving. The affidavit of defence averred: “ That, as appears, by the claim filed, it is for paving against the premises therein described, on Kensington avenue.

Appeal, No. 220, July T., 1894, by defendant, from order of C. P. Montgomery Co., June T., 1894, No. 4, awarding writ of ouster. Quo warranto to determine right of defendant to the office of president of town council of the borough of Bridgeport. From the record it appeared that, at the February election in 1894, defendant was elected burgess of Bridgeport, and that he qualified for the office.

Appeal No. 286, Oct. T., 1894, by defendant, from judgment of Q. S. Armstrong Co., Dec. T., 1898, No. 41, on verdict of guilty. This was an indictment for incestuous fornication.

Appeal, No. 255, Oct. T., 1894, by plaintiffs, from judgment of O. P. Washington Co., Nov. T., 1891, No. 7, on verdict for defendant. Ejectment for a tract of land in East Bethlehem township. The facts appear by the former report of the case: Miller v-Baker, 160 Pa. 172.

Appeal, No. 68, July T., 1894, by defendants, from judgment of C. P. No.' 4, Philadelphia Co., June T., 1892, No. 851, on verdict for plaintiff. Replevin for goods distrained for rent.

<p> Exemption—Debtors—Execution—Notice. </p> <p>The defendant in an execution, whose real estate is about to be sold, is not barred by a delay of ten days in making his claim of exemption, where the sale has not thereby been delayed, nor costs incurred that might have been avoided by an earlier presentation of the claim.</p>

