Volume 167 — Pennsylvania State Reports

<p>Appeal, No. 37, July T., 1894, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1891, No. 718, on verdict for plaintiff.</p> <p>Appeal from report of viewers. Before Reed, J.</p> <p>At the trial it appeared that plaintiffs owned thirty-six acres of land in the suburbs of Philadelphia, having a front of four hundred feet on Bridge street. In order to avoid a grade crossing of the Philadelphia & Trenton Railroad, Bridge street was depressed at the railroad to the extent of about nine feet. The railroad itself was raised at the same time, thus affording space for Bridge street to cross under the bridge. No streets were opened through plaintiff’s land. Before the depression of Bridge street the property was nearly on a level with that street.</p> <p>The court charged in part as follows:</p> <p>“Nowit is important here to keep a distinction in mind, which is a perfectly solid distinction, but which, when we come to state it, seems rather a fine one, and that distinction is this : You have no right in this case to give damages for the opening of future streets. Sufficient for the day is the evil thereof. When those streets are opened, if they are opened, then the city will have to pay any damages accruing to the owners of the properties; but that is not inconsistent with the position taken by Mr. Ritchie in this case. He says it is not the damage that will accrue from the opening of the streets, but it is the uncertainty as to how those streets will be opened when opened. He said it was plainly possible that there were several different ways of opening those streets on that land. In other words, they could all be reduced to the level of Bridge street and every street carried under the railroad, or they could all be left on the present level, and stopping at the railroad, not crossing the railroad at all, or some could be lowered and made to pass under the railroad, and some could be left on the present grade; and he said that in his judgment, a person would buy that property, owing to the uncertain way in which those streets would be run, that a man could not be made to give as much for that property as if it had remained at the original grade. In other words, it was the uncertainty as to how those streets would be opened. Whether they would be opened on the present grade, or whether they would be opened at the present grade of Bridge street.” [1]</p> <p>■ Defendant’s points were among others as follows:</p> <p>“ 4. If the jury find that the sewer on Bridge street was laid with a view to, or in connection with the change of grade of Bridge street, now complained of, plaintiffs cannot claim against the city for this change of grade on the basis of any advantage which they had from the use of so low a sewer. Answer: Refused.” [2]</p> <p>“ 5. The jury cannot consider the matter of opening future streets through plaintiffs’ property, so far, at least, as any damage which may be occasioned is concerned. If damage will be caused by such streets, or the grades at which they may be opened, those damages cannot, in whole or in part be now considered. Ansiver: I refuse that point, because I think I have given you a more accurate instruction in the course of my charge. The damages for which the city is liable from the opening of streets are matters which you cannot assess now, but if the uncertainty of the city’s action in connection with the opening of future streets affects the value of the property as Mr. Ritchie thinks it does, then you can find that the property is worth less, because the city has not definedits future policy in regard to the grade of these streets.” [3]</p> <p>Verdict and judgment for plaintiff for $18,800. Defendant appealed.</p>

<p>Appeal, No. 63, July T., 1894, by defendant, from judgment of C. P. Montgomery Go,., Oct. T., 1892, No. 31, on verdict for plaintiff.</p> <p>Appeal from report of viewers. Before Weand, J.</p> <p>At the trial it appeared that the plaintiff was the owner of a lot of ground in Royersford, upon which was erected a'gas plant, with pipes extending, into the borough of Spring City, on the opposite side of the Schuylkill river. The two boroughs are connected by a bridge, and have together a population of about four thousand. Defendant company located a branch railroad from its main line, and appropriated a piece of plaintiff’s land, which was not used for the gas works. The works themselves were not injured.</p> <p>When William Rennyson, a witness for plaintiff, was on the stand, he testified, under cross-examination, as follows:</p> <p>“The Spring City Gas Light Company is a corporation; James H. Egolf is the president and I am the secretary and treasurer.</p> <p>“ Q. What is the capital of the company ? A. $25,000.”</p> <p>Objected to by plaintiff as immaterial and moved to strike out the testimony.</p> <p>Defendant objected to the same being struck out.</p> <p>The Court. Objection overruled, and exception by defendant. Bill sealed. [2]</p> <p>John Slingluff, a witness for plaintiff, testified as follows:</p> <p>“I know the property of Spring City Gas Company. I am pretty well acquainted with the gas plants, and have paid considerable attention to them. I was on the property at the time the gas works were first started. I don’t known how many years ago that was. Quite a good many years. I have known it there, and I have seen it in passing often. I have been on' the property two or three times, probabty three or four times.' I think only once actually on before the Railroad came there! I was not acquainted with its market value. I wouldn’t buy it except for the purpose of a gas works. I don’t know anything about the value of other properties up there. I think I am able from my knowledge in that line of property and my acquaintance with this property with the plant on it before the railroad to tell the fair market value. I think it is very probable it might be used for other purposes. I do not know the value of properties at Royersford. I should think it would be good for other purposes. I do not think I am able to express an opinion as to its market value for other purposes. My judgment as to its value is alone for the purpose of gas works. If I was going to purchase I think I would get all the information I could. That would have a great deal of weight with me, if there was anything in it from the past records. I am not acquainted with the market value of real estate generally in this locality, or of the improvements.”</p> <p>' The court refused to strike out the above testimony. [4]</p> <p>■ Plaintiff presented the following point:</p> <p>* '“In ascertaining the market value-of the property in question, if the jury find that its highest and most available use a;t the time of the taking was that of a gas plant, they have a right to consider the future growth of the borough of Spring City and Royersford, the increased demand for gas so far as those donsiderations affect its market value, and if the jury further find that by reason of the location of the railroad through the property its availability has been curtailed, lessened or partly destroyed, they have the right to consider these questions so far as they affected the market value of the property as a whole immediately after the taking. Answer : Affirmed.” [1]</p> <p>Verdict and judgment for plaintiff for $10,000. Defendant appealed.</p>

<p>Execution — Debtor's exemption — Notice.</p> <p>A claim for the benefit of the exemption law need not be in writing. It may be made within a reasonable time after the defendant has been notified of the writ, provided it does not delay the sale of the goods or the land levied on.</p>

Appeal, No. 85, July T., 1894, by plaintiffs, from judgment of C. P. Berks Co., Aug. T., 1893, No. 112, refusing to take off nonsuit. Sheriff’s interpleader to determine the ownership of certain bales of Sumatra tobacco. Before Ermentrout, P. J. At the trial it appeared that plaintiffs were dealers in tobacco in the city of Philadelphia, and that the firm of Wisler & Whitman were cigar manufacturers in the city of Reading.

Appeal, No. 225, July T., 1894, by defendant, from judgment of C. P. Berks Co., June T., 1893, No. 76, on verdict for plaintiff. Trespass for removal of a gate constructed across a right of way. Before Eementrout, P. J. At the trial it appeared that plaintiff and defendant were owners of adjoining farms.

<p>Municipalities — Gilíes of the third class — License on milk wagon — Act of Miay 23, 1889.</p> <p>Under the act of May 23, 1889, art. 5, sec. 3, P. L. 277, -which confers on cities of the third class the power to collect a license tax, inter alia, on “ drays, hacks, carriages, omnibuses, carts, wagons, street railway cars and other vehicles used in the city for hire or pay,” a city has no authority to impose a license tax upon the delivery wagon of a milkman.</p>

Appeal, No. 181; July T., 1894, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1893, N o. 5, for defendant non obstante veredicto. Scire facias sur municipal lien for taxes. Before Endlich, J. At the trial the jury returned a verdict for plaintiff. The court reserved defendant’s points which were as follows : “ 1.

Appeal, No. 337, Jan. T., 1895, by defendant, from judgment of C. P. Berks Co., Jan. T., 1893, No. 18, on verdict for plaintiff. Trespass to recover the amount of a judgment which the plaintiff was compelled to pay for personal injuries caused by a defect in defendant’s sidewalk.

Appeal, No. 340, Jan. T., 1895, by defendants, from decree of C. P. Berks Co., Equity Docket, 1894, No. 607, awarding injunction on bill in equity. Bill in equity to declare void proceedings in awarding a municipal contract, and for an injunction to restrain the execution of a contract. The facts appear by the opinion of Endlich, J., which was as follows: FINDINGS OF FACTS. “ 1.

<p>Appeal, No. 280, Jan. T., 1895, by J. Henry Bennetch, from order of C. P. Berks Co., April T., 1887, No. 148, dismissing exceptions to report of auditor on account of Adam L. Hain, committee of Albert J. Hain, a lunatic.</p> <p>Exceptions to auditor’s report.</p> <p>Eementrout, P. J., filed the following opinion:</p> <p>“ It would appear from the evidence that Adam Hain was appointed committee of Albert J. Hain, on the tenth of May, 1887, and continued in the execution of his trust until June 24, 1893, when J. Henry Bennetch was appointed as his successor. Various moneys were expended by him for the benefit of his cestui que trust, including the entire income of the estate, and also portions of the principal. The expenditure of the principal was without previous application to the court. Having filed his account setting forth these various expenditures, the account was confirmed absolutely without objection, and applications were then made, both for the appointment of an auditor and for the opening of the account.</p> <p>“ In answer to the rule to show cause why the account should not be opened, the accountant set forth substantially, the errors which had been made in the statement of the account, making a very full-statement as to the expenses connected with it and as to the management of his estate, setting forth, inter alia, ‘ That all the credits claimed in the account were for moneys actually paid and expended by the respondent for the benefit of the estate, and that all the money that was expended was honestly applied to the support and maintenance of the said Albert J. Hain, and the maintenance of the real estate which he owned,’ and asked the court to ratify and approve all the payments which were thus made honestly and in good faith, and also asked that the errors in the account herein stated be corrected, and setting forth that the balance due the estate he was ready and willing to pay to his successor in the trust.</p> <p>“ The auditor has recommended that the court allow the expenditures, and these exceptions raise the question as to the propriety of the amount allowed, and the authority for their approval by the court. It is, of course, unnecessary to discuss' the question of the expenditure of the income, for, beyond all question, that expenditure was admittedly necessary and reasonable and justified without any special order of the court in the premises.</p> <p>“ In Frankenfield’s Appeal, 102 Pa. 589, the court say: ‘ Where a committee of a lunatic expends money of the corpus of the lunatic’s estate in the repair of real estate without obtaining an order of court authorizing him to do so, he runs the risk of having his action disapproved and of being surcharged. But where the court subsequently approves such expenditure as reasonable and necessary, the ratification is equivalent to a previous order.’</p> <p>“In the case of Steiger’s Appeal, No. 9, December Term, 1878, this court had occasion to examine the question, and, following this authority of the Supreme Court, approved the expenditures as reasonable and necessary, and ratified the' action of the committee in making the expenditures without the order of the court.</p> <p>“ In the face of this decision, the authority of the auditor to recommend and of the court to approve the recommendation cannot seriously be questioned. Every dollar was honestly expended for the benefit of the lunatic and his family, and for no one else. The auditor expressly finds that in making these expenditures, ‘The accountant acted in good faith, and not one of the relatives are here disputing the fact or protesting that the lunatic and his family did not get the benefit of every penny expended by the accountant.’</p> <p>“ Whilst it is true that it is part of the duties of the committee to administer the estate for the benefit of his cestui que trust, and that his successor has the legal right and the legal duty to scrutinize his predecessor’s account and ask that improper credits be stricken out, yet there is still some discretion allowed a committee in the management of the person and the estate of the lunatic. The only witness called was the committee, Adam L. Hain, himself. He made no concealment; he explained everything connected with the estate; the financial affairs of the lunatic were in a very tangled condition; he took the estate incumbered by debts; farming operations, as every one in this section knows, were unprofitable ; the relatives of the lunatic desired him to remain on the farm; he was a married man with a wife and child living with him; he had various interests which required attention, and the committee was kept very busy. The lunacy was of that mild description which simply unfitted him for the management of his business affairs. He was easily persuaded and overreached in any business transactions for which he was wholly unfitted. Good natured and shiftless; nothing else.</p> <p>“ In passing upon the question of the expenditures and the question of their excessive or inexcessive character, the auditor finds that, ‘ Under the peculiar circumstances of the case as disclosed by the evidence, it is not unreasonable. From the evidence submitted, the auditor believes that the accountant acted in good faith ; that there was no such gross, supine negligence on the part of the accountant as would warrant the auditor in surcharging him with the amount expended above the ■income or any portion thereof. The auditor would therefore recommend to the court that the principal expended by the committee be allowed to the accountant nunc pro tunc.’</p> <p>“After a careful examination of the uncontradicted testimony of the committee, Adam Hain, the only person called to testify in the matter, neither wife, relative, nor kin, protesting or finding fault, the committee, acting honestly and in good faith, the cestui que trust, wife and child having received the entire benefit of the expenditures, we think the auditor’s recommendation just and proper, and we therefore ratify and approve all the expenditures made.</p> <p>“ Exception 2. This alleges the auditor erred in not surcharging the accountant with interest.</p> <p>“ From the finding of the auditor there was in the hands of the committee at the end of the first year of the trust $136.08. Certainly this amount could not well be put out at interest, being entirely too small for investment. There ought to be no surcharge, especially as the expenses of the year following exceeded the income. Therefore, at the end of 1888 there was nothing to invest. December 1,1889, the auditor finds that he had in hand $590.69, and that this amount had increased until December 31, 1891, when it amounted to $1,135. In 1892 there was a deficit of $187.73, and in 1893 the income exceeded the expenses by $376.75. Upon this showing the auditor properly disallowed the accountant to take credit of $90.00 for interest on money advanced by him. Further on in his report he says, in disallowance of the claim of $270 compensation, ‘he has not charged himself with interest on the several sums of money received by him. We have already shown that the accountant had in hand some $590.69 on the 31st of December, 1889, of which sum at least $500 might have been invested. That $500 more might have been invested in 1891. Had he done so he might have realized for the estate the sum of at least $180.</p> <p>“ The auditor has, therefore, ascertained that $180 interest could have been realized if the trustee had put it out at interest, but it has not been shown that these moneys were used for the personal benefit of the trustee, or that he derived any profit from these moneys in any way. The neglect to invest whereby he might have realized for the benefit of the estate the sum of $180 interest, is assigned by the auditor as the most potent reason for the disallowance for the trustee’s compensation of $270, notwithstanding he finds that the trustee’s labors were worth this amount of $270, and that the auditor would cheerfully recommend the payment of this amount as compensation or earnings for the work done.</p> <p>“ It seems to us that it would be a wrong to charge him with this amount of interest and also at the same time refuse him compensation. This would be a punishment which the law certainly does not impose upon an accountant acting in good faith. If the money of the estate could have been made to earn $180, not received through this neglect to invest, it suffered no loss when the accountant is deprived of more than this amount of compensation which he fairly earned.</p> <p>“Exception8. Error is alleged in charging the estate and not the accountant with the costs of the audit, for the reason that the examination of the account was occasioned by the conduct of the accountant, and the evidence shows mismanagement and extravagant expenditure and impairment of the corpus of the estate. We have already approved the finding of the auditor as to the alleged mismanagement and expenditures upon the ground that he acted in good faith. They were for the benefit of the cestui que trust, wife and child, and were not so unreasonable as to compel us to refuse their allowance.</p> <p>“ This leads us to the consideration of the question whether the examination of this account was occasioned by the conduct of the accountant. When the trustee’s account was filed it set forth a small balance of $24.14 due the estate. There was upon it an absolute confirmation. It is admitted that there were errors in this account, and, therefore, he is in the position of having filed, however innocently and mistakenly, an erroneous account. It is creditable to him that he frankly acknowledged the error, explained how it was made, and set forth the necessary corrections to be made. This was done, however, in answer to a petition filed, and the appointment of an auditor was necessary, not simply for the work of necessary distribution alone. In every estate the necessary expenses of the distribution required to be made by law, are chargeable against the estate. Besides, it was necessary for the trustee, having omitted to ask the permission of the court to expend portions of the principal sum of the trust estate, to justify the expenditure of the principal made by him. His previous neglect to apply to the court cast upon him the burden of justifying the expenditures. This portion of the duties of the auditor was rendered necessary by his conduct, and although he has in the judgment of the auditor, as well as in our judgment, proven such facts as to lead us to ratify and approve these expenditures, the fact still remains that the work of the auditor to this extent was rendered necessary by his act.</p> <p>“The authorities upon this question are uniform, justifying and requiring imposition of the costs upon trustees. Patterson’s App., 104 Pa. 369, presents a somewhat similar case to the one now under discussion. It was held that ‘where a trustee, who is authorized by an order of court to expend a certain sum in the construction of a building, exceeds the expenditure so authorized, he takes the risk of being surcharged; but where the court subsequently approve such expenditure, he is relieved from liability.’ But the auditing judge reformed and restated the entire account and imposed the costs of the proceeding upon the accountant. The decree made b}' the court below was approved by the higher court.</p> <p>“ The Appeal of Franklin Taylor, 21 W. N. C. 357, presented the case where the account filed contained claims for large amounts to which the cestui que trust would not agree, and hence litigation became necessary to determine the true state of the account. When that was finally ascertained, it was found that the claim of the trustee was very largely reduced. The amount ultimately found to be due to the trustee being much less than the trustee claimed by his account, he was regarded as the losing party, and the costs were imposed upon him.</p> <p>“ Clauser’s Est., 84 Pa. 51, presents the case of a trustee forfeiting his right to commissions, and being held to pay three fourths of the costs of auditing the account. It involved a question of the misappropriation of the funds of the estate. The .Supreme Court held that ‘ authority can scarcely be required to prove that the costs before the auditor, except so much as would cover the usual and formal expenses of a distribution, should be borne by the accountant.’</p> <p>“ The accountant being responsible for the necessity of a portion of this audit, $50.00, in our judgment, is a proper amount chargeable against him under the circumstances, and to this extent the exception is allowed.</p> <p>“ The exceptions of the accountant are dismissed.”</p>

<p>[Marked to be reported.]</p> <p>Street railways — Suburban lines — Country roads — Act of May 14,1889.</p> <p>The street railway act oí May 14, 1889, P. L. 211, does not contemplate or provide for the construction of long lines of transportation, connecting widely separated cities and towns by electric railways, traversing country roads.</p> <p>A distinction exists between urban and suburban property as to the right of corporations to occupy a highway for a street passenger railway. A city or borough may impose the additional servitude of a street railway upon the city or borough streets, but the authorities of a township cannot impose such additional servitude upon roads without the consent of the abutting landowners.</p> <p>When the supervisors of a township give their consent to the occupation oí township roads by a street railway, they act as the representatives of the people, who build and use the roads, and not as the representatives of the owners of the private property over which the roads pass. The company can only protect itself by securing the consent of every property 3wner along the roads which it wishes to occupy.</p> <p>Street railways — Consent of local authorities — Form of consent — Evilence.</p> <p>The consent of the supervisors of a township to the use of township oads by a street railway company is invalid, unless it is given at a reguxrly convened meeting of the supervisors, and the proceedings should be ntered in the townhip books kept by the town clerk.</p> <p>A paper signed by the supervisors, in the pocket of a contractor, or of Anne officer of a corporation, is not the proper evidence of action by the township.</p> <p>Street railways — Construction of railways without consent — Estoppel.</p> <p>Where township officers and owners of land abutting upon roads have stood by and permitted the expenditure of large sums of money in the construction of a street railway upon the roads, they cannot afterwards demand that the railway shall be torn up or its use enjoined.</p> <p>Street railways — Construction of line before consent of all municipalities obtained.</p> <p>If a street railway company is chartered to be constructed from one point to another, and its line must necessarily pass through a city, borough, or township intermediate between the termini; and that city, borough or township refuses its permission, the power to build the road described in the application and charter cannot be exercised. It must be possible for the company to complete its line before it has a right as against any city, borough or township into which its line extends to begin work.</p>

Appeal, No. 220, Jan. T., 1895, by plaintiff, from decree of C. P. Schuylkill Co., Sept. T., 1894, No. 1, dismissing bill in equity. Bill in equity for an injunction to restrain the construction of an electric railway on a public road, leading from the borough of Tamaqua to the borough of Lansford.

Appeal, No. 183, Jan. T., 1895, by defendant, from decree of C. P. Schuylkill Co., Nov. T., 1894, No. 2, granting an injunction on bill in equity. Bill in equity to restrain the construction of a street railway.

<p>Appeal, No. 260, Jan. T., 1895, by defendant, from decree of C. F. Schuylkill Co., Nov. T., 1894, No. 1, on bill in equity.</p> <p>Bill in equity for an injunction to restrain the construction of an electric railway on a township road leading from the borough of Tamaqua to the borough of Lansford.</p> <p>From the record it appeared that complainant was incorporated under the act of May 14, 1889, on November 2, 1891; the respondent, on April 27, 1894. The former obtained consent from the “local authority” of Rahn township May 9, 1894, and the latter May 1, 1894. The complainant filed a bill in equity and alleged that the respondent obtained its “ consent” through bribery. The respondent filed its answer denying the allegation. A preliminary injunction was granted. The case was argued upon the pleadings and testimony taken in a case practically involving the same subjects, and which was agreed to be adopted as the testimony in this case.</p> <p>From the testimony it appeared that Morris Coll, supervisor of Rahn township had given his consent in writing that the Inter-County Street Railway Company should use the road from Tamaqua to Lansford. By a writing executed at the same time, the Inter-County Street Railway Co. agreed that if Coll and his son were discharged by the Lehigh Coal and Navigation Company from their employment in that company, they should receive emplojunent by the Inter-County Street Railway Company at certain specified wages per day.</p> <p>Other facts appear by the opinion of the court below by Weidman, J., the material parts of which are as follows :</p> <p>“ [Whether the signing of consent to the defendants by Coll on May 2,1894, was on a paper prepared before that date, executed and delivered then to Boyle, to be held by him until the agreement in evidence was satisfactory to Coll, and then delivered by him to Riebe for defendants (as seems to have been testified), or whether the agreement in evidence, and above described, was the only evidence of Coil’s consent given to the defendant company, seems to be immaterial: for the reason that the evidence clearly shows that both Coll and the defendants clearly understood that until the consideration personal to the supervisor was secured by a written agreement, the consent was not to be operative.] [2] When the first agreement was condemned by Coll as not providing for him if he was not discharged, and the defendants at once executed another agreement covering Coil’s claim as it has been understood between them, it became manifest that Coll was not disposed to treat their personal consideration as an “ after consideration,” as construed by Mr. Krebs, but as an essential consideration without which they could not receive the evidence of his consent. So also the agreement in evidence, ‘ Witnesseth, that the said party of the first part do hereby promise and agree that in consideration of the said party of the second part signing the rights of way for the building of an electric railway in and upon the highways of Rahn township,’ to give employment to Coll, etc. [My conclusion is that this agreement was not delivered untilj 7 P. M. of May 9.] [8] The copy of the agreement appearing on the record does not show that it was signed by Coll: so that unless there was another paper evidencing his consent, such consent must be inferred from his acceptance of their agreement, or rest upon a parol consent. That he did consent finally on May 9th, there is no dispute. Ought such a contract, or such a consent, to stand? Complainants have proved that the contract of consent was made by the supervisor alone, and without making a record of it upon the township books, and without consulting with the auditors or having their consent. They have not furnished the court with any statute or decision which tends to show that the auditors have any share in the responsibilities of the supervisor for the care or condition of the roads and, as it is conceded that the law as to Rahn township only requires one supervisor, there is no force in the objection that in this respect he was not the ‘ local authority,’ whose consent the act of 1889 requires. ■</p> <p>“There is, however, fatal force in their objection that the contract of consent was founded upon an immoral, if not a criminal, consideration. From Grant v. Erie, 69 Pa. 422; Dechert v. Commonwealth, 118 Pa. 229; Raudenbush’s Petition, 120 Pa. 328, we are asked to infer that we have no jurisdiction to inquire into this question. Grant v. Erie decided that where an act of assembly empowered a city to build a sufficient number of reservoirs to supply water in case of fire, and the council constructed them but allowed one to get out of repair so that it would not hold water, the owner of a near-by property destroyed by fire could not recover against the city, alleging that the loss occurred by reason of the fact that by this negligence of the city no water could be obtained; that it was discretionary with the city to construct the- reservoirs, and they were not liable; Dechert v. Commonwealth decides that the city controller of Philadelphia has a judicial discretion as to whether he will or will not countersign a warrant; that mandamus may be awarded in such a case to set public officers in motion as to acts and duties necessarily calling for the exercise of their discretion, but will not control or interfere with the exercise of that discretion or dictate what the decision shall be. Raudenbush’s Petition decides that the Supreme Court will not review the manner in v'hich the lower courts have exercised their discretion in granting or refusing retail liquor licenses. I do not regard these cases as precedents to guide the case before the court in which the natural, and as it seems to me the irresistible inference, from undisputed facts, is that the supervisor refused to deliver his contract of consent .to these defendants except at the price of a consideration, payable to himself and not to the public whose rights he was thus selling; a consideration not in good faith solely providing against his discharge for doing his duty, but a consideration providing for himself in case he was not discharged. He was dealing with a discretion vested in him as a public office for the public benefit as if it was his private property which he could sell for his personal profit. No argument is required to show that a consent thus obtained finds no warrant in the act of 1889, in morals or in public policy. “ In general, if any part of the entire consideration for a promise, or any part of an entire promise, be illegal, whether by statute or common law, the whole contract is void. Indeed the courts go far in refusing to found any rights upon wrong doing: ” Parsons on Contracts, 5th ed. (p. 456). “If any part of a consideration is illegal the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with this act or promise another which is legal: ” Id. 457. See also Filson’s Trustees v. Himes, 5 Pa. 452; Clippinger v. Hepbaugh, 5 W. & S. 815; Berdin’s Appeal, 92 Pa. 241. [This supervisor refused to grant his consent upon the agreement providing for his employment in case of his discharge, and only delivered it when assured that he would be employed for life at increased wages whether discharged or not. A grant founded upon such a consideration is not to be sustained, and must be declared void.] [4] . . . .</p> <p>“ According to this story Mr. Farquhar, attorney for complainants, requested him to sign a right of way, and he objected that if he did he might be punished, because he had already signed such an agreement for the defendants; and that Mr. Farquhar then read out of a book to him to show him that that would not prevent him from signing the second paper. He says that he didn’t bother with that, and then Farquhar read out of his book again that he had committed crime enough to go to the penitentiary. Then Spiese told him that he had done enough to go to jail; that he wouldn’t sign for them. Then Kennedy and Zehner consulted in private and Kennedy came to him and told him that if he didn’t sign that paper Zehner would send for a constable to take him to jail. He told them to go to hell; at one time he and Farquhar were alone in the room and he got up to go out, when Farquhar got up and told him that he couldn’t go out until his case was settled. About ten minutes after that he went out, when McLaughlin followed him. He tried to get awajr from him, but could not, and then McLaughlin told him that he couldn’t get away until this thing was settled. Then he and McLaughlin went back to the stairs leading up to the room where they had been before and sat there and McLaughlin was ‘ coaxing,’ and he then said he would sign if Zehner would give him the same agreement that the Inter-County Company had made, and they agreed to it and then he signed. The only time when he was afraid, according to his statement, Avas when McLaughlin threatened to get the constable ; but he did not leave the room when Farquhar threatened him. The interviews further testified to, that is, the visits of the priests and the call with Boner upon Zehner relate to subsequent efforts to get from him the agreement that he had made with the Inter-County Company and to get his assistance in the present suit Avhen the bill Avas to be filed.</p> <p>“ Accepting Coil’s own statement, he persisted in his refusal to sign the agreement until Zehner and McLaughlin promised him the same terms as the Inter-County Company had agreed to : Then he went into the room where the conference had been previously held, and signed the paper. Besides this, all the others present, except Mr. Farquhar, were examined; they all deny that any promises or threats were made at any time during the two hours at Tamaqua whilst this negotiation was going on. One or two of the Avitnesses were not in the room all of the time from the beginning of the negotiation to the end; others say that they were in the room all of the time, and that Farquhar was not alone with Coll at any time from the beginning of the negotiation to the end. Zehner and McLaughlin deny distinctly that they made any promises to Coll in consideration of his signing, and assert that, on the contrary, they distinctly told him that such promises would be illegal, and that they could not do it. Upon this showing it would be unreasonable to say that the testimony of Morris Coll should prevail against the testimony of the other witnesses not impeached, except bjr the conflicting testimony of Morris Coll, and that a fair inference from this record is that this contract was procured by fraud or coercion. It is true that the testimony also shows that he was dealing with men who were high in authority in the company in which he had been in humble service, who had loaned, or advanced, his pay to him, as a supervisor, before it was due, on his promise that he would not grant this particular right of way without letting them know in advance, and who were known to him, probably, as opposed to the building of any railroad there. Who had by threats and persuasion prevented the earlier building of complainants’ road, and were now allied with complainants to secure the privileges because a rival had come upon the field. Still the testimony in reference to what occurred at the time when the contract was executed seems to warrant the conclusion that the representation and threats, combined with the surroundings above alluded to, did not move him until Zehner and McLaughlin agreed to do as well for him as the Inter-County Company. Nor can the fact be lost sight of that the influences of his employers might have led to his yielding to their, persuasion, as complainants’witnesses say that it did. [Where the evidence is directly conflicting, as it is in'this case, we have no other guide to a conclusion than the seeming preponderance, and tested by that the evidence does not seem to warrant the setting aside of the formal contract executed by the supervisor.] [5]</p> <p>‘‘ In view, however, of the views expressed to-day in an opinion filed in No. 2, Nov. Term, 1894, Rahn Township v. The Tamaqua and Lansford Street Railway Company, it is not important whether this is a just view of the evidence on this subject or not: for in that case the conclusion is reached that upon other grounds this company must be enjoined from constructing their railway under their agreement with the supervisor.</p> <p>“ The second objection is based on the act of 1883 (P. L. 123), § 5. ‘ That any corporation of the second class, created under the provisions of the act to which this is a supplement, or any of its supplements, that shall not within two years from the date of its letters patent proceed in good faith to organize and to do the things contemplated by its charter, and have paid up at least one-fourth of its capital, shall be held and deemed to have forfeited its charter, and the attorney general shall, on the application of any citizen, take the proper legal steps to forfeit and vacate its said charter,’ etc.</p> <p>“This, by its terms, applies to such corporations as are created under the act of 1874, or any of its supplements. There is nothing in the act of 1889 which indicates that it was enacted as a supplement to that act. Even, assuming that it does apply to the act of 1889, the act contemplates that the enforcement of the forfeiture shall be by ‘ proper legal steps ’ through the attorney general. And that such a forfeiture cannot be adjudged in a collateral proceeding, such as this, is well settled: Man. etc. of C. & K. T. R. Co. v. McConaby, 16 S. & R. 140; Commonwealth v. The Erie & N. E. R. Co., 27 Pa. 339; Clarke v. The Birmingham and P. B. Co., 41 Pa. 147. See also Larimer & L. St. R. Co. v. Larimer St. R. Co., 137 Pa. 533; Lejee v. The Continental R. Co., 2 W. N. C. 170; Collins v. N. E. R. Co., 2 Dist. Rep. 417, which hold that the act of 1871 confers no jurisdiction in favor of a private party to enjoin a public nuisance. And if the grant of the right of way to defendants over this road is invalid as above decided, then there could be no private damage to the defendants which would justify an interference with complainants on their application. If they were complainants their contention would not avail them ; much less should it avail them as a defense: Western Pa. R. Co.’s App., 104 Pa. 406 ; Union St. R. Co. v. Hazleton Ry., 154 Pa. 422.</p> <p>“ The third objection is disposed of by our Supreme Court in Germantown Pass. R. Co. v. Citizens’ Pass. R. Co., 151 Pa. 138, which decides that under the act of 1871 a street railway lias a standing as a complainant in a bill in equity to restrain another company from unlawfully laying tracks in a street already occupied by the complainant.</p> <p>“ [And now, November 26, 1894, it is adjudged and decreed that the said The Inter-County Street Railway Company, its officers, agents, contractors and employees, be restrained by injunction to issué forthwith from constructing, maintaining or operating a street railway on or over the public road in Rahn township, leading from the borough of Tamaqua to the borough of Lansford, and from entering upon or further interfering with said-public road for that purpose.] ” [1]</p>

