Volume 168 — Pennsylvania State Reports

Appeal, Nos. 455 and 478, Jan. T., 1895, by defendants, from judgments of C. P. Luzerne Co., March T., 1895, No. 180, and on report of referee. Held: substantially, that where an agent, in the due prosecution of the business of his principal, employs another in a branch of the business, the acts of the sub-agent have the same effect as if done by the agent himself. This doctrine was quoted approvingly by our Supreme Court in Swan v. Watertown Ins.

Appeal, No. 89, July T., 1894, by defendants, from judgment of C. P. No. 2, Philadelphia Co.,. March T., 1893, No. 70, on verdict for plaintiff. Scire facias sur mortgage. Before Pennypacker, J. At the trial, it appeared that defendants purchased from plaintiff a house, 2220 North Sixteenth street in the city of Philadelphia, upon representations made by plaintiff’s agent, William F. Locker.

Appeal, No. 91, July T., 1894, by defendant, from judgment of C. P. Huntingdon Co., May T., 1892, No. 238, on verdict for plaintiff. Petition for appointment of viewers to assess damages for an injury caused by the failure of defendant to construct a causeway. Before Furst, P. J. At the trial it appeared that the defendant’s railroad was located across the land now owned by plaintiff, but then owned by James Hight and J. D. Hight.

<p>Railroads — Stook subscription — Estoppel.</p> <p>Where a stock subscription is made by an agent of a railroad company for the purpose of obtaining a loan from a third party, and such subscription is recognized by the stockholders and directors of the company, who accept the loan with a knowledge of such subscription, and presumably with a knowledge that without such subscription the loan would have been invalid and contrary to law, the stockholders and directors of the company are estopped from asserting that the subscription is invalid because not made in writing and in the prescribed form.</p> <p>Where a person has subscribed to the unissued stock of a corporation, Which corporation has accepted the subscription without offering to allot such stock, amongst the stockholders, a stockholder has no remedy in equity to compel the issue of any portion of such stock to himself, or to have the subscription of the one who subscribed to the stock declared invalid. If injured, he has his remedy at law to recover damages fo.' such injury.</p> <p>It seems that in such a case a stockholder cannot complain where it appears that no stockholder offered to take or was willing to take the stock at par, or that it would have sold for more.</p> <p>Corporations — Acts of officers defacto.</p> <p>Acts of officers de facto of a corporation are not valid when such acts are for their own benefit, because they cannot take advantage of their own want of title, of which they must be cognizant. It is only where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such defects of title, that their acts are good.</p>

Appeal, No. 486, Jan. T., 1895, by Jacob Sandcroft, from order of Q. S. Centre Co., refusing a. retail liquor license. Petition for a retail liquor license.

<p>Landlord and tenant — Lease—Public policy — Sheriff's sale.</p> <p>A stipulation in a lease for years that if the lessee shall become embarrassed, or make an assignment for the benefit of creditors, or be sold out by sheriff’s sale, the whole rent for the balance of the term shall become due and payable in advance of other claims, is not against public policy, and will be sustained in favor of the landlord on a distribution of the proceeds of a sheriff’s sale of the lessee’s property, to the extent of giving the landlord priority for one year’s rent.</p>