<p>Appeal, No. 76, Jan. T., 1895, by plaintiff, from decree of C. P. Montgomery Co., March T., 1890, No. 13, dismissing bill in equity.</p> <p>Bill in equity for an injunction.</p> <p>The case was referred to F. G. Hobson, Esq., as master, who reported as follows:</p> <p>“ The Pennsylvania Schuylkill Yalley Railroad Company, a corporation organized under 'the general railroad laws of the commonwealth of Pennsylvania, has built and are now operating a line of railroad reaching from a point of connection with the Pennsylvania Railroad near 52d street, in the city of Philadelphia, to New Boston, a point west of Pottsville in Schuylkill county, a distance of over 105 miles.</p> <p>“At a meeting of the directors of the said Schuylkill Yalley Railroad Company held September 5, 1889, the following resolutions were adopted:</p> <p>“ Whereas, the Philadelphia, Norristown, and Phcenixviile Railroad Company, the corporate property, franchises and rights of which by virtue of consolidation and merger "became vested in this company, did December, 1883, cause to be located a branch railroad from its main line of railroad at a point near West Manayunk, inu the township of Lower Merion, Montgomery county, extending northwardly a short distance and thence across the line of the railroad of the Philadelphia and Reading Railroad Company and thence southwardly between the said railroad of the Philadelphia and Reading Railroad Company and the Schuylkill river to the Pencoyd Iron Works, a distance about one and one quarter miles, and did at that time cause the said route to be located, marked upon the ground, and a plan thereof made, which is on file in the office of this compairy, and did then acquire a portion of the property necessary for the construction of the same.</p> <p>“ And whereas, the minutes of the company do not exhibit any formal action by the board of directors in reference to the said subject, therefore, that the said action may be formally evinced,</p> <p>“ Resolved, that the aforesaid action of this company be now formally approved and ratified, with the same effect as though formal action had been taken at the time of said location, and the secretary is directed to certify the said plan accordingly, and the president of the company is authorized to proceed in the construction of said branch railroad at and upon the line so surveyed and marked as aforesaid, with such minor changes as in his judgment may tend to economical construction.</p> <p>“ Subsequently, on November 11th of the same year the following action was taken:</p> <p>“Resolved, that inasmuch as the present construction of the branch from the main line of the railroad of this company near West Manayunk to Pencoyd, in the county of Montgomery, authorized by a previous resolution, is necessary to increase the business of this company and accommodate the trade and travel of the public, the president is directed to proceed with the construction thereof upon the line of amended survey crossing the Philadelphia and Reading Railroad overhead instead of under grade, as was provided in the former location, and that the action heretofore taken by him on said amended survey is ratified and approved.</p> <p>“ Under this authority the company proceeded to locate and build the branch road specified in the foregoing resolution. In its course it passes through the barn and lot of the plaintiff, Sebastian A. Rudolph.</p> <p>“Mr. Rudolph is the owner and occüpier of a dwelling house in Lower Merion township, this county, fronting on the river road. The lot on which this dwelling house is built contains in front-feet, and extends in depth-feet. Fronting on a public road stands his dwelling house and his office at the distance of-feet from said road. There is a private lane running along almost the whole width of his lot. In the rear of this lane-and fronting thereon stands a- row of eight tenement houses in the occupancy of various tenants. In a line with these tenement houses and in rear of a continuation of said lane stood the barn of plaintiff. The nearest wall of this barn was 128 feet distant from the nearest point of plaintiff’s dwelling house. :</p> <p>“The line of this branch road passes through the corner of plaintiff’s lot and completely demolishes this.barn. The railroad here is an elevated structure crossing over the Philadelphia and Reading Railroad which adjoins this property on the west by an overhead bridge. The pier of this bridge comes in the place where the stable formerly stood.</p> <p>“The nearest point the railroad comes to the dwelling house is 128 feet.</p> <p>“The plaintiff on May 31, 1890, filed his bill in equity, praying for an injunction restraining the said -Pennsylvania Schuylkill Valley Railroad Company, its officers, agents, and employees from taking or occupying any portion of his dwelling house and necessary curtilage thereof for the purpose of its railroad or for any other purposes without his consent.</p> <p>“ A preliminary injunction was refused by the court. The railroad company proceeded to lay out this road and has actually built .the same and is now operating the road over the line as laid out. The bill was proceeded with and a master appointed who has taken the testimony which is herewith returned.</p> <p>“ The bill and answer raised three distinct questions. It was contended by the plaintiff:</p> <p>“ First. That the said Schuylkill Valley Railroad. Company and the Pennsylvania Railroad Company as lessee have no right to construct and operate the said branch road, because the same is to be constructed and operated purely as a private road for the traffic and trade of the Pencoyd Iron Works.and not for public trade and travel.</p> <p>“ Second. That this branch road was previously located over another route and that the defendant company, on February 3, 1890, filed in the Court .of Common Pleas of Montgomery county, No. 112, March Term, 1890, a petition and bond showing an actual location of their proposed branch over said other route, and gave bonds in the sum of $20,000 which was approved by said court, and that said location is final; and the defendants have no right to change to a new location.</p> <p>“ Third. That the route now occupied being- a portion of plaintiff’s barn and a necessary part of the curtilage of his dwelling house, cannot be so occupied because of the prohibition contained in the act of February 19,1819, P. L. 83, which prohibits a railroad from ‘passing through any burying ground or place of public worship, or any dwelling house in the occupancy of the owner or owners thereof without his or their consent.’</p> <p>We will consider these objections in their order.</p> <p>“ The first objection denies the right of the defendant company to build the road in question because it is not within the purview of the act of 1868, known as the ‘ General Railroad Laws.’</p> <p>“ The ninth section of that act provides ‘ that any company incorporated under this act shall have authority to construct such branches from its main line as it may deem necessary to increase its business and accommodate the trade and travel of the public.’</p> <p>“ It cannot, of course, be denied that this railroad company has the right to build a branch when it is for the purpose of increasing its business and accommodating the trade and travel of the public. This is the expressed language'of the-act, and the question has been passed upon in many instances by the court, as in Western Pennsylvania Railroad Company’s Appeal, 99 Pa. 155; McAboy’s Appeal, 107 Pa. 548.</p> <p>“ In' the last named case the Supreme Court gives a very comprehensive definition of a branch road. It says, ‘ The definition of a branch railroad under the act of 1868, does not depend upon either its length or its direction. A -branch of a railroad is a section of railroad which may be an offshoot from the main road or a shoot from either of its termini. The ’necessity for such branches and their direction rest in the will and discretion of the president and directors of the corporation by which they are to be constructed.’</p> <p>“ Plaintiff, however, contends that this branch is not intended for trade and travel of the public, but that it is intended solely for the accommodation of the private industrial firm of A. & P. Roberts, who áre the owners and operators of an extensive industrial establishment known as the Peneoyd Iron Works; and they further contend that since the railroad has been built it has been used solely to convey freights to and from the above named works and has run no passenger trains whatever; nor lias it delivered freight to any other persons than the aforesaid firm. It is true that this road runs to and connects with the tracks and switches of the Peneoyd Iron Works; that no station-house is erected for the reception or unloading of freights; that no passenger coach has run over the road so far as shown by the evidence; but it is also true that'the resolution above named duder the authority of which this road was constructed recites that the building of this road is necessary ‘ to increase the business of the company and to accommodate the trade and travel of the public.</p> <p>“Peneoyd is a village with a large number of houses and many people living in the immediate vicinity of this road. A siding runs along the public road from which ears can easily be loaded and unloaded. The village and the public are well accommodated with railroad facilities, far better than can be afforded by this branch road, and, no doubt, the other roads are better located to catch the general business of the community. But 1 can hardly conceive that, simply because of the greater convenience of another railroad, and the fact that the volume of general business that would come to a new enterprise would be small, should make it unlawful for a new railroad to enter the territory of a rival. Every reason shows that this company would be very glad to get all the trade that is offered, and no testimony has been submitted to show that any business has been refused.</p> <p>“ The act of assembly of June 19,1871, provides ‘ that where it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation claiming to have a right or franchise to do an act from which such injury results, it shall be the di^ of the court to ascertain whether the corporation does, in fact, possess the right or franchise from which the alleged injury results, and, if such rights or franchises have not been conferred upon such corporations, then to afford relief.’</p> <p>“ This act the plaintiff invokes and asks the master to declare that this railroad has not the right to construct this branch road and take the private property of the defendant for the reason aboye stated.</p> <p>“ He cites the familiar case of Edgewood Company’s Appeal, 79 Pa. 257, where the court declared that the road there proposed to be built was not to accommodate the trade and travel of the public, but was a mere attempt by a coal company to connect their line with a railroad company without complying with the provisions of the lateral railroad statutes.</p> <p>“In that case the incorporators and officers of the railroad company were also the owners of the mine, and the road ended in a gully in which was the opening of the mine. A part of the road was built over the land of the mine company, and their grant to the railroad contained the expressed reservation ‘ for the right of way for their coal íailroad and for no other purposes whatever except such other purposes as are necessary for the ordinary workings of coal works.’</p> <p>“None of these special features exist in the case at bar. It is not A. & P. Roberts attempting to evade the provisions of the law of lateral railroads; it is the effort of the railroad company reaching out to tap a rich field of freights and business.</p> <p>“ When this branch road was building the' same question came before the court of common pleas of Montgomery county on a motion for a preliminary injunction, and the preliminary injunction was refused, and the reasons for the same are given in an able opinion by his honor, Judge Weand, reported in Schofield et al. v. Pennsylvania Schuylkill Valley Railro.ad Company, 8 Montgomery County L. R. 125. In that case the court expressed the opinion that the company had the right to build this very road in question. The same question was raised and decided in Dobson v. Pennsylvania Schuylkill Valley Railroad Company, 6 Montgomery County L. R. 109. The light derived from a full hearing has in no wise changed the facts nor the law as then known to the court.</p> <p>“ It is, however, further contended that since those opinions were read on motions for preliminary injunction, the method of defendant company in operating this road has developed itself, and now shows that it is not operated to “accommodate the trade and travel of the public; ” that no passenger car has been run over the road since it has been in operation.</p> <p>“ This we. think is an objection that will not avail, even if true.</p> <p>“ The act of 1871 above quoted expressly says, ‘ If such rights or franchises have not been conferred upon such corporation, then to afford relief.’</p> <p>“ The only question for the court to consider is, have the rights and franchises been conferred; not, are the duties and responsibilities incumbent upon the corporation fulfilled.</p> <p>“Judge Allison, in Lejee v. Continental Passenger ft. ft. Company, 10 Philadelphia R. 362, says on this very subject after quoting the act as above quoted, ‘ The inquiry which the court is here required to institute is, whether the right or franchise claimed by the corporation charged with a usurpation of power has been conferred Or granted to such corporation; whether, by virtue of such grant, it can lawfully do the act which it is alleged inflicts injuiy upon the private rights of individuals.’</p> <p>“If the corporation is not fulfilling its duties and responsibilities to the public, this wrong can be righted in another way, but ‘if the charter gives the right a court of equity cannot declare that a corporation has forfeited its franchises, on an injunction bill by a private plaintiff:’ Western Pennsylvania R. R. Company’s Appeal, 104 Pa. 399.</p> <p>“ ‘ Whether a corporation has failed to perform the conditions of its existence is a question between the state and corporation, which cannot be raised or litigated in an action between the corporation and private parties: ’ Greenbrier Lumber Co. v. Ward, 3 S. E. 227, cited in American Digest for 1887, page 224.,</p> <p>“We therefore conclude on these points:</p> <p>“ First. That the defendant company has the undoubted right to build this branch road ‘ to increase the business of the company and accommodate the trade and travel of the public.’</p> <p>“Second. That nothing has been shown to make us doubt the integrity of the action taken, so as to justify us in saying that this was an attempt to connect an individual siding with tire railroad without complying with the pi'ovisions of the lateral railroad statutes.</p> <p>“ Third. That the court in this proceeding cannot inquire into the method of conducting the business of this corporation, and from this draw a conclusion that no right to construct the branch existed in the first instance. Testimony was also submitted to prove that this branch road, or a part'of it, was actually built by the employees of tbe Pencoyd Iron Company. On the other hand, the engineer of the railroad company swore that this was a mistake and that no part of this branch road was built by-the Pencoyd Iron Company, nor paid for by it, and that the other witness was in error and had mistaken certain sidings for the road itself.</p> <p>“ The master is of the opinion that this latter testimony was the correct statement of the facts of the case and that there was therefore no attempt by the Pencoyd Iron Company to evade the statutes relating to the lateral railroads.</p> <p>“Secondly. The plaintiff contends that this branch road was previously located over another route and that the defendant company on February 3,1890, filed in the Court of Common Pleas of Montgomery county,- No. 12, March Term, 1890, a petition and bond showing an actual location of their proposed branch over said other route, and gave bonds in the sum of $20,000, which was approved by said court, and that said location is final; and that defendants have no right to change to a new location.</p> <p>■ “ Whatever other location was attempted, was attempted on other property than that mentioned in the bill, and the master is of opinion that even if another location was made, this plaintiff cannot take advantage of that fact. There was but one location upon the property of the plaintiff, that is the location upon which the railroad was built. The question was virtually-decided by this court when the case was before it on motion for a preliminary injunction, and the court there refused the motion and we see nothing now before the master which could or should change the decision that was there arrived at by the court.</p> <p>“ The third contention arises over the meaning of the word ‘dwelling house ’ .used in the act of February 19, 1849, section 10. This section reads as follows : ‘ Not, however, passing through any burying-ground or place of public worship, or any dwelling house in the occupancy of the owner or owners thereof without his, her, or their consent.</p> <p>“The plaintiff would include in the word ‘dwelling house ’ not only the actual house itself but also such curtilage as is necessary for its reasonable enjoyment,-and in the case at bar he maintains that the barn here destroyed was a part of this curtilage and necessary for the- reasonable enjoyment of the dwelling house by its owner.</p> <p>“ In support of this position, plaintiff cites a number of cases in which the word ‘ house ’ has been held to include the curtilage necessary for its reasonable enjoyment. These cases arise in devises of a house as in Bennetv. Bittle etal., 4 Rawle, 339, and in construction of the same word as used in the mechanic’s lien acts as in Pennock v. Hoover et al., 5 Rawle, 314.</p> <p>“ I hardly think the above cases are in point. Whilst the curtilage is included in the word ‘house’ so as to make a reasonable interpretation, yet it has also been recently held by the Supreme Court in Bevan & Bro. v. Thackara et al., 7 Montgomery County L. R. 177, ‘ That a lien filed against a dwelling house, describing it, will not give the plaintiff the right to include material furnished to a stable, although a sale on the-lien would carry the lot and all the improvements including the stable.’ Judge Boyek, in Clegg v. Pennsylvania Schuykill Valley R. R. Company, did not think these cases had any application to the point at issue.</p> <p>“ In two important railroad cases in England, the word ‘ house ’ in an act of parliament very similar to our act of assembly, has been held to include what is necessary for the convenient occupation of the house: See Steele v. Midland R. R. Company, 1 Chancery Appeal Cases, Law Reports, 285; Grosvenor v. Hampstead Junction R. R. Company, 58 English Chancery R., star page 445.</p> <p>“ These English cases have never been followed in this country, nor have they been cited with approval in any case that has been called to the master’s attention.</p> <p>“ In Moses Wells v. Somerset & Kennebec R. R. Company, American Law Register, vol. 2, 659, a ease decided by the Supreme Court of Maine, the Maine statutes read, ‘No corporation shall take any meeting house, dwelling house, or public or private burying-ground without the consent of the owner thereof.’</p> <p>“ The court there held ‘ that the term “ dwelling house ’’means only the house itself and includes no-part of the garden, orchard, or curtilage.’ This act of assembly has been -before the Supreme Court of our own state three times. No definite rule has been laid by that tribunal by which to judge wliat is included in the word ‘ house ’ arid the curtilage appurtenant' thereto. The first case is Swift and Givin’s Appeal, 111 Pá. 516, where the court decided that they must so construe a statute as to give a reasonable effect to its purposes and intent, and said ‘ This necessarily includes some curtilage connected therewith.’ The exact extent of that curtilage cannot be defined by any arbitrary rule as to distance. As each case arises the right' of the owner and occupier of the dwelling house, against hostile location of a railroad, must be determined byr a consideration of what is necessary for a reasonable and proper enjoyment of a"house as a residence in view of its location and surroundings.</p> <p>“ Decided by this rule the land taken in that case which was a corner in the rear of the lot and-distant 155 feet from the nearest portion of the house was hot considered as included in the mansión house and necessary curtilage. This case was followed by Damon’s Appeal, 119 Pa. 287. In that case the land taken by the railroad company was more than 100 feet distant from and not within the same inclosure with the dwelling, and the court held that this land was not included within the prohibitive words of the statute.</p> <p>“In delivering those opinions Judge Green saj’s, ‘It may be gravely questioned whether it is within the lawful power of the judiciary department of the government to depart from the plain letter of a statute which is free from ambiguity. As a general rule of course it cannot be, and is not done,’ and in speaking of the former case of Swift and Givin’s Appeal, said that the language of that case was somewhat indefinite, but said that the court certainty did mean to limit ‘the curtilage to be exempted to that portion of it which was necessary to the enjoyment of the house, not to that which was desirable oi' convenient, or which depended alone upozi the will of the owzzer.’ The taking of outbuildings has never in this commonwealth, ¡it least,- been held a violation of prohibitive words of the act of 1849, and we do not mean to intimate that it would or should be so held.</p> <p>“ The third case, Lyle v. R. R. Co., 131 Pa. 437, was decided in 1890. In this case the owners had a lot 44 feet wide fronting on a street and extending 96 feet-to an alley sixteen feet wide. Upon this lot there was a dwelling house twelve ■ feet' back from Ruth -street 'and three feét froto an easterly line of the lot. Back of the dwelling house are several small outbuildings, to wit, a coal-house, cow-stable, chicken-house, etc. The railroad company has appropriated a strip of land 16 feet wide and 40 feet long adjoining the alley, moved the outbuildings in upon the lot, and given bond for the damages caused thereby.</p> <p>“ Even in a case as strong as this the Supreme Court refused to declare that the land taken was included within the prohibitive words of the statutes. The court say, ‘ The law regards that which is essential to the enjoyment of a dwelling house, and not that which is merely ornamental and pleasant in its surroundings. The location of a railroad across a lot in which the owner has his dwelling house, or 'upon grounds which constitute part of a valuable country seat, is not in violation of the statute.’</p> <p>“ Taking the three cases just'quoted as showing the spirit in which the court has met this question, we cannot come to any other conclusion than that the barn here taken and the land do not constitute any part of the dwelling house or curtilage which would be exempt under this statute.</p> <p>“It cannot include an unlimited quantity of land just because the owner of the house for his aesthetic taste or desire for wide spreading acres included a large tract within his inclosure. Here this barn and land taken was included in a small corner of an extensive lawn.</p> <p>“ Should the private lane before spoken of be extended to the west line of plaintiff’s property, the barn and land taken would all fall considerably beyond this line. There still remains a lot, in front containing some 800 feet, and in depth some 200 feet. This will give ample room' for stable and carriage house. In fact, the plaintiff has, since the building of this road, erected a stable and carriage house upon this inclosure.</p> <p>“ The master is of opinion that while this will greatly inconvenience plaintiff, and has materially lessened the market value of his elegant home, yet the land taken is not necessary for the reasonable enjoyment of his home,—that his stable must be erected where it formerly stood. For his damage and inconvenience, and for the reduction of the market value of his property he will be compensated in damages by a jury. His remedy for all inconveniences is adequate. ■</p> <p>“ There may be and doubtless are cases where the destruction of a barn might practically destroy the dwelling house, where from the character of the curtilage no other place could be found within the inclosure to erect a new stable, but that case is not this case.</p> <p>“ We therefore conclude that in the case before us the railroad has not passed through any dwelling house in the occupancy of the owner.</p> <p>“ This disposes of all the objections mentioned in the bill or raised in the argument before the master.</p> <p>“ The master therefore recommends a decree, dismissing the bill at the costs of the plaintiff.”</p> <p>Exceptions to the master’s report were dismissed by the court, Swaktz, J., filing the following opinion.</p> <p>“ The report of the learned master is a complete answer to the several exceptions filed by the plaintiff.</p> <p>“ The defendant company has the right to build a branch road to increase its business and accommodate the trade and travel of the public. The necessity for the branch road in question is a matter resting in the judgment and discretion of the president and directors of the defendant company. If the branch road fails to make provision for public travel the act of June 19, 1871, gives us, as a court of equit}', no authority for interference. The right to establish a forfeiture for such reason rests wholly with the state. This question was before us in several forms and we refer to Penna. R. R. v. Montgomery County Passenger Railway, 3 Dist. R. 58, and Township of Plymouth v. Chestnut Hill Railway, 4 Dist. Reps. 8, wherein we gave our reasons for a refusal to interfere with the railroad constructions by the corporations. Such interference is in effect a finding that the rights of thé corporations are forfeited.</p> <p>“ Plaintiff contends that the railroad construction is .not made in good faith for the purposes of trade and travel. The master finds no evidence to support this contention. It nowhere appears that the company refused to meet a present demand for travel.</p> <p>“ Upon the question of a prior location, even if the plaintiff may take advantage of it in this proceeding, it does not follow that his bill must prevail. An abandonment of the original location and the adoption of a new route may become necessary in order that the road may be built. It is true a location once made cannot be changed to escape the payment of unsatisfactory damages. Upon this point we cite our opinion found in Hagner v. Penna. R. R., 154 Pa. 477, where the question of a second location as to the branch road now in question was fully considered.</p> <p>“We deem it unnecessary to add anything to the master’s report upon the question of the alleged interference with the plaintiff’s dwelling house.</p> <p>“ And now, October 1, 1894, the exceptions to the master’s report are dismissed and the plaintiff’s bill is dismissed, costs' to be paid by him.”</p> <p>¡Error assigned was, among others, (11) above decree.</p>