<p>Appeal, No. 265, Jan. T., 1895, by defendants, from decree of C. P. Berks Co., 1894, No. 606,. in favor of plaintiff on bill in equity.</p> <p>Bill in equity to restrain a street railway company from constructing its tracks upon a bridge.</p> <p>The facts appear in the following opinion of the court'below by Endlich, J.</p> <p>findings of fact.</p> <p>“ 1. The Penn Street Pass. Ry. Co. was incorporated by act April 8, 1873, P. L. (1874) 346, with power to construct a single or double track road on Penn street, in the city of Reading, from the Harrisburg bridge on the west to Nineteenth street on the east.</p> <p>“ The Reading City Passenger Railway Company was incorporated by act, December 18, 1873, P. L. (187.4), 463, with power to occupy with its main tracks and specified branch tracks certain other streets in said city. The former company was subsequently merged in the latter, which, on March-16, 1893, filed an acceptance of the provisions of the .act May 14, Í889, P. L. 211, under section 20 thereof, received letters patent, dated March 17,1893, as provided therein, and on April 1, 1893, leased its rights, privileges, property and franchises for the period of 99 years to the Reading Traction Company, incorporated March 9,1893, under act March 22,1887, P. L. 8.</p> <p>“ 2. On December 18, 1893, the directors of the Reading City Passenger Railway Company, which then had a double track road on Penn street, down to the foot of the eastern ap proach of the Harrisburg bridge, nearly midway between Front and Second streets, and a single track (unused and unprovided with appliances necessary for the use of trolley cars) running up said approach to the point where the iron structure of the bridge begins, resolved to construct an ‘ extension, beginning at the intersection of Front and Penn streets, thence by double track, westward on the line of Penn street, crossing the Harrisburg bridge to the western bank of the Schuylkill river,’ and authorized the officers of the company to take all steps necessary to carry said resolution into effect. A copy of the minutes reciting this action was, on the same day, recorded in the office of the recorder of this county, and an exemplification of said record filed December 27, 1893, in the office of the secretary of the commonwealth.</p> <p>“ 3. On the day last mentioned, the Reading City Passenger Railway Company and the Reading Traction Company, and the then county commissioners of the county of Berks, executed the following instrument:</p> <p>9 Articles of agreement made and entered into this twenty-seventh day of December, A. D. one thousand eight hundred and ninety-three, between the county of Berks, in the state of Pennsylvania, of the first part, and the Reading City Passenger Railway Compaq*- and the Reading Traction Company, corporations existing under the laws of Pennsylvania and located in the city of Reading, in the county of Berks, of the second part, each party covenanting for itself, its successors and assigns, with the other party, its successors and assigns.</p> <p>“ Whereas, the public convenience requires the extension of street railways beyond the limits of the city of Reading; and</p> <p>“ Whereas, to reach the townships adjoining and lying to the west of the city, it is necessary to cross the county bridge at the foot of Penn street, known as the Harrisburg bridge; and,</p> <p>“ Whereas, the parties of the second part are duly authorized to extend their line on Penn street to the west bank of the Schuylkill river;</p> <p>“ Now therefore this agreement witnesseth: First. That the consent and right to lay a double track of iron or steel rails upon and across the said bridge and the approaches thereto, and to string electric wires along the top of said bridge within the spans thereof, and upon span wires to be supported by neat wooden poles upon the eastern approach thereof, and by ornamental wooden poles upon the western approach thereof, be and are hereby granted by the county of Berks to the Reading City Passenger Railway Company and the Reading Traction Company, to be used by their cars, propelled by electricity or any other motive power other than by locomotive.</p> <p>“ Second. That the rails to be laid on said bridge shall be of the standard tram bi'idge rail pattern, and the gauge thereof shall be five feet two and one half inches.</p> <p>“ Third. The cars of the parties of the second part shall not have the right of way in crossing said bridge in preference to any vehicle, animal or thing which may be rightfully upon the same track or moving in the same direction, and shall not at any time be propelled at a greater speed than at the rate of four miles an hour, nor shall more than one car or train of cars be upon the bridge at onetime.</p> <p>“ Fourth. That nothing in this grant or contract contained shall be construed or taken to obligate the county of Berks to maintain said bridge for the use of the parties to whom this grant is made, or for the purpose to which this contract relates, nor to render the county liable for any injury to person or property resulting directly or indirectly from the use of said bridge for the purpose covered by this agreement.</p> <p>“ Fifth. And in consideration of the grant aforesaid, the said Reading City Passenger Railway Company and the Reading Traction Company, or either of them, shall pay to the county of Berks the sum of $600, annually, in quarterly payments of $150 each, said sum or sums to be applied to keeping the said bridge in repair, the said payments to begin the first quarter after the completion of the tracks upon said bridge, and to continue as long as the cars of the said parties or either of them shall run across or over the said bridge ; and the failure to run the cars thereon, for the convenience of passengers, for any period of three consecutive months, shall be taken as an abandonment of the line and a surrender of the right herein granted, and this agreement shall thereupon become void and of no effect.</p> <p>“ Sixth. This grant to be void unless the right is exercised within one year from the date hereof.</p> <p>“ In witness whereof, the commissioners of the county of Berks have hereunto set their hands and affixed the seal of the county of Berks, and the presidents and secretaries of the parties of the second part have hereunto set their hands and affixed the corporate seals respectively of the Reading City Passenger Railway Company and the Reading Traction Company on the day and year first above written.</p> <p>“4. By resolution approved January 16, 1895, the councils of the city of Reading consented to the extension of its tracks by the Reading City Passenger Railway Company over said bridge, the limits of said city extending to the western bank of the Schuylkill river.</p> <p>“5. At a distance of about one block from the western extremity of the Harrisburg bridge there is an unincorporated settlement known as West Reading, containing 800 to 1000 inhabitants, a hat factory, grist mill, carriage factory, several brick yards, stores, etc., and waterworks with about 150 consumers. Many of the employees in the industries referred to reside in the city of Reading. The extension of a railway from the said city to this settlement would be a convenience to such employees as well as to the persons residing in the settlement. The space intervening between the same and the. Harrisburg bridge consists, upon the one side of the highway, of filled-up ground claimed by the P. & R. R. R. Co., and upon the other bluff, known as Leinback’s Hill, of a solid mass of rock. [The extension of the Reading City Passenger Railway Company’s road to the western extremity of the Harrisburg bridge only, can be of no material advantage or service to the persons residing or laboring in West Reading or points beyond.] [7]</p> <p>“ 6. By letters patent, dated March 10, 1894, the Reading & Womelsdorf Electric Railway Co. was incorporated, to construct an electric railway from the western bank of the Schuylkill river, at a point opposite the city of Reading, where the Harrisburg bridge crosses the said river, westwardly upon the Dauphin turnpike, passing through part of West Reading and ending at Womelsdorf. Contracts for the equipment and construction of said road by June 1,1895, have been made; if and when this road is constructed it is the intention of the defendants to connect their tracks with the same. [But as yet the consent of all of the local authorities of not a single township through which the Reading & Womelsdorf road must pass, has been obtained for its construction.] [8]</p> <p>“7. In April, 1894, the county commissioners being about to lay a new floor upon the Harrisburg bridge, the president of the Reading Traction Company, by letter of April 10, 1894, addressed to the said commissioners, invited them to confer with him concerning the kind of rail to be laid by the company upon the bridge, the method of adjusting the same to the new flooring, etc. [The commissioners made no response to this letter, and a desire, orally expressed by said president to one of the commissioners about the same time, to meet the commissioners concerning the matters referred to, was refused, with the statement that the commissioners had nothing to do with the Traction Company and the latter had no business on the bridge.] [9]</p> <p>“ 8. During the night of November 28-29, 1894, the officers of the defendant companies, knowing that the county repudiated the agreement of December 27, 1893, and anticipating an attempt on its part to apply for an injunction if they proceeded in daytime, went with their employees upon Harrisburg bridge with rails and appliances for laying them and laid upon the floor of the bridge as they found it a double track, of the gauge specified in the instrument of December 27, 1893, fastening each rail to the floor by a spike at either extremity of the rail, a washer being placed over the counter-sunk holes of the rails, through which the spikes were driven into the floor, to prevent the heads of the spikes from being pounded down by wheels passing over them and thus becoming more difficult to extract. The rails used were new ones of an appropriate pattern for the construction of tracks upon bridges and designed to be fastened by screws. In order to lay them properly it was necessary either to cut out a groove into the floor planks to accommodate the 4 lip ’ of the rail (a projection at the inner edge of the bottom of the rail designed to be imbedded in the woodwork beneath it and thus protect the rail from lateral displacement), or to place under the rail a strip of wood or metal equal in thickness to the depth of the ‘ lip,’ thus giving the rail a flat under surface, and dispensing with the necessity of a groove to accommodate the ‘lip.’ Neither of these things was done in the laying of the rails upon this bridge, so that they do not lie flat upon the floor of the bridge, but tilted slightly upward at the inside edge and outward at the outside edge. Nor, although it is claimed on behalf of the defendant companies, that their purpose was to put strips of steel under the tracks, so as to make them level without sinking the ‘ lip ’ into a groove (which would weaken the flooring of the bridge), had or have any such strips been provided. Neither have the rails been connected with binding wires, necessary to make an electrical circuit. Nor can the strips referred to, or the binding wires, be put in, or the track made available for use, without being entirely taken up and relaid.</p> <p>“ [9. The object and intent of the defendant companies’ entry upon the bridge on the night of November 28-29, 1894, and of the work there done and meant to be done by them during that night, were not the construction, or the beginning of the construction, of a railway to be immediately completed and thenceforth used by said companies in connection with and as part of their electric railway system in the city of Reading, but the accomplishment of an occupation of the bridge in advance of the possibility of stoppage by judicial process and within a year after the agreement with the commissioners; the completion of the tracks thereafter as a road capable of being used for the passage of electric cars, and the defendants’ use of the same for that purpose being designed to be deferred until and dependent upon the contingency of the construction of the Reading & Womelsdorf Railroad; and the use then and in that event intended to be made of said tracks being that of running electric motor cars over the same.] [10]</p> <p>“ 10. The Harrisburg bridge, though almost wholly within the limits, of the city of Reading, has, since its construction many years ago, been a county bridge, under the control of the commissioners of Berks county. It is the only bridge crossing the Schuylkill from the western extremity of Penn street, and being a free bridge, is continuously and uninterruptedly being used by tbe public, in vehicles and on foot.</p> <p>“ 11. As rebuilt in 1885, said bridge is an iron structure of three spans, aggregating 553 feet seven inches, extending across the tracks of the Wilmington and Northern, the West Reading, and the Pennsylvania Schuylkill Valley Railroad, the Union canal, and the Schuylkill river, to the western bank thereof. Including the approaches, the eastern one of which (already occupied with one track; see second finding) begins at a point on Penn street, nearly midway between Front and Second streets. The total length of the bridge is about 938 feet. The width of the driveway of the bridge is twenty-six feet. On either side of the same and somewhat higher than it, there is a footwalk of seven feet two inches in width. Since June, 1894, the floor of the bridge (which before that time consisted of a double course of hemlock and pine planks) has been one course of three-inch oak planks, twelve and one half feet long. This floor rests upon eight iron stringers, running longitudinally, three feet apart, and joined together, at intervals of eighteen feet one and one half inches, by iron cross girders. The floor is calculated to be and is capable of bearing a uniform distributive weight of 100 pounds per square foot of floor surface. The cost of keeping tire bridge, used as it has been in the past, in proper and safe repair, is slightly over $1,000 per annum.</p> <p>1,112. As at present laid, the distance between the right-hand track and the footwalk on the north side of the bridge is five feet one inch. The northern rail of said track lies immediately over the second stringer. The distance between that rail and the other rail of the same track is five feet two and a half inches; that between the right-hand track and the left-hand track is four feet, the latter track being also of a gauge of five feet two and a half inches, and leaving between its southern rail and the southern sidewalk six feet six inches.</p> <p>“ 13. The tracks being arranged as stated, the strain upon the floor of the bridge, including woodwork- and ironwork, of any ordinary loaded electric motor, within the area of its wheel bases, will be over 100 per cent greater than good engineering indicates as a safe and proper limit. A change in the arrangement of the tracks, so as to relieve the second stringer of some of the strain put upon it by placing a rail immediately over it, and thus to distribute some of the load placed upon it to the stringers next on either side, might reduce this excess by approximately one third.</p> <p>“ [14. Under any possible arrangement of the tracks and with two courses of planking instead of a single course only, the strain upon the bridge floor resulting from the passage of electric motor cars, run as contemplated by the agreement of December 27,1893, is greatly in excess of the safe capacity of the bridge, and will tend to increase the cost of maintaining the bridge, and to weaken and eventually destroy the iron structure of said floor.] [11]</p> <p>“ 15. It is possible to strengthen the floor of the bridge (in such a way as practically to amount to the putting in of a new floor, i. e., by doubling the number of stringers, etc.) sufficiently to make it capable of bearing the strain resulting from the use of electric motor cars.</p> <p>“ [16. The presence of a double track upon said bridge will make it necessary for wagons to use said tracks, and by reason of the narrowness of the space to the side of the tracks will make it impossible for wagons heavily loaded to turn out of said tracks while on the bridge. It will therefore be impracticable for persons taking loads of hay over said bridge to pass an electric ear crossing the bridge at the same time, i. e., such persons will be virtually debarred from thn use of said bridge.] [12]</p> <p>“Under these findings of fact and as applicable to them I make the following</p> <p>“ FINDINGS OK LAW.</p> <p>“ (a) The Reading City Passenger Railway Company is not invested with the powers conferred by the act May 14, 1889, P. L. 211, upon street railway companies incorporated under the same. [13]</p> <p>“ (5) The said company, on December 27,1893, had no right to extend its road or tracks upon and over the Harrisburg bridge or beyond the point to which, under the act of April 3, 1873, P. L. (1874), p. 463, incorporating the Penn Street Passenger Railway Company, the latter company was authorized to construct its road; nor had or has the Reading Traction Company any right to build such extension under the act under which it is incorporated. [14]</p> <p>“ (o') The Reading City Passenger Railway Company, on December 27, 1893, having had no right to extend its track over and upon the Harrisburg bridge, the then commissioners of Berks county had no right to agree with said company and the Reading Traction Company for or respecting such extension, and the agreement of that date was ultra vires on both sides. [15]</p> <p>“ (cl) If the Reading City Passenger Railway Company may be treated as a corporation under act 14th May, 1889, and entitled to its benefits, and particularly to the benefit of the provisions of section rv thereof, relating to extensions of tracks, the power attempted to be exercised by said company, and its lessee, the Reading Traction Company, in the occupation of the Harrisburg bridge in the manner and for the purposes disclosed by the facts of this case, is not among the powers conferred bj1- that enactment, and therefore does not exist in said companies. Not existing by virtue of said enactment, that power is not conferred upon said companies by the agreement of December 27, 1893. [16]</p> <p>“ (e) The said agreement of December 27, 1893, being in effect on the part of the county commissioners, a surrender of public property to a corporation without compensation proper to be paid to said county by such corporation for the same, and a dedication of a public bridge to a use inconsistent with the free use of the bridge by the public to which it is by law dedicated, is of no binding force upon the county, and confers no rights as against it upon the defendant companies. [17]</p> <p>“ (f) The attempted occupation of the Harrisburg bridge by defendants was not a bona fide exercise within the meaning of act 1889, section 16, of any power conferred by said act, or any right given by the agreement of December 27,1894. [18]</p> <p>“ (g) The tracks laid upon the Harrisburg bridge by the defendant companies are an obstruction of a public highway, and their presence is an interference with the rights of the county in the control and management of said bridge. [19]</p> <p>“ (h) The plaintiff is entitled to a decree in accordance with the prayer of its bill.” [20]</p> <p>The court entered the following decree:</p> <p>[And now, to wit, February 11, 1895, this cause came on to be further heard, and was argued bjr counsel, and thereupon, upon consideration thereof, it was ordered, adjudged and decreed that the defendants and each of them, their and each of their servants, agents and workmen, be enjoined from constructing or completing or proceeding with the construction of a track or tracks on, upon or over the Harrisburg bridge, and to remove therefrom the rails or tracks already placed or fastened by them upon the floor of said bridge, leaving the same in as good repair as it was in when, and immediately before, the said rails or tracks were placed or fastened thereon, and that the defendants pay the costs of this suit.] [3]</p>

<p>[Marked to be reported.]</p> <p>Street railways — Consent of borough council — Bribery.</p> <p>It is in effect bribery to secure the action of a public official by the promise of a reward to him as an individual, and the consent of a borough council to the use of a street railway is invalid where it appears that the company agreed to give in consideration therefor employment to the members of the council.</p> <p>Street railways — Right of abutting owner to object to construction of a railway — Municipal consent.</p> <p>An owner of property abutting on a street has a standing in equity to object to the construction of a street railway upon the street, where it appears that the railway company had obtained no valid consent to the use of the street from the municipality: Larimer St. Ry. Co. v. Railway, 137 Pa. 537, and Lockhart v. Craig St. Ry., 145 Pa. 23, distinguished.</p>

<p>Appeal, No. 359, Jan. T., 1895, by defendant, from decree of C. P. Carbon Co., Jan. T., 1895, No. 5, entering injunction against defendant.</p> <p>Bill in equity to restrain the construction of á street railway in the borough of Summit Hill.</p> <p>The bill averred:</p> <p>1. That the said The Lehigh Coal and Navigation Company is a large owner of real estate and taxpayer in said borough.</p> <p>2. That the said John L. MeMichael is the burgess of said borough.</p> <p>3. That the said defendant is a Pennsylvania corporation, incorporated under the act of May 14, 1889, P. L. 211.</p> <p>4. That the said defendant, under color of its charter, has commenced work and excavations upon the streets of said borough, for the purpose of constructing and maintaining an electric street railway over and upon the same.</p> <p>5. The said MeMichael alleges that the borough council of the said borough have not legally passed an ordinance granting to said defendant their consent or license to enter upon the said streets for the purposes aforesaid; and that the said defendant has entered upon said streets without the legal consent of the said borough, and in defiance of law.</p> <p>6. That it is a condition precedent to the entry of said defendant upon said streets, for the purposes aforesaid, that it must have legal consent of the borough council, by ordinance legally and regularly adopted.</p> <p>7. That if the defendant is permitted to enter upon the said streets, dig up and excavate them, complainants will suffer irreparable injury.</p> <p>8. That said burgess protested against the entry of said defendant upon said streets, for the purposes aforesaid; but that said defendant, in defiance of such protest, has entered upon and is excavating and committing a nuisance on the said streets.</p> <p>The answer of the defendant admitted the truth of the 1st, 2d, 8d, 4th and 8th paragraphs of the bill, excepting the commission of nuisance, and as to the 5th, 6th and 7th, it said they are incorrect and untrue. The defendant further denied that the plaintiffs have any standing in a court of equity; that they have no rights which are in anywise injured or disturbed; and that it is committing no nuisance on the streets of said borough.</p> <p>Craig, P. J., filed an opinion which was in part as follows:</p> <p>“ Under the evidence it is difficult to say when the ordinance of consent was passed by the council, and what were its exact terms. There was a vote on the 7th of September, 1894, giving the defendant a right of way subject to the ordinance to be passed.”</p> <p>“ Then, on the 11th of September following, there is this on the minutes: ‘ On motion that the electric railroad ordinance be read for the first time.’ What this ordinance was we are not informed.</p> <p>“ Next, on the 5th of October, 1894, the ordinance marked exhibit 7 was passed by a proper vote, according to the minutes ; but, according to the testimony of James S. Smith, the secretary of the council, this ordinance was not passed finally on this date, but was ‘read twice,’ ‘had two readings,’ and finally passed on the 16th of October, 1894. In another part of his testimony, he says it was not passed finally until the 2d of November, 1894 (the minutes do not show this), and that what was passed on the 16th of October, 1894, was not the same ordinance that had been acted on on the 5th of October, 1894, but was a resolution, and differs in some of its wording from the ordinance of the 5th of October.</p> <p>“ On the 8th of October, the ordinance of the 5th of October was ordered to be published in the Lansford Weekly Leader.</p> <p>“It appears in this paper for the first time on the 17th of October, 1894, signed by W. T. Jones, president of council, and attested by J. T. Smith, secretary. The conclusion of the advertisement is ‘first passed on the 5th of October, 1894,’ and it was finally enacted and passed this 2d day of November, 1894.</p> <p>“ It is undisputed that the ordinance was not presented to the chief burgess for approval until about 6 o’clock p. M. of the 2d of November, 1894, at his house, and that the council met on that day at the town hall, about half-past seven in the' evening. [2]</p> <p>“ On the 6th of November, 1894, the burgess vetoed, the ordinance. As to what was done after this, we are not advised, as the evidence does not come down later. If the ordinance of the 5th of October, 1894, was not finally passed until the meeting of the 2d of November, 1894 (being two regular and successive meetings,) then clearly the ordinance which was presented that day to the chief burgess had not yet passed council, and he was not bound to notice it then. [If, however, it be conceded that the ordinance of the 5th of October, 1894, was then legally passed, or that the resolution of the 16th of October was then legally passed, was the presentation of either to the chief burgess, about 6 o’clock in the evening of the 2d of November, the next regular meeting thereafter, a compliance with law ? The purpose of this presentation is to receive the approval of the burgess. ‘ If he approve he shall sign it, but if he shall not approve, he shall return it with his objections to said council at the next regular meeting thereof, when said objections shall be entered at large in the minute book, and said council shall proceed to a reconsideration of such ordinance or resolution,’ (Purd. Dig., 12th ed., vol. 1, p. 348, plac. 172.) We hold that the presentation of the ordinance or resolution to the chief burgess for his approval, about an hour and a half before the next regular meeting of council, is not a compliance with the law. He is the chief officer of the borough, and responsible by virtue of his election for the proper supervision and execution of all ordinances and laws pertaining thereto. Surely, he is entitled to a reasonable time for the consideration of all ordinances and resolutions that are presented to him for approval. How can he (in case he disapprove) return an ordinance or resolution passed by council, with his objections, at the next regular meeting thereof, if he have not a reasonable time to do it? The law fixes no time of service; and we need decide no more in this case than to say, that the time of service or presentation of the ordinance or resolution (assuming them to have been legally passed on the 5th and 16th of October respectively) was too short to comply with the law:] [3] (Purd. Dig., 12th ed., vol. 2, p. 2007, plac. 3 ; Amer. and Eng. Ency. of Law, vol. 5, p. 82.)</p> <p>' “ [It follows, then, that the defendant, neither by the ordinan ee of 5th of October, nor by the resolution of 16th of October, has that consent of the local authorities which is prerequisite to its right to enter upon the streets of the borough of Summit Hill and lay down a railroad track. In this record it can make no difference whether the legal consent is by ordinance or resolution. Both are governed by the same rule: Kepner v. Com., 40 Pa. 124.] [4]</p> <p>“But it is contended that the permit, given by street commissioner John Fink, dated 12th October, 1894 (Exhibit 12), was a legal consent to the defendant to occupy the streets of the borough for railway purposes. Evidently, this paper cannot be construed to give the defendant the consent of the local authorities permanently to occupy their streets with an electric railway.</p> <p>“ The subsequent action of the borough authorities shows that they did not so interpret this permit, nor ratify it; but, on •the contrary, by their action on the 5th of October, the 16th of October, and the 2d of November, they showed that their consent must be given by ordinance or resolution.</p> <p>“ In addition to the construction put upon the term ‘ consent of the local authorities’ by the action of the town council all through this matter, to wit, that it must be given by ordinance, or resolution, regularly passed, we think, and so hold, that this consent can only be obtained in this manner. This ordinance, or resolution, is in the nature of a contract between the borough and the defendant. Each has something to do, and to receive in return, for a consideration. In the case of the Bor. of Milford v. Milford Water Co., 23 W. N. C. 413, Chief Justice Paxson holds that neither councils, nor officers of a municipality, can contract in any other way than by ordinance; and that is one of the safeguards of municipal corporations, that they can only be bound by a contract authorized by an ordinance duly passed. This view, we think, is fully sustained by a number of adjudications: Larimer & L. St. Ry. Co. v. Railway Co., 137 Pa. 533; Harrisburg City Pass. R. R. Co. v. Harrisburg, 7 Pa. C. C. Rep., 584 and 593; Butler et al. v. School Dist., etc., 149 Pa. 351.</p> <p>“ [The defendant, having to obtain the legal consent of the borough authorities to enter upon their streets and highways for the purpose of constructing and maintaining its electric railway over and upon them, the first question above suggested recurs: Have the plaintiffs the right to invoke the present procedure and enjoin the defendants from entry on the streets for railway purposes ?</p> <p>“ The defendant admits that the Lehigh Coal and Navigation Company, one of the plaintiffs, is the owner of land abutting on Market, Railroad, Oak, Hazzard and White streets, on the line laid out by the ordinance of the defendant’s railway. This plaintiff still owns the fee to the middle of the streets subject to the right of passage of the public, and he may use the land for his own purposes in any way not inconsistent with the public easement. Where the injury complained of is one of a continuing and permanent nature and special to complainants, for which an action at law would not afford a complete and adequate remedy, a plaintiff may challenge the rights of a corporation claiming to do the injury in a court of equity, under the act of 19th June, 1871, P. L. 1360, and by injunction prevent andrestrain the wrong:] [5] Penna. R. R.Co.’s Appeal, 115 Pa. 514; Sterling’s Appeal, 111 Pa. 35; Potts v. Quaker City Elevator R. R. Co., 12 Pa. C. C. R. Rep. 593 ; Larimer Ry. Co. v. Railway Co., supra : Philadelphia & Reading R. R. Co. v. Kensington and Tacony R. R. Co., 33 W. N. C. 182; Edgewood R. R. Co.’s Appeal, 79 Pa. 257; Steelton Borough v. East Harrisburg Ry. Co., supra; Minnig et al. v. N. Y., Chicago and St. Louis R. R. Co., 11 W. N. C. 297; Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138; Westhaeffer v. Lebanon and Annville St. Ry. Co., 35 W. N. C. 33; Harrisburg and Mechanicsburg Electric Ry. Co. v. Harrisburg, Carlisle and Chambersburg Turnpike Co., 15 C. C. Rep. 389.</p> <p>“ [Nor can we sustain the objection that the burgess has no right to this form of action. He is the executive officer of the borough; to him belongs the right to enforce the laws and ordinances. If there is an occupation of the streets without authority of law, there is a nuisance, and, to abate the nuisance, he may invoke the equitable powers of the court.] [6]</p> <p>“ And now January 7,1895, for the reasons given, the motion to dissolve the preliminary injunction is refused, and it is adjudged and decreed that the said defendant, its officers, agents, contractors and employees, be restrained by injunction to issue forthwith, from constructing, maintaining, or'operating an electric street railway on or over the streets and highways of the borough of Summit Hill, in said county, and from entering upon or further interfering with the said streets and highways for said purpose.” [1]</p>