<p>Appeal, No. 143, Jan. T., 1895, by plaintiff, from judgment of G. P. Blair Co., June T., 1887, No. 71, on verdict for defendant.</p> <p>Ejectment for a tract of thirty-nine acres and sixty perches of land in Antis township. Before Landis, P. J.</p> <p>At the trial it appeared that Robert McKnight, Sr., died in 1860, leaving a farm, the north end of which became vested in his two sons, Robert and William, as tenants in common. The land consisted of about eighty acres, and through its center ran a lane in a northwesterly direction, dividing the land about equally. Robert, the plaintiff, claimed to recover an undivided one half interest in the land north of the lane. Defendant claimed that Robert and William had made a parol partition, and that William had taken possession of the northern part, and Robert the southern part of the land. Defendant claimed under a sheriff’s deed of the northern part of the land, which had been sold as the property of William McKnight. Further facts appear by the charge of the court, which is in part as follows:</p> <p>“ The plaintiff, to make out his prima facie case, showed the facts we have already narrated, leading up to the title vesting in him and brother William, thus making them equal tenants in common of both ends of the eighty-acre piece, and consequently the owner of the undivided half of the north end, now in possession of Edward Bell, the defendant in this suit. This suit was brought by Robert McKnight to recover the possession of the undivided one half of this thirty-nine acres, or north end piece, and having shown title in himself, he would be entitled to recover here if there were nothing more in this case.</p> <p>“ Resting on this, we turn to the defendant to learn his reply, and we find that he claims to own that which is claimed by the plaintiff by reason of what took place after the title had vested in Robert and William.</p> <p>“ He says that true it was that the title properly vested in Robert and William, but that after that they made an amicable division or partition of the eighty-acre piece, that they agreed to do this by William taking and retaining for his own exclusive use the north end, and Robert taking and retaining for his own exclusive use the south end of the piece, agreeing that the lane should form the line of division, and that ever after each should hold these respective pieces of land in severalty, and no longer as tenants in common.</p> <p>“To support this they call several witnesses. First they call Blair McKnight, who says that he and Robert and William were to take the farm, and then Robert and William would take the western half and he the eastern half. It was also at the same time understood that when the division should be made that Robert and William should divide the western part by William taking all north of the lane, and Robert taking all south of it. He says that this was often talked over by all the heirs and thoroughly understood.</p> <p>“John P. McKnight is called, who says substantially the same as Blair; that it was for some time understood by all the heirs that this method of division should be adopted, and was actually carried out. The partition of the eighty acres between William and Robert was not evidenced by any writing, but they agreed it should be so, and it was done so; that William took possession of his piece, and Robert of his piece, the lane dividing the two pieces. William built a house on his piece, and Robert built a barn on Ids piece, and later commenced the erection of a house on his piece, though he never completed it, and sold off the materials prepared for it. He says he rented from William one year and paid him the rent. Robert had nothing to do with it, and never spoke about it; always saw Robert work the south end, and never saw either doing anything on the land of the other. He says each used and worked each piece separately, and as two persons who owned separate lands.</p> <p>“ [Blair McKnight says that the partition was first amicably agreed on, as stated by John, and then William was to take in severalty the north half of the eighty acres, and Robert the south half, the lane being the line; that he rented for one year from William, and Robert had nothing to do with it, and was not consulted. He raised corn, potatoes and ‘ truck,’ and saw Robert working the other side of the lane.] [1]</p> <p>“ [Scott Gwin says he was employed by Wilson to survey the farm for the heirs; divided it into pieces by the old township road, and then divided the eighty acres on the west side by the lane. When he ran the lines of these two thirty-nine-acre pieces Robert was there, and all the heirs were there during the work. He made no objection to the line of the lane, and made copies of his survey, and gave each of them a copy. It shows this subdivision by the lane, and is in evidence. His bill was $20.00 — $5.00 to Robert and William each, and $10.00 to Wilson and Reuben, whose land he had also divided into two parts.] [2] Only $15,00 were paid.</p> <p>“ W. J. Estep was the assessor, and in 1879 called and saw all the four sons; met Robert in the lane, and he gave him the thirty-nine acres south of the lane, and saw William, who gave him the thirty-nine acres north of the lane. Both Robert and William told him that they had divided the pieces by the lane, and each owned on each side. The assessment books in evidence it is claimed corroborate Mr. Estep, as they show just such assessments. They further show the same assessment down as late as 1881, after both pieces had changed ownership.</p> <p>“ [A. J. Irvin lived near the land, and says Robert told him the land was divided between him and William, but lie (Robert) had in 1880 or 1881 offered to sell him his piece ; that he rented the north end from William, and Robert had nothing to do with it; that Robert had commenced the erection of a house; but did not finish it, but a stable was built on it; and a new house on William’s end; saw Estep one day talking to William in the field.] [3]</p> <p>“ [Thomas Thompson saw Robert fixing or preparing the foundation for a new house on his piece. He talked with him at the time, and Robert said he and William had parted the land between them, and he was now going to build a house on his end. Lumber, stone, etc., were there. He never saw any one but Robert work on the south end, and never saw him work on the north end.] [5]</p> <p>“ Louis Reigh was passing and saw Robert and talked with him. Robert said it was his land, and that he had built a barn and planted an orchard on it. He pointed to the north side and said William owned that side ; this was about 1879. He has seen each working on his own side.</p> <p>“John P. Bell says that he cut the lumber for Robert’s house and cropped the land for him, and William had nothing whatever to do with it. At that time I think William was improving his own land.</p> <p>“A. L. McCartney had a conversation in 1879 or 1880 with Robert; he went to collect a debt. Robert said he would sell him his end; McCartney said he would not want it unless he could get both pieces; then Robert said William would sell him his end. He never had any knowledge that Robert claimed any interest in the north end. Have heard him say that he and William had divided it. He afterwards bought at sheriff’s sale the north end — William’s end.</p> <p>“Edward Bell, the defendant, says Robert told him he and William had divided the eighty acres, and that Robert had taken the south side and William the north side. He knows each farmed or controlled his own side. William asked him several times to buy his land, as he was embarrassed with debts. This was after Robert’s piece had been sold by the sheriff, and after that William remained on his side. When McCartney bought the north end at sheriff’s sale Robert made no claim, and William neither did nor said anything admitting Robert’s right.</p> <p>“ The next spring Mr. Bell bought from Mr. McCartney and paid $900 for it — more than it was worth. In the following September he heard for the first time of Robert’s claim to the undivided half of it, and you will remember what took place between them in regard to Robert’s turning in his stock; in which a verdict against Robert was rendered in favor of Mr. Bell. The record of this is in evidence here now.</p> <p>“ Mr. Bell finally says he bought this property from McCartney because he understood from Robert that he and William had divided the land, and he observed that for six years thereafter each occupied and exhibited an ownership consistent with the statement of Robert that there had been an actual partition. This statement made by Robert, defendant claims by his counsel, estops plaintiff from afterwards creating a title to the north end, but as to this we refer further on.</p> <p>“Defendant further points to the description of the lines in the sheriff’s sale of both the north and south ends, to show that the metes and bounds are those of separate pieces, and as fixed by the surveyor, and each piece is called for as an adjoiner to the other.</p> <p>“ The defendant then puts in evidence a judgment against William, on which there are proceedings in execution, resulting in a sale by the sheriff, June 20, 1884, of the north end, or William’s piece, as it is called, to A. L. McCartney, who, by his deed, also in evidence, dated June 15,1885, conveyed to Edward Bell, the defendant in possession of the land in controversy.</p> <p>“ [This is the defendant’s case, and it will be observed, if defendant’s witnesses are believed, that there was'an amicable division or partition of the eighty-acre piece between William and Robert, and this being under the law equivalent to a release of title by Robert in' the north end to William, would give William the absolute title to the thirty-nine acres and fifty perches comprising the north end, and when the sheriff levied on William’s interest therein and sold it in 1884 to A. L. McCartney, he sold and conveyed to McCartney both the interests of William and Robert, or the whole title to the north end, and Robert would have no right to recover in this suit.] [5]</p> <p>“ But if there was no such partition, then Robert’s interest to the extent of one half in the north end had never passed out of him, and the sheriff’s sale to McCartney only passed William’s interest in the north end, which would be one half, leaving the other half still in Robert, and in that event Robert would be entitled to recover that undivided half in this suit.</p> <p>“ In support of this contention, and in reply to defendant’s witnesses, the plaintiff introduces rebutting testimony, and calls several witnesses.</p> <p>“ He calls first, Wilson McKnight, who says he was one of the sons, and they did all talk and agree upon an amicable partition, but it was that Blair, William and Robert should take the farm; that Blair should take the ninety-six acres east of the old road, and William and Robert the eighty acres west of the old road ; that the necessary indentures and conveyances for effecting this object were duly executed, but he knows of none between William and Robert dividing the eighty acres; that it was not agreed in this conversation that they would do so, that he never heard them say they would do so, and that they never did so. Furthermore they farmed it together; he gave them the privilege of using the old barn for their hay and grain; that they jointly and at joint expense put up the stable and the house; that they shared the proceeds, the hay and other-products sold in Altoona; that William claimed to own an interest in the south end ; that Wiliam owed Robert a judgment note of $580, and to pay this off and lift it he, with the other heirs, conveyed his interest in the north end; that Edward Bell told him he.knew nothing about Robert claiming an interest in the north end then owned by him (Bell) ; that he, Bell, would give Robert $300 for his interest in it. He further said that Mr. Bell recognized that Robert had his interest in the north end.