Appeal, No. 67, Jan. T., 1895, by defendant, from judgment of C. P. Montgomery Co., June T., 1894, No. 10, in favor of plaintiff on cases stated. Case stated to determine the marketable title of real estate which plaintiff agreed to sell to defendant. From the case stated it appears that plaintiff claimed title under the will of his aunt, Mary Hiester Weber. The material portion of the will is as follows: “ Clause IY.

<p>Constitutional law—Title of act—Recorder's fees—Act of June 24, 1885.</p> <p>The act of June 24, 1885; P. L. 160, entitled “An act to perfect the ■records of deeds, mortgages and other instruments in certain cases,” violates sec. 3, art. III. of .the constitution which provides that “no bill except general appropriation bills shall be passed containing more than one subject which shall be clearly expressed in its title.”</p> <p>There is nothing in the title of the act to give notice or wárning to the taxpayers of the different counties of the state that the recorder’s fees given in the act were imposed upon them.</p>

Appeal, No. 122, Jan. T., 1895, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1894, No. 104, discharging rule for judgment for want of a sufficient affidavit of defence. Scire facias sur mortgage.

Appeal, No. 31, May T., 1894, by plaintiff, from judgment of C. P. Dauphin Co., June T., 1893, No. 735, on case tried by the court without a jury. Appeal from tax settlement. For statement of facts see Com. v. Edgerton Coal Co., 164 Pa. 284. The case was tried by Simonton, P. J., without a jury. Error assigned was in not directing judgment to be entered in favor of the commonwealth for the full amount of its claim.

<p> Replevin—Evidence—Question for jury. </p> <p>In an action of replevin for a carriage which had been left with defendants as keepers of a livery stable, defendants claimed a right to retain possession of the carriage for storage charges, and also by reason of an agreement that it should remain in their possession as security for a debt due them by the plaintiff’s husband for keeping a horse. Both grounds of defence were denied by plaintiff, who asserted that no storage was to be charged, and that no agreement as alleged by defendants had fieen made. Held, that the case was for the jury.</p> <p>In the above ease there was evidence that five months before the writ issued, the plaintiff, after the removal of the horse, authorized defendants to sell the carriage for u price named, and to retain from the money received the amount they claimed to be due by her husband. The authority was not for an indefinite time, and it was revocable at plaintiff’s pleasure. Held, that such an agreement, as it was to sell, and not to retain the carriage, did not defeat plaintiff’s right to recover in replevin.</p>

<p>Appeal, Nos. 512, Jan. T., 1895, and 118, July T., 1894, by defendants from judgments of C. P. No. 2, Phil a. Co., Dec. T., 1891, No. 536, and C. P. No. 3, Phila. Co., March T., 1892, No. 692, on verdict for plaintiffs.</p> <p>Assumpsit on promissory note. Before Jenkins, J.</p> <p>In addition to the facts stated in the opinion of the Supreme Court, it appeared that article XVII of the Clearing House Association was as follows:</p> <p>“ The committee shall apply the deposits of any defaulting bank to the payment of the balances due by such bank at the clearing house, or to the reimbursement pro rata of the several banks furnishing said balance, under article XI; and the surplus, if any, shall be held as collateral security for other indebtedness to members of this association.”</p> <p>On April 7, 1891, and up to the time of the failure of the bank there were, as between the Spring Garden Bank and the Clearing House Association, two accounts, one designated as the loan certificate account and the other collateral regular or daily balance account. Each had its specific collateral. The note in suit was one of those held as collateral for the daily balance and was never entered or held in the loan certificate account. The indebtedness due by the bank to the clearing house on collateral regular or for daily balances was at the time of suit paid in full, and the only indebtedness then existing was about $70,000 due on loan certificates.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Error assigned among others was above instruction.</p>

Appeal, No. 486, Jan. T., 1894, by plaintiff, from order of C. P. No. 1, Pliila. Co., Sept. T., 1889, No. 396, refusing to take off nonsuit. Trespass for personal injuries. At the trial it appeared that plaintiff, a milkman, ivas injured on June 16, 1889, while driving his wagon over a defective rail on defendant’s railway. The condition of the rail was described by Thomas McCarthy, a witness for plaintiff, as follows: “ Q. I want you to tell what you saw about that rail.

<p> Criminal law—Murder—Insanity—Charge of court. </p> <p>On the trial of an indictment for murder, where insanity is set up as a defence, it is proper for the court to charge that mental incapacity is to be established by the weight of the evidence, and that an act is presumed to have been done sanely until the contrary appears by the evidence.</p> <p>An instruction that the prisoner should be held responsible for his acts “ until the fact is positively proved that he is not responsible,” while holding the defence to too high a measure of proof, is not injurious to the prisoner where the court further says: ‘ ‘ Are you satisfied: not clearly but by the weight of the evidence simply, because he is not bound to prove it, except by the weight of the evidence—the fair preponderance of evidence; ” and where this rule is again stated and enforced in other parts of the charge.</p>

Appeal, No. 57, July T., 1894, by defendant, from decree of C. P. No. 4, Phila. Co., June T., 1891, No. 854, on bill in equity in favor of plaintiff. Bill in equity for account.

<p>Married women—Conveyance in fraud of creditors—Gift—Consideration. A wife’s joining with her husband, who was financially-embarrassed, in the conveyance to a creditor of certain of his real estate, incumbered to almost its full value, so as to relieve her right of dower, is not sufficient consideration to support a conveyance of other real estate by the husband to the wife.</p>

<p> Evidence—Privileged communications—Attorney and client—Report of railroad freight claim agent. </p> <p>On a bill of discovery in aid of an action of larv brought by a shipper against a railroad company to recover damages for loss of goods, the defendant will not be required to produce for plaintiff’s benefit a report made by the local freight agent of the company to the general freight agent, relating to the goods in controversy, and intended to be sent by the general agent to counsel for use on the trial of the case.</p>

<p>Wages—Preference—Traveling salesman—Act of May 12, 1891.</p> <p>A person employed to sell goods, paying his own expenses and receiving house and road commissions, is atraveling salesman, and not a “ clerk employed in a store or elsewhere,” within the meaning of the act of May 12, 1891, P. L. 54, giving a preference for wages.</p>

<p>Where A. loans to B. money and there is an agreement in writing that A. shall receive a percentage of the profits of B.’s business and there is also an oral agreement that A. shall receive interest on the loan, there is not a sufficient compliance with the act of April 6, 1870. As the entire contract is not in writing, and the lender receives a share of profits not in lieu of interest but in addition thereto, A. becomes liable as a general partner in B.’s business.</p>

Appeal, No. 32, July T., 1894, by defendants, from order of C. P., Del. Co., confirming sheriff’s sale. Exceptions to sheriff’s sale. From the record it appeared that the land sold belonged to a land association, known as the Folsom Land Company, and was composed of unsold lots and streets on a plan of lots.