<p>[Marked to be reported.]</p> <p>Contract — Water company — Construction of contract.</p> <p>Plaintiff, a water company, had means of supplying pure water from a mountain stream, and could also supply water from a river contaminated by acids from mines. Defendant was an iron and coal company. Plaintiff agreed in writing to furnish defendant with pure water for the “generation of steam, for fire hydrants and hydraulics, and for stores and dwellings,” for a certain price per annum. The contract stipulated that the undertaking should not include the furnishing water for tuyeres, boshes or condensers, or for any other purpose than those named in the agreement. Plaintiff further agreed to furnish defendant “ such other water as may be required” by defendant for tuyeres, boshes and condensers, and for all other purposes required by the works, except for waterwheels, from the river. Held, that the right of the defendant to pure water was confined to such a supply as was necessary for the generation of steam, for fire hydrants and hydraulics, and for stores and dwellings; and that the words “ such other water ” had no reference to the “ pure water ” which was to be supplied for these purposes.</p> <p>Statute of limitations — Fraud—Taking of water.</p> <p>Plaintiff, a water company, agreed to supply defendant, a coal and iron company, with “ pure water” for certain purposes, and other water from a river contaminated by acids, for other purposes. Plaintiff put in the pipes and connections by which the pure water was supplied, and under the agreement had access to defendant’s premises for inspection, and also the right to put in water meters. For a period of ten years, defendant used “pure water” for purposes other than those contemplated by the agreement, without the knowledge and consent of plaintiff, but without practicing any deception or fraud to divert the attention of plaintiff. Held, that the statute of limitations barred plaintiff’s right to recover for all water taken prior to six years from the date of the bringing of the suit. A plaintiff is bound to take notice of a trespass of which he might have known by the use of the means of knowledge within his reach, unless his vigilance be relaxed or diverted by the actual fraud of the defendant.</p>

<p>Murder — Comment of district attorney on failure of prisoner to call Ms wife as witness.</p> <p>On the trial of an indictment for murder, where it appears that the prisoner’s wife was present at the killing, it is not improper for the district attorney to comment upon the fact that the prisoner failed to call his wife as a witness for the defense.</p> <p>Murder — Offer by commonwealth to call wife of prisoner — Evidence.</p> <p>It is no ground for reversing a judgment on a verdict of guilty of murder of the first degree, that the court below refused to strike from the record an offer by tire commonwealth to place the wife of the prisoner on the stand as a witness for the prosecution, when it appears that the offer was objected to by the prisoner, and overruled by the court.</p> <p>Murder — Improper comment on evidence by district attorney — Review.</p> <p>The Supreme Court cannot consider an assignment of error alleging improper comment made by the district attorney upon the evidence at the trial of an indictment for murder, where no objection was made at the trial, and the only report of what the district attorney said is contained in the notes of a private stenographer of the counsel for the prisoner.</p> <p>It seems that it is improper for the district attorney to attack the character of the prisoner, not from the evidence, but by inference from the fact that the prisoner had called no witnesses to testify to good character; but such an impropriety is not ground for reversal, where no objection is made to it at the trial.</p> <p>Murder — Jury— Challenges.</p> <p>On the trial of an indictment for murder where all the jurors present had been called and either sworn, challenged or stood aside, and eleven had been accepted, sworn and taken their seat in the box, it was not error to call the twelfth juror from those who had been stood aside, where it appeal’s that the prisoner’s peremptory challenges had not yet been exhausted.</p> <p>On the trial of an indictment for murder, it appeared that twelve of the jurors of the panel were in the jury room deliberating on the verdict in another case. The remainder of the jurors of the panel had been called and either sworn, challenged, or stood aside. Eleven had been accepted and sworn. The prisoner’s peremptory challenges had not been exhausted. Held, that it was within the discretion of the court to permit the twelfth juror to be called from those who had been stood aside, and to proceed with the trial without awaiting the return of the jurymen who were out.</p> <p>Murder — Producing prisoner handcuffed in presence of the grand jury.</p> <p>It is no ground for reversing a verdict of guilty on an indictment for murder that the prisoner was brought handcuffed into the court room in the presence of the grand jury.</p> <p>Evidence — Threats— Rebuttal — Order of testimony.</p> <p>On the trial of an indictment for murder, the prisoner when on the stand denied that he had made threats against the deceased. After the testimony for the defendant had been closed, the person in whose presence the alleged threats had been made was called by the commonwealth to contradict the prisoner. Held, that the admission of the testimony after defendant’s case had closed was not such an abuse of the discretion of the trial judge over the order of introducing testimony, as to justify a reversal. Held, further, that the evidence was also admissible at that stage of the trial to contradict the prisoner.</p> <p>Murder — Murder of the first degree — Evidence.</p> <p>A judgment on a verdict of guilty of murder of the first degree will be sustained where the evidence shows that the prisoner had made threats against the deceased, his father-in-law; that subsequently he met his wife from whom he had been living apart, and his father-in-law, to divide amongst them some household furniture; that prior to the meeting he bought a revolver and cartridges and loaded the revolver; that at the meeting which was in a cellar, some words passed between the parties; that the deceased started to leave the cellar, when the prisoner drew his revolver, aimed and snapped it at the deceased, again pulled the trigger shooting the deceased in the arm, and then fired it twice again, one of the shots piercing the brain of the deceased and the other his arm; that the prisoner then snapped his revolver at his wife, and ran away.</p>

<p>Appeal, No. 210, Oct. T., 1894, by defendant from judgment of C. P. No. 3, Allegheny Co., May T,, 1893, No. 185, on verdict for plaintiff.</p> <p>,. Assumpsit to recover the value of a car load of potatoes alleged to have been lost through the negligence of defendant. Before Me Clung, J.</p> <p>At the trial it appeared that the goods had been consigned to plaintiff at Pittsburg from New Orleans. At Pittsburg plaintiff ordered the car to be transferred to defendant’s road for shipment to Buffalo, under a bill of lading which contained, inter alia,-the following provisions :</p> <p>“ 1. No carrier or party in possession of all or any of the property herein described, shall- be liable for any loss thereof or damage thereto, by causes beyond its control; or by floods or by fire from any cause or wheresoever occurring; or by, riots, strikes or stoppage of labor; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay; or from any cause if it be necessary or is usual to carry such property upon open cars.</p> <p>“-2. No carrier is bound to carry said property by any particular train or vessel, or in time for any particular market, or otherwise than with as. reasonable dispatch as its general business will permit. Every carrier shall have the right, in case of -necessity; to forward said property by any railroad or route between the point of shipment and the point to which the rate is. given. ■ . ,</p> <p>“ 3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee. The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation.”</p> <p>The car reached Buffalo three days later than the time it would have reached that city had there been no delay. The evidence relating to the alleged negligence of the defendant in causing the delay, is stated in the opinion of the Supreme Court.</p> <p>George Ruppel, the plaintiff, being upon the witness stand, the following questions were propounded to him by plaintiff’s counsel:</p> <p>Mr. Yost: “Q. Did you inquire on the next day, Saturday, when you actually received the bill of lading from the person in charge at the freight station, from the person who gave you that bill of lading, and with whom you dealt in regard to sending this car, as to what time the car should arrive in Buffalo ? A. I did. Q. What answer did he give you?”</p> <p>Objected to as incompetent.</p> <p>Objection overruled. Bill of exceptions sealed for defendant. [5]</p> <p>A. “ He told me he had ample time to make delivery Monday morning. Q. That was the following Monday ? A. Yes, sir.”</p> <p>A witness, H. J. McCracken, being upon the witness stand, the following questions were propounded to him by plaintiff’s counsel:</p> <p>“ Q. If a carload of freight, such as potatoes, were shipped to Buffalo packed in barrels, properly packed with openings for ventilation, and so on, shipped in June in a car such as Mr. Ruppel has described — I believe you heard his testimony— from Pittsburg to Buffalo, and arrived there in the ordinary time, as you have stated, in good sound condition when shipped, would they be damaged by the shipment and delivery at that time?”</p> <p>Objected to as incompetent and irrelevant, this not being a case for expert testimony.</p> <p>The Court: “ I think we ought not to exclude this testimony.”</p> <p>Objection overruled, and bill sealed for defendant. [6]</p> <p>Mr. Yost: “ Q. I will correct it this far, to say, that if the potatoes were in good sound condition at two o’clock on the previous day on Friday, and with that correction I will ask for your opinion on it. A. If in good condition at two o’clock on Friday and without smell in the car, I should think they would arrive in number one condition on Monday morning. Q. II shipped on Saturday? A. Yes, sir.”</p> <p>The court charged as follows:</p> <p>“ The goods came here from New Orleans in a car of the Illinois Central Road, and they were reshipped by the Allegheny Valley Road and its connection, the Western New York & Pennsylvania Road, to Buffalo, New York, the Allegheny Valley Road receiving it here for shipment to Buffalo. The goods were received with the understanding that they were to be shipped to Buffalo, not to an intermediate point, but at the same time the company which received them was not to be responsible for the default of the company to which it delivered them at Oil City, half way to the city of Buffalo. It is alleged that they were unduly delayed, and that through that delay the potatoes rotted, so that a large portion of their value was destroyed — that their value was reduced perhaps to one third. There was no agreement between the parties as to the time at which these potatoes should arrive at the city of Buffalo — only the implied agreement that they should be forwarded with reasonable dispatch, and perhaps the contract itself uses practically the same terms, but those terms do not vary the obligation which was upon the company. That was the only obligation — to forward them with reasonable dispatch.</p> <p>“ In determining what reasonable dispatch is, you regard all the circumstances of the case. You regard the exigencies of the defendant company’s business, you regard the possibilities of accident, and at the same time you regard the nature of the goods shipped and all the circumstances which surrounded the company when they undertook to convey these goods; and you determine what would be reasonable dispatch. You have the statement of the agent of the defendant company said to have been made to the shipper as to the time at which goods would arrive in Buffalo, and you also have other testimony of parties who were in the habit of shipping. That testimony, even the testimony of the agent was not admitted for the purpose, of showing any agreement upon the part of the company to take them there by that time, but simply as indicating what was a reasonable time under ordinary circumstances, to enable you to determine whether or not the time which was actually taken, which seems to have been some four or five days, was unreasonable or not. Without some testimony of that sort, as a matter of course, the jury has no means of determining what was reasonable dispatch ; but I am cautioning you here against assuming that there was an agreement upon the part of this defendant company to take those potatoes there by Monday. There was no absolute agreement to take them there unless it could be done in the exercise of the care which was demanded of them, and in the exercise of due effort to get them there. That was the only obligation that they were under.</p> <p>“ [If, however, they failed to forward them with reasonable despatch, and the plaintiff suffered damage thereby, they would be liable to him; so that the questions that you have to determine are, first, whether or.not they failed to fulfill their contract, failed to forward these goods as promptly as they could in the exercise of reasonable care under the circumstances which surrounded them, and under the occurrences which happened; then, in the second place, whether or not the plaintiff suffered damage, and if he did suffer damage, how much that damage amounted to.] [7] It makes no difference if they did delay, if that delay did not cause damage to the plaintiff. As a matter of course, the law does not undertake to punish a defendant in these matters. The only purpose of permitting these suits is to reimburse the party who suffers damage, and even if the contract had been violated, the defendant could not be mulcted at least for more than nominal damages.</p> <p>“ [But the plaintiff alleges that the defendant negligently, carelessly and unduly delayed the shipment of these goods, and that is the principal question for you to determine. You have the facts all before you. There is no particular dispute about the facts as to how this car was delayed. Now, was the defendant negligent in that delay? It would appear here that ordinarily this car would have gotten to Oil City on the morning,' I believe, of the 12th, and would probably have passed or sometime during that day upon the other road and reached Buffalo during Monday. The witnesses differ as to whether it would have gotten there Monday morning-or not until Monday evening, but no one disputes that if there had been no accident it would have gotten there by Monday evening at the latest. It appears that it was not actually delivered to the Western New York & Pennsylvania Company at Oil City until some time upon the afternoon of Tuesday. Now, was the defendant company excusable for this delay, and if it was not excusable, was that the cause of the damage to these .potatoes? That is practically the simple question before you. It was the duty of this defendant company to use due care with regard to the car at the time .that it received it. . Under a general arrangement amongst the railroad companies, it took this same car in which the goods were then loaded, and used it to transport them to Buffalo. It was its duty to use due care, reasonable care, in inspecting that car to find out if it was in proper order for that journey at the time it started. Did it exercise that care ? It was not bound to remake the car, it was not bound to go over every detail of the car and examine everything about it, because that would not be practicable. It would not be practicable to take out the brasses, for instance, and examine all the journals. It was only bound to use due and reasonable care in inspecting the car. If it did that, and this car seemed, under that inspection, to be in proper.condition, or, if that inspection revealed to them that it was in proper condition, then it was proper for them to start with the car; and then the question of care would arise as to the transportation of the car after it had been put upon its journey. If they did exercise the proper care before starting with the car, did they exercise the proper care after it was developed that there was something wrong with the car, after it was determined that it had this hot box ? That is not a usual occurrence, I believe, with cars, that is, the happening of the heating of a box, but it is not, I presume, an extraordinary occurrence at all. It is something that does occur and no doubt does occur even when the best of care is taken. If they found that it had a hot box, then they were bound to use the care which those circumstances demanded in order to get the goods forward. They were bound, of course, still to transport them as promptly as possible, but they were to be allowed for the delay that would occur by reason of an accident, which was not the result of their negligence, and if they .then used all the effort which would be reasonably required of them under the circumstances, they would be held blameless, and they could not be held liable for the damage that would occur. In this matter, as in others, you will take into account all the circumstances. There are some circumstances under which they would be bound to greater care than others. If they had specially perishable goods, there might be some circumstances under which, rather than submit to even a short delay, they ought to transfer the goods into another car, if one was attainable; but you cannot apply any rule of ideal perfection to these matters, because it is not possible that a railroad company should always have agents of the highest degree of judgment running its cars, and you have to adopt the reasonable rule which the law suggests, that is, — were the efforts made which could reasonably be expected under the circumstances, upon the part of the reasonably competent men whom they are bound to employ? You will examine into the question as to whether or not they were negligent at Kittanning as to the occurrences between this and Kittanning, and then again at the next stopping place, and still again at Oil City, where it seems that the car had again to be repaired. It would seem that this car was unusually unfortunate on this trip. Was this delay simply on account of that which was purely an accident, or was it by reason of the negligence of the defendant ? If it was nothing but a pure accident without there being negligence, then it matters not what became of the potatoes; the owner of them would have to suffer the loss.] [4] If, however, you think that they were negligent, then the question is, did that negligence cause the loss to these potatoes? It is perhaps beyond possibility for you to determine with accuracy whether or not these potatoes would have been in perfect condition when they got to Buffalo if they had been transported without any delay, but it is one of those difficulties which often presents itself to the jury. They have to determine these questions. Somebody has to determine them, and the lot frequently falls to you. If you find that they would have been injured to the same extent that they were without this delay, then, of course the plaintiff cannot recover. If you find that they would have been injured to some extent, but not to the extent that they were injured, then he could only recover for the additional injury. But, if you find that the whole injury was due to the default of the defendant company, then it would be liable for his loss.</p> <p>“ You will recollect all the time that this defendant companj"-, the Allegheny Valley Railroad Company, is not responsible for any delay upon the part of the other railroad company. It seems that the goods were delivered to the other railroad company in time for the train upon Tuesday evening. Of course, if they negligently delayed so as to lose a connection upon the other road they could be fairly charged with the delay between the two trains. If you find that there was no unnecessary delay, no delay through negligence, then the verdict should be for the defendant.</p> <p>“ If, however, there was negligence and the damage resulted from that negligence, then the question is as to the measure of damages.</p> <p>“ The bill of lading here would seem to restrict the measure to the market value of the goods in this market. It has been held, however, that a common carrier cannot, in case the loss is through its negligence, limit its liability in that way, and we so instruct you here. If the defendant company was liable from any cause other than negligence, then the measure of damages would be the one stated in the bill of lading and in the third point submitted to me by the counsel for the defendant. It would be the market value of the goods here, that is, you would charge them with the market value of the goods here, and the freight to Buffalo, and credit them with the $161 which they received for the goods there, that is, if the loss did not result from their negligence. But if it resulted from their negligence, then the law fixes the measure of damages, and that damage would depend, under the circumstances of the case, upon the Buffalo market, and not upon the market here. The goods were to be delivered in Buffalo. They were first to come into the possession of the plaintiff in Buffalo, and they did first come into his possession and under his control in Buffalo, so that the measure of damages in that ease would be what they would have been worth in Buffalo had they arrived in the condition that they would have been in if they had gone on promptly. You will charge the defendant with that, giving them credit with the amount that was realized, $161.80. In that case you would, of course, have nothing to do with the freight bill, because the plaintiff would have to pay that if the goods had gotten there in good condition.</p> <p>The defendant’s points were among others as follows:</p> <p>“ 1. That under all the evidence in the case the verdict should be in favor of the defendant. Answer: This is refused. The question is left to the jury.</p> <p>“2. That if the jury find from the evidence that it was necessary to make the repairs to the car, as recited by defendant’s witnesses, and that such repairs were made with reasonable dispatch, the verdict should be for the defendant. Answer: This is refused as put. Their duty was not simply and solely as to the making of repairs. They had a duty as to the inspection of the car to begin with, and they had a duty with respect to the forwarding of the car under some circumstances, at least, perhaps, beyond that of merely making the repairs, but outside of the inspection of the car, the point would probably be understood by the jury as presenting the law fairly.” [2]</p> <p>“ 3. The measure of damages in this case is the market value of the potatoes at the time and place of shipment and the freight paid to Buffalo, less the amount received for the potatoes at Buffalo. Answer: That, gentlemen, is the measure of damages, provided this loss was not the result of negligence upon the part of the defendant company. If they were liable for this loss, but it was not the result of negligence, if it was simply the result of a failure of judgment, perhaps in some employee, that would be the measure of damages. But in' case it was the result of negligence, then the Buffalo market would afford the measure of damages. As I have said, in that case you would simply find the value in the Buffalo market, and deduct the amount received there. You have, then, nothing to do with the freight bill.” [3]</p> <p>Verdict and judgment for plaintiff for $464. Defendant appealed.</p>

Appeal, No. 63, Jan. T., 1895, by defendant, from judgment of C. P. Berks Co., May T., 1891, No. 8, on verdict for plaintiff. Ejectment to recover a tract of four acres of land in Lower Heidelberg township. Before Endlich, J. At the trial it appeared that the property in controversy formerly belonged to William M. Crouse, the plaintiff’s father, and was included in a deed of assignment for the benefit of his creditors.

<p>Statutes — Tax collectors — Repeal of statutes — Acts of March 18,1852, and June 6, 1893.</p> <p>The act of June 6, 1893, P. L. 833, entitled “ An act to authorize the election of tax collectors for the term of three years in the several boroughs and townships in this commonwealth,” repeals the local act of March 18, 1852, P. L. 153, relating to the collection of taxes in the townships of Longswamp and Bethel in Berks county.</p>

Appeal, No. 194, July T., 1894, by Simon Kline, from judgment of O. P. Berks Co., Oct. T., 1892, No. 39, on verdict for plaintiffs. Assumpsit on a guaranty of a building contract. Before Ermentrout, P. J. At the trial it appeared that on January 8,1892, D. C. Sharp & Son contracted to build three three-story brick buildings for William Lender and G. Fred Mertz: Simon Kline became the guarantor of Sharp & Son for the faithful performance of the work.

Appeal, No. 89, Jan. T., 1895, by Jacob S. Livingood, from decree of O. C. Berks Co., dismissing exceptions to adjudication. Exceptions to adjudication. On exceptions to the account of the executors of James C. Livingood, deceased, Bland, P. J., found the facts to be as follows: “1.

Appeals, Nos. 352 and 368, Jan. T., 1895, by T. M. Titlow efc al., executors of Ellen J. Harker, deceased, and by Ellena B. White, and Guarantee Trust & Safe Deposit Company, trustee of Ellena B. White, from decree of O. C., Berks Co., dismissing exceptions to adjudication in estate of Ellen J. Harker, deceased. Exceptions to adjudication. The adjudication by Bland, J., was in part as follows: “ 1.

Appeal, No. 75, July Term, 1894, by Martha White, from decree of O. C. Franklin County, awarding partition in estate of John White, deceased. Petition for partition of redeemable ground rents. Martha White, widow of John White, deceased, objected to the petition on the ground that, as the ground rents were redeemable, they were personal property and not real estate, and hence not the subject of partition.' The case was heard on petition and answer.

Appeal, No. 198, July T., 1891, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1894, No. 14, on verdict for plaintiff. Trespass for personal injuries before Reeder, J. At the trial, it appeared that plaintiff boarded one of defendant’s cars in South Easton, desiring to go out Northampton street in Easton. At the point where he got on the caí-, two lines were running, one going out Walnut street arid one going out Northampton street.

Appeal, No. 398, Jan. T., 1895, by defendant, from judgment of C. P. Northampton Co., June T., 1890, No. 26, on verdict for plaintiff. Before Sterrett, C. J., Green, Williams, Mitchell, Dean and Fell, JJ. Assumpsit against a surety upon a forthcoming bond to sheriff. On May 3, 1886, Henry Erwin obtained judgment in the court of common pleas of Northampton Co. against Richard Foster for $459.75.

<p>Appeal, No. 13, Jan. T., 1895, by Oscar Huston, from decree of O. C. Monroe Co., dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication</p> <p>The case was referred to Cicero Gearhart, Esq., as auditor, who reported in part as follows:</p> <p>“ The books of the decedent were produced before the auditor by the administrators, and on the examination of the account therein contained as to debits and credits of Oscar Huston, a balance appears to be-due from the said Oscar Huston to the decedent of |2,070.26.</p> <p>“ From the evidence had before the auditor, it appeared that the accountants requested settlement from said Oscar Huston of his indebtedness to the estate as shown by decedent’s books, but that the said debtor failed and refused to do so; that the accountants consulted their counsel Hon. John B. Storm in relation to the matter and were advised not to bring suit for the collection of the same, as in his opinion the account was such as could not be collected by suit; that they, the accountants, consulted the other heirs, when it was agreed that Oscar’s account should be left till the last, and left to an auditor or some one appointed to look over the books and decide. From these facts the auditor does not surcharge the accountants with said balance of $2,070.26, believing that the accountants did all that prudent men would do to secure this balance to the estate, and therefore discharged their duty. Oscar Huston was present at the hearing of the audit when this question of his indebtedness to the estate was discussed, heard that the books showed a large balance due from him to his father, the decedent, and made no objections. The auditor therefore decides to set off this balance, $2,070.26, shown by said books to be due the decedent from the said son Oscar against his share in the estate as an heir, and as this balance is considerably greater than his share in the present distribution, the whole fund for distribution is distributed to the remaining heirs.”</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>Exceptions to the adjudication were dismissed by the court.</p>

<p>Negligence — Railroads—Contributory negligence — Car inspector — Risk of employment — Master and servant.</p> <p>A car inspector is guilty of contributory negligence when he goes under a car standing on a switch, at a time of day when he knows that a train is usually run on the switch, and makes no inquiry or observation to ascertain whether the train had been placed there.</p> <p>Where a person enters upon the employment of car inspector, knowing that a signal lamp and flag which were not then in use were necessary to Ms safety, he assumes the risk of the danger by continuing in the employment without the lamp and flag being furnished to him.</p>

<p>Appeal, No. 15, Jan. T., 1895, by defendant, from order of Q. S. Northampton Co., June T., 1894, No. 52, overruling motion in arrest of judgment.</p> <p>Indictment for false pretenses.</p> <p>. The jury returned a verdict of guilty. The defendant moved to arrest the judgment on the ground that the court had no jurisdiction, and also on the ground that there were fatal variances between' the indictment and proofs. The court overruled the motion in arrest of judgment in an opinion by Reeder., J., which was as follows :</p> <p>“ It is claimed that this court has no jurisdiction of this case because the offense was not complete in this county. Andrew Karpowski lives and does business in the borough of Shenandoah in Schuylkill county. Stephen G. Reynolds was employed by the prosecutors, J. Hay & Sons, as a salesman, and solicited orders for the sale of goods for them in that section of the state. In pursuance of his duties he went to Schuylkill county, visited the defendant in his place of business and presented a bill for a past due account; Karpowski said that he had money enough in the Merchants’ Bank to pay the account, but that he wanted to use it to buy a piece of real estate and that he would pay the account later — wanting a little time. He then asked, according to the testimony of Reynolds, and which the jury have found to be true, that more goods be sold to him. Reynolds took his order for more goods, submitted it to the firm for which he was an agent in Easton upon his return, repeated the statement of Karpowski as to the amount of money he had in bank in Shenandoah, and upon the strength of that statement and because of it the prosecutors filled the order and delivered the goods, addressed to Karpowski the defendant, to the Lehigh Valley Railroad Company.</p> <p>“ The defendant now claims that this court has no jurisdiction to try him for the offense charged, because the offense was not completed in this jurisdiction. It is true that the matter came up before the court of quarter sessions of Schuykill county, and that that court determined that it had no jurisdiction and that the jurisdiction for the trial of the offense charged was with this court. This, however, must be regarded as a dictum and not a decision binding upon us, except so far as it affects the question of the jurisdiction of the Schuylkill county court.</p> <p>“ It is a well recognized principle of law that the jurisdiction of a court is statutory, and unless we have jurisdiction under a statute we can take no cognizance of a criminal offense. It is also a well recognized fact that elimináis have again and again, before our statutory law had made sufficient progress to cover cases of such a character, escaped punishment because of the non-completion of an offense within any jurisdiction, and statutes had to be enacted in order to give jurisdiction somewhere in order that criminals should not go unpunished. It is true, however, that unless this offense was completed within the jurisdiction of either the courts of Northampton county or of the courts of Schuylkill county neither court would have jurisdiction. The false pretense, being an essential element of the offense, if it were made without our jurisdiction to the parties parting with their property, who had also delivered the goods to the party making such false representation within another jurisdiction, then this court could take no cognizance of and enter no judgment for such offense. It might be a matter of doubt whether, if the false representations were made to the owners of the goods in one jurisdiction and the delivery of the goods made to parties in another jurisdiction, the courts of either jurisdiction could take cognizance of such offense. But I do not consider that that is the question before this court now. Remolds was not thé party owning these goods. He was an agent of another for the purpose of soliciting orders for the sale of goods; he had no power, according to the testimony in the case, to sell goods; he had simply the power under his agency to solicit orders for the goods and submit them to his principals, which orders they might or might not accept and fill; he took this order; at the time it was given he also received the statement of Andrew Karpowski that he had money in the bank more than sufficient to pay the old account, which was in the neighborhood of three hundred dollars, this being the same as if he had said ‘ I have three hundred in the bank at Shenandoah.’ This statement by Karpowski was submitted to J. Hay & Sons, and upon the strength of that statement the goods were shipped and delivered to a common carrier for Andrew Karpowski. A delivery to the common carrier of these goods addressed to Andrew Karpowski was a delivery to him. The goods, therefore, were delivered to Karpowski himself within the jurisdiction of this court. Had Karpowski written a letter to J. Hay &' Sons, containing this statement as made to tbeir agent, could it be successfully contended that because that letter was written in Schuylkill county the false pretense had been made in that count}'? Could it be contended that if he had sent a messenger from Schuylkill county to repeat verbally the statement which he made through Reynolds to J. Hay & Sons, and it had been so repeated to them by his messenger, and upon the strength of that the goods had been delivered to a common carrier addressed to Karpowski, that the offense was not completed within this jurisdiction? Whether the messenger were one employed by himself or one employed by J. Hay & Sons could make no difference. The false representations in this case were made, according to the testimony, by Reynolds as the messenger of Karpowski to J. Hay & Sons within this jurisdiction; the goods were delivered to a common carrier for Andrew Karpowski within this jurisdiction. Therefore, there can be no question in our mind as to the power of this forum to try this case, and the motion in arrest of judgment must therefore be denied.</p> <p>“ The defendant further contends that the verdict should be set aside and a new trial granted because of a variance between the indictment and the proof. The indictment alleges that the defendant represented that he had money in the ‘ Merchants’ National Bank of Shenandoah,’ whereas the proof of the commonwealth was that the defendant stated that he had it in the ‘ Merchants’ Bank of Shenandoah.’ That there is such a variance between the indictment and the proof in this particular is unquestionably true. We also believe it to be true as a legal principle that this is not such a variance as would defeat this verdict.</p> <p>“ Andrew Karpowski, the defendant, when upon the stand testified that there were but two national banks in Shenandoah and that one was the First National Bank and the other the Merchants’ National Bank. He also said that he did not know of any other banks — that he only knew of the national banks. This must be taken, in the absence of any other testimony, as being prima facie true.</p> <p>“ It is a matter of common custom, familiar to us all, in speaking of a bank, to speak of it as ‘ The First Bank,’ ‘ The Easton Bank,’ ‘ The Merchants’ Bank,’ leaving out the word National. Under the testimony in this case, therefore, the statement laid in the indictment that he said it was the Merchants’ National Bank in which he had the money deposited, and the proof being that it was in the Merchants’ Bank, and there being no other bank in Shenandoah of that name so far as the evidence discloses, it must be assumed that the ‘ Merchants’ Bank ’ and the ‘ Merchants’ National Bank ’ are names for the same bank. Therefore the variance from the evidence, which consists in the introduction in the indictment of the word National is immaterial and not sufficient to defeat this verdict. This is also true of the difference in the statement in the indictment and in that of the testimony regarding his declaration as to the amount of money he had. The indictment charges that the defendant stated that he had more than three hundred dollars in bank. The testimony was that the defendant stated that he had money enough and more than money enough to pay the bill that was past due, and which was in amount about three hundred dollars. This is not a sufficient variance to defeat this verdict. It is in effect the same statement. If a man says to another ‘ I will sell a property for ten thousand dollars ’ and the other in reply says ‘ I have more than enough money to buy that property now in bank,’ he in effect says ‘ I have more than ten thousand dollars now in bank,’ and if, upon an indictment for false pretense, he is indicted for having said that he had more than ten thousand dollars now in bank it is in effect the very declaration that he has made. Although not in the same terms it is equivalent to it, and under the policy of our latter day administration of the law such a variance between the indictment and the proof will not be permitted to defeat the ends of justice.</p> <p>“ Now, July 23, 1894, the motion in arrest of judgment is set aside, and the motion for a new trial is refused, and the defendant will , present himself for sentence in this court upon the third Monday of August next.”</p>