</p> <p>“ Mrs. Baitland says she lived at the homestead in 1879, and saw Estep, the assessor; he came in and asked for ink, as he had forgotten his. This is to contradict Estep when lie says he assessed Robert and William each with thirty-nine acres given to him by each, and wrote it down outside in their presence. She also sa3’s Robert farmed on both sides of the lane, and cut hay on both sides.</p> <p>“William McKnight repeats substantially Wilson’s stoiy as to the partition, and that he and Robert never did agree to divide the eighty acres, but they talked as though they might some day do so, but had not divided it, and could not, because the incumbrance on the whole eighty acres would have prevented it; that the improvements were done by them jointly, and located so that in case of a division they would be found suitable ; they raised hay principally and sold it in Altoona and divided the proceeds; he denies that he gave Estep thirty-nine acres for assessment, and denies he ever told Edward Bell he owned the north end and Robert the south end; he also states substantially what Wilson sa3^s about his conveying his interest in Robert’s half to lift his note, but he says it still left Robert owning the undivided half of the north end; that he did try to sell to Edward Bell, but he was acting for both, and wanted to get the debt paid, and Robert allowed him to make any sale he could ; he also denies that his share of the timber sold off his and Robert’s eighty acres, amounting to $500, lifted the note, and you will remember all that he has said.</p> <p>“ Then they call the two Mrs. McKnights, Mrs. Alloway, Joshua Pate, the two Mr. Alloways, who testify that they saw the two pieces farmed by the two brothers in 1879 and 1880, that they saw them do it together, and one witness, Mrs. Alloway particularly, said it was done jointly and not severally.</p> <p>“Finalty Robert McKnight takes the stand and relates the agreement of partition as already shown, and affirms that he and William never parted their eighty acres. They talked about it, and expected to do it some day, and so managed the land with a view to doing so in the future, but had not yet done it. He says they farmed it together as tenants in common, and divided the proceeds; that they joined in making all improvements and planting the orchard, and as to building a house on the south side, he never intended to do so, and did not begin to do so, as alleged by defendant’s witnesses. He contradicts defendant and many of his witnesses; he says he never saw Mr. Estep, and further never gave in thirty-nine acres for taxation ; that he never met Scott Gwin, the surveyor, nor received a d2'aft. He de2iies meeting Mr. McCartnej’- and telling him he and William had divided the land. He denies all the statements made by Edward Bell that he, Robert, had told him in 1875 that he and William had divided the land. He denies that he ever told Gwin the same thing, and denies ever seeing Gwin on the place. He denies also that he told Thompson of this partition. He denies also that he told Mr. Shaw that it was not necessary to have a deed from the heii's to give him the title to the north end. In short, he denies all the material allegations of defendant’s witnesses touching his admissio2i of the land having been divided.</p> <p>“ To this the defendant rejoins by calling Mr. Shaw, who says Robert told him a deed was not necessary, because Robert told him he was the absolute owner of the south end as his share, in connection with one half of the eight acres, in his father’s estate.</p> <p>“ Mr. Estep says he never collected any tax off William.</p> <p>“ John McKnight says William told him that it was his share of the timber money from the eight acres that lifted the judgme2it note, thus showing, as defendant says, that it was not the conveyance of William’s interest that enabled him to lift the note.</p> <p>“ Mr. Bell also denies that he agreed to pay Robert for pasturage, or that he admitted to Robert when he bought from McCartney he was buying a lawsuit, or that he ever offered to pay him $300 for his interest.</p> <p>“ Thus it is seen that plaintiff claims there was 220 partition, that he and William owned and used the land jointly and divided the profits, that though they thought of dividing the land they never did so, and furthermore that he riever told any person that they had divided it; that he always claimed his half interest in the north end, and in order to peifect a2r absolute title to the south end he bought out William’s interest therein with a judgment note William owed him ; and that all his acts have been consistent with his continued ownership, and he still owns the undivided half of the north end, and is entitled to recover.</p> <p>“ [On the other hand the defendant says, by himself and a large number of witnesses, that since 1875 Robert and William have not only used and treated the land as divided by the lane, but that both William and Robert have told those who have come here as disinterested witnesses that they had parted the land, and one owned the north end and the other the south end; that plaintiff’s witnesses are mostly interested or relatives ; that all the acts of Robert subsequently, building stable and house, place of living, etc., all point to his separate ownership; that the consideration for the deed from him to Robert was not the judgment note, but the timber money; that the land was surveyed by Scott Gwin making the lane the line, and Robert was then present when they fixed a post corner at the lane, and that Robert received from him a draft showing his piece and William’s piece ; that after that both Robert and William gave in to assessor Estep each the two pieces corresponding with the survey; that the subsequent levies by the sheriff, and sheriff’s sales, sheriff’s deeds and other deeds all described the separate pieces, one being held as the land of William, and the other as the land of Robert; [6] and finally, that defendant has already had a verdict in a trespass suit tried in this court.</p> <p>“ Now, gentlemen, this is substantially the evidence, and an abstract of the respective claims of the parties' on this question of an amicable partition. [When tenants in common of land desire to make partition of it, it is not absolutely necessary it should be evidenced in writing. If they run a line, mark it on the ground, or if there be such a line upon the ground as may be understood and identified as a division line, and they agree upon that line, and they then actually take possession of their respective parts in pursuance thereof, and the partition is fully executed between them, it is sufficient to vest the title in severalty.] [7]</p> <p>“ This is called a parol partition, and is held by the law to be efficacious to set apart a definite interest in severalty to all who are parties to it, and who have a common ownership in the land. Such action severs the common title to the whole, and vests in each in lieu thereof an entirety of title to a fixed and designated portion of the tract. The marked line and the actual possession proclaim to all the actual dominion of the several owners.</p> <p>“ If the weight of the evidence satisfies you there was no amicable or parol partition of those eighty acres between William and Robert; that they did not agree to divide and fix upon the lane as the division line, and in pursuance thereof occupy and possess respectively the pieces on the north and south sides of the lane, then the undivided interest of Robert remains in the north end, and when McCartney, and after-wards Edward Bell bought William’s interest in it, then only the undivided one half of William passed by the sale, and Robert’s interest would be left in it, and it being still there, Robert would be entitled to recover it, and your verdict should be for the plaintiff for the premises described in the writ.</p> <p>“ [On the other hand, should the weight of the evidence satisfy you that there was a partition agreed on by and between William and Robert; that they made the lane the division line, and in pursuance thereof each actually took possession of the piece respectively selected by them, viz : William the thirty-nine acres north of the lane, and Robert the thirty-nine south of the lane, then you should find there was such partition of the land as vested the title in each in severalty, and in that ease when William’s interest was sold at sheriff’s sale the interest of both William and Robert to the north end passed and afterwards vested in Edward Bell, the defendant, and your verdict should in that case be for the defendant.] [8]</p> <p>“We have been asked by defendant’s counsel to say, if you believe Robert told Mr. Bell in 1875 or 1876 that he owned the south end, and that William owned the north end, in pursuance of a division of the land between them, and so understanding it, he afterwards bought the land in 1885, that Robert would now be estopped from denying the alleged partition, and setting up such a denial in this suit as against Edward Bell, the defendant.</p> <p>“We refuse to instruct you. In 1875, when Bell was talking to Robert, it was an accidental meeting, and not one sought to derive information in order to make a purchase. There was no privity of relation between Robert and Bell; Robert owed Bell no duty, nor was the situation such that he should either speak or be silent. Nobody was then misled. Bell did not then wish to buy, nor did he then buy. The statement is remembered for ten years, and with many changes since occurring in the history of the land, and. without further or later inquiry, in view of the information then obtained, it is invoked as an estoppel ten years later to operate with all the vigor of 1875. It is doubtful if it could have operated then. Does the passage of ten years give it any greater efficacy ? To rest for that length of time before the purpose to act is formed* and then to risk the certainty of the title upon the admission, is to invest the doctrine of estoppel with a character which does not attach to it. For these reasons we refuse to instruct you as requested.</p> <p>“ But whilst we say that Robert is not estopped from bringing this suit and setting up this claim, we do say that [the admissions of Robert to McCartney, Bell, Gwin, Estep, Irvin, Thompson and others are evidence for your consideration, tending to show that there was an amicable partition between him and William, and you will therefore determine, in view of this and all the evidence in the case showing the acts and conduct of the parties, whether they did or did not make the alleged amicable partition ; and as you determine this question you determine the case.] ” [9]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-9) above instructions, quoting them.</p> <p>There was not sufficient evidence to support a parol partition: Johnston v. Goodwin, 27 Vermont, 288; Ebert v. Wood, 1 Binn. 216; Rider v. Maul, 46 Pa. 378; Maul v. Rider, 51 Pa. 382; Mellon v. Reed, 114 Pa. 653; Wolf v. Wolf, 158 Pa. 629.</p> <p>The evidence was sufficient: McKnight v. Bell, 135 Pa. 370.</p>