<p>Appeal, No. 388, Jan. T., 1894, by William Tennent, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report, in estate of Lewis Rees, deceased.</p> <p>Exceptions to auditor’s report.</p> <p>Hemphill, J., filed the following opinion:</p> <p>“ The fourteen exceptions filed to the auditor’s report, raise two questions:</p> <p>“1st. Has the auditor erred in finding that William Tennent, Jr., was the illegitimate son of William Tennent, Sr.</p> <p>“ 2d. If illegitimate has he erred in holding that the acts of assembly do not confer upon him the right to inherit from his •uncle, by representation through his mother.</p> <p>“ William Tennent, Jr., a claimant to a share in this estate, is the son of William Tennent, Sr., and Alice, a sister of the decedent, whose death occurred previous to that of her brother.</p> <p>“ The auditor finds that he was an illegitimate son, and a careful examination of his report and of the testimony taken by him, satisfies us that he was correct in so finding.</p> <p>“ Being therefore an illegitimate he could not inherit at common law, and is expressly denied the benefits of our intestate act of April 8, 1888, the 17th section of which provides that ‘ The provisions of this act relative to decedents and distribution of real and personal estate, among the descendants and collateral relations of intestates, shall be construed to mean such persons only as have been born in lawful wedlock.’</p> <p>“ The exceptions are therefore dismissed, the report confirmed, and an order made to pay out in accordance with the auditor’s schedule of distribution.”</p> <p>'Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal, No. 345, Jan. T., 1894, by Annie C. Lamborn, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report. Before the auditor, Charles H. Pennypacker Esq., D. Frances Hambleton, the wife of Theodore P. Hambleton, decedent’s son, presented a claim of $84 for boarding and $44.36 for expenditures in providing for the funeral of deceased, total $128.36.

<p>Appeal, No. 107, July T., 1894, by Charles F. Oesterle, Jr., efc al., from order of Q. S. Delaware Co., on petition for incorporation of borough.</p> <p>Petition for incorporation of borough.</p> <p>The Case was referred to Orlando Harvey, Esq., as master, who reported inter alia as follows:</p> <p>“ An exception filed by the Folsom Land Company is to the effect that neither the petition nor plan attached fairly shows to the court the lands intended to be embraced in the borough limits ; that the names of the owners of properties embraced in said limits are not given and the boundaries and lines of the lands embraced within said limits are not shown, nor the number of acres contained in any of the tracts embraced therein ; and further that one of the boundary lines for a long distance is made the middle of a public road called the Amosland road, another the middle of another public road called the Darby and Chester Turnpike road.</p> <p>“ The master has considered all these exceptions and cannot find that any of the allegations contained in them would justify the setting aside of the finding of the grand jury and the dismissal of the petition. Moreover,'none of these exceptants, other than the Folsom Land Company, are “resident freeholders,” and it is doubtful whether, in view of this fact, they have any standing in court as exceptants.</p> <p>The petitioners for exclusion are Charles Leedom, estate of Thomas T. Tasker, The Folsom Land Company, estate of William F. Simes and A. A. Hirst and others.</p> <p>“The Leedom, Tasker, Folsom Land Company and Simes’ tract are asked to be excluded principally because they are farm lands and do not properly belong to the proposed borough and are not necessary to its general symmetry. It is asked that the Hirst lands, known as the Woodlawn tract be excluded because said tract is laid out for a village, and does not belong to the village of Prospect Park, and that a tract of open farming country separates the two villages.</p> <p>“ In considering these petitions for exclusion great weight ought to be given to the general necessities for incorporation and to the consideration of the question whether such lands properly belong in the incorporated district. Unless it is clearly shown that lands used exclusively for farming purposes do not properly belong to the town or village to be incorporated the court has no power to exclude them : Borough of Collingdale, 4 Del. Co. Rep. 595; Duquesne Borough, 147 Pa. St. 58.</p> <p>“ From the cases upon the subject it clearly appears that in considering applications for exclusion of farm lands certain effects that would result therefrom should be taken into consideration, such as making the borough too small and thus imposing too heavy a burden of expense upon it; affecting the general symmetry of the borough; interfering with access to schools, railroad stations and other public places of assembly ; carving the lands out in such a way as to separate them entirely from the township to which they belong and leaving them without means of ingress and egress by land except over the streets of the borough; depriving tire borough of control over territory where nuisances are likely to exist.</p> <p>“ Under a careful consideration of the testimony, and a view of the premises, the master is forced to the conclusion that it would not be' proper to exclude these several tracts of land from the proposed borough, especially in view of the fact that the grand jury, after a careful consideration of the matter, have recommended its incorporation as petitioned for. The action of the grand jury is not controlling upon the court, but it is to be taken as a very great assistance in determining disputed questions of facts. Although not conclusive, the action of the grand jury is not by any means to be disregarded as of little weight or importance to the court in reaching its judgment: Edgewood Borough, 130 Pa. St. 354.</p> <p>“ The Leedom and Tasker tracts have, it is true, been used to a certain extent for farming or grazing purposes. The testimony does not satisfy the master that the Simes and Folsom Land Company tracts are used for farming purposes.</p> <p>“ The Leedom and Tasker tracts should become a part of the proposed borough because they are necessary to its symmetry, because they afford outlets to the creek, because they would shut off streets and give them dead ends, and because in the Leedom case the borough should have control at Darby creek in order to regulate nuisances alleged to exist there. If the Tasker tract were excluded it would become detached territory and shut off on all sides. On the east it would be bounded by lands of Norwood borough, on the west and north by lands included within the lines of the proposed borough and on the south by Darby creek, upon the other side of which is the township of Tinicum.</p> <p>“ The Simes tract is the property known as the White Horse Hotel. As before stated, the testimony does not satisfy the master that this is used exclusively for farm land. If it were, however, it should not be excluded because it is necessary to the street system of the borough and is undoubtedly necessary to its symmetry. Moreover if the Tasker property is to be included in the borough the exclusion of the Simes tract would leave it a piece of detached and isolated territory right in the centre of the borough.</p> <p>“ The Folsom tract, as before stated, has not been shown to the satisfaction of the master to be used exclusively for farming purposes. Upon viewing it it is difficult to see how it could be farmed, that is, at least so far as tillage is concerned. It appears to have been used some for pasturage. It is detached from the main Folsom tract on the north by the Baltimore & Phila. Railroad, and from the other part of the Folsom lands lying south of said railroad by Stone creek. If excluded it would cut off the Kedron avenue front for a considerable distance, and the borough would be deprived of the control of the avenue at that point. In view of all the facts touching this piece of land, the master is of the opinion that it should not be excluded.</p> <p>“ As to the Woodlawn tract it was urged that it did not properly belong to the proposed borough, and that between it and the village of Moores, farm lands intervened. The master is of opinion that this tract properly belongs within the limits of the proposed borough, and is necessary to its general symmetry. On its east is the Amosland road and beyond this road lies the borough of Norwood. It is separated from the upper portion of Ridley by the Baltimore & Philadelphia Railroad, and on its south and west it is bounded by lands to be included within the limits of the proposed borough. It is argued that the territory on the south and west is farm land. The testimony shows however that this territory is laid out in building lots and streets, some of which are opened. If this tract were excluded the borough would to a considerable extent be deprived of the control of its streets in that section, and its general street system would be materially disarranged. It would also be hindered in making provision for proper access to Holmes station by the way of the Amosland road.</p> <p>“ The master therefore recommends the dismissal of the exceptions and that a decree be made confirming the judgment of the grand jury and incorporating the borough of Prospect Park in conformity with the prayer of the petitioners.</p> <p>Exceptions to the master’s report were dismissed, without an opinion filed.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

Appeal No. 206, Jan. T., 1895, by plaintiff, from order of C. P. Chester Co., June T., 1892, No. 23, discharging rule for judgment on answers of garnishee. Attachment execution.

Appeal, No. 227, July T., 1894, by defendant, from judgment of C. P. Chester Co., Aug.-T., 1893, No. 139, on verdict for plaintiff. Trespass for personal injuries. Before Waddell, P. J. At the trial it appeared that on January 12, 1893, plaintiff, a passenger on defendant’s train, was injured by the derailing and overturning of the ear in which he was riding.

<p>Railroads—Widening roadbed— Condemnation proceedings—Dwelling house—Act of March 17,1869.</p> <p>Under the act of March 17, 1869, P. L. 12, a railroad company incorporated prior to the passage of the general railroad law of February 19, 1849, P. L. 83, has authority, in proceedings to widen its road, to condemn land upon which a dwelling house is erected.</p> <p>Not decided whether the act of March 17, 1869, P. L. 12, applies to companies chartered under the act of February 19, 1849.</p>

Appeal, No. 375, Jan. T., 1895, by Fred C. Simon, from order of C. P. No. 3, Phila. Co., Dec. T._ 1894, No. 909, compelling a witness to testify before a council’s committee. Petition for order to compel witness to testify before a committee of councils of a city of the first class.