<p>Appeal, No. 149, Jan. T., 1895, by defendant, from order of C. P. Monroe Co., Sept. T., 1894, No. 58, discharging rule to strike off judgment.</p> <p>Rule to strike off judgment.</p> <p>The facts of the case appear by the opinion of Craig, P. J., which was as follows:</p> <p>“ The summons in this case was issued on the 11th day of September, 1894. On the same day plaintiff filed its statement. The summons and statement were served upon the defendant on the 14th of September following. The return day of the summons was the first day of next term — the 24th of September, 1894 — just ten days after service. The defendant eaused its appearance to be entered on the return day. No affidavit of defense was filed in the prothonotary’s office by the defendant within fifteen days of the service of the statement; and, thereupon, on the 1st of October, 1894, the plaintiff took judgment, by default, for want of such affidavit, against the defendant in the sum of $735 in the prothonotary’s office. The court was not in session at the time this judgment was entered. It seems that on the 10th of October, 1894, the plaintiff took judgment in the prothonotary’s office against the defendant in the sum of $736.05 by default, for want of an affidavit of defense. At the argument it was conceded by the plaintiff that this second judgment was void. We so treat it. The contention, therefore, is confined to the judgment entered October 1, 1894.</p> <p>“ The defendant; alleges that the judgment was entered without warrant of law, and contrary to the rules of this court. It is argued that under the act of 1887, P. L. 271,'the motion for judgment must be made in court, that it cannot be taken in the prothonotary’s office before the prothonotary, and that, under our rules of court, this judgment could not have beeu moved for in the prothonotary’s office, until after the third day of the next succeeding term to which the process issued was returnable. The identical points made by the defendant were overruled by the late president judge of this district, Hon. S. S. Dreher, in the Oswego River Pulp Co. v. The Delaware Water Gap Paper and Pulp Co., 10 C. C. Rep. 812. This is a well considered opinion in our judgment, and we adopt it as sound. He says:</p> <p>“ ‘ The defendant contends that the motion for judgment for want of an affidavit of defense should be made in court, and that the prothonotary cannot enter judgment on motion before him. Our rule of court adopted before the passage of the act of 1887, provides that the plaintiff shall be entitled to judgment by default for want of an affidavit of defense, to be entered in court; at his request, on the third day of the next succeeding term to which the process issued is returnable ... . or in the prothonotary’s office, or in court, at any time after, unless the defendant shall have made an affidavit, and filed the same with the prothonotary. ... As I understand the 5th section of the procedure act of 1887, judgment may be moved for, if no affidavit of defense be filed within fifteen days after notice of the filing of the plaintiff’s statement, in accordance with the present practice in actions in debt and assumpsit; and as under our rule of court and practice the plaintiff is entitled to judgment by default for want of an affidavit of defense to be entered in court at his request' on the third day of the next succeeding term to which the process is returnable, or in the prothonotary’s office at any time after, unless the defendant shall have made an affidavit and filed the same, I am of opinion that the prothonotary had authority to enter judgment in this case. The act of assembly has fixed fifteen days after notice of the plaintiff’s statement having been filed, instead of the third day of the next succeeding term, leaving the rule of court and practice thereunder to stand in all respects, and excepting as to the time when judgment may be moved for or requested.’</p> <p>This ruling is fully sustained, we think, by our Supreme Court in Newbold v. Pennock, 154 Pa. 591; Marlin v. Waters, 127 Pa. 177.</p> <p>“ The defendant cites the act of 1889, P. L. 41, and argues from it that, prior to its passage, judgment for want of affidavit of defense under the act of 1887 could only be entered when properly moved for in court. It will be observed that the decision of Judge Dreher, supra, was rendered in 1891. As we look at the act of 1889, it settles a practice concerning which there may have been, theretofore, a diversity of opinion and-practice.</p> <p>“ Taking the record as it is, we see nothing to warrant our interference with the judgment.</p> <p>“And now November 12, 1894, the rule, heretofore granted to defendant on the 23d of October, 1894, is discharged.</p>

<p>Appeal, No. 370, Jan. T., 1895, by plaintiffs, from judgment of C. P. Northampton Co., Oct. T., 1893, No. 6, on verdict for defendants.</p> <p>Assumpsit on a judgment note. Before Reeder,, J.</p> <p>At the trial it appeared that the note was for eight hundred and eighteen dollars and was dated April 1, 1885. Benjamin Shoemaker died March 23, 1891, and Thomas Beck died on August 22, 1892. The note was not entered of record in the prothonotary’s office during the lifetime of Benjamin Shoemaker, but was found among the papers of Thomas Beck after his death. Upon the back of the note were indorsed two payments, dated April 1, 1887; one of one hundred dollars, and another of ninety-eight dollars, as interest. Thomas Beck and Benjamin Shoemaker were for a number of years the owners of a farm as tenants in common. , Two daughters and two sons-in-law of Benjamin Shoemaker testified that, after his death, Beck called at the house of Mrs. Shoemaker in reference to the note, and that Mrs. Shoemaker then claimed that she had paid various bills for taxes, insurance, and repairs on account of the farm. They testified that Beck claimed that there was still sixty-seven cents due on the note which Mrs. Shoemaker then paid, and that Beck, not having the note with him, agreed to burn or destroy it.</p> <p>The court charged in part as follows :</p> <p>“ The two sons-in-law of Benjamin Shoemaker testify that this note, subsequent to Benjamin Shoemaker’s death and before Thomas Beck’s death, was settled in Mrs. Shoemaker’s house by the presentation of certain bills, by the admission of Thomas Beck of the receipt of certain cash, and that he then said that there was a balance of sixty-seven cents due, and with that paid the note. If this testimony is true, then this note was then and there settled and the plaintiffs would not be entitled to recover in this action. If you do not believe this to be true, and you believe there was no such conversation — no such settlement, or that the note that they then and there referred to was not this note, but some other note, and that the settlement that was then and there made was not the settlement of this indebtedness, but was a settlement of some other matter, then your verdict will be for the plaintiff for whatever you consider is due upon the note.</p> <p>“ [If you believe the testimony of Mr. Snyder and Mrs. Snyder and Mr. Edelman and Mrs. Edelman as to what took place in Mrs. Shoemaker’s kitchen between Thomas Beck and Mrs. Shoemaker, that will end your consideration of the case, if you believe this note was the note that was then and there settled and paid for. It does not make any difference for the purposes of this case where any other money was paid. If you believe that he then and there admitted that it was paid, or if he then and there agreed to take the outstanding bills that Mrs. Shoemaker held against him on her husband’s account in payment of this note, although it might not have been the full amount of the note, and he said that by the payment of sixty-seven cents balance, he would settle the note, and it was this note that they were talking about, then it was a settlement of this note, whether with the money he had received prior to that time, it made the full amount of the note or not.] [1]</p> <p>“ [A man who has a note for $1,000 has a right to settle it for $500. A man who has a note for $1,000 has a right to settle it for $300, and, if he settles, and receives the money at that time, and agrees to destroy the paper, it is just as good as a settlement as if he were paid the amount in full.] [2]</p> <p>“If you believe that at that time and in that conversation, as was testified to by the two sons-in-law and the two daughters of Mrs. Shoemaker, there was any such agreement of settlement upon the payment of the balance of sixty-seven cents, which was then and there paid, and that Thomas Beck agreed to destroy the note, and this was the note that was referred to, that will end your consideration of this case and your verdict will be for the defendant. If you believe that no such conversation took place, or, if you believe that this note was not the note ■that was there settled, if you believe that there was no such conversation and the conversation referred to was the settlement of something else, then you will proceed to consider how •much these plaintiffs are entitled to receive by your verdict. ■It is in that aspect of the case and only that aspect of the case that you will consider the bills and the testimony that have been introduced in relation to those bills by the defendant.</p> <p>“ They have proven that a number of bills were paid by Mr. Shoemaker on account of improvements and work upon the farm, that it was for the joint benefit of Thomas Beck and Benjamin Shoemaker; that they were so furnished, and that Thomas Beck was liable to reimburse Benjamin Shoemaker for half of such payments; if you believe that these moneys were paid by Benjamin Shoemaker for materials purchased by him for the benefit of the property owned by him jointly with Mr. Beck, by the authority of Mr. Beck, and that Mr. Beck agreed to pay his proportion of them, then they were entitled to receive as a set-off against the amount due upon this note, whatever you believe to have been so paid by Mr. Shoemaker and which are not barred by the statute of limitations.”</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p>

Appeal, No. 41, July T., 1894, by defendant, from judgment of C. P. Susquehanna Co., Nov. T., 1891, No. 139, on verdict for plaintiff. Trespass for personal injuries. Before Searle, P. J. At the trial it appeared that on July 22, 1891, plaintiff was traveling in a wagon in the borough of Susquehanna Depot to his home in New Milford township.

<p>Constables — Return—Parol evidence to explain the return — Principal and surety.</p> <p>In an action on a constable’s bond to recover damages for the alleged neglect of the constable to appraise or sell goods upon which he had levied, parol evidence is admissible to explain the return oí the constable, which was unintelligible without such proof.</p> <p>In this case the constable’s return was as follows: “ Exemption claimed by wife of defendant and A. S. Walters and Girard Walters and C. R. Noyes, and indemnity refused by plaintiff.” Held, that parol evidence was properly admissible to show that the personal property which was levied upon was claimed by A. S. Walters, Girard Walters, and C. R. Noyes as their property, and that the constable received written notices of these claims; that he then demanded indemnityfrom theplaintiff, and that when this was refused the execution was returned without a sale.</p>

Appeal, No. 74, July T., 1894, by plaintiffs, from order of C. P. Clinton Co., Sept. T., 1890, No. 167, refusing to take off nonsuit. Assumpsit on an alleged contract of guaranty. Before Savudge, P. J., of the eighth judicial district, specially presiding.

Appeal, No. 387, Jan. T., 1895, by defendant, from judgment of C. P. Susquehanna Co., Aug. T., 1888, No. 58, on verdict for plaintiff. Trespass against sheriff to recover damages for an alleged wrongful sale of personal property. Before Archbald, P. J. At the trial, it appeared that the defendant on April 2,1888, sold a large quantity of personal property as the property of Joseph R. Kyte.

Appeal No. 269, Jan. T., 1895, by-plaintiffs, from judgment of C. P. Susquehanna Co., Aug. T., 1891, No. 356, for defendant on case stated. Case stated for the opinion of the court in the nature of a special verdict in an action of assumpsit.

Appeal, No. 261, Jan. T., 1895, by-plaintiff, from judgment of C. P. Bradford Co., Sept. T., 1889, No. 708, on verdict for defendant. Feigned issue to determine the validity of a judgment in favor of Reuben Young against his son, Isaac L. Young. Before Peck, P. J. At the trial it appeared that on December 14, 1875, Isaac L. Young gave to his father Reuben Young a judgment bond for twenty-one hundred dollars.

<p>Master and servant — Contract—Hiring by year.</p> <p>Defendant desiring to employ plaintiff as a trainer of horses wrote him as follows: “I will give you $60.00 cash per month, and board, and if you remain with me to the end of the year, I’ll add $15.00 per month, making $75.00 per month.” Plaintiff wrote in reply: “I accept your terms; T will woi-k for $60.00 per month including board, and at the end of the year, you are to pay $120; or, in other words, at the rate of $75.00 per month; you keep $15.00 back each month, and pay me, as above stated, at the end of the year.” Defendant answered: “It is understood that I pay you $60.00 per month and board from May 1, to. January 1, 1893. On January 1,.1893, if in my employ, I am to pay yon $15.00 per month extra for May, June, July, August, Séptember, October, November and December eight months in all, or $120 in full.” Held, that the contract was from the first of May to the first of January, a hiring by the year and not by the month.</p>

<p>Corporations — Natural gas companies — Laying pipes in boroughs — Municipal consent — Act of May 29, 1885.</p> <p>A natural gas company incorporated prior to the act of May 29, 1885, P. L. 29, and not having accepted the provisions of that act, and not having begun supplying natural gas within the limits of a borough, cannot, without the consent of the borough authorities, lay its pipes in the streets of the borough.</p>

<p>Lease — Oil and gas lease — Reservation in lease.</p> <p>An oil and gas lease was for three years or while oil or gas was produced from the demised premises in paying quantities. The lease excepted and reserved “four acres around the buildings upon which no wells are to be drilled without the written consent of both partes.” The only producing wells under the lease, were two drilled within the limits of the reservation, which continued to produce oil in paying quantities after the expiration of the three years. The lessor consented in writing to the drilling of one of the producing wells, acquiesced in the drilling of the other, and received his share of. the oil in accordance with the provisions of the lease. Held, that the lessee was entitled to a continuance of the lease after the expiration of the three years.</p>

Appeal, No. 249, Oct. T., 1894, by A. M. Meanor, from judgment of C. P. No. 2, Allegheny Co., duty T., 1894, No. 736, for plaintiff in quo warranto proceedings. Quo warranto to determine the title of A. M. Meanor to the. office of school director in the school district of Turtle Creek borough. The suggestion for the writ of quo warranto was as follows: “ First.

<p>Equity— Inj unction— Wall— Trespass.</p> <p>Where defendant, intending to build a wall entirely upon his own land, receives inaccurate lines from the city surveyor, and in constructing the wall encroaches with his foundation stones one and three-eighths inches on his neighbor’s land without any encroachment by the wall above the surface, this is not a party wall; and if the neighbor refuses to permit the defendant to enter upon his lands so as to cut off the projecting ends of the stones, a court of equity will be compelled to enter a decree requiring the defendant to take down and rebuild the entire wall from his own side.</p> <p>Costs — Division of costs — Equity.</p> <p>Costs are not of course in equity. They are within the power of the chancellor. They may be given or withheld as equity and good conscience require.</p>

<p>Appeal, No. 153, July T., 1894, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1890,</p> <p>No. 729, dismissing bill in equity.</p> <p>Bill in equity for discovery and an account.</p> <p>The bill averred in effect that the plaintiff on March 4,1873, married Henrietta Dorner, that they lived together until her death on January 10, 1890, and had four minor children ; that during their marriage the wife of the plaintiff took divers sums of money belonging to the plaintiff, and without his knowledge and consent, and gave them at different times to her sister, the defendant, Elizabeth Dorner. The bill prayed for discovery and an account.</p> <p>The answer denied that plaintiff’s wife took money belonging to him during their marriage, and gave it to defendant, without the consent of plaintiff.</p> <p>Plaintiff testified as follows:</p> <p>“ My wife’s maiden name was Henrietta Dornér. She is a sister of Elizabeth, the defendant. I was married to Henrietta Dorner, March 4, 1873. My wife is now dead. She died the 10th of January, 1890. My business is that of a costumer, at No. 466 North Eighth street. My wife was never made a feme sole trader; nor in any way legally authorized to do business for herself. She never had any money left to her or any other estate. At the time I married her she had no money or estate, or none since. I gave her money for the house and whatever she needed, and that’s all.</p> <p>“ She worked in my store for me at my business. She helped me to manufacture the costumes I sold. She was always making business. I gave her no spending money.”</p> <p>“ Q. What did you mean a minute ago, then, by saying that you gave her money for whatever she needed? A. When she goes to market, when she wants things for herself or for the children; when she bought things for the stor.e. I allowed her money for that purpose; oh, yes. She took in and paid out money at the store.”</p> <p>Defendant admitted that Mrs. Saake had given her $375. She further testified:</p> <p>“ My sister said this is my own money, not any of it belongs to him (meaning her husband) ; it’s money I have saved up mj'-self. Then she went on to tell me why, she gave me this money. She said, ‘ I want you to use it for the children, particularly for Amelia. I think you will have to use it, for she will never bear from her father what I have had to bear from him. I have stated everything about the mode}’', where she got it from.</p> <p>“At the time of her marriage my sister had no separate estate or property of her own that I know- of; after her marriage she received no property by will or descent; she received some sums of money from my mother, not very much, some six or eight years ago; I was present several times when my mother gave her money; sometimes the amount would be as high as $50.00; she seemed then not to have much money; one time I know she got $25.00; I think it would aggregate more than $100 ; I can’t say it was over $200; she, my mother, is a woman of means.”</p> <p>The master, James L. Miles, Esq., reported in favor of plaintiff. Exceptions to his report were sustained by the court in an opinion by Pbnnypacker, J., 3 Dist. Rep. 170, and a decree entered dismissing the bill.</p> <p>Error assigned, among others, was (2) in not finding that the $375 in possession of defendant belonged to plaintiff.</p>

<p>Appeal No. 104, Jan T., 1895, by defendant, from decrees of C. P. No. 3, Phila. Co., June T., 1894, No. 1696, granting a preliminary injunction, and subsequently refusing to dissolve it.</p> <p>Bill in equity to restrain proceedings before a magistrate.</p> <p>The bill was indorsed with the notice to appear within fourteen days formerly in use under the old rules, and not with the notice to appear and answer within fifteen days, as required by the amended equity rules. The court granted a preliminary injunction. Defendant subsequently made the following motion :</p> <p>“ And now, October 5, 1894, the defendant moves the court to dissolve the preliminary injunction issued in this case- and to dismiss plaintiff’s bill of complaint with costs to be paid by said plaintiff, and assigns the following reasons : 1. That the notice to the defendant to cause an appearance to be entered for him in said court on said bill indorsed is not in accordance with the amended rules adopted by the Supreme Court of Pennsylvania January 15, 1894, to regulate the several courts of common pleas of this commonwealth in proceedings in equity, and in force since March 1, 1894, inasmuch that it requires defendant to appear within fourteen days after service, instead of fifteen days, as required by the said equity rules, and does not require him to make answer to said bill as by said rules required, and is otherwise not in the form by said rules prescribed.</p> <p>“ 2. That said injunction was granted, without notice to defendant, without being supported by proper injunction affidavits. The only affidavit filed being the affidavit of the plaintiff himself which contained no material averments not included in the bill, and no additional facts in support of the allegations of the bill, and which is in effect the same as if plaintiff had merely sworn to the truth of the bill.</p> <p>“ 3. That said bill sets forth no cause entitling plaintiff to relief by injunction.”</p> <p>“ At the hearing in open court on October 12, 1894, in the above motion, the appellant read his answer. The appellee by his counsel read an ex parte affidavit made by himself.”</p> <p>The court entered a decree continuing the preliminary injunction.</p>

<p>Appeal, No. 439, Jan. T., 1895, by defendants, from order of C. P. Delaware Co., June T., 1893, No. 87, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Scire facias sur municipal lien.</p> <p>The material portions of the affidavit of defense and supplemental affidavit of defense are quoted in the opinion of the Supreme Court.</p> <p>The court made absolute a rule for judgment for want of <v sufficient affidavit of defense.</p>

<p>Corporations — Compensation of officers — Assignment for creditors.</p> <p>Where an officer of a corporation, which has made an assignment for the benefit of creditors, has performed or has been ready to perform the duties of his office, he is entitled to compensation for the unexpired portion of his term during which the company’s property was in the hands of the assignee. The assignment did not release the corporation from its contract to pay its treasurer for the period for which he was elected.</p> <p>Where, however, the treasurer held over without a reflection, while the property of the company was in the hands of the assignee, the presumption is against his right to recover; but if, in fact, services pertaining to his office were rendered by him while so holding over, such services were evidence of his continuance in office and of the consequent right to recover the salary thereof, and evidence of these services should have been submitted to the jury.</p>

<p>Appeal, No. 174, Jan. T., 1895, by plaintiff, from order of C. P. Schuylkill Co., Sept. T., 1893, No. 71, making absolute a rule to set aside execution.</p> <p>Rule to set aside execution.</p> <p>From the record it appeared that on March 31, 1894, plaintiff recovered from defendant a verdict and judgment for one hundred dollars for personal injuries caused by the defendant failing to provide a safe scaffold on a building upon which plaintiff was employed by defendant to work. On August 3, 1894, plaintiff issued a capias ad satisfaciendum, and defendant was arrested. A rule to set aside the execution was taken, and on September 17, 1894, the court made the rule absolute without filing an opinion.</p>

<p>Evidence — Partnership—Sale.</p> <p>In an action against a partnership to recover the price of goods sold, where one of the partners, a married woman, allows judgment to be •entered against her by default, and the other partner defends on the ground that the goods had not been purchased by the partnership, but contributed by his partner as her share of the capital, a written statement made by the husband of the married woman, who was the manager of the business, showing that the goods were a part of his wife’s contribution to the firm, is admissible to affect the credibility of his testimony that the goods had been purchased by the firm.</p> <p>In such case the wife was not a party to the issue on trial, and a recov■ery against the other partner was in her interest and not against it, and the husband was a competent witness.</p>

<p>Appeal, No. 423, Jan. T., 1894, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1888, No. 71, on verdict for defendants.</p> <p>Ejectment for a tract of land in Madison township. Before Sittser, J., specially presiding.</p> <p>At the trial it appeared that the plaintiff claimed title under articles of sale dated April 7, 1883, from M. J. Robinson. Defendants claimed under a sheriff’s deed following the sale of the land under a judgment against M. J. Robinson. The articles of sale were not recorded, but notice of them was given at the sheriff’s sale. Defendants claimed that if the articles had been executed on the day when they purported to be, they had been made for the purpose of defrauding Robinson’s creditors. They also claimed that they had really been made at a later date, and produced evidence to show that Robinson had retained possession of the land, leased it in his own name, insured it in his own name, and treated it in every way as his own. There was also testimony that plaintiff had declared, three years after the articles were signed, that Robinson was the owner of the property.</p> <p>The counsel for the defendants proposed to prove by Mr. Gardner on the stand, that he met Silas Hartley subsequent to the date of the paper put in evidence by the plaintiff, that he then had a certain conversation with Mr. Hartley, in which he said to Hartley, in substance, you are covering up the store of Robinson at this present time, and there is nothing to get your pay out of but the farm, and there is the Tinker judgment ahead of you of a thousand dollars; that Hartley replied, yes, I know that, but, says he, Robinson has always asked twentj-seven hundred dollars for the farm, but Hartley says I think he will sell it now; he has put it in Loomis’ hands to sell, and I think he will sell it for twenty-four hundred dollars, and if he does it will pay the Tinker judgment and me too. That this conversation arose from the fact that Hartley was at that time letting Robinson have more money. This is to be followed by proof of other acts and declarations by the plaintiff, Hartley and M. J. Robinson, for the purpose of showing fraud and collusion between M. J. Robinson and Silas Hartley in obtaining the title now set up for the purpose of cheating and defrauding creditors, etc.</p> <p>The counsel for the plaintiff objected to the offer as immaterial, irrelevant and incompetent. That it is not sufficient to overcome the legal title of Hartley which is undisputed and which is in evidence, as it is at best a loose declaration, and is not sufficient of itself to be submitted to the jury as any evidence of fraud; that no acts or declarations offered to be proven are set forth other than the one mentioned; that there is no offer to prove that there were any creditors of M. J. Robinson at the time that the paper of April 7, 1893, was executed and the thousand dollars was paid by Hartley to Robinson, nor that Hartley knew that Robinson owed any debts, or had any creditors at the time, and therefore it is incompetent to prove any fraud upon the creditors of Robinson who were not creditors at the time when the title was passed from Robinson to Hartley and the thousand dollars balance of purchase money was paid.</p> <p>By the Court: The objections are overruled. I think it' clearly evidence for the defence in support of their theory of the case. Exception for plaintiff and bill sealed. [13]</p> <p>The counsel for the defendants propose to prove by the witness on the stand, Julius Young, in substance, that subsequent to April 7, 1883, M. J. Robinson, one of the parties to the agreement offered in evidence by the plaintiff, claimed to him to own this property in question; that he offered to sell it to the witness as his own property, and that no mention was made that Silas Hartley had any interest therein.</p> <p>Counsel for plaintiff objected that any declarations of M. J. Robinson subsequent to the 7th of April cannot affect Silas Hartley, his grantee for a valuable consideration, unless made in his presence with his assent; there is no offer to connect Silas Hartley with the declaration or that he had any knowledge of the declaration, and that he cannot, therefore, be affected by it, and that the evidence is therefore incompetent and irrelevant.</p> <p>By the Court: It goes to the credibility of M. J. Robinson as a witness. The objections are overruled and evidence 'admitted. Exception for plaintiff and bill sealed. [14]</p> <p>Counsel for the defendants proposed to prove by the witness on the stand, Minerva Tinker, that in the year 1887, M. J. Robinson, whose deposition has been put in evidence, and the party to the agreement of April 7, 1883, came to the witness and claimed that he was the owner of the farm in question, situated in Moscow, told her that the only lien there was against it was this judgment of about nine hundred dollars; that he wanted her to purchase his property in Clifford, Susquehanna county, and if she would do it he would allow her on the purchase one half the judgment against the farm in Moscow as part of the purchase money, provided she would get the lien off that property.</p> <p>Counsel for plaintiff objected to the offer, that any declarar tions of M. J. Robinson are incompetent for the same reasons heretofore urged against the admissions of the declarations of M. J. Robinson, subsequent to April 7, 1883.</p> <p>By the Court: What is the date of these declarations ?</p> <p>By Mr. Watson: They are subsequent to April 7, 1883; they were in 1887.</p> <p>By the Court: The objections are overruled and evidence admitted.</p> <p>Exception for plaintiff and bill sealed. [15]</p> <p>Whitman Fenyon was asked the question:</p> <p>“ Q. Did you know M. J. Robinson ? A. I did. Q. State whether or not he had a talk with you about this judgment in question, and the farm in Moscow in question; if so, whether or not it was before or after the death of Mr. Tinker, and what was said. A. I think it was two or three months after Mr. Tinker died.”</p> <p>By Judge Jessup : Our objection covers this, your honor.</p> <p>By the Court: Yes, sir, we will admit the evidence. Exception noted and bill sealed. [16]</p> <p>M. A. Gardner was asked the question.</p> <p>“ Q. State whether or not you knew M. J. Robinson ? A. I did. Q. Did you know him in 1883, in April? A. Yes, sir. Q. State whether or not you insured any property for him in Moscow ? A. I insured some property on a farm in Moscow. Q. When did you do that? A. The 27 th of April, 1887. Q. How did you insure it ? A. I insured it as property of M. J. Robinson. Q. And no other?”</p> <p>By Judge Jessup: This is subject to the same objection.</p> <p>By the Court: Yes, sir. The objections are overruled and evidence admitted. Exception for plaintiff and bill is sealed. [17]</p> <p>John P. Hull was asked the question :</p> <p>“ Q. State whether or not after you were appointed administrator, whether you saw Mr. Robinson about the payment of this judgment ? A. I went to see him at his store in Clifford Corners, and asked him if he could pay this judgment, and he said he was not prepared.”</p> <p>By Judge Jessup: The plaintiff’s exception covers this.</p> <p>By the Court: Yes, sir, the objections are overruled and evidence admitted. Exception for plaintiff and bill sealed. [18]</p> <p>The court charged in part as follows:</p> <p>“ Now this conveyance of Robinson to Hartley has never been recorded, as far as appears here, and the purchaser at thatsheriff’s sale would take a good title to this land, unless he had notice, before the purchase, of the existence of the conveyance to Hartley. On the part of the plaintiff in this case, they have called a witness here, to show that notice was given at that sheriff’s sale of a claim of title to this land by Silas Hartley. It seems a notice of some kind was attached to the sheriff’s return, and it has been read in your hearing, and if you believe, from the evidence in the case, that Mr. Hull, before he made this purchase, at that sheriff’s sale, had notice of the existence of this title in Silas Hartley, [then we say to you that Silas Hartley would have the right to recover in this case, provided you are satisfied that this contract of April 7, 1888, was made at the time it purports to be, and provided you do not find that it was made for the purpose of hindering, delaying and defrauding creditors of M. J. Robinson.] [1]</p> <p>“ Now, it is contended here, on the part of the defendants, that this conveyance, this contract dated April 7, 1883, was not made at the time it purports to be; that it was made sometime afterwards, and that it was made for the purpose of defrauding the holders of this judgment of its lien upon the land. If this judgment was entered upon the 29th of August, 1883, if M. J. Robinson was the owner of the land at that time, it became a lien upon that land, and when this sheriff’s sale took place it passed the title to the purchasers at that sheriff’s sale. If, however, Robinson had conveyed his land to Silas Hartley on the 7th of April, 1883, and Silas Hartley gave notice at the time of the sheriff’s sale to Mr. Hull, the purchaser, then we say to you that Silas Hartley has shown a title to this land which will enable him to recover in this case. It matters not when the note was given. The note, as I have it here upon notes, was given upon the 7th of April, 1883, upon which this judgment was entered, the note for nine hundred and eighty-four dollars, but it makes no difference if the note was given upon the 7th of April, 1883, the judgment only became a lien upon the land from the time of its entry, and unless this conveyance was made prior to the entry of the judgment, then the judgment became a lien upon it, and a sale under that judgment would pass the title to these purchasers.</p> <p>“But the defendants go further; they attack this paper and insist that it was not made on the 7th of April, 1883, as it purports to be; that whenever it was made, it was dated back, so that it would appear to have been given and made prior to the entry of the judgment, so that Silas Hartley would get a title to the land upon giving notice to the purchaser at that sale. . . .</p> <p>“ Mr. Hartley, one of the parties who knows when it was made, swears that it was made on the day of its date. The deposition of M. J. Robinson, the other party, has been read here, and he swears it was made on the day of its date. Now two men might be wicked enough and unscrupulous enough to make a paper and date it back for the purpose of defrauding another of his lien upon land. Now consider this question: if they did do it, what would be the natural circumstance that would surround a transaction of that kind ? What would a man have to contend with if he attempted to make an instrument and date it back five years in relation to a conveyance of land ? What would be the situation that would confront him when he announced to the public the fact that he had acquired the title to this land five years before any title had been made to him ? Then again, if this transaction was made at the time it purports to be, if there had been a conveyance of this land to Silas Hartley on the 7th of April, 1888, what sort of a conveyance would the parties have been apt to have given? Was this land all paid for at the time ? Is it usual for parties, under such circumstances, to take what is called a paid-up contract or a deed? Is it usual to record and acknowledge deeds at the time they are given? Now you are to consider all these circumstances in passing upon the credibility of the witnesses in this case. Do the stories they tell appear to be reasonable ? Is the situation presented here just such a situation as we would have if this contract had been made and dated back five years, or is it the situation that we would expect if the contract had been made at the date it purports to have been made ? The counsel for the defendant insist that it is strange, that if this contract was made at this time, that if this sale took place at this time, that a deed was not made, that it should have been acknowledged and recorded. They insist that it is strange that the grantor, M. J. Robinson, should be in possession of this land five years after the conveyance was made; that he should be leasing it in his own name, insuring it in his own name, offering to sell it. On the other hand on the part of the plaintiff, the plaintiff himself and M. J. Robinson both swear that this paper was executed on the day of its date; that they were cousins, and that it was perfectly reasonable that he should take this paid-up contract and put it in his safe; that it was not at all unreasonable that he did not visit the farm any oftener, and make any stir about his ownership of it, because he left it in the hands of the man of whom he bought it, that of his cousin, M. J. Robinson, and that M. J. Robinson leased the property in his own name and looked after it for Silas Hartley. And witnesses have been called, upon the part of the plaintiff, who have testified that Silas Hartley, I think as far back as 1884 or ’85 or ’86, claimed to them to be the owner of this land. I cannot go over all the evidence, pro and con, in this case. You have heard it, and it is a matter for you to dispose of according to your best judgments.”</p> <p>Defendants’ points were among others as follows :</p> <p>“ 1. If the jury find from all the evidence that Silas Hartley, the plaintiff, took the agreement of M. J. Robinson, dated April 7, 1888, as not a bona fide transaction, but that said paper was made for the purpose of cheating and defrauding creditors and especially for the purpose of defeating the enforcement and collection of the note given by M. J. Robinson to W. H. Leek, dated April 7, 1883, and the judgment entered thereon, the plaintiff cannot recover and the verdict should be for the defendants. Answer: This we affirm.” [2]</p> <p>“ 2. If the jury find from all the evidence that said paper offered in evidence by the plaintiff, dated April 7, 1883, and upon which the plaintiff claims title to the land in question, was not made at the date it bears date but was made subsequently to the entry of said judgment or the giving of said note upon which the execution was issued a.nd the land sold at sheriff’s sale, and that said paper was dated back to the 7th of April, 1883, then the judgment was a lien upon the land when entered at the time of the sheriff’s sale and the purchaser at sheriff’s sale took title thereto and the plaintiff cannot recover. Answer : This we affirm, with this qualification: That asks us to say to you that this contract was made subsequently to the entry of said judgment or the giving of said note. We say to you, that if this contract was made subsequently to the entry of the judgment, then this point we affirm, but if it was made subsequent to the giving of the note, and before the entry of the judgment, then, of course, it would pass title to Silas Hartley, unless you find that it was given for the purpose of hindering, delaying and defrauding the creditors of M. J. Robinson, especially the creditor Leek.” [8]</p> <p>“ 3. If the jury find from all the evidence in the case that -said paper was not made on the day it bears date, to wit: April 7, 1883, but was subsequently made and an agreement entered into between Silas Hartley and M. J. Robinson for the purpose of hindering, delaying and defrauding creditors, it was a fraudulent transaction and the plaintiff cannot recover. Answer: This we affirm.” [4]</p> <p>“ 4. If the jury find from the evidence that the agreement dated the 7th of April, 1883, was kept a secret by Silas Hartley, and M. J. Robinson continued in possession of the farm in question, renting it, collected the rents, paid the taxes, insured the buildings in his own name and as his property, and in all respects managed the property the same as before said paper was given, it is evidence of fraud and collusion between Silas Hartley and M. J. Robinson. And if the jury find from all the evidence that said transaction between Silas Hartley and M. J. Robinson was fraudulent, Silas Hartley obtained no title to the land .as against the then existing creditors of M. J. Robinson, and the contract- is void as between Hartley and Robinson and the plaintiff cannot recover. Answer: This point we cannot fully affirm. We cannot say that such a contract, even if made for the purpose of hindering, delaying and defrauding creditors, would be void between Hartley and Robinson. On the other hand, such a contract is good and valid between the fraudulent parties, and only void as against creditors and the persons sought to be defrauded. Of course the fact, if you find it to be the fact, that Robinson continued in possession of the farm, and rented it, and collected the rents and paid the taxes, and insured the buildings, in his own name as his property, are facts to be considered by you on this question of fraud, and you can give them such weight as you think they are entitled to.” [5]</p> <p>“5. If the jury find from the evidence that Silas Hartley, the plaintiff, knew at the time he took the agreement of April 7, 1883, that M. J. Robinson was about purchasing Leek’s store of goods and was going in debt for part-of the purchase money, and further find that Silas Hartley took said agreement and kept it a secret in his safe, for the purpose of using it to defeat the collection of the note given by M. J. Robinson to W. H. Leek, as part of the purchase price of the goods, it was a fraud upon W. H. Leek, and his assignee of the note, and judgment upon which the land in question was sold, and the verdict should be for the defendant. Answer : Well, this we affirm, if you find the facts as stated. It is contended, however, by the counsel for the plaintiff, that there is no evidence that Silas Hartley knew that Robinson was going to run in debt for any portion of the goods.” [6]</p> <p>“ 8. If the jury find from all the evidence produced in this case that the pretended purchase of the real estate by Hartley of Robinson was not bona fide, but was intended to be used to hinder and delay creditors, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: This we affirm, except that we do not say that it is a pretended purchase. It is for you to say whether this was a bona fide transaction on the part of Robinson and Hartley, or whether it was not, under the instructions which we have already given you.” [7] Plaintiff’s points were among others as follows:</p> <p>“ 1. If the jury find from the evidence that the contract, made between M. J. Robinson and Silas Hartley and delivered on the 7th of April, 1888, as testified to by them, and that notice of the title of Silas Hartley was given at the sheriff’s sale before the property was sold to the defendant, Hull, then the plaintiff is entitled to recover. Answer: This we affirm, with this condition, that you find that Hull had notice at the sheriff’s sale of the title of Silas Hartley, the plaintiff.” [8]</p> <p>“ 2. That the notice required to be given of an unrecorded title is notice at any time before the sale, and it is not necessary that it should have been given before the entry of the judgment on which the sale took place. Answer: This we affirm. The notice must be a notice to the purchaser at the sale, and it is in time if given before the sale.” [9]</p> <p>“ 3. That the evidence of M. J. Robinson is uncontradicted as to the execution and delivery of such contract. Answer: This we do not affirm. Evidence has been given here in the case, and you are to take it into consideration, take the whole of it and consider it, and it is for you to say whether it is uncontradicted or not.” [10]</p> <p>“ 7. That there is no sufficient evidence in this case of fraud between M. J. Robinson and Silas Hartley to be submitted to the jury. Answer: This we do not affirm. On the other hand, we do submit these facts to you, and it is for you to say whether there was fraud or not between Robinson and Hartley.” [11]</p> <p>“ 8. That the verdict of the jury should be for the plaintiff for the land claimed in the writ. Answer: This we do not affirm, but we submit the facts to you, and it is for you to say whether your verdict should be for the plaintiff or the defendant, under the instructions which we have given you.” [12]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p>