<p>Appeal, No. 433, Jan. T., 1894, by-plaintiff, from judgment of C. P. Clearfield Co., Feb. T., 1894, No. 305, entering nonsuit.</p> <p>Trespass for personal injuries. Before Gordon, P. J.</p> <p>At the trial it appeared that on Nov. 11, 1893, plaintiff was injured by being thrown from a buggy at a grade crossing of defendant’s railroad. The evidence for plaintiff showed that she was driving with her brother in a buggy, and that at a point about two hundred and ninety-three feet from the crossing they stopped, looked and listened. At this point the railroad could be seen for a considerable distance. They then drove on, and without further stop approached the crossing, and were about to drive upon it when a hand car approached. The hand car was stopped sixteen feet short of the crossing, but plaintiff’s horse became frightened and wheeled sharply around, upsetting the buggy, throwing plaintiff upon the track, and injuring her. There was no collision between the hand car and the buggy or horse. It also appeared that for a distance of fifty-five feet along the highway from the crossing there was an unobstructed view of the railroad as far as the track continued straight, which was about five hundred feet. Several witnesses for'the plaintiff testified that the point where the plaintiff stopped was not the usual place for stopping.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>The plaintiff was not guilty of contributory negligence: North P. Ii. It. v. Heileman, 49 Pa. 60; Penna. It. It. v. Beale, 73 Pa. 504; Cent. it. It. of New Jersey v. Feller,-84 Pa. 226; Lake Shore Ry. Co. v. Frantz, 127 Pa. 297; McGill v. Ry., 152 Pa. 331; R. R. v. Whitman, 156 Pa. 175 ; Neiman v. D. & W. Co., 149 Pa. 92; Urias v. R. R., 152 Pa. 326.</p> <p>There was negligence on part of defendant: Ellis v. R. R., 138 Pa. 506; Del. etc. R. R. v. Jones, 128 Pa. 308; Phila. & Trenton R. R. v. Hagan, 47 Pa. 244; Kay v. Penna. R. R., 65 Pa. 269; Reeves v. Del. Co., 30 Pa. 454; Penna. R. R. v. Goodman, 62 Pa. .329; P. F. W. & C. R. R. v. Dunn,. 56 Pa. 280; Penna. R. R. v. Barnett, 59 Pa. 259; Penna. R. R. v. Hope, 80 Pa. 373; Hoag v. R. R., 85 Pa. 298; P. & N. Y. Cent. R. v. Lacey, 89 Pa. 458; Oil Creek & Alleghany River R. R. v. Keigron, 74 Pa. 316; Kohler v. R. R., 135 Pa. 357 ; School Furniture Co. v. Warsaw School District, 122 Pa. 501.</p> <p>Ellis v. R. R., 138 Pa. 522.</p> <p>Cited on the question of contributory negligence: Blaker v. R. R., 30 N. J. Eq. 241; P. & R. R. R. v. Ritchie, 102 Pa. 432; Aikin v. P. R. R., 152 Pa. 326; Urias v. P. R. R., 152 Pa. 326 ; Derk v. N. C. R. R., 164 Pa. 243 : Mjmrs v. B. & O. R. R., 150 Pa. 386; Penna. R. R. v. Beale, 73 Pa. 509; Schofield v. C. M. & St. P. R. R., 114 U. S. 615 ; Durbin v. Ore. Railway & Nav. Co., 32 Am. & E. R. R. Cases, 149.</p> <p>On the question of defendant’s negligence: Titus v. R. R., 136 Pa. 618; Kehler v. Schwenk, 144 Pa. 348; Reese v. Hershey, 163 Pa. 253; Lake Shore & M. S. R. v. Frantz, 127 Pa. 297; Goshorn v. Smith, 92 Pa. 435 ; Rothchild v. R. R., 163 Pa. 49; Pittsburg Southern Ry. v. Taylor, 104 Pa. 306; Penna. R. R. v. Barnett, 59 Pa. 259; Drayton v. N. P. R. R., 10 W. N. C. 55; Fouhy v. P. R. R, 17 W. N. C. 177 ; Kelley v. Shanley, 140 Pa. 213 ; Flint v. N. & W. R. R., 110 Mass. 222.</p>