<p>Appeal, No. 46, Oct. T., 1894, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1892, No. 123, on verdict for defendant.</p> <p>Mitchell, J., dissents.</p> <p>Trespass for illegal mining of coal.</p> <p>Plaintiff in his statement of claim averred that defendant had entered into and under the surface of plaintiff's land, and, disregarding plaintiff’s rights, had mined and converted to its own use coal to the value of thirty thousand dollars.</p> <p>Defendant pleaded not guilty, and at the trial claimed that the case was barred by the statute of limitations. The evidence showed that the coal was mined in 1884. Evidence for the plaintiff tended to show he had no knowledge of the mining until 1891.</p> <p>The court charged in part as follows:</p> <p>“In regard to the coal, the defendant does not deny that it mined and carried away the coal under this particular property. It alleges that it was permitted to go through this coal, and it denies that it was guilty of any wrongful act in this respect, because such license was obtained. At any rate, there is no dispute that the defendant took away the coal, and no dispute that it was in 1884. There seems to be little dispute as to the amount of coal taken. The plaintiff contends—you will remember the testimony of Mr. Long—that there were 4500 bushels of coal, and the -defendant, on the other hand, alleges that there were about 4000 ; and under the act of assembly, which was passed for a case like this, the plaintiff claims the three-fold value of that coal. The evidence is that the coal was worth three and a half cents a bushel; that would be the value, less the cost of taking it to the mouth of the pit.</p> <p>“ [The trouble with this branch of the case, as we understand it, is in-regard to the statute of limitations. That is an act of assembly passed in this commonwealth many years ago. It has received the sanction of the courts, and must be applied wherever it can be applied. It stands upon the statute book, and it provides in plain terms that no action of trespass shall be maintained after six years from the time the cause of action arises—six years after the trespass is committed. On the theory that the plaintiff adopts, the defendant went on this property and carried away this coal, and if suit had been brought in proper time the defendant would have been liable to pay three times the value of this coal. But according to the summons the suit was brought on the 18th day of May, 1892. That was considerably more than six years after the cause of action accrued. So that, so far as the coal is concerned, this action cannot be maintained. If the cause of action accrued in 1884, without considering whether Mr. Lewey has properly brought the suit, or whether he ought to have joined Mr. Trimmer, we think the statute of limitations is a bar to recovery on this branch of the case.</p> <p>“ In regard to the destruction of the well of water in 1891, the plaintiff alleges that this injury was occasioned by the same trespass; that is, the trespass of 1884. There is no evidence of any other trespass, of any other mining going on under the Lewey property after that time, and while the cause of action accrued in 1884, undoubtedly the defendant would be liable for any other trespass on the property of Mr. Lewey or any damage occasioned, but it is not alleged in the declaration that there was any trespass after that time that occasioned these injuries. The theory of the plaintiff is, that the original trespass, the taking out of this coal in 1884, occasioned the falling down of the smoke-stack and some other injury to the building in September, 1891; there was no very serious injury to either the building or smoke-stack at that time. The matter most complained of is this well. It is alleged that it was valuable, and it totally failed in 1891. As it appeared from the pleadings and the evidence, the contention is that this is one of the consequences of the original trespass in 1884, and we think likewise the statute of limitations would be a bar. For any trespass you can have but one action ; you must include in that past, present and future damages—is the general rule that applies to all actions of this kind. Such is our view of the law, and hence we say, as to this branch of the case, the plaintiff is likewise met with the statute of limitations, which prevents a recovery.</p> <p>“In regard to this well, there is a serious contention of fact. It appears that the trespass was committed in 1884; there is no allegation that there was any trespass after that time. According to the testimony of the plaintiff, there was no diminution of the water, no indication of the failure, of water, from-1884 to 1891. It was used constantly, or nearly so. At one time he bought water from the water company at that place; but the well water was used for the purpose of running his mill uninterruptedly, or, with slight interruption, from 1884 to 1891. At that time it failed; failed rather suddenly. The theory of the defence is, that they were then mining their own coal, the coal they had a title to there, on the northeast of the Lewey property. This entry, as we understand it, ran through the southwest corner of the Lewey propeily, about 60 or 65 feet from where this well was located.</p> <p>“ All of the experts called in this case agree, and their testimony is undisputed. And even if the case had been submitted to you, we should have felt constrained to say that from the lay of the ground, the natural formation of the strata there, it was an impossibility that the opening of this heading on the southwest corner of that lot could have drained the well, or affected it in any way; and that the contention of the defendant is, that the well having continued there for a long lapse of time, from 1884 to 1891, conclusively demonstrates that such theory is correct. The defendant claims that it was mining the coal in its own land, and that it had a right so to do; and if it did that without negligence it would not be responsible for damages occurring. The defendant’s theory is, that from the structure of the overlying rock, the dip of the land, the source of supply for this well was northeast of where the well was located; that this coal was mined in the years from 1885, 1886, up till 1890, or 1891, when the ribs were taken out, and when there was a falling in of the rocks in that locality, and about that time this well failed. If such were the fact, of course there ought to be no liability.</p> <p>“ This we mention incidentally, as, if the case had been submitted to you, it would have been a question for you to determine whether the taking of this water was caused by the trespass of 1884, or whether the water failed by reason of the digging of the defendant’s own coal from 1885 to 1891. Although at the same time, as we have already said, without interfering with your province, the court would have felt like indicating to you, that under the uncontradicted testimony in the case, and considering the long lapse of time, it would seem to look very much as if no injury to the well or building could have been occasioned by the driving of this entry seven years before.</p> <p>“But we hold as matter of law that the plaintiff has no right to recover, and we take it that it is your duty to render a verdict in favor of the defendant. This is a question of law altogether, and if there is any error upon the part of the court we may have an opportunity to review our action and further consider the matter. At any rate, an error of this kind can readily be corrected and no injury done to either party.” [8] Plaintiff’s points were as follows :</p> <p>“1. Under the evidence the title to the premises was in the plaintiff at the time the trespass was committed, and the plaintiff was in possession of the same. Answer: Refused.” [1]</p> <p>“ 2. Defendants have failed to show any title which would justify them in entering upon the lands of the plaintiff and in removing the coal therefrom. Answer: Refused.” [2]</p> <p>“ 3. The defendants having admitted that they knew they were taking the coal under the Lewey premises, and that others than W. J. Hitchman were in possession of the same and operating a facing mill thereon, the defendants are liable to the plaintiff in three times the value of the coal taken by the defendants and converted to their own use. Answer: Refused.” [8]</p> <p>“4. We instruct you as a matter of law that the injuries to the plaintiff’s property by reason of the taking of the plaintiff’s coal by the defendant, if any, were permanent in their character, and the proper measure of damage is the difference in the value of the property before and after the injuries were inflicted. Answer: Refused.” [5]</p> <p>“5. We instruct you that the trespass complained of amounts to a secret fraud, and the statute of limitations does not begin to run until the fraud is discovered. Answer : Refused.” [6]</p> <p>“ 6. The injury complained of being a pure tort, the plaintiff was not bound to know when his land was undermined; and the statute of limitations will not operate in favor of the defendant until six years have elapsed from the discovery by the plaintiff of the injury done. Answer: Refused.” [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-7, 8) above instruction, quoting it.</p>

<p> Equity—Receiver—Preliminary injunction—Supersedeas. </p> <p>An order appointing a temporary receiver is an adjunct to the preliminary injunction granted at the same time, and legally a part of it. Both are interlocutory, and the right of appeal therefrom depends on the act of February 14, 1866, P. L. 28, which expressly provides that it shall not be a supersedeas.</p> <p> Equity—Jurisdiction—Duty to obey order of court—Boohs. </p> <p>Where a bill in equity avers that the defendant had received the money of the complainant for investment in specified ways, and that he had failed to so apply the money, and had stopped payment, and absconded, the complainant is entitled to discovery and account, and the jurisdiction of the court attaches for such purposes.</p> <p>If in such a case the court grants a preliminary injunction and appoints a temporary receiver, with power to take possession of the defendant’s books, defendant has no right to refuse to deliver the books, on the ground that the court was without jurisdiction - by reason of an improper joinder of parties, or because the bill was based upon a wagering contract. His remedy is to apply for a special order of supersedeas.</p> <p>In such a case the court will make an order that the examination of the books shall be strictly confined to the legitimate needs of the case, so that the interests of persons not involved in the case may be protected from unnecessary scrutiny.</p>

<p> Contract—Agreement not to levy—Esloppel. </p> <p>Where some of the goods of an insolvent debtor are sold at sheriff’s sale and bought in by certain of his creditors who form a company to resell them, and the president of the new company agrees that other goods of the debtor pledged to another creditor shall bo stored in the new company’s store, and shall not be levied upon, another creditor corporation of which the president of the new company is also president, cannot levy upon such goods so as to defeat the rights of the creditor to whom they were pledged.</p>