Appeal, No. 49, Jan. T., 1895, by defendants, from judgment of C. P. Wayne Co., May T., 1898r No. 52, on verdict for plaintiff. Trespass for personal injuries. Before Searle, P. J., of the-34th judicial district, specially presiding. At the trial it appeared that defendant operated a double-track railroad between Scranton and Carbondale.

Appeal, No. 25, Jan. T., 1895, by plaintiff, from order of C. P. Lackawanna Co., March T., 1894, No. 350, reversing proceedings of alderman on certiorari. Certiorari to judgment of alderman, O. B. Wright. From the record it appeared that plaintiff worked as a carpenter for defendant, O. E. Lutz, who was a contractor. Lutz subsequently entered the employ of the Scranton Traction Company, as a conductor.

<p>Appeal, No. 70, July T., 1894, by defendants, from judgment, of C. P. Lackawanna Co., April Term, 1890, No. 841, on verdict for plaintiffs.</p> <p>Ejectment for a lot of ground in the first ward in the city of Scranton. Before Schuyler, P. J., of the third judicial dis-strict, specially presiding.</p> <p>The facts appear by the charge of the court, which was in part as follows:</p> <p>“ This is an action of ejectment brought by the heirs of Aaron Griffin, deceased, against the widow and heirs of Nathaniel Fitch, deceased, and certain other parties, to recover possession of a lot of ground in the city of Scranton. Both parties claim title to this lot of ground through one Edmund Griffin, who was, at one time, the undisputed owner of the premises, and the plaintiffs trace their title in the following way :</p> <p>“ Edmund Griffin made a deed to his mother, Elizabeth Griffin; while the property was in the possession of Elizabeth Griffin it was sold away from her by the sheriff, and was purchased by Thomas Woodbridge, who received a deed for the same. Thomas Woodbridge assigned his deed to David Wig-ton, David Wigton in turn was sold out by the sheriff, and at that sale Aaron Griffin became the purchaser. Aaron Griffin died in 1883, leaving the present plaintiffs as his heirs. This chain of title is complete, and if there were nothing else in the case except this, it would be your duty, without leaving the box, to return a verdict in favor of the plaintiffs for the property described in the writ.</p> <p>“ Against this showing, however, on the part of the plaintiffs, the defendants set up a title, by what is known to the lawyers as adverse possession. Adverse possession continued for a period of twenty-one years divests the title of the owner of the property against whom the possession has been taken. Therefore, no matter.how straight, no matter how strong the title of the present plaintiffs, if the defendants, in opposition to that title, have established a title by adverse possession, the title of the plaintiffs must yield to the title by adverse possession. . . .</p> <p>“ [The requirement that the possession, which will divest, the title, should be open and notorious, is for the purpose of giving the holder of the title notice of his danger.</p> <p>“ It is also necessary that the possession should be continuous,uninterrupted. If the possession, at any time during the running of the twenty-one years, was abandoned for a single day, or a single hour, if it was abandoned that would break the continuous possession, and would prevent a recovery under a claim of title by adverse possession.</p> <p>“ The possession must also be exclusive of the owner of the title to the property. If the party in possession has a concurrent possession with the owner, he could not acquire title to the property by reason of an adverse possession.</p> <p>“ The possession must also be, what is called in the law, hostile possession. Hostile possession is not what a layman might probably consider it to be, that the person entering into possession should enter armed cap-a-pie, or that he should defend the continuity of his possession by planting artillery all along his line — that is not the kind of hostility that the law contemplates. Entering and exercising acts of dominion thereunder, is hostile. Leasing, conveying, improving, are the highest acts of ownership, and the exercising of these acts strongly characterizes the possession with exclusiveness and hostility.] [5] I have thus briefly gone over the elements that go to constitute adverse possession, such as is necessary to divest title to real estate. j</p> <p>“ I have already said to you, that the possession must be continued uninterruptedly for a period of twenty-one years prior to bringing the suit. This action was brought on the 21st of March, I believe, of 1890. In order to recover under a claim of title by adverse possession, the defendants must satisfy you by the weight of the evidence; because the burden is upon the defendants to show that their title is good, they must satisfy you by the weight of the evidence that, at least as early as the 21st of March, 1869, their alleged adverse possession began. They claim that it did begin as early as the 21st of March, 1869, and prior to that. Their claim is that there was a house on this property that was'burned down either in April or May, 1868. There doesn’t seem to be any serious dispute about that date, or that the house was burned down at that time. Now the defendants claim that shortly after the burning down of this house Mr. Benjamin, who had become the purchaser of the property, under a sheriff’s deed, I believe, and under an execution against Edmund Griffin, they claim that Benjamin entered into possession of this property shortly after the burning down of this house in 1868, April or May.</p> <p>“ [There are no witnesses who testified as to the date, or the exact date, on which Benjamin entered into possession of the premises, if you find that he did enter into possession of the premises; I think the most that the witnesses say is, that it was shortly after the fire. What that means, it will be for you to determine, and you must determine, from the evidence, when it was that Benjamin entered into possession, if you can do so. If you cannot do so, why, then that is the misfortune of the defendants, because the burden, as I have already said, is upon them to show that the possession was begun prior to the 21st of March, 1869.</p> <p>“ Now that fact, and all the other facts are for your consideration, and it is for you to determine from the evidence, when it was that Benjamin entered into possession, if he entered into possession at all, and if he did enter into possession, whether that possession was continued by him, and by his successors in title for twenty-one years, down to the time of the bringing of this action of ejectment. If you find these facts in favor of the defendants, then the defendants would be entitled to your verdict.] [6] [If, however, the defendants have failed to satisfy you by the weight of the evidence when it was that Benjamin entered into possession, so that you are unable to say from the evidence whether it was before or after the 21st of March, 1869, then the defendants could not claim a verdict at your hands.”</p> <p>By Mr. Price: “ There are a number of witnesses that testify that it was the same season of the fire, and several of them within a month or three months.”</p> <p>By the Court: “ That may be ; I do not pretend to remember the evidence.”</p> <p>By Mr. Amerman: “ Some said the next season.”</p> <p>By the Court: “ That will be for the jury. You have heard the testimony, and you will remember how it is.] ” [7]</p> <p>The plaintiffs have submitted the following points:</p> <p>“ [3. To constitute a possession such as will bar the title of the legal owner, four elements must co-exist: It must be (1) hostile or adverse; (2) actual; (3) visible, . notorious, exclusive; and (4) continuous. Answer: I have already said to you that is the law and I affirm that point.] ” [8]</p> <p>The defendants have submitted a number of points:</p> <p>“ [1. That under all the evidence in this case the verdict must be for the defendants. Answer: I cannot affirm that point.] ” [9]</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p>

Appeal, No. 295, Jan. T., 1895, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1892, No. 232, on verdict for plaintiff. Trespass to recover damages for injury caused by cutting down the grade of a street in front of plaintiff’s property.

<p>(Joniract — Bailment—Bale—Judgment—Betaking possession of goods.</p> <p>Goods valued at a specified amount were delivered by A to B, under an agreement that certain sums for their “ care, use and hire ” should be paid at stated intervals, A to make a bill of sale for them to B, if he so elects, upon payment of such sum as would, with previous payments of hire, amount to the sum specified as their value; and providing that no title should pass until the whole of said sum should have been paid; and providing further that if default should be made in the payment of any of the “ installments of hire,” A should be at liberty either to enter judgment for the amount “ of the said and other unpaid installments of hire,” or enter into the place where the goods should be kept, and take and repossess them. After an installment had become due judgment was entered under the warrant of attorney in the agreement, and subsequently A entered and took possession of the goods. About one hour after the goods were taken, judgment was entered against B by the defendant, and a fi. fa. issued thereon. Held, that the defendant’s fi. fa. gave him no lien on the goods.</p>

Appeal, No. 279, Jan. T., 1895, by plaintiff from order of C. P. Lackawanna Co., April T., 1893, No. 141, discharging rule for judgment… Held: but on the contrary provides that the receipts should be held by the Lackawanna Society, by its treasurer, and that after the due adjustment of accounts the Lackawanna Society should pay over the amount to the said State Society, and the funds received by me were received and held as treasurer of the Lackawanna Society.” The court…

<p>Appeal, No. 229, Jan. T., 1895, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1891,</p> <p>'No. 407, refusing to take off nonsuit.</p> <p>Trespass for injuries to land. Before Edwards, J.</p> <p>At the trial it appeared that plaintiff’s land was injured by water thrown upon it from the Lackawanna river by reason of the defective construction of a railroad bridge. It appeared that the bridge in question was built by the Wilkes-Barre & Scranton Railway Company, and that after it had been fully completed and constructed it had been leased to the defendant, the Central Railroad Company of New Jersey. There was no evidence to show that the injury to plaintiff’s land was in any way connected with the operation of defendant’s railroad over the bridge. The court entered a compulsory nonsuit which it subsequently refused to take off.</p>

<p>Insurance — Fire insurance — Contract—Settlement by adjuster.</p> <p>A house and personal property were insured against fire by a policy which provided that it should become void if the property be or become incumbered beyond $1,500, and while the policy was in force the house became incumbered to the amount of $3,000. The policy further provided that no officer or agent of the company had power to waive any stipulation of the policy, unless such waiver be written upon or attached to said policy. After a loss of the property by fire, the insured agreed to deduct a portion of his loss on personal property by accepting the figures of the adjuster of the company instead of his own; and it was then agreed between the insured and the adjuster, said adjuster having full knowledge of the amount of the incumbrances, to compromise and settle the loss, and appoint appraisers to adjust the loss upon the house, and whatever damage the insured had suffered by the burning of his house as fixed by the appraisers, should be added to the amount of damage agreed upon to the personal property.</p> <p>Held, that in such case the company was liable, and the action was properly brought on the agreement between the adjuster and insured.</p>

<p>Corporations — Purchase of its own slock by corporation.</p> <p>A corporation has the right to purchase its own stock where the transaction is not prohibited by statute, and is made in good faith.</p> <p>Corporations — Stock dividend.</p> <p>A resolution of the board of directors of a corporation distributing among the shareholders shares of stock of the company which had been pui’chased by the company out of its earnings, cannot be subsequently rescinded, where it is not shown that such distribution would be injurious to the business of the company.</p>

<p>Appeal, No. 59, Jan. T., 1895, by defendant, from order of C. P. No. 4, Phila Co., December T., 1893. No. 1137, dismissing exceptions to report of referee.</p> <p>Exceptions to report of referee.</p> <p>This w'as an amicable action in assumpsit, entered by agreement on January 24,1894, with the same effect as if a summons in assumpsit had been issued and had been duly returned served, and as if a statement of demand had been duly filed and served on the defendant, setting forth that the defendants had promised to pay the plaintiffs the sum of $5,'777.15 if the said plaintiffs had a lien on certain goods for the entire balance due plaintiffs by the Deelmore Manufacturing Company at the time of the assignment, and alleging further that the said plaintiffs had such a lien, but that defendants refused to pay the said sum of money, and that the same was justly due, and also with the same effect as if the defendant had filed to this statement a plea of non assumpsit, and issue had thereupon been joined.</p> <p>Subsequently it was agreed between the parties to submit the case to Henry P. Brown, Esq., as referee, in accordance with the act of May 14, 1874.</p> <p>The referee reported as follows:</p> <p>“ The plaintiffs are engaged in the business of dyeing and finishing, their works being one of the largest dyeing establishments in Philadelphia, and known as the Providence Dye Works. They had for more than fifteen years past a uniform condition as to lien, on which condition alone they received goods to be dyed and finished. This condition was printed on all their invoices, monthly statements, delivery books and memoranda. The words are: ‘Notice. — All goods received only upon condition that they are subject to a general lien, not only for the dyeing and finishing thereof, but also for the balance of any former account due.’</p> <p>“They furnished the Deelmore Manufacturing Company, as well as all their other customers, memorandum blanks to be filled by customers with descriptions of the goods to be dyed or finished. These blanks contained the printed notice. They sent bills to the Deelmore Manufacturing Company for the work done the day after the goods were delivered to the company. They sent also a monthly statement at the end of each month. The bills and statements were sent by mail and contained the printed statement of notice of lien. This course was pursued during the whole course of their business with the Deelmore Manufacturing Company, which covered a period of about three or four years. Goods were received by the plaintiffs from the Deelmore Manufacturing Company and the yarns from the spinners, or commission houses, for the spinners, and the receipts given for the yarn that came from the spinners were upon the blanks of the persons from whom they received them; and these blanks did not contain the printed notice. No work, however, was done upon them until it was ordered to be done by the Deelmore Manufacturing Company.</p> <p>“ The goods were not placed in the plaintiffs’ possession for any other purpose than for dyeing and finishing. There was due to the plaintiffs the sum of $645.55 for work done on part of the specific goods in their possession at the time of the assignment. This sum was subsequently paid by the defendant. The amount due the plaintiffs at the time of the assignment on general account was $5,777.15.</p> <p>“ When the plaintiffs received yarn from the spinner or commission merchants they generally sent for it, being informed by the defendant when and where to send for it.</p> <p>“ The goods sent directly from the Deelmore Manufacturing Company were collected by the driver for the plaintiffs and receipted for by him at the place of business of the company. The driver took the goods to the plaintiffs and sometimes brought with them an order from the company for dyeing and finishing. Sometimes the plaintiffs received notices from the Deelmore Manufacturing Company to call for the goods, and sometimes the driver received goods when he delivered others that had been dyed and finished.</p> <p>“ When orders for dyeing and finishing were not handed to the driver they were subsequently sent by the Deelmore Company, and as a general rule these orders were on the blanks furnished by the plaintiffs containing the notice, and sometimes on other slips or letter-heads of the Deelmore Manufacturing Company which did not contain the notice. These orders identified the goods and indicated how they were to be dyed and finished.</p> <p>“ When the goods were received from the commission houses, or from the company, no work was done on them until the company sent the order for dyeing. The plaintiffs were not paid at the time of delivery of dyed or finished goods, but sent monthly statements to the company which contained the notice.</p> <p>“ That the plaintiffs had no special contract with the Deelmore company for each separate lot of goods. They sent a bill for each lot of goods, after being delivered, and at the end of the month sent a statement of the same, and the company paid so much on account. The account had been a running one for about three years. After the failure the plaintiffs were paid by the assignee for all the goods that they then had on hand on which work was done.</p> <p>“ The Deelmore Manufacturing Company failed on July 16, 1893. On that day the plaintiffs had in their possession, that came from the Deelmore Company, six hundred and thirty-one pieces of goods, of which three hundred and thirty-two pieces were in the gray, and the balance in various stages or process of being dyed. Twenty-three of the three hundred and thirty-two pieces were afterwards .finished by order of the assignee, and were exchanged for other goods in the gray. The remaining three hundred and nine pieces were on hand at the time of the sale and formed lot 488 on the printed handbill. They were sold for $1,172.76. The gray goods substituted for the twenty-three pieces which were finished before the assignment, together with other gray goods substituted after the assignment for goods finished before the assignment, were sold at the sale. They formed lots 437, 486, and sixteen pieces of lot 485. For the dyeing of the two hundred and ninety-eight pieces which they were working upon they have since been paid by the assignee. The assignee paid as well for that which was done on those goods subsequent to the failure as for that which was done prior to the failure. The plaintiffs had not received from the Deelmore Company orders to dye any of the three hundred and thirty-two pieces in the gray.</p> <p>“ At the time of the assignment of the Deelmore Company, and ever since, the plaintiffs have claimed a lien on all of the goods of the Deelmore Company in their possession for the entire amount of the general balance due them, and refused to deliver the goods except upon payment of that balance. The assignee made a request for all of the goods without distinction, which was met by this general refusal.</p> <p>“The Deelmore Manufacturing Company presented to the plaintiffs a claim for $416.67 for damaged goods.</p> <p>“ The evidence does not show that the damage was caused by the negligence of the plaintiffs.</p> <p>“ The evidence and the letters of Mr. Prichard and Mr. Beck offered in evidence show that this question was settled between the parties prior to the execution of the agreement to sell the goods.</p> <p>“ Counsel for the defendant has requested the referee to find :</p> <p>“ First. That there was no agreement between the plaintiffs and the Deelmore Manufacturing Company' for the general lien on the first lot of goods which was delivered to them to be dyed or finished.</p> <p>“The referee cannot find as requested.</p> <p>“ There was no evidence offered to prove that the order to dye the first lot of goods was not sent to the plaintiffs on the order furnished by them which contained the printed notice; and the evidence of the plaintiffs established the fact that such orders were in use by them for fifteen years. In the view of the case taken by the referee the fact is immaterial, as it-is not claimed that any of the goods first delivered were in the possession of the plaintiffs at the time of the assignment, or form part of the goods in controversy.</p> <p>“ Second. That there was no agreement between the plaintiffs and the Deelmore Manufacturing Company for a general lien on any subsequent delivery of goods to be dyed or finished.</p> <p>“ The referee cannot find as requested.</p> <p>“ Third. That there was no difference between the terms on which the first lot of goods were delivered to the plaintiffs to be dyed or finished and any subsequent lot.</p> <p>“ The referee cannot find as requested.</p> <p>“ Fourth. That there was no agreement between the parties for a general lien for unpaid balances due the plaintiffs on the goods out of which the fund in this case arose.</p> <p>“ The referee cannot answer as requested.</p> <p>“ Fifth. Should the referee find from the evidence that there was an agreement between the parties for a general lien on all goods for unpaid balances due the plaintiffs, then he is required to find who were the parties to the agreement, when and where was it made, what was the consideration to support it, what was the date of the delivery of the first lot of goods under it, and were they delivered to be dyed or finished.</p> <p>“ The referee finds that the parties to the agreement were the plaintiffs and the Deelmore Manufacturing Company; that it was made when and where the Deelmore Company sent goods to the plaintiffs to be dyed and finished, with the knowledge that the plaintiffs received the goods subject to the conditions stated in the printed notice; that the consideration was the work and labor to be performed on the goods; that the date of the delivery of the first lot of goods was three or four years ago ; and that they were delivered to be dyed.</p> <p>“ Counsel for the defendant also requested the referee to answer the following points:</p> <p>“ First. That there is no sufficient evidence in this cause of an agreement between the plaintiffs and the Deelmore Manufacturing Company that the plaintiffs should have a general lien upon the goods out of which the fund in this case arose, for any balance due the plaintiffs for work done on other goods of the Deelmore Manufacturing Company.</p> <p>“ The referee cannot answer as requested. There is sufficient evidence in the cause of such an agreement.</p> <p>“ Second. That under all the evidence in this cause the finding and award should be for the defendant.</p> <p>“ The referee cannot answer as requested.</p> <p>“ Third. Assuming, for the purpose of this point, that the plaintiffs are entitled to a general lien for the balance due on any former account, then the defendant is entitled to have the amount due the plaintiffs reduced by the amount of damage sustained by the injury to Deelmore Manufacturing Company’s cloth, should the referee be of opinion that under the evidence such injury was due to the negligence of the.plaintiffs.</p> <p>“ The referee is not of opinion that the evidence shows that the injury was due to the negligence of the plaintiffs. Even if he were of such opinion, the question was settled between the parties prior to the execution of the agreement to sell the goods; therefore he cannot answer as requested.</p> <p>“ It is contended that, irrespective of any question of special contract, the plaintiffs in this case were entitled to a lien on the goods in their possession for the general balance due ; that this is not a case of separate and independent bailments under separate and independent contracts; but that, on the contrary, the plaintiffs had general prices for dyeing the goods of the Deelmore Manufacturing Company, who from time to time sent goods to be dyed and finished under the general contract, and that under such circumstances, at common law, the plaintiffs would have a lien. In support of this proposition certain authorities were cited by counsel for the plaintiffs. Among others the following: Chase v. Westmore, 5 Maule & Selwyn, 180; Steinman v. Wilkins, 7 W. & S. 466; Hoover v. Epler, 52 Pa. 523; Young v. Kimball, 23 Pa. 193; Yearsley v. Gray, 140 Pa. 238; Cross v. Knickerbocker, 8 Phila. 496; Jones on Liens, (2d ed.) 732; Holderman v. Manier, 104 Indiana, 121; 3 N. E. Rep. 811.</p> <p>“ In the view of the case taken by the referee it is immaterial whether under the law in Pennsylvania there was such a lien irrespective of a special contract.</p> <p>“ That a general lien may be created by contract between the parties is a proposition that is not disputed; and this may be either by express agreement or by notice from the dyer that he will receive the goods only upon condition that he shall have a lien upon them for the balance due, provided it be shown that the owner received the notice prior to intrusting his property with the dyer.</p> <p>“In 2 Kent’s Commentaries, 637, cited in Overton on Liens, section 7, page 5, the following proposition is laid down :</p> <p>“ ‘ This general lien may also be created by express agreement, as where one or more persons give notice that they will not receive airy property for the purpose of their trade or business except on condition that they shall have a lien upon it, not only in respect to charges arising on the particular goods, but for the general balance of their account. All persons who afterwards deal with them, with the knowledge of such notice, will be deemed to have acceded to that agreement.’</p> <p>“ At page 52, section 45, it is said:</p> <p>“ ‘ A general lien, therefore, must be shown to have its existence through a proven custom of the trade, or it maybe shown by a notice of such claim brought home to the bailor prior to his making a deposit of goods; any further bailment will be presumed made by assent on the part of the bailor. This applies to all cases where the bailee is not compellable by law to receive the bailment.’</p> <p>“ In the case of Kirkman v. Shawcross, 6 Term Reports, 14, a meeting of the dyers of Manchester was held at which certain resolutions were adopted, that the said dyers give public notice that they would not receive goods except on condition that such goods should be subject to a lien for the general balance of account. These resolutions were signed by the plaintiffs and were advertised in the Manchester newspapers, and this advertisement was seen by the defendant. It was held that the plaintiffs had a general lien on the defendant’s goods for the balance of his general account. ... To the same effect: Cumpston v. Haight, 2 Scott, 684.</p> <p>“ In Symonds v. Pain, 6 Hurlstone & Norman, 1 Rep. 709, the master of a steam tug of which the defendants were owners was employed by the plaintiff to tow his smack out of a harbor. In so doing the smack was stranded through the alleged negligence of the master. The plaintiff had on previous occasions hired the defendants’ steam tug, and on paying the charge had received a receipt, upon the back of which was printed a notice that the defendants would not be answerable for damage occasioned by any supposed negligence of their servants. Held, that it was a question for the jury rvhether the contract was made on the terms printed on the back of the receipt. . . .</p> <p>“ In Wright v. Trainer, 1 W. N. C. 198, it was held: ‘ That rules posted in a factory, and known to the employees, form part of their contract with the employers.’</p> <p>“ Even though it appear in evidence that the customer did not read the notice, it is a question for the court and jury to decide whether, in view of all the circumstances, he ought to have read it: Watkins v. Rymill, L. R. 10 Q. B. Div. 178.</p> <p>“ In Penna. R. R. Co. v. American Oil Works, 126 Penna. 485, it was said by the court: ‘ As between the carrier and the consignee, who is owner, we see no reason why this lien may not be extended by a contract to cover the general balance due by the consignee for the carriage of other goods. There would be no injustice or oppression in asking the consignee to pay what he honestly owed before allowing' him to remove the goods from the possession of his creditor, whether that creditor was a natural or an artificial person.’</p> <p>“It is urged by the defendant that the onus of making out and establishing the right to the general lien lies upon the party claiming it; that it is to be regarded with jealousy by the courts, and requires the strongest proof.</p> <p>“ The question is, did the defendant know that the plaintiffs would receive goods only upon the condition that they were subject to the general lien, prior to sending the goods in question to be dyed; or should the defendant have known it in view of the opportunity offered, for such knowledge ?</p> <p>“ The evidence shows that the notice of this general condition was printed on most of the slips on which dyeing orders were written by the Deelmore Manufacturing Company, on the delivery slips signed by the company or its employees, and on all bills and monthly statements mailed to the company. These papers were in use during the whole course of dealing with the defendant, covering’ a period of three or four years. In the absence of any denial that the notice or condition was received and read by the officers or employees of the defendant company, the presumption is that it was received and read. No evidence was offered by the defendant to rebut this presumption. The transactions between the parties were many and frequent, and no effort was made by the defendant to show that the officers and employees of the company did not receive and read the notice, or that they were not aware of the condition upon which the plaintiffs received the goods, and the conclusion is irresistible that they sent the goods in question with knowledge of the condition upon which alone they would be received; and under this state of facts the contract has the same force and effect as if it had been formally signed by the parties.</p> <p>“ The referee is of the opinion that the defendant did know of the stipulation for a general lien, and that the goods in question were sent to the plaintiffs under the terms of the notice; and that the plaintiffs have a lien upon them for the general balance due. He therefore reports that there is due to the plaintiffs the sum of $5,777.15.”</p> <p>Defendant filed exceptions to the report of the referee. The court dismissed the exceptions and entered judgment on the report. Defendant appealed.</p>