<p>Appeal, No. 444, Jan. T., 1895, by defendants, from judgment of C. P. Clearfield Co., Feb. T., 1894, No. 814, on verdict for plaintiff.</p> <p>Ejectment for a tract of land in Lawrence township, Before Bell, P. J., of the 24th judicial district, specially presiding.</p> <p>At the trial it appeared that this was an action of equitable ejectment to enforce the specific performance of a written agreement on the part of the Clearfield & Mahoning Railway Company to purchase a strip of land from plaintiff for its right of way for $499. The agreement was dated June 18,1892, and contained a stipulation “that said railway company shall construct and maintain a good and sufficient crossing over the right of way on said premises.” The railway company constructed its railway on the land, and before suit was brought also constructed a crossing over its track on the premises of plaintiff. Prior to the construction of the crossing the railway company tendered to plaintiff a deed in which no mention was made of the crossing. Plaintiff refused to accept the deed, and in turn tendered to the railway company a deed containing the following clause: “ Excepting and reserving unto the said parties of the first part, their heirs and assigns forever, a good and sufficient right of way or railroad crossing over and across the said Clearfield & Mahoning Railway on the said premises of tlie parties of the first part, so that the occupant or occupants of the said premises of the parties of the first part may cross or pass over the said railroad on the premises with wagons, carts and implements of husbandry, as the occasion may require; said causeway or railroad crossing to be maintained by the said party of the second part, its successors and assigns.”</p> <p>The court charged in part as follows:</p> <p>“ [The deed which the railroad company asked Mr. Hall to have executed contained no reference to this constructing and maintaining of a good and sufficient crossing over the right of way on said premises, but the railroad company, in order to satisfy Mr. Hall on this point, at the same time agreed to give to him a memorandum or receipt which would show hereafter that this provision about the construction and maintenance of the road in the agreement had not merged in the deed or lapsed. The paper which they proposed to give him to show that the agreement about the road had not lapsed was this: ‘Received of George H. Hall deed from himself and wife to The Clear-field & Mahoning Railway. Company, dated for land in Lawrence township, Clearfield county, Pennsylvania. The delivery and acceptance of this deed shall not abridge nor abrogate the covenant as to crossing, contained in the agreement between the said Hall and said company, dated June 18, 1892, recorded in Clearfield county in Deed Book “ M,” page 338.’ Now, the railroad companjr claimed that that was all they were obliged to give Mr. Hall to show that there was any agreement about the construction and maintenance of this road or crossing, biit we instruct you as a matter of law that they were obliged to do more than that; they were obliged to make a proper reference in the deed which they prepared for execution by Mr. Hall; they were obliged in such deed to make a proper reference to the construction and maintenance of said crossing, and we instruct you as a matter of law that they did not fulfill their duty on this point when they simply contented themselves with giving Mr. Hall this receipt or offering to give him this receipt.] [7]</p> <p>“ Mr. Hall was not satisfied to execute the deed which the railroad company had prepared for him, and then he prepared a deed which he did execute. That deed has been offered in evidence before you to-day and is called Exhibit ‘B,’ H. B. G., 2-25-95, and is a deed by George H. Hall and wife to the Clearfield & Mahoning Railway Company. In this deed Mr. Hall had inserted the following provision in relation to the construction and maintenance by the railroad company of said crossing: ‘ Excepting and reserving unto the said parties of the first part, their heirs and assigns, forever, a good and sufficient right of wajq causeway or railroad crossing over and across the said Clearfield & Mahoning Railway on the said premises of the parties of the first part, so that the occupant or occupants of the said premises of the parties of the first part may cross or pass over the said railroad on the premises with wagons, carts and implements of husbandry, as the occasion may require; said causeway or railroad crossing to be maintained by the said party of the second part, its successors and assigns.’ In the deed which Mr. Hall had prepared by his attorney that is the clause which he had inserted, and we say to you as a matter of law that Mr. Hall had a right to insert such a provision in this deed, and that the railroad company when he tendered them this deed, if they had no other objection to it than the insertion of that clause, were bound to take the deed.</p> <p>“ The railroad company objected to taking the deed and they now object to the deed in this court; they say-that the agreement which was entered into between Mr. Hall and themselves about this crossing, to wit, a clause about the crossing in the agreement of 18th day of June, 1892, was a personal agreement alone, that its benefits inured to Mr. Hall alone and did not inure and would not inure to bis heirs and his assigns, and the attorney for the defendant has argued very learnedly and very ably too that this is a reservation, that this clause about the construction and maintenance of this crossing is a reservation, and being a reservation it would inure simply to Mr. Hall alone, because it contains no words of inheritance, no words 4 heirs and assigns; ’ and if this clause occurred or was found in a legal conveyance, that is a deed which was the end of the negotiations — a legal conveyance — we would say that the contention of the defendant’s counsel was correct; but, as we view the matter, this paper of the 18th day of June, 1892, whereby Mr. Hall agreed to convey, was simply an executory conveyance or rather an executory paper; it was not a conveyance, it was only an agreement to convey, therefore it is what the lawyers term an executory paper; and being an executory paper the strict rules in regard to the use of the word 4 heirs ’ and 4 heirs and assigns,’ in order to insure perpetuity of any rights, were not necessary to be used; and, as we view the matter, we say to you that it was not necessary that the words 4 heirs and assigns ’ should occur in this reference to or agreement about the construction and maintenance of this road.</p> <p>44 [If this paper had been what is known as a legal conveyance the-words ‘heirs and assigns’ should have been inserted, but being an executory paper, not a conveyance but only an agreement to convey, we do not think the words 4 heirs and assigns ’ were necessary, and we instruct you as a matter of law that the railroad company should have accepted the deed which we have referred to, prepared by Mr. Hall and offered this day in evidence, and which is marked 4 Plaintiff’s Exhibit 44 B,” H. B. G., 2-25-95.’] [8]</p> <p>44 [We instruct you further that the plaintiff has a right to have this question raised and determined in the present equitable ejectment. Here was a dispute between these two parties as to what kind of conveyance should be executed by Mr. Hall. How could such a dispute be settled? In England it would have been settled by bill in equity, but prior to recent years in Pennsylvania we had no court of equity and therefore we were obliged to work out these equitable questions by verdicts of juries in ejectments, and hence arose in Pennsylvania the custom of equitable ejectments. As we view the matter, the plaintiff had a right to have this matter decided in this equitable ejectment; and, as we view the matter, the plaintiff also had a right to execute the deed in the form in which he tendered it to the defendant; and, as we view the matter, the defendant was wrong in insisting upon the plaintiff executing a deed which had no reference to the obligation on the part of the defendant to construct and maintain this crossing, and as the defendant was wrong in this matter it results that the verdict should be against the defendant.] [9]</p> <p>“ The defendant has submitted to us certain points which we will read and which we will answer.</p> <p>“ ‘ The court is respectfully requested to charge the jury:</p> <p>“ ‘ I. It appearing from the facts admitted in this case that the defendant company, prior to the bringing of this suit, did construct a crossing for the use of the plaintiff over its tracks and right of way purchased from the plaintiff, and has maintained the same to the satisfaction of the plaintiff, and on the 28th of July, 1894, did make a legal tender to the plaintiff of five hundred seventy-one and fifty one hundredths dollars ($571.50), purchase money, with interest and costs of this suit accrued at that date, and has kept up said tender, the money being considered in court, the defendant has complied with the agreement made with the plaintiff and dated the 18th of June, 1892, which is recorded in the office of the recorder of deeds for Clearfield county in Miscellaneous Book “ M,” page 383, the plaintiff is not entitled to recover in this action and your verdict must be in favor of the defendant.’</p> <p>“ This point is denied. [1]</p> <p>“ ‘ II. It appearing from the undisputed evidence in the cause that the Clearfield & Mahoning Railway Company, defendant, went into possession of the premises described in the writ in pursuance of the contract dated June 18, 1892, and began the construction of its road within the time specified therein, and that it has complied with the said contract according to the terms and tenor thereof; and on the 28th of July, 1894, did make a legal tender of the purchase money, with interest due on that date, and with costs of suit then accrued, and did at that time, by writing duly executed by the said Clearfield & Mahoning Railway Company and then offered to the plaintiff, admit that the provision in said agreement, which was then recorded, relating to the crossing, should not be abridged or abrogated, because the provision as to the crossing was not mentioned in the deed from plaintiff to defendant; the plaintiff cannot, by means of this action of ejectment, require or compel the said Clearfield & Mahoning Railway Company to accept a deed with another covenant relating to the construction and maintenance of said crossing, and that before any breach of the said contract, dated June 18, 1892, on the part of the Clearfield & Mahoning Railroad Company, has been committed, aud your verdict must be in favor of the defendant.’</p> <p>“ This point is denied. [2]</p> <p>“III. The provision of the contract dated June 18, 1892, relating to the crossings being in these words: ‘ It is further-agreed that the said railroad company shall construct and maintain a good and sufficient crossing over the right of way on said premises,’ created a mere personal right in the plaintiff to use said crossing. The same is a right of way, in gross, across defendant’s right of way and tracks for the use of the plaintiff, and it cannot be by the plaintiff assigned to another or transmitted bjr descent, and the plaintiff cannot, by means of an action of ejectment, compel and require the defendant company to insert a provision in the deed for the land sold to the defendant company, which would run with the land and become appurtenant to it, and your verdict must be for the defendant.’</p> <p>“ This point is denied. [3]</p> <p>“ ‘ IY. The Clearfield & Mahoning Railway Company, defendant, having by writing, duly executed, acknowledged that the provision relating to the crossing in the contract already recorded should not be merged or abrogated by reason of the same not being mentioned in the deed of conveyance for said land purchased from the plaintiff as aforesaid, and the said defendant having fully complied with all its undertakings and stipulations by it to be done, kept and performed in said agreement, the plaintiff cannot, by means of this action of ejectment, compel the defendant company to accept a deed with another covenant relating to said crossing, and your verdict must be for the defendant.’</p> <p>“ This point is denied. As we have instructed you in our general charge, we do not think that the defendant, the railroad company, complied with the article of agreement and was carrying out the article of agreement, which referred to the construction and maintenance of this crossing, by simply giving to Mr. Hall a paper stating that the agreement in this respect should not be merged in the deed; because, as we view the matter, if the defendant company in the future should sell their rights to some other railroad company, the railroad company buying the rights of the present defendant could go to the record, and not seeing any reference in this deed from Mr. Hall to the defendant railroad company, in regard to the keeping and maintaining of this crossing, they would be or might be absolved from the duty of maintaining this crossing. Therefore, as we have said in our general charge, we think there should be some reference to the duty of the railroad company to construct and maintain this crossing in the deed itself. [4]</p> <p>“ ‘ V. That there is no covenant in the agreement between the plaintiff and the Clearfield & Mahoning Railway Company, dated June 18, 1892, requiring the defendant to accept a deed containing any provision relating to the construction or operation of any crossing, and there being no evidence that the defendant ever agreed to accept a deed containing such provision, the verdict must be for the defendant.’</p> <p>“ This point, is denied. [5]</p> <p>“ ‘ Lastly. That under the provisions of said contract, dated June 18, 1892, the plaintiff cannot compel or require the C. & M. Ry. Co., by means of an action of ejectment, to accept a deed with a covenant requiring the defendant to maintain a crossing for the heirs and assigns of the plaintiff, such as is contained in plaintiff’s deed, tendered and offered in evidence. This point is likewise denied.’ ” [6]</p> <p>The court gave binding instructions for plaintiff. [10]</p> <p>The jury returned the following verdict, upon which judgment was entered:</p> <p>“We find for the plaintiff the land described in the writ, to be released, however, if the defendants, within sixty days after the filing in court of the deed hereinafter referred to, pay to the plaintiff the sum of four hundred ninety-nine dollars ($499), with interest from April 6, 1893. The deed to be so filed being the deed this day offered in evidence by plaintiff and marked Plaintiff’s Exhibit ‘B,’ H. B. G., 2-25-95. This deed, properly sealed, to be filed in court for the use of the defendant."’</p> <p>Errors assigned were (1-10) above instructions, quoting them.</p> <p>The provision about the crossing was a reservation and not an exception: 2 Thomas’ Coke Litt. 412; Whitaker v. Brown, 46 Pa. 198.</p> <p>It is a private right of passage and nothing more: 3 Kent’s Commentaries, 420 ; Kister v. Reeser, 98 Pa. 1.</p> <p>The agreement being recorded containing the stipulation about the crossing, it would not be merged in the deed made in pursuance of the agreement: Brown v. Moorhead, 8 S. & R. 571; Anderson v. Long, 10 S. & R. 55; Wagner v. Wen-rich, 1 Woodward, 35.</p> <p>The plaintiff cannot, by means of an action of ejectment, compel the defendant company, under the terms of the written agreement, to, accept a deed containing the covenant set forth in the plaintiff’s deed.</p> <p>was not heard, but cited in his printed brief: 1 Sharswood’s Blackstone’s Commentaries, 299 ; Mitchell on Real Est. & Conveyancing in Pa. 430; Walton’s App., 9 Atl. Rep. 922; Moody v. Alexander, 145 Pa. 571; Richardson v. Clements, 89 Pa. 503; Phillips v. Swaiik, 120 Pa. 76; Ogden v. Brown, 33 Pa. 247; Gaule v. Bilyeau, 25 Pa. 521; 19 Am. & Eng. Ency. of Law, 1004; Avery v. N. Y. C. & H. R. R., 106 N. Y. 142; Gunson v. Healy, 100 Pa. 42; Daubert v. Penna. R. R., 155 Pa. 178.</p>