<p>Appeal No, 458, Jan. T., 1894, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1891, No. 59, refusing to take off nonsuit.</p> <p>Assumpsit to recover money from a stakeholder.</p> <p>At the trial it appeared that on April 4, 1884, James Watt brought an action of foreign attachment against Dennis Mc-Cauley, to the court of common pleas, No. 2, June Term, 1884, No. 24, and attached real estate in the county of Philadelphia.</p> <p>James Watt subsequently died, and letters testamentary upon his estate were granted to the Pennsylvania Company for Insurances on Lives and Granting Annuities, who were substituted as plaintiffs of record on the foreign attachment.</p> <p>Prior to the issuance of the writ of foreign attachment, Dennis McCauley, the defendant, had granted and conveyed in fee certain of the attached premises to Mary Ann Pearson by deed dated February 4, 1884.</p> <p>Mary Ann Pearson died December 26, 1885, leaving her husband, Robert W. Pearson, and one son, Dennis McCauley Pearson, a minor, surviving her.</p> <p>The Fidelity Insurance, Trust and Safe Deposit Company was appointed guardian of the estate of Dennis McCauley Pearson ; and Robert W. Pearson conveyed to them his interest in the premises, upon certain trusts, by deed dated August 25, 1888, duly recorded.</p> <p>The Fidelity Insurance, Trust and Safe Deposit Company, in 1888, sold the premises for $2,000, and, in order to obtain a release of the attachment so as to give a clear title to the premises, entered into an agreement with The Pennsylvania Company for Insurances on Lives and Granting Annuities and the purchasers, by which the amount of the purchase money, less taxes, was paid into the hands of the Commonwealth Title Insurance and Trust Company as stakeholder.</p> <p>This agreement, which is in writing, was executed on December 10, 1888. After reciting the facts, it proceeds:—</p> <p>“ And whereas, the said The Pennsylvania Company for Insurances on Lives and Granting Annuities, executors as aforesaid, have been requested to release the said lot or piece of ground from the lien and operation of the said foreign attachment, and they are willing so to do, provided the Fidelity Insurance, Trust and Safe Deposit Company, guardian and trustee, as aforesaid, deposit with the Commonwealth Title Insurance and Trust Company the said purchase money of $2,000, until the question of the liability of the lot or piece of ground hereinabove described to be taken in execution in satisfaction of any judgment which may be obtained against the said Dennis McCauley in the aforesaid action of foreign attachment shall have been determined;</p> <p>“ And whereas, the said’ sum of $2,000 purchase money as aforesaid has been deposited with the said The Commonwealth Title Insurance and Trust Company;</p> <p>“Now this agreement witnesseth, that if the said The Pennsylvania Company for Insurances on Lives and Granting Annuities, executors as aforesaid, should hereafter recover a judgment in the aforesaid action of foreign attachment against the said Dennis McCauley, and if the said The Pennsylvania Company for Insurances on Lives and Granting Annuities, executors as aforesaid, shall establish that, notwithstanding the above recited conveyance from the said Dennis McCauley to the said Mary Ann Pearson, the lot or piece of ground hereinabove described is liable to be taken in execution in satisfaction of any judgment which may be obtained in the aforesaid action of foreign attachment against the said Dennis McCauley, then and in such case the judgment so obtained by The Pennsylvania Company for Insurances on Lives and Granting Annuities, executors as aforesaid, shall be payable out of the $2,000 consideration money-aforesaid deposited with the Commonwealth Title Insurance and Trust Compairy. And it is also understood between the parties hereto that the Fidelity Insurance, Trust and Safe Deposit Company, guardian and trustee as aforesaid, may apply to the court wherein said action of foreign attachment is pending to quash the aforesaid writ of foreign attachment, on the ground that the lot hereinabove described and attached in said writ was not the property of the said Dennis McCauley at the time of the issuing of the aforesaid writ, and that the said writ was unlawfully and improvidently issued.</p> <p>“And in case the Fidelity Insurance, Trust and Safe Deposit Company, trustee and guardian as aforesaid, shall succeed in quashing the aforesaid writ, or in case after judgment obtained by The Pennsylvania Company for Insurances on Lives and Granting Annuities, executors as aforesaid, against the said Dennis McCauley, the said The Pennsylvania Company for Insurances on Lives and Granting Annuities, executors as aforesaid, shall fail to establish that notwithstanding the aforesaid deed from Dennis McCauley to Mary Ann Pearson, the lot or piece of ground hereinabove described is liable to be taken in execution in satisfaction of said judgment, then and in either of said cases the said $2,000 consideration money aforesaid, deposited, with the Commonwealth Title Insurance and Trust Company, shall be paid back to the Fidelity Insurance, Trust and Safe Deposit Companjq trustee and guardian aforesaid, freed and discharged from any liability to be appropriated and applied in satisfaction of any such judgment, the said writ of foreign attachment notwithstanding.”</p> <p>Thereupon the premises were released from the lien of the attachment.</p> <p>The Commonwealth Title Insurance and Trust Company on December 22, 1888, gave a certificate of deposit for the net amount paid to it under this agreement, providing that the same was—</p> <p>“ To be held under the provisions of the agreement of trust No. 158, between the Pennsylvania Company and said Fidelity Company, dated December 10th, 1888, interest at the rate of two per cent, to be allowed upon said fund, and the company’s charge of twenty-five dollars for insurance against the attachment mentioned in said agreement to be deducted.”</p> <p>On November 17, 1891, the Fidelity Company brought the present action in court of common pleas, No. 3, against the Commonwealth Title Insurance and Trust Company in which the Pennsylvania Company was not joined, to procure the payment to plaintiff of the amount of the deposit, setting forth that under the agreement of December 10, 1888, the Pennsylvania Company, the substituted plaintiffs in the foreign attachment proceeding, were bound within a reasonable time to establish their right to attach the premises, and that having failed to do so, the Commonwealth Title Company was bound to pay the fund deposited with it as stakeholder to the Fidelity Company.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Errors assigned were (1) entry of nonsuit; (2) refusal to take it off.</p>

<p> Sale—False representations—Fraud—Rescission—Affidavit of defence. </p> <p>In an action to recover damages for failure to deliver goods sold by defendant to plaintiff, an affidavit of defence is sufficient to prevent judgment, which avers that the agent of plaintiff- stated to defendant that plaintiff desired to purchase an article manufactured by defendant, but that a competitor had offered to sell the article to plaintiff for a certain price, and that plaintiff would give defendant the order if she would sell the article at the same price; that believing that the statement was true, and relying upon it, defendant made the contract sued upon ; that in point of fact the statement was a malicious lie, intentionally made for the purpose of cheating and defrauding defendant into selling the article far below its market price.</p> <p>Practice, O. P.—Statement—Act of May 25, 1887.</p> <p>A statement of claim is not in violation of the act of May 25, 1887, P. L. 271, which uses the form of a declaration or narr, customary under the old practice, if the statement sets out a cause of action with the exact dates, amounts and particulars of contract sued upon, with no irrelevant or impertinent matter.</p>

<p>Appeal, No. 129, July T., 1894, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1892, No. 295, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Gordon, J.</p> <p>At the trial it appeared that plaintiff was a factory hand, working in the' third floor of a mill of which the defendant was owner. On March 3, 1892, while the mill was in the possession of a tenant, a fire occurred, and the door leading to the fire escape having been locked by the direction of the tenant, plaintiff was unable to reach the fire escape, and was injured by jumping from a window. The evidence tended to show that the fire escape was a permanent, safe and external structure.</p> <p>When Andrew McGill, a building inspector, was on the stand, he was asked this question: “ Q. I hand you a certificate of approval of the fire escape of Mr. Moore’s mill, issued February 4th, 1893; does that certificate, which was issued by the board of fire escapes of Philadelphia, approve of a fire escape in 1893 on this building, which was precisely identical with that of 1891 ? ” '</p> <p>Objected to. Objection sustained and exception. [1]</p> <p>When George J. McCrane, a factory inspector was on the stand, he was asked this question: “ Q. Did you, as factory inspector, visit the mill of Mr. Moore? A. Yes, sir. Q. Did you make a report of it in accordance with law? A. Yes, sir.</p> <p>Mr. Beck: What is offered to be proven by this witness ?</p> <p>Mr. Sellers: By the act of May 20, 1889, P. L. 245, it is provided by section 12 :</p> <p>‘That if the inspector of factories finds that .... the means of egress in case of fire or other disaster is not sufficient or in accordance with all the requirements of law .... he shall notify the proprietor of such factory .... to make the alterations or additions necessary within sixty days.’. . .</p> <p>I offer to prove that in pursuance of this duty he visited these tower fire escapes, and he considered them to be perfectly safe and proper for escape from fire.</p> <p>Objected to.</p> <p>The Court: The duties of the factory inspector are more comprehensive than those of the board of fire escapes. Its functions, so far as this act was concerned, were merely to inspect and test, or approve or disapprove of the fire escapes. Factory inspectors are charged with, more comprehensive and different duties; among others, that of inspecting all modes of egress, not only those for escape during fire, but all others, and other duties that may be related to those of the fire commissioners, but they do not take the place of the other body, and his approval would in no sense take from the plaintiff her right of action. It is purely statutory, and I therefore refuse the offer.”</p> <p>Exception granted to the defendant. £2]</p> <p>Mr. Sellers read section 27 of act of 1893, P. L. 373, by which it is provided:</p> <p>“All buildings tobe hereafter erected .... factoiy or workshop, more than two stories in height, shall have at least one stairway, accessible from each apartment, which shall be inclosed with brick walls, . . . and shall have no interior openings other than the doors from which it is an exit, . . . shall be provided with a tower fire escape, inclosed in incombustible material adjoining one of its fronts. . . . Such fire escape shall be held and taken as a fire escape under the act of . . . June 80,1885.”</p> <p>Now, I desire to prove that is the kind of fire escape defendant had.</p> <p>Plaintiff objects. Objection sustained and exception. [3]</p> <p>Richard C. Borchers was asked this question: “ Q. The plan of tower fire escapes, which you adopted as a mechanical engineer—are those the plans actually adopted in the large mills in the'northeastern section of the city which have been erected during the last ten years ? ”</p> <p>Objected to. Objection sustained and exception. [4]</p> <p>Defendant's points were as follows:</p> <p>“1. That if the jury believe that the fire escape for which the certificate of approval of February 14, 1893, was issued, is identical with that in the factory burned, then it affirmatively appears that the owner is relieved from the liability imposed by the act of June 3, 1885, and the verdict should be for the defendant. Answer: Refused.” [5]</p> <p>“2. If the jury believe that.the factory inspector, in .accordance with section 12 of the act of May 2, 1889 (P. L. 245), found that the means of egress in case of fire was sufficient, then the verdict must be for the defendant. Answer: Refused.” [6]</p> <p>“3. Defendant is not liable for the act of the tenant in lock' ing the door, and if the jury believe this was the proximata cause of the injury, the verdict must be for the defendant. Answer: Refused.” [7]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1—4) rulings on evidence, quoting the bill of exceptions; (5-7) instructions as above, quoting them.</p>

Appeal, No. 187, July T., 1891, by defendants, from order of C. P. No. 4, Phila. Co., March T., 1894, No. 1136, making absolute a rule for judgment for want of a sufficient affidavit of defence. Assumpsit for neats’ foot oil sold and delivered.