<p>Evidence — False representations — Sale.</p> <p>On the trial of an issue to determine the ownership of goods, where it appears that the goods had been deposited'with defendant by a vendee of the plaintiff as collateral security for an antecedent debt, and plaintiff claims that he made the sale in consequence of false representations made by the vendee, the testimony of a confidential clerk of the vendee as to the true state of his employer’s business is admissible to establish the falsity of the representations upon which the sale was made.</p>

<p>Appeal, No. 77, Jan. T., 1895, from order of G. P. No. 1, Phila. Co., Sept. T., 1892, No. 616, refusing to set aside a writ of capias ad satisfaciendum and remanding defendant to county prison.</p> <p>Trespass to recover damages for injuries to a horse and carriage.</p> <p>Plaintiff’s statement was as follows:</p> <p>“Plaintiff Frank P. Dungan brings this, his action, against the defendant, Edward C. Reed, Jr., and claims damages for injuries sustained by him in manner following:</p> <p>“ Heretofore to wit, on September 16, 1892, the defendant hired and let from the plaintiff, .who is a livery stable keeper, a certain horse and carriage belonging to the latter; wherefore it became and was the duty of the defendant to use^ due care in the use of said horse and carriage, and to return the same to the plaintiff in the same good condition as said property was when let, reasonable wear excepted. The defendant, however, not regarding his said duty, did not use due care, but on the contrary used and drove said horse and carriage so carelessly, negligently and improperly as to break and injure the carriage and to injure and permanently impair the horse, whereby the plaintiff was put to great expense in curing said horse of its injuries thereby sustained and in repairing the carriage broken as aforesaid. The plaintiff was thereby damaged and suffered loss in the sum of two hundred dollars, and therefore he brings suit.”</p> <p>The jury returned a verdict in favor of plaintiff for 1308.13, upon which judgment was entered. A capias ad satisfaciendum was issued and defendant arrested. The court refused to set aside the writ, and remanded defendant to the custody of the sheriff to be committed to the county prison.</p>

<p>Appeal, No. 145, Jan. T., 1895, by defendants, from order of C. P. No. 1, Phila. Co., Sept. T., 1894, No. 315, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit against sureties on an administrator’s bond.</p> <p>Plaintiff averred in its statement that on April 13, 1891, William Everham was appointed administrator of the estate of Samuel Everham, deceased, and that defendants became sureties on his bond; that on June 6,1892, a decree of distribution was made by the orphans’ court under which plaintiff’s wards were each entitled to $214.45; that on April 24, 1894, on petition of plaintiff an order was made by the orphans’ court directing William Everham, administrator, to pay to plaintiff, as guardian, the sums to which its wards were entitled; that William Everham neglected and refused to obey said order; that on August 8, 1894, execution was issued against Everham which was returned nulla bona ; that defendants although requested have refused to pay the suras due by them as sureties on the administrator’s bond.</p> <p>Defendants filed an affidavit of defense in which they averred as follows:</p> <p>“ That while it is true that the orphans’ court awarded to plaintiff as guardian the sum of money set forth in the statement filed, the said plaintiff failed to file a certificate of appointment as such guardian, though required to do so by the practice of said court, until the 3d of October, A. D. 1894, which was several days after the writ in this case issued. The deponent is advised, and, therefore, suggests to the court that this action was brought prematurely.</p> <p>“ The said deponent further says that the decree was had in favor of the wards of the plaintiff on June 9, 1892, and distribution of the fund in the hands of the administrator was duly ordered, but that deponent was informed neither by the administrator, nor any one in behalf of the minors, that said fund had not been paid over to their representatives until the twenty-fifth day of April, 1894, when he received a note from plaintiff’s counsel, calling his attention to the same.</p> <p>“ That said administrator was solvent and able to have paid the amount found to have been in his hands for nearly two years afterwards, but that no steps were taken on behalf of the representatives of the minors to compel payment. That, had the distributees used ordinary diligence, or had they called the attention of the deponent to the default of the administrator within a reasonable time after said award, the claim in suit would have been recovered from said administrator.”</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Practice, O. P. — Service of process — Corporations—Act of June 13,1836, sec. 41.</p> <p>Under the act of June 13, 1836, sec. 41, P. L. 579, the person referred to as the “ president or other principal officer” means the chief executive officer of the corporation, though called president, chairman, or by any other title.</p> <p>Under the acts of March 17, 1856, P. L. 388, March 21, 1842, P. L. 145, and March 15, 1847, P. L. 261, the words “ manager” or “ director” are synonymous, and mean one of the body of persons appointed pursuant to the charter or by-laws of the corporation to manage its affairs.</p> <p>In a suit against a corporation the sheriff’s return was as follows:</p> <p>“ Served the Blue Mountain Manufacturing Company, a corporation under the laws of Pennsylvania, by giving, June 22, 1893, a true and attested copy of the within writ to D. B. Fisher, general manager of said company and making known to him the contents thereof.”</p> <p>There was no appearance for the defendant. A judgment was entered against him for want of an affidavit of defense. Held, the judgment was void and should be stricken off..</p>

<p>[Marked, to be reported.]</p> <p>Mechanic's Ken — Character of structure — Act of June 16, 1836.</p> <p>If a structure is of such a substantial and permanent character that it may in any reasonable sense be known as a building, it may be incumbered by a mechanic’s lien under the act of June 16, 1836, P. L. 696.</p> <p>Defendants owned a blast furnace plant, consisting of stock house, casting house, hot blast, engine house, two systems of boilers, one on each side-of the engine house, near but not contiguous to it, offices, shops and other structures, all of which were located as compactly together as practicable for the manufacture of pig iron, but not inclosed by the same walls, nor covered by the same roof. Some years after this plant was constructed defendant erected a battery of boilers in close proximity to the old boilers. The structure consisted of a stone foundation, commenced below the surface of the ground, with brick walls above the ground, in which were doors and other openings to the fire and heating chambers. The boilers were above the furnace. The brick wall extended to the top of the boilers, and supported a brick arch which, with the top of upper tier of boilers, formed the only covering the structure had. The space within the structure was fully occupied by the furnace and boilers. The water and steam connections were made with the same pipes with which the water and steam pipes of the old boilers were connected, but these connections were independent of the old plant, and could be used without them. Held, (1) that the structure was a building within the meaning of the act of June 16, 1836, and could be subjected to a mechanic’s lien; (2) that a mechanic’s lien could also be sustained against it for machinery or fixtures furnished to ironworks under the act of April 21, 1856, P. L. 496; (3) that the structure was not an addition, alteration or repair within the meaning of the act of May 18,1887, P. L. 118, which required notice to be given of an intention to file a lien.</p> <p>The act of May 18, 1887, must be held to apply to such work or materials as are done or furnished for repairs, alterations or additions, which were not covered by the acts of June 16,1836, and April 21,1856. Thomas v. Hinkle, 126 Pa. 478, distinguished.</p>

<p>Statute of Frauds — Guaranty—Parol agreement to discount notes.</p> <p>Under a parol agreement, plaintiffs were to continue to sell goods to certain of their customers and obtain from them all the cash they could, and take their notes for the balance due upon each month’s settlement, and ‘ ‘ defendant would discount said notes for plaintiffs without recourse.” There was nothing said about the original debt being extinguished by the giving of the notes. Held, that the agreement was within the statute of frauds, and could not be enforced.</p> <p>The promise of the defendant was in reality a promise to pay the debt of another without any acquisition of property as a consideration therefor, and without the presence of any exceptional circumstances which would prevent the application of the statute.</p> <p>Promissory notes — Note as extinguishment of the original debt.</p> <p>The mere taking of the debtor’s note by a creditor for a debt contracted for goods sold, does not extinguish the debt unless it is specially agreed that the note should be taken as- payment of the debt.</p>

<p>Negligence — Street railways — Speed of car — Fright of horse.</p> <p>The right of a street railway company to run its cars over its tracks, laid upon a public highway, is equal to the right of travelers to the use of the highway. They have a right to go “ fast,” and the mere fact that a traveler’s horse takes fright at an approaching car confers no right of action whatever upon the traveler against the street railway company for an injury resulting from the fright of the horse.</p> <p>Plaintiff was injured while driving a wagon along a street on which defendant, a street railway company, operated an electric railway. The horse took fright at an approaching car, and, turning suddenly, the wheel struck some obstacle, overthrowing it and causing the injury. Plaintiff alleged that the car was run at an unlawful rate of speed. Her testimony was that the car “came at full headway;” that “they were running pretty fast; ” “ they came swiftly past us.” Other witnesses for plaintiff testified that the horse did not begin to shy until the car was within twenty or thirty feet from him. There was no evidence of the actual speed of the car, or that it was greater than was allowable; nor as to what would be a reasonably prudent rate of speed. Held, that the testimony was insufficient to establish negligence on the part of the defendant, and a nonsuit should have been entered.</p> <p>In order to create liability against the defendant in such ease, the evidence should clearly show that the car was moving at an unusual rate of speed, or at a rate which was not reasonably prudent, or at such definite rate in miles per hour as would of itself show that it was excessive, or at a rate greater than is allowed by the municipal ordinances; and as the plaintiff in this case was not a passenger, the burden of proof was on her to establish the truth of her allegations by affirmative testimony, failing in which she must fail in her suit.</p>

<p>[Marked to be reported.]</p> <p>Gift — Arrearages of dower — Receipt—Evidence.</p> <p>Arrearages of a dower due by a son to his- mother may be the subject of gift, and a receipt in full for such arrearages given by the mother to the son, is evidence of a gift to the son.</p> <p>In such case the fact that no money was actually paid by the son, and that the recognizance was not surrendered, is immaterial to affect the legality of the gift.</p> <p>After the receipt for dower had been given, the son’s real estate charged with the dower was sold at sheriff’s sale. The assignees of the widow claimed the arrearages of dower out of the fund for distribution. The widow testified: “I signed his receipt but I never received any money, but I supposed he would pay me when he got able. . . . He said if I needed it, and he got able, he would pay me, notwithstanding I had given him this receipt.” Held, that the evidence was insufficient to prove a condition annexed to the gift.</p> <p>If the declarations made by the son to the mother at the time the receipt was given had amounted to a condition, they would be insufficient to defeat the gift in the absence of proof that the son had ever been able to pay the money, or that his mother had needed it.</p>

<p>Appeal, No. 426, Jan. T., 1895, by-William E. Knight, from decree of O. C. Phila. Co., Oct. T., 1892, No. 29, refusing to grant an issue devisavit vel non.</p> <p>Appeal from register of wills, admitting to probate a paper alleged to be the will of William E. Knight, deceased. Pen-rose, J., filed the following opinion :</p> <p>“ The issues asked for are:</p> <p>“ (1) Whether the said William E. Knight was at the time of the alleged execution of said instrument of sound disposing mind, memory and understanding, and of sufficient legal capacity to make a valid will and testament.</p> <p>“ (2) Whether the said William E. Knight was induced to make said paper writing by undue influence of the said James Bond or others.</p> <p>“ The petition by the guardian of Emily Gertrude Addy for leave to intervene, alleges that she is a grandchild of Samuel Addy, a brother of the decedent, who was known by the name of Knight instead of Addy ‘ from the fact that his mother was named Mary Knight . . . the lawful wife of George Addy, who was the father of said Samuel Addy and said William Knight,’ and that at the time of the alleged execution of the paper admitted to probate William E. Knight was not of sound mind, etc., capable of making a will, and that such incapacity had existed for twenty-three years and upwards. It farther averred that Emily Gertrude Addy ‘is one of the heirs of the said Samuel Addy; her grandfather, who was the only brother of the said William E. Knight, deceased, and is, therefore, an heir and one of the next of kin of the said William E. Knight, deceased, and entitled to a share of the estate.’</p> <p>' “ The answer of the proponent to the original petition denies the allegations of want of testamentary capacity and of undue influence, and also avers that the appellant has no interest such as entitles him to appeal, inasmuch as the will under which he claims was executed in November, 1870, while there was a subsequent will executed in Julj, 1883, in which he ‘was not named nor interested.’</p> <p>“ The answer to the petition to intervene denies that the decedent was a brother of Samuel Addy, or that Emily Gertrude Addy is an heir or one of his next of kin. It avers that he was at all times not only capable of making a will, but that he was ‘ a man of unusual intelligence, and so successful in his business that he kept the respect and confidence of those who dealt with him, and maintained from it a competent livelihood.’ It asks that the right to intervene be withheld until the petitioner shall satisfy the court that his ward is of kin to the decedent.</p> <p>“Dr. James Bond, the father of James Bond and William A. Bond, the proponent and the original contestant, was a druggist. He lived with his mother in a house of which he was the owner, at the southeast corner of Tenth and Locust streets, in this city. He had built this house many }mars before, and one or more of the lower rooms were occupied as his store or place of business. The decedent, whose mother was a sister of Mrs. Bond, was born in England, but came to this country when very young and became a member of the family of his aunt. He was sent to school for some time, and afterwards was taken by Dr. Bond into the drug store and thoroughly instructed in that business. Dr. Bond, who married late in life, died in 18 — , leaving a widow and three children — James, William- A. and Kate Bond, minors, of whom James, the eldest, was then about -years of age.</p> <p>“ It does not appear from the evidence when Dr. Bond moved from the house at Tenth and Locust streets, but at some time, either while he lived or immediately after his death, Dr. Knight, as the decedent was always called, became the proprietor of the business and acquired the exclusive occupancy of the house, paying, as rent, and for the right to use various proprietary medicines, $50.00 a week.</p> <p>“ He seemed to have looked upon Dr. Bond as his benefactor, and always attributed his success in business and his prosperity to him. In November, 1870, while Dr. Bond’s children were still in their minority, he executed a will giving his property to them in equal shares. It is under this will that William A. Bond claims the right to contest the will now in controversy. In July, 1883, Dr. Knight executed a second will, by-which he gave his estate to the mother of his former beneficiaries, who, in the meantime, had become the wife of M. J. Mitcheson, Esq. In January, 1887, Mr. Mitcheson being then dead, he executed the present will, the reasons which induced his change of intention being set forth in the testimony of Mr. Mellors., by whom the will was drawn.</p> <p>• “ For sixty-five years of his life Dr. Knight lived in the house at-Tenth and Locust streets, where he carried on his business and where he died. Though he became an American citizen, he seems to have retained many of the ideas and peculiarities of an Englishman of the class to which he belonged. He was old fashioned in his notions and in his habits. In his early life he was not allowed to associate with persons of his own age or to mingle with society, and his devotion was- to his business. As a natural consequence, when among strangers, he was very sly, awkward and ill at ease, though in his house where he had spent his whole life, he was playful and unrestrained, especially when surrounded, as he generally was, by persons much younger than himself. lie cared little or nothing for his personal appearance. His dress was adapted more to comfort than to elegance, and was made to fit very loosely because of a physical trouble (hernia) which caused him great suffering. He was not at all particular about keeping either his face or hands clean, and their condition as well as that of his clothing indicated in a striking way the nature of his daily avocation. He was very kind to the poor and to those requiring assistance, and few who applied to him representing that they were distressed went away empty handed, though his gifts of this character were never extravagant.</p> <p>“ He was a bachelor, and after Dr. Bond removed from the house, a Mrs. Lowry came with her family to reside with him and remained until her death in 1886, and in the fall of that year Mrs. Atwood, or Mrs. Addy as she then was, took her place, bringing with her her mother and her daughter, Emily Gertrude Addy (on whose behalf the petition to intervene has been filed), then a child of about nine years of age. Mrs. Atwood testified that Mr. Addy, her first husband, was a nephew of Dr. Knight, that he was lost at sea in 1883, and that after she became a widow Dr. Knight showed great interest in and provided for her. She was then boarding with her sister, Mrs. Clara Collins, at whose house Dr. Knight called soon after hearing of the death of Mr. Addy. Mrs. Collins saw him then for the first time.</p> <p>' “ Mrs. Addy, with her daughter and mother, remained with Dr. Knight at his house, Tenth and Locust streets, until his death in June, 1892. During the first part of this period, Dr. Knight provided everything required for the family and paid all expenses; afterwards she became the wife of Albert F. Atwood, who also became aninmate of the household. How much lie contributed in the way of support does not appear. It was probably not much, as he was an invalid for two or three years after his marriage.</p> <p>“ Of the twenty witnesses examined on behalf of the contestants, two were the contestants themselves, nine were relatives of Emily G. Addy, or directly interested in having the will set aside; one was a physician who met Dr. Knight on a single occasion several years after the execution of the will; two had been in his employ, one as an errand boy and the other as assistant in the store; another had sold shoes to him ; two others had dealt with him in business, and the others were neighbors, one of whom (Andrew Gillespie) testified strongly in favor of his capacity, and the others said nothing that in the least impugned it.</p> <p>“ In view of the fixed and incontrovertible fact that during all the time it is sought to have it believed that Dr. Knight was incapable of taking care of himself and disposing of his property, he was actually carrying on a business requiring the possession of the very qualities of mind which are alleged to have been wanting, it is difficult to treat with seriousness the testimony offered by the contestants. He started life, it would seem, without a dollar, and by his business ability, his industry, his frugality and his sound judgment as to investments, acquired the estate (estimated at $45,000 to $50,000) which has induced this contest. He gave personal attention to his business almost to the day of his death, and during all of the time covered by the testimony he took care not only of himself but of many of those who now assert his imbecility.</p> <p>“ The witnesses, whose knowledge was derived from seeing him in his own house, speak of his ill-fitting clothes; his dirty hands and face; his habit of helping himself at table and eating with his fingers; his indistinctness of speech ; his inability to ‘ carry on a connected intelligent conversation ; ’ his fondness for repeating the same story, though without point and often vulgar or obscene in its character; his laughing at his own jokes; his willingness to sleep in a dirty, cluttered-up little room adjoining his shop ; his purchase of old bottles, etc.</p> <p>“ His sufferings from hernia sufficiently account for the ‘ bagginess ’ of his clothing (if it is necessary to account for it), and for his habit, referred to by some of the witnesses, of allowing his trousers to be unbuttoned (though concealed by his shop apron) while in the house ; his indistinctness of speech, if it existed, was the result of loss of teeth; his willingness to put up with the dirt and discomfort of the place in which he slept was, probably, because having begun it when a lad in the employ of Dr. Bond he had kept it up from habit and without realizing a condition apparent to other persons, and because, perhaps, it was easier for him when called upon by customers during the night to attend in the store than if he had slept in the upper and more remote part of the house ; his alleged inability to carry on a connected conversation may have arisen from want of congeniality with those who assert the fact, or possibly from their own deficiencies in this respect; and so on with the other peculiarities referred to in the testimony.</p> <p>“ As to his dirty appearance and his habit of repeating his jokes, it is not many years since a popular witticism, very often repeated by men whose soundness of intellect was never questioned, attributed any unusual muddiness in the waters of the Schuylkill to the ablutions of a most eminent citizen (also a druggist) distinguished no less for his ability and public spiritedness than for his contempt for the effeminacy which regarded personal cleanliness as any part of one’s social duty.</p> <p>“To' all the witnesses who spoke of any peculiarity on the part of Dr. Knight, the following questions- were put: ‘ From your actual knowledge of Dr. Knight, do you consider him fit or unfit to make a will?’ ‘From your actual knowledge of Mr. Knight as you have testified here to-day, do you consider him fit or unfit to make a will?’ ‘ From your observation of Mr. Knight for the time you have known him, what is your opinion as to whether he was of sane or unsound mind?’ and ‘ Do you consider him of sane mind, competent to make a will, to take care of himself-and property?’ These questions will be found fully set forth in the testimony of Thomas W. Mc-Clennan (page 149-150), a clerk or salesman in a shoe store, whose reason for any opinion he might have upon the subject was based largely upon the fact that in summer Dr. Knight bought wool-lined shoes, several sizes too large, which he never laced up, while in the spring he would ‘ buy light colored shoes with rubber at the side, such as you might term a Romeo, and put them on and wear them and go out in the street and come back again and give us candy, buying maple sugar on the street, two or three cents a piece, and come in and give them to us.’ This witness was also one of those who testified that Dr. Knight ‘ was not able to carry on a sustained connected conversation.’</p> <p>“The questions were objected to; and as the objection was sustained, we do not know what the answer would have been, though it may be assumed that it would have been very decidedly in favor of the contestants. But it appeared from the testimony of every one of these witnesses, in spite of any opinion so asserted, that Dr. Knight’s memory w'as wholly unimpaired, that he did take care of himself and his property, and that he was of extremely accurate business habits. It is true they said that he kept no books of account, at least, that thej saw none; yet lie always remembered what his securities were, where they were kept, when they fell due, and where to go to collect them. He had his box in the Fidelity Company, and always attended in person to looking after its contents. He sometimes paid small bills in small installments, taking the money as it came into the store; but he always remembered to pay them ; never forgot what part had been paid, and never offered to pay a second time after payment in full.</p> <p>“ This last statement is not quite correct; there was one occasion, only one, when he did offer to pay a second time. A sister of Mrs. Attwood, Mrs. Collins, for a year or more, about three years before his death, did his washing (for it seems he did have washing done, notwithstanding what the witnesses, many of them relations or connections of the laundress, say to the contrary), and once when he had paid her for a week’s wash he afterwards offered payment a second time to her husband. The bill, it is probable, was not a very large one.</p> <p>“ One of the reasons stated by Mrs. Collins for her opinion as to the testamentary capacity of Dr. Knight, and his ability to take care of himself was, that when he called at her house, soon after the death of Mrs. Attwood’s first husband, to see her (Mrs. Attwood), he made a second visit in the course of a short time, bringing with him for her ‘ a second-hand picture and soup ladle; ’ but, as Mrs. Attwood, one of the witnesses most relied on by the contestants, makes no reference to this occurrence, it is fair to assume that the incongruity of the gift was less real than apparent. The picture appears to have had some merit, as it is still preserved after a lapse, of ten or twelve years.</p> <p>“ There was no evidence whatever of undue influence, and Mrs. Attwood, whose testimony shows that Dr. Knight’s memory was unimpaired almost to the day of his death, shows very strikingly the groundlessness of the assertion that he was easily persuaded to dispose of his property. A month or two before he died, she says (page 40) : ‘ I put the question to him as to how much he was worth, and I never knew until that time; and he said about $45,000.’ She often spoke to him about making a will, and urged the claims of her daughter, Emily Gertrude Addy, and of herself. The daughter appears to have been still more importunate. Her aunt, Mrs. Braker, who testified in her behalf, says: ‘ Gerty used to say, “ Now, uncle, I think you are awful mean, not to have those papers fixed.” There was a life insurance she always understood she was to have — the doctor’s life insurance. He would say, “ Hush, hush! I will have that all right!”’ It is evident that all of this was long after the will now in controversy, and it is evident, also, that no doubt was entertained at that time upon the subject of the testator’s competency to dispose of his property.</p> <p>“It is proper to notice that, although Mr. William A. Bond was called to testify in his own favor, he gave no intimation of an opinion adverse to the capacity of Dr. Knight to make a will; nor, though he had known him ever since he was born, did he state, nor was he asked to state, a single instance of irrationality or inability to take care of himself and his property.</p> <p>“It is scarcely necessary to refer to the evidence in support of the will. Many witnesses of the highest respectability and intelligence bore testimony as to the intellectual ability of Dr. Knight. Man)' of them were his neighbors and lifelong acquaintances, who had shown their confidence in the most practical manner by dealing at his store and having prescriptions for themselves and their families compounded by him in preference to his assistants. Among these witnesses were Major J. Lewis Good, a member of the board of health; Mr. Peter P. Breen, formerly acting treasurer of the mint; Coroner Ashbridge, Mr. John L. P. Wilson, Mr. Thomas S. Crofton, Mr. Paul J. Henon, Dr. S. K. Frease, Mr. Charles Watson, a salesman in the employ of Robert Shoemaker & Co., and others, whose dealings with him in the way of business had been carried on for many years.</p> <p>. “ The will was drawn by Joseph Mellors, Esq., in his office, from instructions then given to him by Dr. Knight in person. There was no interference or suggestion by any third person. The language of the will was substantially that used by the testator himself, the reasons which induced it being then stated by him to Mr. Mellors. It was carefully read by him and deliberately executed in the presence of witnesses; and all of this occurred more than five years before his death, when he was not over sixty-eight years old, and when both his physical and mental condition was entirely unimpaired.</p> <p>“ Upon the evidence offered, no verdict against this will would be possible, and the issues asked for must, therefore, be refused.</p> <p>“It is proper to add that the only evidence of relationship on the part of Emily Gertrude Addy to the testator is found in the testimony of her mother, Mrs. Atwood, from whose cross-examination it is apparent that the alleged relationship is at least the subject of very serious doubt; but in the view taken of the evidence with regard to testamentary capacity, especially as there are two wills between the one admitted to probate and any possible right under the intestate law, the question of relationship becomes wholly unimportant.”</p> <p>Exceptions to the report of Penrose, J., were dismissed, and the decree dismissing appeal was affirmed.</p>

Appeal, No. 247, Jan. T., 1895, by The Commonwealth Title Insurance & Trust Co., guardian of Thomas B. Whitney, from decree of O. C. Phila. Co., Oct. T., 1889, No. 476, sustaining exceptions to adjudication. Exceptions to adjudication.

Appeal, No. 181, Jan. T., 1895, by Samuel Ferguson, from decree of O. C. Phila. Co., July T., 1894, No. 214, dismissing exceptions to adjudication. Exceptions to adjudication. The auditing judge, Ashman, J., found the facts to be as follows: “ Samuel Ferguson presented a claim of $4,000 for services to the decedent, as bartender, from 1884 to 1888.

Appeal, No. 157, Jan. T., 1895, by defendant, from judgment of C. P. No. 3, Phila. Co., Dee. T., 1892, No. 180, M. L. D., on verdict for plaintiff. Scire facias on apportioned mechanic’s lien'against twenty-five two-story brick dwelling houses.