Appeal, No. 505, Jan. T., 1894, by-plaintiff, from judgment of C. P. Phila. Co., June T., 1893, No. 561, entering nonsuit. Trespass to recover damages for death of plaintiff’s son.

<p>Mortgage — Parol mortgage — Evidence—Lost paper.</p> <p>In order to convert a deed absolute on its face into a mortgage, or to create a parol secret trust as against such deed, the evidence must be clear, precise and indubitable.</p> <p>In an action of ejectment it appeared that defendant, who had been a judgment creditor of plaintiff, bought plaintiff’s real estate at a sheriff’s sale, entered into possession and continued to occupy it for a period of twelve years, and up to the time the suit was brought. Plaintiff claimed that defendant had agreed in writing, at the time of the sheriff’s sale, to reconvey the land to him when the debt should be paid, and that the writing was lost. He was permitted to testify to its contents. His evidence was that the writing contained an agreement on the part of defendant to reconvey the property when the debt was paid, but he could not give the specific terms of the agreement or the amount of the debt, nor could he remember that any provision was made for taxes, repairs or other expenditures. He did not pretend to remember the full contents of the paper. The alderman who, according to plaintiff’s testimony, had prepared the paper was called, but he testified that he had only a faint recollection of drawing some paper for the parties and he could not recall the contents. The defendant positively denied that he had ever executed any such paper. Evidence was offered and admitted however, that he had made declarations both before and after the sheriff’s sale that he only wanted his money out of the property and that he intended to return the property when he got sufficient money out of it to pay his debt. It appeared from the testimony that large sums of money were spent by defendant for improvements upon the land. The evidence showed that, about a year after the sheriff’s sale, the properly burned down and that defendant received enough of insurance money to pay his debt, and that plaintiff then made no claim upon him to reconvey the property. Held, that the evidence was insufficient to entitle plaintiff to recover.</p>