<p>Appeal, No. 50, Jan T., 1892, by defendant, from judgment of C. P. No. 4., Phila. Co., July T., 1893, No. 958, on report of referee.</p> <p>Trespass for personal injuries.</p> <p>The case was referred to M. Hampton Todd, Esq., as referee under the act of May 14, 1874, P. L. 176.</p> <p>From the referee’s report it appeared that the defendants were on June 8,1893, the owners and occupiers of the property situate at the northwest corner of Twelfth street and Market street, in the city of Philadelphia, in which they carried on their business of hotel keepers under the name of “Hotel Vendig.” 1'here were two entrances to the hotel, one on Market street and the other on Twelfth street, above Market street. It was in coming out of the hotel on to the sidewalk, through the Twelfth street entrance, that the plaintiff received the injuries of which he complains.</p> <p>On each side of the Twelfth street entrance to the hotel the defendants had constructed openings into the cellar of the building. These openings were located close to the wall of the building, and partly in front of the doorsill of the entrance to the hotel, and extended out into the sidewalk three feet, fo*ur inches, and were of the width of two feet, nine inches. The openings were covered by iron double doors, containing glass bull’s eyes, and were set in an iron frame about one inch above the level of the pavement, the frame being rounded at the edges to fit down tight on the pavement, the doors opening and closing at light angles to the street and the building, so that when the doors were shut they were substantially on a level with the rest of the pavement. Eacli half of the double doors was sixteen and one half inches wide.</p> <p>The plaintiff, about noon of June 8, 1893, entered the Hotel Vendig by the entrance from Market street. He testified lie was looking for his father. He passed through various rooms and out of Twelfth street entrance to the hotel, through the summer doors, tlie top of which was on a level with his eyes ; pushing the doors apart he stepped on to the doorsill, thence to the pavement, and, turning towards Market street, took one step in the direction of his destination and trod on the half open door over the opening in the sidewalk, heretofore described; his foot tripped and he stumbled and fell, whereby he sustained the injuries for which he claims damages. At the time the plaintiff stumbled over the door, both halves were partly opened, the center being raised about eight inches above the level of the pavement, and held firmly in that position by an iron rachet, working under the doors. The raising of the doors to this elevation made a space between the edges of the doors of four or five inches, and they were kept in this condition during the daytime for the purpose of lighting and Arentilating the cellar.</p> <p>Within ten days after the plaintiff Avas injured, the defendants erected an iron guard rail around both of these openings in the sidewalk. The tops of these guard rails are about three feet above the level of the pavement.</p> <p>The referee found for the plaintiff, and assessed the damages at $400.</p> <p>Exceptions to the referee’s report Avere overruled, and judgment entered for plaintiff for $400.</p> <p>Errors assigned were in overruling exceptions to referee’s report.</p>

Appeal, No. 157, July T., 1894, by defendants, from judgment of C. P. Chester Co., Oct. T., 1893, No. 27, on verdict for plaintiff. Ejectment for a strip of ground in the borough of West Chester. Before Clayton, P. J., specially presiding. At the trial it appeared that on May 23, 1847, John J. Parker and H. R. Guss who were then owners of the land in controversy executed a lease of the land to the West Chester Railroad Company.

<p>Appeal, No. 190, Jan. T., 1895, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1893, No. 157, on verdict for defendant.</p> <p>Assumpsit for rent. Before Waddell, P. J.</p> <p>At the trial it appeared that on April 1,1893, an installment of rent amounting to $62.50 was due on premises leased by defendant to plaintiff. Defendant claimed to set off against the rent due $11.60, being the value of certain work which he had done for plaintiff. The evidence failed to disclose that there was any agreement one way or the other as to whether the value of the work should be deducted from the rent.</p> <p>The court charged in part as follows:</p> <p>“Now does Mr. Chandler owe that $11.60? He saj^s he does not. That he has virtually paid it; that he has done work for these people, Mrs. Nickols or Mr. Nickols, with Mrs. Nickols’s consent,'which amounted to $11.60, and he asks that it shall be set off against the rent which is claimed to be due from him to her. [Now, we say to you, that if Mrs. Nickols does owe Mr. Chandler for work done, then he is entitled to set it off against this rent.] [4] In the opinion of the court it does not require an agreement thus to pay on the part of Mr. Chandler or Mr. Jones; either may, use the amount due as a set-off.</p> <p>You will say whether this plaintiff is entitled to have interest on the $50.90, which was paid June 14th. As is claimed here, that $50.90 was due on the first of April, 1893, but it was not paid until the 14th of June. You will see that is about two months and a half of time after it was due. As I have said to you, the right of the plaintiff to claim the interest and have it allowed, will depend upon whether or not Mr. Chandler, as the tenant here, offered to pay this rent at the time it was due, to wit: on or before the first of April, 1893. Now if this offer to pay that rent was made at that time, and was clothed with any conditions, then it would not amount to a tender. But if he offered to pay $50.90 and claimed that they should allow him $11.60 for work, in the opinion of the court, that does not amount to any condition. I do not understand that it is claimed here that he offered to pay the amount due, if this lady would receipt to him in full. If this offer was coupled with a demand of that kind it would be a condition which he would have no right to make; it would not amount to a tender, but you will say whether this waS the transaction between the parties on the first of April. As I remember the testimony, Mr. Chandler came there and said he had come to pay the rent which he owed, and Mrs. Nickols said that was all right; he then said I have $50.90 and you owe me $11.60 and I am ready to settle. She said in answer to that that her husband had advised her not to take the money unless she took it all, but she would give him a receipt for $50.90, if he chose to take that; she would take, that amount, and would give him a receipt on account. Now if that was the transaction, you will see it is not clothed with any demand or condition on Mr. Chandler’s part. It was an offer on Mrs. Nickols’s part to receipt for the amount of money she was receiving; but it was not such a condition as would affect the tender. You will say what the transaction was. I merely refer to this, to illustrate what I mean by accompanying an offer of tender with a condition. If there was a condition, as I have said to you, then it don’t amount to a tender; but if there was no condition, and he offered to pay and she refused to accept on account of the amount offered, then it would amount to a tender, and have the effect of a tender, provided it should subsequently be found that the amount offered was all that was due her in money. If the jury should find that all he owed her was $50.90 in money, and that she ought to have allowed the $11.60, which he asked to be allowed, because she owed it to him, then you will see he had offered to do all that he was required to do, and there was no retaining of the money on his part; he was willing to pay $50.90, but she refused to take it because she thought it was not all he owed her; but if it was subsequently found it was all he did owe her, he should not be punished by being made to pay interest on that amount.”</p> <p>Plaintiff’s points were as follows :</p> <p>“ 1. Under the evidence in this case the jury must allow the plaintiff interest on at least $50.90 from April 1, 1893, to June 14, 1893, when the judgment was rendered by the justice. Ansiuer: I cannot affirm that point; it depends, as I have said to you, upon whether or not there was a legal tender at the time designated; if there was, then the point should not be affirmed; if there was not, then it should be. It would depend upon that question and I cannot, therefore, affirm that point.” [1]</p> <p>“ 2. If the jury believe that it was never agreed between the parties in this case that Chandler’s bill of fll.60 for work, etc., was to be treated as payment' on account of the rent due on the written lease offered in evidence, such bill cannot be re■garded as either payment or set-off, and their verdict must be for the full amount of the plaintiff’s claim. Answer: I have already disposed of the principle involved in that point in my general charge, and I must disaffirm it.” [2]</p> <p>“ 8. If the jury believe that the parties to the lease in suit never agreed that the said bill was to be treated as payment on account of the rent specified in said written lease, then their verdict must be for fll.60, together with interest on said amount from June 14, 1893, to the present time, as well as interest on f62.50 from April 1, 1893, to June 14, 1893. Answer: That will depend upon what I have already said to you; I cannot affirm that point in the language in which it is put.” [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>JError assigned among others was (1-4) above instructions, quoting them.</p>

Appeal, No. 68, Jan. T., 1895, by plaintiff, from judgment of C. P. Chester Co., on verdict for defendant. Assumpsit for proceeds of farm sold to defendant. Appellant failed to print in his paper-book sufficient of the testimony to enable a proper statement of the case to be made. The jury returned a verdict in favor of defendant, upon which judgment was entered. Defendant claimed witness fees at the rate of one dollar per day for witnesses residing in West Chester.

<p> Guaranty—Implied conditions—Due diligence—Contract. </p> <p>Where a guaranty is general, without having any of its terms fixed in the writing, the law adds the usual conditions that there shall be due and unsuccessful diligence used by the creditor to collect the claim from the principal unless it appears that all diligence would be hopeless; but the law adds or imjfiies no such conditions where the parties themselves fixed the terms of the contract.</p> <p>Defendant by indorsement on a judgment note guaranteed “thepayr ment of the within judgment note and all moneys due and to become due thereon if the same cannot be recovered out of the property purchased of Robert Service’s estate by said Ilowell McNair by deed this day delivered.” Held, that the guaranty was a special and not a general guaranty, and that plaintiff, by forthwith entering judgment on the note, and thus acquiring a lien on the real estate mentioned in the guaranty, and then keeping that lien continuously alive, did all that in good faith she was . bound to do under the special terms of the contract.</p>

Appeal, No. 150, Jan. T., 1895, bjr defendant, from judgment of C. P. Chester Co., Aug. T., 1893, No. 104, on verdict for plaintiff. Trespass for personal injuries. Before Hemphill, J. At the trial it appeared that plaintiff, a boy seventeen years of age, was injured on the night of February 8,1893, at a grade crossing in the borough of Oxford.

<p>Appeal, No. 131, Jan. T., 1895, by defendant, from judgment of C. P. Del. Co., Sept. T., 1890, No. 136, on verdict for plaintiff.</p> <p>Appeal from report of viewers assessing damages for change of grade of Franklin street. Before Clayton, P. J.</p> <p>At the trial it appeared that plaintiff had requested the borough authorities to change the grade of the street.</p> <p>Defendant’s point, among others, was as follows :</p> <p>“ 3. If the jury believe that the change of grade was made at the request of William P. Lewis and made as he designated, and was a special advantage to him, the plaintiffs are not entitled to recover. Answer: I decline to affirm that point, although you may find he did request the change to be made, and it was an advantage to him to make it, yet if the damages were more than the advantages the borough must pay for it.”</p> <p>Verdict and judgment for plaintiff for $900. Defendant appealed.</p> <p>Error assigned was above instruction, quoting it.</p>

Appeal, No. 235, Jan. T., 1895, by-plaintiffs, from decree of C. P. Chester Co., No. 288, in equity, refusing to appoint a receiver. Bill in equity for an account, dissolution of partnership, injunction and appointment of a receiver. From the record it appeared that on March 28, 1894, plaintiffs and defendant entered into a partnership to continue for nine months, and that defendant was to be managing partner, and keep the firm books.

Appeal, No. 403, Jan. T., 1894, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1889, No. 280, on verdict for plaintiff.- Assumpsit to recover insurance money alleged to have been wrongfully paid to defendant. At the trial, it appeared that on November 11,1879, Rebecca Riner took out a policy of life insurance for $3,000 in the Prudential Mutual Aid Society of America, making George Riner, her nephew by marriage, beneficiary in the policy.