<p>Appeal, No. 242, Jan. T., 1895, by James Waddell, from decree of O. C. Phila. Co., Oct. T., 1894, No. 8, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>At the audit before Penrose, J., James Waddell claimed the sum of $2,000, which he alleged he had loaned to decedent.</p> <p>The point in dispute was whether the money had been loaned to decedent, or whether it was a contribution to a partnership between claimant and decedent, formed for constructing sewers. Witnesses on behalf of the estate testified that the claimant had stated that he was a partner of the decedent in the building of certain sewers, and one of the witnesses stated that claimant had declared that he was to furnish the money, and the decedent to furnish the labor, the profits, to be divided. The auditing judge found as a fact that there was a partnership; that the money was furnished as a contribution to it; and that its affairs had not been settled, and disallowed the claim.</p> <p>Exceptions to the adjudications were dismissed by the court, Ferguson, J., filing the following opinion :</p> <p>“ The question in this case is, whether the sum of $2,000, which was paid to the decedent by the claimant, was a loan or a contribution to the capital of the business which they both proposed to enter into and carry on as partners. If it was the latter, this court would have no jurisdiction until the affairs of the partnership were settled, and the amount found to be due from one to the other ascertained; but if it was a loan, the claimant would, of course, be entitled to come in with the other creditors and claim his dividend out of the balance for distribution. The auditing judge has found that this money was not a loan, but a contribution to the capital of a business. As this was a pure and simple question of fact, his finding, like the verdict of a jury, must stand, unless clear error be made to appear.</p> <p>“ The allegation of error in this case is, that the finding of the auditing judge was based upon the admissions of the alleged partners, which, it was contended, without other facts, was not sufficient to establish a partnership. We think the contrary has been laid down as the law: ‘An admission made by any one that he is a member of a particular partnership is evidence of that fact against him,’ Lindley on Partnership, § 87, and our Supreme Court have laid down the same rule. In Scull’s Appeal, 115 Pa. 150, they say: ‘ The existence of a partnership may be proved by the separate declarations of each of the alleged partners,’and in Reed v. Kremer., lll Pa. 482: ‘The partnership might be established by the several admissions of all those who are alleged to compose it, or by the admissions of one, and the acts and declarations of the others.’ We think that the admissions were sufficient to establish the partnership.</p> <p>“ The exceptions are dismissed and the adjudication confirmed.”</p>

<p>Attachment execution — Contract—Evidence.</p> <p>W., being financially embarrassed, confessed judgments to O., D. and others. Executions were issued on all these judgments on the same day, but O.’s was first placed in the hands of the sheriff. At the sheriff’s sale, O. bid in W.’s horses, wagons and harness which had been used in the drayage business. After the-sale, O. employed W. at a certain salary per week to cany on the drayage business. Subsequently O. sold the business and obtained more for it than the amount of his judgment against W. Two years after the sheriff’s sale, D. issued an attachment execution on his judgment and summoned O. as garnishee, claiming that lie had agreed to buy in the property at sheriff’s sale and transfer it back to W. after he had received payment of his debt. W. testified that O. said “I want just what is due me, and as soon as I get it, I will turn the teams right over to you again.” W.’s testimony was confirmed by that of his attorney. Other witnesses for the plaintiff, however, testified that the real arrangement was that O. was to be trustee for the creditors, and that, on account of said arrangement, the other creditors did not bid at the sheriff’s sale. Held, that the evidence was insufficient to, sustain an agreement on the part of O. to return the property to W.</p>

Appeal, No. 153, Jan. T., 1895, by Charles J. Webb & Co. et al., from order of C. P. No. 2, Phila. Co., Dec. T., 1889, No. 772, dismissing exceptions to auditor’s report. Exceptions to report of J. M. Vanderslice, Esq., auditor, appointed to audit the account of William T. Tilden, assignee for the benefit of creditors of John Schofield & Son. The facts appear by the opinion of Jenkins, J., which was as follows : “The assignment was made upon Jan. 3, 1890.

Appeal, No. 219, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1892, No. 104, on verdict for defendant. Assumpsit to recover the amount of a bid made at a sheriff’,® sale of real estate.

<p>Appeal, No. 266, Jan. T., 1894, by-defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1894, No. 627, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on promissory notes, and for money had and received.</p> <p>Plaintiff in his statement averred that on June 4, 1891, he loaned to plaintiff twenty-five hundred dollars on a promissory, note, taking as security the following assignment of a patent:.</p> <p>“Philadelphia, June 4, ’91.</p> <p>“I hereby transfer to Monroe Smith, Esq., of 8805 Locust Street, my right, title and interest in United States Letters Patent No. 382,609, (Fibre Patent) as security for the payment of my personal note for twenty-five hundred dollars ($2,500), at three months due September 4th-7th, 1891.</p> <p>“F. H. Elder.”</p> <p>In reference to this assignment plaintiff averred as follows:</p> <p>“ And the plaintiff further says that he has caused the records of the patent office at Washington, D. C., to be examined, and that the letters patent No. 382,609 are not and were not for a fiber patent, but are for a patent issued May 8,1888, to Charles W. F. Holbrook, Newark, N. J., for dental abrading disk. And the plaintiff says that said defendant had not at the time he obtained said loan of $2,500 any ownership or interest in said patent No. 382,609, and has not since had, and has not now any ownership or interest in said letters patent No. 382,609.”</p> <p>Plaintiff also claimed to recover on a promissory note $50.00, dated Oct'. 1.7, 1892.</p> <p>Plaintiff also averred that on May 20,1890, he had advanced to defendant the sum of $5,000 upon the oral promise of defendant to invest the said sum in something that would pay, and that he and defendant would divide the profits; that defendant had not invested the said sum, but had wrongfully appropriated it to his own use.</p> <p>In reference to this transaction, plaintiff averred as follows:</p> <p>“ And plaintiff further says that said defendant has admitted that he received the said sum of $5,000 for the purpose of investment, and acknowledged his indebtedness to the plaintiff for the same, as appears by a letter written by said defendant to said plaintiff on the first day of December, 1892, and received by said plaintiff, and which letter the said plaintiff has now in his possession, a true copy whereof is as follows :</p> <p>.“ ‘ December 1, 1892.</p> <p>“ ‘ Monroe Smith, Esq.</p> <p>“‘Dear Sir: — I called at your house this evening and was informed by the servant that you were not at home. I am very sorry not to have seen you. I want to do what I can to reimburse you for money loaned me for certain purposes of investment which I have up to this time been unable to pay back. ■</p> <p>‘“You know the reason why I have not been able to do this up to this time.</p> <p>“‘You also know that I never denied the fact that I am indebted to you, and never shirked my responsibility. You also know that by reason of the failure of these same investments I am to the amount of my indebtedness to you, just that much worse off than nothing.</p> <p>“ ‘ Do you not think it would be fair to give me a chance to reimburse you all that I can ? It is a matter of much importance to a man of your position, financially, but of course not much to me. I am not very happy over this condition of affairs and do not believe you are the man to kick another when he is down. I will call on you to-morrow, Friday, evening if you will be at home. Will you not kindly let me know if it will be convenient to you?</p> <p>“ ‘ Sincerely,</p> <p>“ ‘ F. H. Eldejr.’</p> <p>“ And the plaintiff further avers that shortly before the said letter of the said defendant, F. H. Elder, was written, the plaintiff asked the said defendant, Elder, how and where he had invested the said sum of $5,000, and he, the defendant, refused to state what investment he had made of the same, and acknowledged that he owed the said money to the plaintiff. That subsequently the defendant claimed that he had invested the said sum of $5,000 in one hundred shares of the capital stock of the Kennedy-Groswith Electric Company, a corporation organized under the laws of New Jersey.</p> <p>“ The pi in tiff further avers that said allegation of the defendant is untrue.</p> <p>“ The plaintiff further avers that the defendant agreed on his own behalf and not for the plaintiff to purchase two hundred shares of the Kennedy-Groswith Electric Company from one C. W. Kennedy, on the seventh day of June, 1890, under the following agreement and receipt:</p> <p>“ ‘ Philadelphia, June T, ’90.</p> <p>Rec’d of F. H. Elder, Five Hundred Dollars on account of investment of Five Thousand in my Electric Company.</p> <p>“ ‘ Terms of above investment of $5000 — viz :</p> <p>“ ‘ § 500 in cash as above.-</p> <p>“ ‘ 500 “ within 10 days.</p> <p>“ ‘ 1000 “ “ 60 “</p> <p>3000 “ “ 90 “</p> <p>“ ‘ On payment of the above amounts F. H. Elder will be</p> <p>entitled to two hundred shares or twenty thousand dollars of the capital stock of the aforesaid proposed company.</p> <p>“ ‘ C. W. Kennedy.’</p> <p>“ ‘ If this is in any way connected with the investment which the defendant claims was made for the account of the plaintiff and defendant, the defendant never complied with the said agreement. That he, the defendant, subsequently paid in all §2,000 upon the said stock, but not for or on behalf of the plaintiff.”</p> <p>Plaintiff further averred that he had advanced the sum of §1,000 to be invested by defendant in an interest in certain patents owned by Charles F. Winkler; that defendant did not purchase said interest in patents, but had appropriated the money to his own use.</p> <p>Defendant filed an affidavit of defense, a supplemental affidavit of defense, and a second supplemental affidavit of defense.</p> <p>In his various affidavits of defense defendant admitted that he had received the loan of §2,500, but denied the assertion that he did not have an interest in the fiber patent. He averred that the number referred to in the writing ivas the application number, and that plaintiff was aware that it was not the number given to the issue patent which was 469,111, and that the assignment of said interest to defendant bears date Feb. 1,1891, and was recorded April 14, 1892, in Liber Q, 45, page 339, of Transfers of Patents, and that he showed the recorded assignment to plaintiff.</p> <p>Defendant admitted liability on the note for §50,00.</p> <p>Defendant admitted that the sum of §5,000 had been advanced to him for investment. He averred that he did invest it in the purchase of one hundred shares of stock of the KennedyGroswith Electric Company, and that the investment was made with the full knowledge, consent and approval of the plaintiff, who .was a subscriber to the stock of the company; and that subsequently the said stock was exchanged for an equal number of shares in another company, and this exchange was made ■with the full knowledge, consent and approval of the plaintiff, and defendant was then the holder for the benefit and interest of the plaintiff and himself, of the said stock, giving the number of the certificate, and that he had frequently offered, to, and was then and had ever been ready and willing to transfer the said stock to the plaintiff, but he had refused to accept such transfer. Defendant denied that he was indebted to the said plaintiff by reason of the said advance. In the second supplemental affidavit of defense filed by defendant, he set out the dates when the several sums which make up the said sum of $5,000 were paid.</p> <p>He also denied that the receipt signed by C. W. Kennedy was a true and correct account of his agreement or transaction with Kennedy. He also denied that the letter which he wrote to plaintiff referred to the advance of $5,000, but averred that it referred to the loan of $2,500.</p> <p>Defendant admitted that he liad received the sum of $1,000 for investment, and averred that he had invested it in the purchase of an interest in certain patent rights, and used said interest with other interests for the foundation of a company, and secured for the plaintiff fifty shares of the stock of said company, and also secured enactment of resolutions of stockholders of the said company for the payment of the original purchase money expended for the said patent. He then gave the name of the company .and said that the fifty shares of stock were exchanged for an equal number of shares of stock in another company, and that the defendant was then the holder for the said plaintiff of the said fifty shares, and had ever been ready and willing to transfer them to the plaintiff, but he had refused to accept them. He denied that he offered to purchase a one fifth interest in said patents, and further said that all of the investments and changes, etc., were made with the full knowledge, consent and approval of the plaintiff. In his second supplemental affidavit of defense, defendant said that the said payment of $1,000 was made on April 20, 1892, by check for $1,000 on the Centennial National Bank, which cheek was duly presented and paid.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 299, Jan. T., 1895, by defendant, from judgment of O. P. No. 3, Phila. Co., March T., 1893, No. 348, on verdict for plaintiff. Trespass for personal injuries.

Appeal, No. 97, Jan. T., 1895, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1893, No. 342, refusing to take off nonsuit. Trespass for personal injuries. Before Finletter, P. J. At the trial it appeared that plaintiff was employed by defendant in dismantling its elevated structures or trestle-work at Seventeenth and Market streets, in Philadelphia, preparatory to the extension of the company’s station.

Appeal, No. 185, Jan. T., 1895, by Jacob H. Loeser, from decree of O. C. Phila. Co., Jan. T., 1894, No. 192, dismissing appeal from register of wills, and refusing an issue devisavit vel non. Appeal from register of wills. The facts appear by the opinion of Hanna, P. J., which was as follows: “lb is but natural the contestants feel disappointed with the disposition made by their father of his estate, and are convinced it is most inequitable.

<p>Appeal, No. 123, Jan. T., 1895, by Robert T. Potts, by his next friend W. W. Potts, from decree of O. C. Phila. Co., Oct. T., 1891, No. 128, dismissing appeal from register of wills, and refusing an issue devisavit vel non.</p> <p>Appeal from register of wills.</p> <p>The facts of the case appear by the opinion of the auditing judge, Penrose, J., which was as follows:</p> <p>“ The petition upon which the appeal is founded alleges that at the time it was filed the only'persons interested in the estate of the decedent were his son, Abram R. Cox, a brother, Dickson Cox, and a grandson, Robert T. Potts (the appellant), son of Caroline E. Potts, a deceased daughter. ' The grounds of the appeal are want of testamentary capacity and the procurement of the will by the undue influence and coercion of Caroline E. Cox (the wife of the testator) and others not named.</p> <p>. “ The appeal was originally taken Oct. 23,1893, by E. Channing Potts, the father of Robert T. Potts, as his next friend. . . .</p> <p>“ The testator died Feb. 5,1890, and on the 20th of February, 1890, his will, dated Aug. 24, 1887j was admitted to probate upon the petition of the executors named therein, Caroline E. Cox, Abram R. Cox and E. Channing Potts, averring, under oath, that it was his last will and testament, and that the value of his personal estate was $200,000, and of his real estate, $75,000. . . .</p> <p>“Without stopping to consider the question of estoppel or election, it is obvious that after permitting so long a time to pass after the probate, the person who now alleges the invalidity of the will ought to be able .to support his attack by evidence of the most conclusive and satisfactory character, especially if he has delayed until the person most directly affected has died.</p> <p>“ The evidence offered falls very short of this. Four witnesses, only, testified on behalf of the appellant; and of these one did not make the acquaintance of the testator until a year after the execution of the will. Of the other three, two were physicians, who, while they asserted with considerable positiveness their opinions that he was without testamentary capacity, admitted that they bad never attended him professionally, and that their knowledge was derived from casual meetings with him, during which they had never attempted to talk with him upon business or to test the extent of his ability to carry on a conversation. These gentlemen were offered as experts, and they were unable to give a single instance in which they had heard him give utterance to a foolish, insane or incoherent remark — though one of them declared that he was ‘ blind, paralyzed and demented.’ To what extent this assertion was warranted by the facts will appear hereafter. The other witness of the three referred to had been in the testator’s employ for a number of years as manager or superintendent of his business, which was that of ale and porter brewing at Norristown. He also expressed an opinion adverse to the ability of the testator to make a will, to take care of himself, or to attend to his affairs; and he testified that a former will, prepared by Mr. Hunsicker, not being satisfactory to the testator’s wife, she had taken him to a relative of hers, a lawyer in Trenton, by whom the present will was prepared, and that when it was sent from Trenton the testator declared that he did not understand it, and fell asleep while the witness was trying to read it to him. This witness, though he said that the testator alwajs had to have an attendant while coming from a train in Norristown to the brewery — a distance so short that the witness was able to see him upon his arrival to go to meet him — admitted that he came from Philadelphia every day by himself and that he probably was unassisted in going to and from his house at Nineteenth and Spring Garden to the station at Ninth and Green. He also admitted that all checks in the course of the business were signed by the testator — though prepared by the witness; that he knew the various persons employed at the brewery and their duties; and that he could ‘ understand for a little while,’ though he was not capable of any prolonged mental effort, etc.</p> <p>“ The fourth witness, whose acquaintance with the testator, as stated above, began a year after the execution of the will, was also in his employ as manager, and his testimoity was of much the same character as that of his predecessor, except •that while the latter, in support of his assertion of want of testamentary capacit3r, referred to some instances of lewd behavior •on the part of the testator, the former spoke onty of his fondness for, and keen appreciation of, stories of a salacious character.</p> <p>“ All of this evidence, if uncontradicted, would not be sufficient to overcome the presumption in favor of the testamentary-capacity ; but it was opposed by the testimony of fifteen witnesses, stating facts, not mere opinions, which leaves not the least doubt upon the subject.</p> <p>“It appeared that about 1881 the testator, finding his vision becoming impaired, consulted an occulist, who told him that nothing could be done to relieve him, as his trouble was caused by Bright’s disease, from which he was suffering. This information naturally gave him great distress and caused him to constantly brood over his condition. As the disease progressed his eyesight failed still more, though it does not appear that he ever became totally blind. His nervous system was also much affected; his lower limbs were to some extent paralyzed, and he walked with a shuffling, unsteady step; occasionally falling if not supported by the person accompanying him. He suffered with attacks of depression, and when in great pain or distress at times manifested his emotion by shedding tears. But he continued to go about, often unattended, almost to the time of his death. He was a director of one of the banks of Norristown and was re-elected each year of his life; knew of the days of meeting and was usually in attendance, voting intelligently upon the questions submitted for consideration by the board. He knew his acquaintances and called them by name when he met them, recognized their voices where, on account of his defective sight, he failed to see them before they had spoken ; and he talked with them, rationally and without the least indication of mental incapacitjq upon the topics of ordinary conversation.</p> <p>“ The will was not drawn, as asserted by one of the witnesses on the part of the appellant, by a relation of Mrs. Cox. It was drawn by A. G. Bichey, Esq., a lawyer of the highest standing, of the Trenton bar, from instructions given directly to him by the testator, to whom, when prepared, it was read and fully explained, and by whom it was fully understood at the time of signing; and it is by no means clear that Mrs. Cox, who was with him at the time, derived a greater benefit under the will than she would have had under the intestate laws. Moreover, Mr. Hunsicker, who is said to have prepared a prior will which this one supersedes, and who certainly was well able to judge of his testamentary capacity, became counsel for the executors, and acted in the settlement of the estate in accordance with the provisions of the will now the subject of contest, from the time of its admission to probate until at least the application for leave to sell the Spring Garden street house in March, 1892, after the death ot Mrs. Cox in the preceding December.</p> <p>“ No verdict against the validity of this will would be permitted to stand. The issues are therefore refused and the appeal dismissed.</p> <p>The court overruled exceptions to the opinion of the auditing judge, and entered a decree dismissing the appeal.</p>

<p>Negligence — Liquor laws — Selling liquor to intoxicated person — Loss of husband's earning power — Suit by wife against saloon keeper — Act of May 8, 1854, sec. 3.</p> <p>Tlie act of May 8, 1854, sec. 3, P. L. 663, which provides that “ any person furnishing intoxicating drinks to any other person in violation of existing laws, or of the provisions of this act, shall be held civilly responsible for. any injury to person or property in consequence of. such furnishing,1’ will not sustain an action by a wife against a saloon keeper for loss occasioned by the imprisonment of her husband for voluntary manslaughter, committed while the husband was under the influence of liquor fur-, nished by the saloon keeper.</p> <p>The act of May 8, 1854, gives the right to the wife to maintain an action for an injury to her personal property in consequence of a liquor dealer’s unlawful negligence, but it does not, expressly or by necessary implication, give her an action for an injury to the person or property of her husband. Her interest in her husband’s earning power is not “property” within the meaning of the statute.</p> <p>Negligence — Remote and proximate cause — Selling liquor to intoxicated person.</p> <p>In such case the imprisonment of the husband is not the proximate consequence of the unlawful negligence of the defendant, but is the act of the law, — the direct result of the intervention of an independent agency of force: Beers v. Walhizer, 43 Hun, 254, distinguished.</p>

Appeal, No. 147, Oct. T., 1894, by Atlas National Bank of Chicago, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1891, No. 62, and Dec. T., 1890, No. 956, for plaintiff on point reserved. Foreign attachment.

Appeals Nos. 445 and 446, Jan. T., 1894, by garnishee, from orders of C. P. No. 4, Phila. Co., March T., 1892, Nos. 1180 and 1181, entering judgments against garnishee on answers. Attachment execution. Rule for judgment upon answers.

Appeals, Nos. 151 and 152, by defendant, from judgments of C. P. No. 4, Phila. Co., March T., 1894, Nos., 737 and 738, on verdict for plaintiffs. Appeals from report of jury of view, appointed to determine the damages caused to plaintiffs by the taking of their land for the purposes of a reservoir.

Appeal, No. 189, July T., 1894, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1898, No. 686, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit for royalties on a patent.

Appeals, Nos. 184 and 185, July T., 1894, and No. 11, Jan. T., 1895, by John M. Thomas et al., trustees, F. F. Maury and Lilian Linderberger, from decree of O. C. Phila. Co., April T., 1883, No. 406, dismissing exceptions to adjudication. Exceptions to adjudication.

Appeals Nos. 175 and 202, July T., 1894, by Larned & Haas, and by Philadelphia Trust, Safe Deposit & Insurance Co., executor and. trustee of Edward S. Handy, deceased, from decree of C. P.… Held: instructed the said company to permit the said E. S. Handy, Jr., to get a certificate for fifty shares of the Philadelphia Trust Company stock from the testator’s box, and authorized the Philadelphia Trust Company to hold the same as collateral for any loan they might make thereon.

<p>Appeal, No. 219, July T., 1894, by plaintiffs, from decree of C. P. No. 4, Phila. Co., June T., 1894, No. 470, dissolving a preliminary injunction.</p> <p>Bill in equity for an injunction to restrain the payment of money to Margaret T. Sherry.</p> <p>From the record it appeared that the plaintiffs were taxpayers of the city of Philadelphia. The ordinance under which Miss Sherry claimed payment was dated June 18, 1894, and was as follows:</p> <p>“ The city controller is hereby authorized and directed to make the following transfer, viz: From item 56, to pay Miss Margaret Sherry the amount of salary in dispute, $2,841, in the annual appropriation to the board of public education for the year 1894, to new item 8£, in the annual appropriation to the clerks of councils, to pay Miss Margaret Sherry said salary.”</p> <p>The facts of the case appear by the opinion of the Supreme Court.</p> <p>The court entered a preliminary injunction which it subsequently dissolved.</p>

Appeal, No. 222, July T., 1894, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1885, No. 358, dismissing bill in equity. Bill in equity for an injunction to restrain defendant from obstructing plaintiff in its efforts to take a portion of defendants’ land. The case was referred to Henry C. G. Beber, as master, wbo reported in favor of plaintiff.

<p>Appeal, No. 291, Jan. T., 1895, by defendants, from judgment of C. P. Berks Co., Jan. T., 1895, No. 76, on case stated in favor of plaintiff.</p> <p>Case stated to determine the right of a turnpike company to charge tolls on a bicycle.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered judgment in favor of plaintiff for five cents.</p> <p>No assignments of error were printed in appellants’ paper-book.</p>

<p>Foreign attachment — Receivers—Jurisdiction.</p> <p>Where a receiver appointed by a United States court has been summoned as garnishee by a writ of foreign attachment issuing out of a state court, the defendant who has suffered judgment to go against him, cannot object that the state court has no jurisdiction over the receiver. Such an objection can only be raised by the receiver himself.</p>

<p>Appeal, No. 119, Jan. T., 1895, by garnishees, from judgment of C. P. No. 3, Phila. Co., March T., 1894, No. 25, on answers of garnishees.</p> <p>Foreign attachment. Rule for judgment on answers of garnishees.</p> <p>The substance of the answers are stated in the opinion of the Supreme Court.</p> <p>The court entered judgment against garnishees upon their answers.</p>

<p>Writ of restitution — Execution—Payment.</p> <p>Where the defendant in an action of trespass pays the amount of a judgment entered against him with interest and costs, after execution issued for the same, and subsequently succeeds in securing a reversal of the judgment, he is entitled to a writ of restitution to recover the money which he has paid to plaintiff.</p>

<p>Appeal, No. 27, July T., 1894, by J. A. Raeder, from order of C. P. Luzerne Co., May T., 1884, No. 472, sustaining exceptions to report of auditor.</p> <p>Exceptions to auditor’s report.</p> <p>The auditor, A. C. Campbell, Esq., reported the facts to be as follows :</p> <p>“ In proceedings No. 472, May term, 1884, Peter Raeder, on May 12, 1884, was declared, by the court of common pleas of Luzerne county, a lunatic, and on May 24, 1884, Peter Seible and Chas. H. Gardner, were appointed a committee of said Peter Raeder, lunatic.</p> <p>“ On Oct. 6, 1890, Chas. H. Gardner, surviving committee, filed his first and partial account, which, on the same day, was confirmed nisi, and referred to an auditor for examination, and for the purpose of making distribution of the fund in the hands of the accountant among the persons legally entitled thereto.</p> <p>“ At said audit there were presented and allowed (inter alia) the following claims:</p> <p>M. Norton ........ $41 10</p> <p>Reynolds & Reynolds . . . . . 69 67</p> <p>E. H. Butler & Co...... . 63 09</p> <p>and a promissory note, bearing date Oct. 15,1879, drawn to J. A. Raeder or order by Peter Raeder for $648.</p> <p>“ A distribution was made to the said claims and the account of the accountant was confirmed absolutely Dec. 20, 1890, and the report of audit was confirmed nisi Dec. 15,1890, and absolutely Dec. 20. 1890, in accordance with the rule of court.</p> <p>“ On the 18th of March, 1893, the second and final account of Chas. H. Gardner, surviving committee, was filed and, by agreement, confirmed absolutely, and A. C. Campbell was appointed auditor to make distribution of the balance in the hands of the accountant.</p> <p>“ The report of audit of the first account was offered in evidence to prove the claims heretofore referred to. Objection to the claim of J. A. Raeder was made ‘ for the reason that the claim had been barred by the statute of limitations, more than six years having elapsed since the claim was due, and that the allowance of the claim without objection on the part of the committee at the former audit did not prevent the running of the statute or revive the debt.’ On Oct. 13, 1892, by a decree of court, Peter Raeder was declared sane, and the commission, inquisition and appointment of committee was superseded.”</p> <p>The auditor, citing Reber’s App., 125 Pa. 20, and Light’s App., 136 Pa. 211, found as follows:</p> <p>“ No objection having been made by the committee to the claim of J. A. Raeder at the first audit, Peter Raeder is concluded by the decree of the court. Inasmuch as, in contemplation of law, Peter Raeder was present at said audit, and did not raise the question of the statute of limitations, he is estopped from objecting to the claim now, there being no evidence of fraud or mistake.”</p> <p>Exceptions to the auditor’s report were sustained by the court, Rice, P. J., filing the following opinion:</p> <p>“ At the time of the audit of the partial account of the committee, in 1890, the note in question had been barred by the statute of limitations for more than two years. It was not in the power of the committee to remove the bar of the statute by a new promise ; hence his mere failure to object to the allowance of the claim, and his payment of the amount allowed upon it by the auditor could not have that effect either upon the ground of an implied reassumption or of estoppel. But it is argued that the confirmation of the report was a conclusive adjudication of the liability of his ward. In Reber’s App., 125 Pa. 20, it was held that the adjudication and allowance of a claim in the distribution of a decedent’s estate by an auditor, followed by a decree of the orphans’ court confirming the audit- or’s report, is as effective to toll the bar of the statute of limitations as would be a judgment at law, and in such case the statute is inoperative. On the other hand it was held in Light’s Est., 13G Pa. 211, that the allowance of a dividend upon a debt by a decree of the court of common pleas, distributing funds of an assigned estate, would not toll the statute. Speaking of Reber’s Appeal, Justice Clark said that in a distribution in the orphans’ court the adjudication is against the administrator or executor, as the legal representative of the decedent, whilst, in the case of a distribution of an assigned estate, the adjudication is against a particular fund only.</p> <p>“We conclude that there would be very strong analogy between this case and Reber’s Appeal if the distribution had been of a balance in the committee’s hands as shown by his final account. But we are unable to conclude that a distribution of a balance in his hands as shown by a triennial statement of his management of the estate is conclusive. These statements, like the triennial statements filed by guardians, are merely for the information of the court, and the inspection of all parties concerned. Upon the determination of the trust the committee is required to settle in the prothonotary’s office a full and complete account of his management of the property under his care, including all the items embraced in every preceding settlement.</p> <p>“ It has been held with regard to guardian’s triennial statements that they are not the subjects of settlement and confirmation: Yeager’s App., 34 Pa. 174; Foltz’s App., 55 Pa. 428; and that they are not conclusive upon the ward, though they go through that form: Douglas’s App., 82 Pa. 169; Walls’s App., 104 Pa. 14; Bowman v. Herr’s Exrs., 1 P. & W. 282. These rulings are applicable to the statement called a partial account, filed by the commissioner, and the action of the court thereon.</p> <p>“We are not to be understood as saying that the confirmation of the auditor’s report was a nullity. The 20th section of the act of June 13, 1836, P. L. 597, makes it the duty of the committee to apply so much of the income of the estate as shall be necessarj to the payment of debts, the support of the lunatic and of his family, and for the education of his minor children. The next section provides that if the incpme of the estate shall not be sufficient for the purposes aforesaid it shall be lawful for the committee, under the direction of the court, to apply so much of the principal of the personal estate as shall be necessary for the purpose. Possibly the jurisdiction of the court to make distribution of the fund in the committee’s hands as shown by his partial account might be sustained under this section, but, even if this be so, it did not extend beyond the particular fund. It may be conceded, for the present purpose, that the confirmation of the auditor’s report was so far conclusive as to protect the committee in the payment of the sums awarded the different claimants, but we do not think it can be treated as having the same effect as a judgment in an action at law upon the claim, upon final settlement of the estate.</p> <p>“ In Guenther’s App., 4 W. N. C. 41, it appeared that the executors had filed a partial account, showing a fund in their hands. On the distribution thereof Lina Guenther claimed her mother’s share, under the will of the testator. The auditor allowed the claim. No exception was filed to the report, and it was confirmed. Payments in pursuance thereof were made to her for several years. On the distribution of the funds subsequently acquired by the executors, the conelusiveness of the former decree of distribution was the direct question. She claimed it was conclusive of her right to share in the proceeds. The court below held otherwise, and excluded her claim. On appeal the Supreme Court affirmed the decree and said, ‘ the prior decree of the orphans’ court was conclusive only as to the fund then distributed.’ This ruling was followed in Kline’s App., 86 Pa. 363; and the principle of the decision was recognized in Townsend’s App., 106 Pa. 268-274, and Grim’s App., 109 Pa. 391-397. Following these decisions, and having regard to the purpose for which these triennial statements are filed, we conclude that while the confirmation of the auditor’s report may have been so far conclusive as to protect the commissioner in the payment of the sums awarded the different claimants, it was not such an adjudication as would preclude inquiry into the validity of the claim in an action at law against the ward after being restored to reason, or in a distribution of the fund in the committee’s hands as shown by his final account.</p> <p>“ Now, March 16, 1894, the exceptions of Peter Raeder are sustained, and it is ordered and decreed that the balance, after paying the costs of audit and of the claims in full of debt, interest and costs of M. Norton, Reynolds & Reynolds, and E. H. Butler & Co., be paid to Peter Raeder, the exceptant.”</p>

<p>Landlord and tenant — Lease—Rent—Termination of lease.</p> <p>A surrender of demised premises by the tenant during the term, in order ) be effectual so as to release him from liability for rent, must be accepted by the lessor, and the burden of proof is on the lessee. An acceptance cannot be implied from the fact that the landlord placed the premises in the hands of an agent to rent, and caused a rent notice to be put upon them, and notified the tenant that he would endeavor to re-rent the premises, and the tenant, if he desired, could aid in procuring a proper tenant.</p> <p>Lease — Construction of lease — Termination of tenancy.</p> <p>A lease which was partly in writing and partly in print contained a written clause that the tenant should pay rent monthly in advance “so long as he shall occupy the said house and lot of ground.” The lease was for the term of one year from a certain day mentioned. The words “one year ” were written. A printed clause provided that either party might determine the lease by giving the other notice thereof, “ at least three months prior thereto.” Held, (1) that the lease was for the term of one year, and that the lessee had no option to terminate it sooner by simply removing from the premises; (2) that the parties had in view a possible continuance of the lease beyond the term specified in the habendum, and intended to provide that the lessee should pay the same rent, in the same way, so long as he should continue to be the tenant of the premises.</p>

Appeal, No. 142, Jan. T., 1895, by Virginia Whitney, from decree of O. C. Luzerne Co., No. 59 of 1892, dismissing exceptions to adjudication. Exceptions to adjudication. At the audit, it appeared that testator died on Feb. 1, 1892, leaving a will by which he gave a legacy of $2,500 to Virginia Preston, who subsequently became Virginia Whitney. It was claimed that this legacy which was for services had been paid and satisfied by testator in his lifetime.