<p>Appeal, No. 204, Jan. T., 1895, by defendants, from decree of C. P. No. 3, Phila. Co., June T., 1894, No. 1702, awarding partition.</p> <p>Bill in equity for partition.</p> <p>From the bill and answer it appeared that John H. Palethorp died in 1861, leaving to survive him a widow, Angelina Palethorp, and seven children, one of whom was Edward J. Palethorp. The widow, Angelina Palethorp, died without remarrying in July, 1877. Edward J. Palethorp died on July 1, 1893. 'intestate, without issue, leaving a widow, the complainant, surviving. At the time the bill was filed, proceedings to distribute the personal estate of both John H. and Angelina Palethorp were pending in the orphans’ court.</p> <p>John H. Palethorp, the testator, by the second item of his will, declares inter alia, as follows: “But in case my said wife should die before my youngest child living at the time of her decease having arrived at the age of twenty-one years, then it is my will that my executors shall carry out my intentions that the said youngest child must arrive at the age of twenty-one years. At that time I authorize and direct to sell and dispose of all my real and personal estate, and divide the same share and share alike among my children or their legal issue, unless if at the time my youngest child arrives at the age of twenty-one years, it should be unfavorable to sell, on account of the depreciation of value in real estate or any (other) cause, then I will and direct that in conjunction with my said executors, three persons be chosen by my children to make partition of my said estate among all my children all -their legal issue then living, each child of mine to receive an equal share.</p> <p>“ But if my children prefer, when they arrive at the age of twenty-one years, and after my said wife’s death, to not sell or make division of my said estate, but to receive the incomes, rents and dividends arising from said estate, then it is my will that they keep the property in good repair and punctually pay all interest and taxes thereon, and pay to each of my children an equal share as often as said share becomes respectively due, of all my rents, dividends and incomes of said estate.”</p> <p>By the third item of his will, however, he provides:</p> <p>Item. “ I give and bequeath to each of my children, after my said wife’s death, their entire share of my whole estate for their own sole and separate use, with the exception of twenty (20) thousand dollars worth of property of each of my children’s share, the said twenty thousand dollars, they are only to receive the interest and incomes arising from such, as it is my will, the principal of said twenty thousand dollars, shall be entailed on each of my children and their legal heirs; and if either of my children die without lawful issue, then his or her share reverts back again to my estate, and becomes a part of said estate, and is to be equally divided the same as the other amongst all my surviving children.”</p> <p>Angelina Palethorp, by the first item of her will, directed as follows:</p> <p>Item. “I give and bequeath to each of my children their entire share of all my real estate, city and country, all my bank stock, or stocks of any kind, dividends on said stocks, mortgages and ground rents, and monies on hand, to be equally divided share and share alike for her and his own separate use.”</p> <p>By the 4th item of her will, however, she did direct as follows:</p> <p>Item. “ If my daughter Angelina becomes a widow or any unforeseen circumstances should invade her present happy home, I request that she will avail herself of the home I herein provide for my single children. If my daughter Caroline remains unmarried and desires to keep house I give her all my household goods, furniture, etc., of every description to keep house with, and my house 1981 Arch street where we now reside at an annual rent of seven hundred dollars for one year commencing one month after my death; each of my children not living at home is to have her or his share of said rent, all repairs, taxes, water rents, insurance and sewer rents to be paid by my executors during said term.”</p> <p>The case was heard on bill and answer, and the court entered the following decree:</p> <p>“ And now, Dec. 17,1894, the above cause having been heard on bill and answer, the court orders, adjudges, and decrees that the complainant is entitled to partition of the real estate as prayed for in said bill, and directs that' the cause be proceeded with before the master to final determination.”</p> <p>Errors assigned were (1) above decree, and (2) refusal to dismiss bill.</p> <p>cited as to jurisdiction of the orphans’ court: Miller’s Estate, 159 Pa. 573 ; Scott on the Intestate Law, 159, 180; DeNoiles’ App., 8 Wright, 243; Bayley’s App., 60 Pa. 354; Johnson’s App., 114 Pa. 132; Drennan’s App., 118 Pa. 176; Overman’s App., 88 Pa. 276; Milne’s App., 99 Pa. 483; George’s App., 12 Pa. 262 ; Dresher v. Allentown Waterworks, 52 Pa. 225; Johnson’s App., 114 .Pa.<132; Hoffner’s App., 161 Pa. 344.</p> <p>cited on the question of jurisdiction : Act of March 17,1845, P. L. 160; Gourley v. Kinley, 66 Pa. 270; Bishop’s App., 7 W. & S. 251; Brown’s App., 84 Pa. 457; Steel’s App., 86 Pa. 222; Griffins’ Est., 30 Pitts. L. J. 60.</p>