<p> Trusts and trustees—Banks and banking—Mingling of trust funds with general deposits. </p> <p>Where money received by a bank as trustee is not kept distinct nor invested in any specific way, but is mingled with the general mass of money on deposit and used in the general banking business, and there is no means of tracing or ascertaining its identity in any form or species of property, the cestui que trust is not entitled to a preference over general creditors in a distribution of the assigned estate of the bank.</p>

<p>Appeal, No. 132, Jan. T., 1895, by defendants, from judgment of C. P. Schuylkill Co., May T., 1891, No. 417, on verdict for plaintiff.</p> <p>Ejectment for an undivided one fourth interest in five lots and houses on North Second street in the borough of Potts-ville. Before Bechtel, J.</p> <p>At the trial it appeared that William Evans died in 1877, seized of the land in controversy. By his will he directed as follows:</p> <p>“ I do direct that my body be decently interred, and that my funeral be conducted in a manner eorrisponding with my estate and situation in life, and that after my berrial my hereinafter named executers shall erect around my grave as soon as can conveniently be done a suitable enclosure large enough in which my beloved wife can after her death also be interred alongside of myself, said inclousure shall be constructed as follows, to wit: Four suitable cut stone posts to be sank deep enough into the ground to make a substantial fence around said inclousure, the railing to be made of wrought iron pipe, and to be fastened from post to post, painted and put up and made in a workmanlike manner, and that a suitable head and foot stone shall be erected to my grave, this to be done and performed by my hereinafter named executrix as to my interment and as to the interment of my said wife the same shall be done by my children or the survivor or survivors of them or such administrator de bonis non cum testamento annexo of this my last will and testament out of any estate which may be left after the death of my beloved wife.</p> <p>- “ Item:—I give and bequeth unto my said beloved wife all my estate both personal, real and mixed in fee simple to own, use, enjoy and dispose of the same as she may deem px-oper and right, the same as I might or could do if living. Margaret shall have the household furniture.</p> <p>“ Item:—I further hereby order and direct that whatever real estate that may not be sold or disposed of by my said wife, in her lifetime that the same shall as soon as can convienently be done after her death, sold or converted into money by such administrators as is hereinbefore named.</p> <p>“ Item:—I give and bequeath to my grandson Henry Evans son of George Evans, deceased, the sum of five hundred dollars out of any monies belonging to my estate after the death of my said wife, to be put on interest until he is twenty one.</p> <p>“ Item:—I give and bequeth to my three children Rachel, Margaret and David, the residue of my said estate, after the death of my said wife, and after the bequest to my said grandson Henry Evans, to be divided into three shares, my two daughters shall share and share alike but my said son David shall have one hundred dollars more for his share than either of my two daughters, and in case of death of either of my said three children, Rachel, Margaret and David, in default of heirs then such share or shares shall go to the survivor or survivors of them, share and share alike, and in case either of my said three children shall die leaving lawful issue then the share of such deceased child shall go to such issue.</p> <p>“ Item:—I do further order and direct that should my said grandson, Henry Evans, die without lawful issue his said share shall go to my said three children or the survivor or survivors of them or their issue share and share alike.</p> <p>“ And lastly:—I do hereby constitute and appoint my beloved wife, Elizabeth Evans, sole executrix of this my last will and testament.”</p> <p>William Evans left surviving him his wife, Elizabeth Evans, to whom was granted letters testamentary upon his estate, three children, David, Margaret and Rachael, and a grandson Henry Evans, the plaintiff in this suit, who was the only son of his deceased child George Evans.</p> <p>The wife of the decedent, Elizabeth Evans, enjoyed the profits of the estate during her life and died in 1880, intestate, leaving surviving her the three children and the grandson aforesaid.</p> <p>The defendant Elizabeth Smith claimed title under the three children aforesaid who at the death of their mother were appointed administrators d. b. n. c. t. a. of the estate of William Evans their father, and who, as devisees in remainder after the death of their mother, sold the said real estate to her in 1889.</p> <p>The plaintiff Henry Evans claimed title to the premises in controversy by virtue of the devise to his grandmother Elizabeth Evans in the above recited will. He claimed that under the will of William Evans his grandmother took an absolute estate in fee simple, and as she died intestate and only left three children and himself, an only son of a deceased child, that he was entitled to one fourth of the real estate in question under the intestate laws as an heir of the said Elizabeth Evans his grandmother.</p> <p>The defendant to this suit, Elizabeth Smith, on the other hand claimed that under the will of William Evans the wife was given an estate for life with power of disposing of so much thereof as might be necessary for her maintenance and support, and that whatever remained of the estate of William Evans after the death of his wife, Elizabeth Evans, vested in the three children under whom she claimed.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned among others was (2) above instruction.</p>

Appeal, No. 249, Jan. T., 1895, by plaintiffs, from order of C. P. Lebanon Co., March T., 1894, No. 253, discharging rule for judgment for want of a sufficient affidavit of defence. Assumpsit to recover back money paid under a contract of insurance alleged to have been broken.

<p> Evidence—Settlement of mutual accounts—Question for jury. </p> <p>In an action to recover a balance alleged to be due under a settlement of mutual accounts between defendant and plaintiff’s assignor, defendant denied that such a settlement had been made, and offered evidence tending to show that after the assignment, he had made a settlement of accounts with the assignee, and that a balance was found due to the defendant. Held, that the case was for the jury.</p> <p> Amendment—Practice, G. P. —Assignment for creditors. </p> <p>In an action to recover a balance alleged to be due under a settlement of mutual accounts between plaintiff and defendant, where it appears that after the settlement, but before the suit was brought, plaintiff made an assignment for the benefit of creditors, the record may be amended at any stage of the proceedings so as to add the name of the assignee for creditors, as party plaintiff.</p>

<p>Appeal, No. 99, Jan T., 1895, by defendant, from order of Q. S. Berks Co., in an election contest.</p> <p>Petition to contest the election of Charles H. Ramsay to select council of the city of Reading.</p> <p>The case was referred to Henry A. Muhlenberg, Esq., as examiner. The record showed that the petition of five electors, signers of the original petition, for leave to withdraw therefrom, had not been disposed of. A motion to quash on the ground that two of the persons signing the original petition were not electors of the proper ward was also not disposed of.</p> <p>The court proceeded to final hearing, and entered a decree declaring that William A. Witman had received a majority of the legal votes polled, and was entitled to the office.</p> <p>Errors assigned were (1—3) in ignoring the petitions of withdrawal; (4) final decree; (5) in ignoring motion to quash the petition; (6) in tire court entering of its own accord the name of William S. Palmer to the list of disqualified voters, returned by the examiner.</p>

<p>Appeal, No. 216 July T., 1894, by David Young, from decree of O. C. Phila. Co., Jan. T., 1884, No. 137, dismissing petition for citation to account in estate of David Young, deceased.</p> <p>Petition for citation upon Henry K. Fox, executor of Elizabeth Young, deceased, executrix of David Young, deceased, to file a supplemental account of said Elizabeth Young as executrix of the estate of David Young, deceased.</p> <p>From the record it appeared that on January 15,1879, David Young and Elizabeth Young conveyed a tract of land to Charles E. Johnson for the consideration of $12,000. Mrs. Young insisted before executing the deed, that she should be paid $3,000, to which her husband finally agreed. Part of the purchase money was used in paying off an existing mortgage ; part in paying off liens for taxes, etc. A purchase money mortgage for six thousand dollars ($6,000) was made to David Young; and the balance, something over two thousand dollars ($2,000), was paid to David Young in cash. At the time of settlement, David Young assigned the mortgage for $6,000 to Henry K. Fox, who immediately re-assigned it to David Young and Elizabeth Young, his wife, upon the following terms: “To have and to hold to the said David Young and Elizabeth Young, his wife, their heirs and assigns forever in equal moieties or one-half parts as tenants in common; that is to say, one full equal moiety or one-half part to the said David Young, his heirs, executors and assigns and one full equal moiety or one-half part to the said Elizabeth Young, her heirs, executors and assigns.”</p> <p>This mortgage for $6,000 was made payable in five years. David Young died on March 20, 1882. It was extended by Elizabeth Young, arid was finally paid off and satisfied by her in January, 1886. David Young left a will by which he made his wife his executrix, and gave and devised all of his property to her during her life or widowhood, with remainder to his children, according to the intestate law. Besides his wife, he left surviving him a daughter, Annie Simons, and a grandson, David Young, the petitioner, who was a son of a deceased son. At the time of David Young’s death, the grandson was between sixteen and seventeen years old, having been born December 3,1865. He testified that he had been told of the existence of this mortgage by his grandfather, and that he also heard of it from his grandmother in her lifetime. When David Young died he had on deposit with his agents about $700, all that was left of the cash that had been paid him for the property in January, 1879. It was proved that the rest had been used by David Young for his personal expenses. His widow, who was made executrix, filed her inventory in due time, which included the cash item of $700 and some household effects, but made no mention of the mortgage. She filed her first and only account in January, 1884, in which she charged herself with the amount of the inventory and appraisement, and showed a net balance of $229.38, which was awarded to her for life.</p> <p>The appellant, David Young, came of age on December 3, 1886. His grandmother, Elizabeth Young, died on December 9S 1892, six years afterward, leaving a will appointing Henry K. Fox executor, and in which she made various bequests and legacies. The executor filed his account in the orphans’ court in February, 1894; whereupon the appellant filed his petition to compel the executor to file an account of Elizabeth Young as executrix of David Young, and to. account for the one half of the mortgage of $6,000. The executor demurred to this petition on the ground that it was really a petition of review, and, being such, was barred by the lapse of time since the confirmation of the account of Elizabeth Young. The demurrer was overruled by the court, and leave, given to the respondent to answer.</p> <p>The respondent, having filed his answer, the matter was referred to an examiner to take testimony, and, upon his report having been filed, the matter was argued upon the petition, answer and testimony. In the court below, the respondent relied principally upon the claim that, upon the death of David Young, his widow became entitled to the whole mortgage by right of survivorship; at the same time, however, it was insisted that the petitioner had lost all right to any remedy by reason of his laches. The court, in an opinion by Hanna, P. J., held that, .Elizabeth Young having survived her husband, the whole mortgage became vested in her, and that neither she nor her executor need account for it.</p> <p>The court entered a decree dismissing the petition. David Young appealed.</p> <p>Error assigned among others was decree dismissing petition.</p>