Appeal, No. 413, Jan. T., 1895, by Plymouth township, from order of Q. S. Luzerne Co., Nov. T., 1893, No. 249, dismissing exceptions to finding of grand jury. Petition for annexation of a portion of Plymouth township to Plymouth borough. From the record it appeared that when the grand jury was prepared to investigate the case, counsel for petitioners challenged the right of R. N. Smith, one of the grand jurors, to sit during the investigation.

Appeal, No. 84, Jan. T., 1895, by plaintiff, from judgment of C. P. Luzerne Co., Feb. T., 1891, No. 146, on verdict for defendants. Scire facias sur mechanic’s lien. Counsel for the parties entered into the following agreement: “ Now, Feb. 12, 1895, it is agreed that the following be filed in this case and be printed in the paper-book of the appellant in lieu of the. evidence taken at the trial.

<p>Appeal, No. 215, Jan. T., 1895, by-defendant, from judgment of C. P. Columbia Co., on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Ikeler, P. J.</p> <p>At the trial it appeared that on the evening of April 12,1892, at about eight o’clock, plaintiff, a man fifty-two years of age, tripped and fell on a board sidewalk on the south side of Third street in the borough of Bloomsburg. Plaintiff alleged that he was tripped by a loose board or plank in the sidewalk, and after stumbling forward a few steps, caught his foot in a hole and fell, and severely injured his back.</p> <p>The court charged in part as follows:</p> <p>“ It is proved by a large number of witnesses on behalf of the plaintiff that the pavement was in bad condition — dilapidated, decayed; that the plank and the cross boards were rotten in places and worn and decayed, and raised up or upheaved around the trees from the growth of the roots — of the shade-trees, as we take it, planted upon the edge of the pavement. Necessarity, a pavement proved to be in that condition must have been built, laid, several years before. You, as men of skill and experience, must from the general testimony as to the character of this pavement, judge of its age. The testimony is that it was a wooden pavement when it was made, constructed with three stringers lengthwise upon the street or pavement, with four-foot pieces going over, two-by-fours, laid crosswise and spiked, with the stringers sunk in the earth even with its top at the time of laying the pavement — you must judge, we say, how long that pavement must have lain there before it would become in the rotten, decayed, bad condition which the witnesses testify that it was in on the 12th day of April, 1892.</p> <p>“ W. W. Meyers testified that its condition was plainly observable by daylight — could tell by feeling in the feet in the night-time that it was rough and uneven. Theodore Smith spoke upon that subject. He testified that all passers-by, persons going over the walk in the da}rtime, could see its bad condition. Thomas Moyer testifies as follows: ‘Question: You may state whether or not it was plainly observable to all passers-by, whether or not it was plain to be seen. Answer: Yes, sir. P. S. Moyer testified in answer to the same question : Well, I don’t know but what it would be if you looked from the other side of the road. Question: How about persons passing over it, as to its being observable? Answer: Could not help but see it. Question: At what time of day or night? Answer: Could not see much at night, I would not think.’ George B. Kitchen said : ‘You could see it when you got up pretty well to the sehoolhouse, then you could see it.’ You will recollect that George B. Kitchen lived at the foot of the hill, as we understand it, down by Railroad street. He was janitor of the public sehoolhouse on Third street; and, in speaking of how this pavement might be seen by passers-by, he said you could observe this pavement upon the Robinson lot ‘ when you got up pretty well to the sehoolhouse, then you could see it.’ B. F. Taylor said: ‘ A person standing at the corner of my house, on the opposite side of the alley ’ (he lived at that time in the old McReynolds house on the north side of the alley, the house that has since been removed) ‘ could see that pavement if he stood there and made a business to look down that street, down over them board walks; he could have seen that it was in bad condition in the daylight.’ Dr. McReynolds testifies as follows: ‘ Question : From what point could you see that it was in bad condition ? Answer: In passing down the other side of the street, going up or down.’</p> <p>“ We have now called your attention to the testimony of the plaintiff’s witnesses (as nearly as we remember it) who testify upon that point — that it was in bad condition, and that its com dition was easily observable to all persons passing by. The condition spoken of, as described by the witnesses particularly, (and nearly all of them agree on that point,) is that it was decayed, rotten; some of the cross boards broken, some of them out, and that there were depressions or holes where they were out, the depth of which holes was described by some of the witnesses as being of the thickness of the next plank or cross board and what additional depth had been worn in the ground by the passers-by. It was in one of these holes that, as the plaintiff testifies, he caught his foot. He testifies that, first, in walking along that pavement, he caught his left foot on a plank or something sticking up — a piece of plank or board or two-by-four or something, he would not undertake to say what, he could not say what; but something loose in the pavement tripped him and pitched him forward, and his,feet caught, or one foot, his left foot then went into a hole; and, as he was pitched forward with his right foot he fell in or was caught in another hole — with his right foot or his left foot; at any rate he fell, and it threw him forwards and a little sidewise, and he fell backwards or a little toward his left side 'and caught his left foot fast in this hole.</p> <p>“ Under the plain and well-established rules of law (as we understand them) applicable to this case, there are four well-defined rules, the facts under any one of which being found against the plaintiff, will prevent his recovery.</p> <p>“The first rule is that the negligence of the defendant must be the proximate cause of the accident, else the plaintiff cannot recover.</p> <p>“ The second rule is that if the plaintiff knew of the bad condition of the pavement at that locality where he was injured, and yet entered upon the pavement that night in the darkness, such as the witnesses describe it, then he took the risk, and he cannot recover.</p> <p>“ The third rule is that if the plaintiff knew of another and safe way direct and convenient for him, and did not know that the way he took was safe, then, in taking the unknown way, he would be guilty of contributory negligence and cannot recover.</p> <p>“ The fourth rule is that, although he may be injured, yet, if his injuries are not the result of this fall — if the accident here alleged as the cause of his present disabilities (whatever they may be) is not the cause of them, then he cannot recover.</p> <p>“We will take up these four propositions in their order. A proximate cause is one which in actual sequence, undisturbed by any other cause, produces the result complained of. If the tripping over a loose object upon the sidewalk was the proximate cause of the injury to the plaintiff, and if that object was something else and not a part of the pavement and was there at the time without fault on the part of the town of Blooms-burg, and if the plaintiff’s fall into the place (hole) where he was hurt, as it is alleged, resulted from tripping over that loose substance (whatever it was) upon the pavement or walk; then it is not shown that the bad condition of the pavement itself was the proximate cause of the accident to the plaintiff, and therefore he cannot recover — that is, if you find the fact to be as we have just stated it.</p> <p>“ Involved in the second proposition is the important question : Did Ringrose know of the bad condition of this pavement. What is the testimony upon that subject ? For you must be guided and governed solely by the testimony in coming to your verdict. In ascertaining whether he knew or did not know the bad condition of this walk, you may consider the proximity of his place of residence to the place where he was injured, his habit of moving about, and whether this pavement had been and was so notoriously in a dilapidated state that the fact was patent or plainly observable to all passers-by; because if it was so notoriously in bad condition, then if he had opportunity to know its condition, he was bound to know it. As we have said, this pavement must have been laid at least several years before the accident. There is no evidence that at this particular point it was ever repaired from the time it was laid up to the time of the accident. Indeed, it is admitted by the defense that its condition was so bad and so well known to be bad that the town authorities had constructive notice of its condition; and the plaintiff has not only proved the fact of its notoriously bad condition, such as to constitute constructive notice, but he has also proved actual and express notice to the town council of the town of Bloomsburg, and a resolution to repair. But it is likewise shown that the plaintiff lived for seventeen or eighteen years (except two years and a half or a year and a half that he resided in Milton) within a hundred feet of this point in the pavement.</p> <p>“ As nearly as we can ascertain or recollect the testimony of the plaintiff upon the subject of his knowledge of the condition of this pavement, he says: ‘ On this, the north side of the street, I did walk, but not very often.’ He says he did walk on the north side of the street. You will recollect that the pavement complained of is on the south side. He says: ‘ I did walk on the north side, but not very often. Was familiar with it that way, the east end; had been that way to the Methodist church; the other way I was not familiar with it; don’t think I worked twenty days in my life below Railroad street. If I have I don’t remember it. Very seldom I went down there; for the last year or two, probably three, I never went down only during fair time. In October, 1891, I went down there then from the back end of my lot, then through the alley; sometimes before daylight, once in a while it was light; did not go that side ’ (speaking of the north side) ‘ because it was better, but because it was nearer bj- the way of the alley; once in a great while, but very seldom, went around by the pavement; did not go that side because it was better, knew nothing at all about it; never went over it by daylight ’ (speaking of the south side) ; ‘never went down that street except by the way of my barn; I mind walking down once with Al. Herbine, on the Cohen side; never examined the pavement, had no occasion for it; in going to the Methodist church, I come out from my house to the corner of Third street and come to the crossing, to the corner of the Cohen property, and turn to the left and out Third street; I do not go across Third street there; I did walk on the north side of Third street on other days than Sundays, once in awhile during all the time I lived there up to the time of the accident; knew the condition of the pavement on that side towards Judge Elwell’s; if there were any bad places, could tell you about where they were. Question: You knew, as you traveled the route that you .took that night, that the Cohen side of the street was reasonably safe, did you not ? Answer: As far as I knew at the time. Question: Why did you go out of what jou knew to be a safe street and venture on the other side ? Ansiver : I came up that side of the street, supposed it was all right. I have come up on the other side of the street; did not know anj'thing about the Third street pavement from the West street 'corner down to the railroad ; very seldom that I traveled that way ; do not think that I came that way once in a year — that is, to the best of my knowledge. Question: When you went down that day on the north side of Third street, you had no trouble, experienced no inconvenience, in getting down on that side, did you ? Answer: No, sir. Question: Whether or not you did not know that the pavements from your house to Main street were perfectly safe, reasonably safe? Answer: Yes, sir; pretty good. Question: Main street, at the time of the accident, was in a safe .condition, so far as you knew, Mr. Ringrose ? Answer: I was not down it, I could not say;. so far as I know, I do not know but what it was. Question: You attend the Methodist church ? Answer: I do, sir, every Sunday in my life if I am well. Question: In going to the Methodist church, you come out from your house to the corner of West and Third streets ? Answer: I do. Question: You went there in the morning? Answer: Yes, sir. Question: To Sunday school? Answer: Yes, sir; backward and forward, to and from church; always went on the north side.’</p> <p>“You must determine and settle these questions under the rules of law that we have stated — whether Ringrose had notice of this defective pavement; whether under all the circumstances and surroundings, considering his habits of life and that he testifies that he helped build a barn on the rear end of the same lot where this pavement existed, and that he traveled back and forth four times a day for a period of six or eight days within a few feet of the western end of this pavement, and the fact of his going to the Methodist church and Sunday school, and to his work around town — going and coming as all good citizens do — whether he was bound to know; applying the same rule to him as to others, passers-by. Was the condition of this pavement patent, plainly observable ? Did he pass by it, or near to it, in such proximity to it that he was bound to observe its condition ? If you find that he was so bound, then, we say to you as matter of law, he is not entitled to recover. For he admits (and it is not disputed) that he went down that side, the north side, of this pavement, that night, on his way to Mrs. Powell’s house; that it was a dark night; that 'he reached her house without any difficulty; that, on his return, he undertook at Railroad street to travel a different route, and that he stumbled in the darkness in getting on and off Railroad street, and across there to the depot, and that when he came to Third street he took this south side of Third street, either as known or that he should have known — immediately left his known safe way (if he knew the other to be safe). If he did so he took the risk of traveling upon a bad pavement, and -he cannot recover.”</p> <p>Defendant’s point was among others as follows:</p> <p>“ 8. That under all the evidence in the case the verdict must be for the defendant. Answer: This point is refused. Under all the circumstances we have decided to submit the questions of fact involved in this issue to you for your determination, and under the rules of law you must decide this important case.” [1]</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p>

<p>Statutes — Repeal—Acts of May 4, 1871, and May 24, 1887 — Boundary oj the city of Wilkes-Barre,</p> <p>When the inconsistency between a local and a subsequent general act is such as to show an intent to repeal the former, the local act must yield.</p> <p>The act of May 4, 1871, P. L. 589, providing that the western boundary line of the city of Wilkes-Barre shall be the low watermark of the Susquehanna river, is repealed by the general act of May 24,1887, P. L. 203, providing “ that whenever any township, borough or city is bounded by the nearest margin of any navigable stream of this commonwealth and the opposite township, borough or city, as the case may be, is also bounded by the nearest margin of the same stream, the middle of such stream shall be deemed and taken to be the boundary line between such townships, boroughs or cities, as the case may be.”</p>

Appeal, No. 459, Jan. T., 1895, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1894, No. 1145, on case stated. Case stated to determine the validity of fees charged by a justice of the peace elected for the borough of Ashley, Luzerne county, in February, 1894.

<p>Appeal, No. 112, Jan. T., 1895, by defendant, from judgment of C. P. Luzerne Co., March T., 1889, No. 86, on verdict for plaintiff.</p> <p>Ejectment for an interest in a tract of land in Pittston township. Before Rice, P. J.</p> <p>The facts are stated in the charge of the court.</p> <p>The court charged as follows:</p> <p>“ This is an action of ejectment for a tract of land composing parts of three tracts patented in September, 1794, pursuant to warrant and surveys to Jonathan Hancock, David Young and Jesse Fell. In 1803, Parker & Co., the patentees, conveyed the three tracts to the Bank of North America. In 1845 the Bank of North America conveyed them to Sidney B. Smith, and in the same year Sidney B. Smith conveyed them to Charles S. Wurts. He died, and by his will, which was proved in 1859, he devised all of his property to his wife, and in December, 1872, she conveyed the land to Jacob A. John, this plaintiff, William Collins, and Sarah A. Lynch, this defendant.</p> <p>“ This, prima facie, vested a complete legal title in John Collins, to the undivided one fourth part of the land which, if no sufficient defense has been shown, would entitle him to recover in this action.</p> <p>“ The defense is that Sally Ann Collins, the mother of the defendant, acquired title to the land during her lifetime by adverse possession. From a very early period, prior to 1830 at least, William Collins and Sally Ann Collins occupied it as a home for themselves and family. After William’s death (in 1857, as asserted by the defendant, but in 1860 according to the date of the will, and according to the testimony of John Collins, the plaintiff), his wife continued to occupy the premises until her death, in May, 1879. Pursuant to a judgment entered in 1872 in favor of Morris & Walsh against Sally Ann Collins, an execution was issued, and the land was levied upon and sold by the sheriff in January, 1884, after the death of Sally Ann Collins, to James L. Morris, who assigned the deed to the defendant in 1885.</p> <p>'• There are three general questions raised by the testimony in the case and by the defense set up: First. What was the nature of the possession, and in whose right was it, prior to the death of William Collins in 1857, or in 1860, as you shall find the fact to be from the testimony ? Second. What was the nature of the possession of Sally Ann Collins after the death of her husband ? Third. What was the effect of the purchase by the defendant, Sarah A. Lynch, in 1885, of the outstanding title or claim of James L. Morris ?</p> <p>“ [A good title may be acquired in Pennsylvania bj adverse possession. There is no dispute about that. The possession to give title as against the recorded paper title must be actual, exclusive, notorious, continued, peaceable, hostile. The burden of establishing hostile possession and notice thereof to the owner of the land rests upon the party averring it, and the possession does not become adverse till hostile acts are notoriously and ope 11I3' committed, such as to preclude a doubt of the character of the holding, and knowledge thereof by the opposite party. These general principles are to be borne in mind by the jury in considering the testimony as to the possession during the lifetime of William Collins, and as to the possession after his death by Sally Ann Collins.] [6]</p> <p>“ There is no competent legal evidence in the ease to show that when William Collins and his wife wentinto possession of the land they did so by virtue of any legal title to the land derived from the owners. There is a claim that they went into possession by virtue of a title, but not by virtue of any legal title derived from the owners of the land. As to the then owners of the land they were trespassers, but although they entered as trespassers, yet if they maintained actual, exclusive, notorious, peaceable, hostile, uninterrupted possession for twenty-one years, a good title was acquired by either William or Sally .Ann Collins. Assuming that they went into possession at or prior to 1830, and that William Collins died in 1860, as claimed by the plaintiff, or even in 1857, as claimed by the defendant, they were in possession long enough to give possession by adverse possession. By whom was that title acquired? Was it by William Collins or was it by Sail}'- Ann Collins, his wife ? This brings us to the first and a veiy important question of fact, that is, how did they enter? In the right of William Collins or in the right asserted by Sally Ann Collins? How did they go in possession, and in whose right? In the absence of any evidenee on the subject, the legal presumption would be that they entered under and in the right of some claim — whether valid or invalid would be immaterial — of the husband. But this presumption, which might arise in the absence of testimony, would give way to evidence showing how they entered, claimed and held the- possession, and a great deal of testimony has been introduced bearing upon this important question of fact.</p> <p>“The defendant’s claim is that Sally Ann Collins, her mother, together with her father, went into possession of the land pursuant to a transfer of a possession right claimed by her father, John Shepherd. The plaintiff claims that William Collins and his wife went into possession pursuant to a claim asserted by him under a contract with Henry W, Drinker. In support of the defendant’s claim she has offered in evidence a paper dated Jan. 10, 1827, which reads as follows: ‘Pittston, January 10, 1827, I John Shepherd for and in consideration of two heifers and six sheep do hereby bargain and sell to Sally Ann Collins my possession of the Jesse Fell tract of land containing 400-acres more orless. (Signed) John Shepherd. Witnesses, Caleb Welles, Joseph Fell.’</p> <p>“It is a principle of law that papers under thirty years of age, not recordable papers, when offered in evidence, the execution thereof must be proved by proof of the handwriting of the party who made it or by proof of the handwriting of the subscribing witness, by his own testimony, or if he be dead or without the jurisdiction of the court, by the testimony of other witnesses who know the handwriting. There is, however, a rule that ancient documents, papers more than thirty-years old, which on their face are free from suspicion and come from a proper custody, are admissible in evidence without proof of authenticity. In obedience to this rule of law we admitted this paper in evidence. Its genuineness, of course, is to be decided by the jury under the testimony that has been given here bearing upon that subject. It is not for us to pass upon that question in view of the testimony that has been admitted since the admission of the paper. You will bear in mind, however, that the paper is not put in evidence for the purpose of showing a title; that is, it is not admitted for the purpose of showing that thereby Mrs. Collins obtained a title to the land which would be good against the then owners of it. It is put in evidence to show the character of the claim made by William Collins and his wife at the time they went into possession, it being claimed by the defendant, as we have already stated to you,, that they went into possession under this paper. In addition to this testimony, testimony has been introduced as to the declarations of Sally Ann Collins, during her lifetime, tending to show that she claimed the property in her own right; declarations made apart from her husband and also declarations made, as claimed, in the presence of her husband, and also admissions alleged to have been made by him.</p> <p>“ [On the part of the plaintiff the claim is, at some date prior to 1830 (I will not be more specific in commenting upon the testimony as to that, you will remember what the testimony was as clearly as I do) that William Collins went into possession under a contract with Henry W. Drinker. Just what right, if any, Henry W. Drinker had to convey the land does not appear in the testimony, nor, so far as this particular question is concerned, is it material. We are now considering the question whether they went into possession under this claim of right of William Collins under the Drinker contract, or under the claim of Mrs. Collins under the paper which has been offered in evidence. I do not purpose to go over the testimony bearing upon these questions. It has been very fully and very ably presented to you by the counsel on the one side and the other, and we shall leave it there for your decision. If you find that William and Sally Ann Collins entered under a transfer from her father, John Shepherd, and continued the possession uninterruptedly for twenty-one years, she claiming the land as her own, then she acquired a good title by adverse possession. But if you find that they entered under and pursuant to a claim by William Collins that he had a contract from Henry Drinker, whether such contract was valid or invalid, and that he continued to work the land as his own during his life, then at the time of his death Sally Ann, his wife, had not acquired any title by adverse possession, nor could she tack her subsequent possession to the prior possession of her husband in order to make out a title as against the plaintiff in this case.] [13] If Sally Ann Collins did not acquire title by adverse possession during the lifetime of W illiam, did she acquire title by adverse possession after his death ? It is claimed on the part of the defendant that she did, and that is a question of fact which we purpose to submit to you, namely, was she, for twenty-one years after the death of her husband, in the actual, adverse, exclusive, uninterrupted, notorious possession of the premises for twenty-one years? That she was in possession from the time of the death of her husband until the time of her own death is undisputed ; but it is claimed, in the first place, — and this we submit to you as a question of fact, — that there was not twenty-one years of time between the death of her husband and her own death ; and it is contended, in the second place, that her possession was not exclusive of the owners of the Wurts title. I will recall the dates. According to the testimony, she died in May, 1879. Sarah A. Lynch, the defendant, testifies that her father, William Collins, died in September, 1857. The will which has been offered in evidence is dated some time in 1860 and is probated in 1860, and if that is the correct date of course he could not have died prior to 1860. John Collins also testifies that he died in 1860.</p> <p>“ [It is in testimony that the defendant resided upon the premises during the same period of time after the death of her father. But if she was there under her mother, recognizing her mother’s claim, then that would not interfere with the exclusiveness of the possession of Sally Ann Collins. But if during this period between the death of William Collins and the death of Sally Ann Collins, Sarah Ann Lynch was in possession claiming under the Wurts title, it would have the effect of breaking the continuity and exclusiveness of the possession of her mother. This will require you to consider the testimony with regard to the nature of the possession of Sarah A. Lynch during that period of time. For it appears that in 1872 she and her three brothers took a deed for the Wurts title which was entered of record. If they took this deed, as alleged by the plaintiff, pursuant to an arrangement with Sally Ann Collins, and Sally Ann Lynch one of the grantees in the deed remained in possession under it, the possession of Sally Ann Collins during the subsequent period would not be a hostile and exclusive possession which is necessary to give title by adverse possession. Of course as to that question of fact there is a dispute, and you must decide it; it being alleged on the one side that this deed was taken with the approbation, if not pursuant to the request, of Sally Ann Collins, and on the other side that fact being denied.</p> <p>“ It appears that in 1878 an action of ejectment was brought by these same parties against the mother, Sally Ann Collins. While the bringing of the action of ejectment would not of itself break the continuity of the possession of Sally Ann Collins, it is nevertheless a fact to be considered by the jury in determining what was the nature of the claim which Sarah Ann Lynch was setting up while she was in possession, provided you find that the suit was brought by her authority and knowledge. She denies that she authorized the suit in any way and that her first knowledge of it was when the summons was served. If she authorized the suit to be brought, then it would be a fact bearing upon the question as to whether or not she herself was in the actual possession of the premises, or a portion of it at least, under this Wurts title, and thus adversely to the possession of her mother. But if she did not authorize the use of her name, then you should disregard that item of evidence in disposing of the question before you.] [12]</p> <p>“ [So also will you take into consideration the testimony as to this lease that has been offered in evidence. If, when it was presented to her, she refused to sign it, to have anything to do with it, or to recognize the claim which was made under it, then it ought not to have any bearing in your consideration of the question. If when this lease was presented to her she acquiesced in its execution by John M. Armstrong in the manner that it was executed, it would be a circumstance tending to show the nature of‘her possession during that period of time— a circumstance tending to show recognition of the Wurts title which had been bought in 1872. Here is another question of fact, and that is, whether or not that lease was executed as it now appears to be at the time claimed by the plaintiff, and whether that was done with the knowledge and acquiescence of the defendant. It is because of its bearing upon this question of fact that we have admitted the evidence tending to show her relations with John M. Armstrong, and in that view of the case that testimony is competent to be considered by the jury.] [11]</p> <p>“ [You will inquire whether or not from the time of the death of William Collins until the death of Sally Ann Collins there was a period of twenty-one years, and whether or not Sally Ann Collins was during that time in actual, adverse, notorious, open, exclusive possession of the premises. If she was, then' she acquired title to the premises which was subsequently acquired by the defendant by virtue of a sheriff’s sale. If she was no't, and if under the instructions that we have already given to you, you find that the possession during the lifetime of William Collins was the possession of William Collins, and in his right, then she had not such title as would pass by that sale, and your verdict should be for the plaintiff.] ” [2]</p> <p>At this juncture, defendant’s counsel asked the court to ■ charge upon the following point, submitted orally:</p> <p>“ That the action of ejectment in 1878 by the purchaser of the Wurts title, against Sally Ann Collins, if it was authorized by Sarah Lynch and had any effect at all upon the possession, it would be an admission upon her part that the possession was in Sally Ann Collins at that time. Answer: It would undoubtedly be an admission, for the purposes of that suit, that Sally Ann Collins was in possession, but would not prove that she herself, Sarah Ann Lynch, was not in possession as against the actual fact that she was, as proved by the testimony in the case.” [6]</p> <p>Defendant’s counsel have requested us to charge :</p> <p>“ 1. The issue in this case is between the paper title held by and obtained from Mary Y. Wurts, and the possessory title held by Sally Ann Collins. Answer: While,in a general way, that is not an incorrect statement of the issue, yet it does not seem to us to be a full statement of the issue as it has been presented by both sides, and we therefore decline to charge as requested in that point. The issue is between the Wurts title in the hands of the plaintiff, claiming to have purchased it in common with the defendant, pursuant to a request or at least with the approbation of Sally Ann Collins, who was at the time in possession, •on the one side, and the possessory title of Sally Ann Collins.” [7]</p> <p>“ 8. Even if the jury should believe that William Collins, her husband, had a contract from the holders of the paper title, yet if after his death, a continuous, adverse possession of the land was held by the said Sally Ann Collins and her successors in title for a period of twenty-one years from the time of his death before the present action was brought, that would bar any action by the present holders of the said paper title, and vest the title by possession in the defendant, she having become the •purchaser of the said title by the sheriff’s sale of the title of said Sally Ann Collins, and the conveyance to her by the said sheriff’s vendee. Answer: This point is answered in the negative. If Sally Ann Collins had not acquired title by adverse possession at the time of her death in 1879, the subsequent possession of Sarah Ann Lynch could not, under the circumstances of this case, be tacked to the previous possession of her mother in order to make a title by adverse possession as against the plaintiff.” [1]</p> <p>“ 6. If the jury find that Sally Ann Collins took possession of the land, claiming in her own right, and continued the possession under such claim for a period of twenty-one years adversely, her title would not be destroyed by any acts or claims of her husband made or done without her assent, and if the jury find that she thus held the possession for the said term of twenty-one years, the verdict should be for the defendant. Answer: This point is affirmed. So also, in this connection, we say, if the jury find that William Collins took possession of the land, claiming in his own right, and continued the possession under such claim for a period of twenty-one years, his title would not be destroyed by any act or claim of his wife made or done without his consent.” [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p>

Appeal, No. 432, Jan. T., 1893, by Albert Bowman, from order of Q. S. Luzerne Co., Jan. T., 1895, No. 61, refusing to grant a retail liquor license. Petition for a retail liquor license.

Appeal, No. 21, Jan. T., 1895, by the Borough of Kingston, from order of Q. S. Luzerne Go., Sept. T., 1872, No. 19, awarding mandamus. Petition for mandamus. Upon the petition of Nelson G. Pringle and Samuel Pringle a rule was granted to show cause why mandamus execution should not issue. The facts appear ’by the opinion of the court below and of the Supreme Court. The court made the rule absolute.