Appeal, No. 282, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1893, No.. 213, on verdict for defendants. Trespass for obstructing an alley. Before Jenkins, J. At the trial it appeared that prior to 1836, Edward B. Garrigues owned a lot of land at the corner of Thirteenth and Hamilton streets in the city of Philadelphia. He divided a block of this land into seven building lots shown by the plan on the following page.

Appeal, No. 152, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1891, No. 470, on verdict for defendant. Assumpsit for services as nurse and attendant. Before Bregv, J. From the record it appeared that plaintiff claimed for services as nurse and attendant rendered to Mary Louisa Buechle in her lifetime for 372 weeks at $20.00 per week. Plaintiff relied upon declarations of Mrs. Buechle to the effect that the services would be paid for.

Appeal, No. 244, Jan. T., 1895, by plaintiff from judgment of C. P. No. 4, Phila. Co., Sept. T., 1870, No. 1919, on verdict for defendant. Assumpsit on a promissory note.

Appeal, No. 271, Jan. T., 1895, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1892, No. 318, for plaintiff on report of referee. Assumpsit to recover damages for breach of a written agreement.

<p>Equity — Evidence—Responsive answer.</p> <p>Where a bill in equity against the executrix of the estate of plaintiff’s mother was filed nearly eight years after the account of the executrix had been adjudicated by the orphans’ court, which averred the fraudulent appropriation by the executrix of certain property belonging to the decedent, in which plaintiff has an interest as heir and legatee, and the fraudulent omission to include it in the account; and that the facts alleged in the bill became known to plaintiff only recently before filing the bill, and the answer of defendant directly and explicitly denied the averments of fraud in the bill, and claimed ownership of the property by the defendant, the burden is on the plaintiff to meet the responsive answer and overcome it with two witnesses, or with one witness and corroborative circumstances.</p>

<p>Trusts and trustees — Power of sale.</p> <p>A trustee cannot be permitted to deprive liimself of a power conferred upon him for the benefit of the trust, or so to fetter its exercise by himself or his successor'as to defeat the purpose of the trust.</p> <p>Testatrix by her will directed as follows: “ I authorize and empower my executor at any time during the lifetime of my husband with his assent, and I direct him immediately upon the decease of my said husband, or so soon thereafter as may be, to sell the whole or any part of my real estate for cash, upon credit or ground rent,” etc. On Oct. 20, 1890, the executor who was also the husband agreed with the plaintiff as follows : “ That if Geraldine H. Hickok desire to become a purchaser of that piece of ground or land, with house and appurtenances thereon .... —of which she is now lessee and occupier — at any time during her leasing of the property she may do so for the sum of nine (9) thousand dollars, to be paid as follows,” etc. The plaintiff was then in possession under a lease from the executor which did not end until May 1, 1894. The husband died ori Feb. 13, 1892, and on Dec. 3, 1893, plaintiff notified the administrator d. b. n. c. t. a. of her intention to purchase under the agreement. Held, that she was not entitled to a specific performance of the contract.</p> <p>The vice of the agreement was that it bound the trust estate no matter what the detriment to it might be, without giving it any corresponding advantage. This was not a use of the power, but a surrender of it for the time. It suspended the exercise of the discretion which had been given the executor and defeated the direction in the will for an immediate sale upon the husband’s death.</p>

<p>Partnership — Decedents' estates — Specific performance — Option of survivor to buy deceased partner's estate.</p> <p>Two partners entered into an agreement providing that in the event of the death of either the survivor should have the right to purchase the deceased partner’s interest. The agreement provided that bills receivable should be taken by the survivor at their face value, materials in stock at cost, good accounts at a discount of five, and manufactured articles at a discount of ten, per cent. The agreement then continued: “It is agreed that ail property .... such as lands, buildings (subject to the encumbrances now thereon being three several yearly ground rents) .... stationary fixtures of all kinds .... patterns, plates, wagons, horses, carriages, and all tools .... shall be valued at the sum of Twenty five thousand dollars, and if anyone or all of the said yearly ground rents shall be extinguished or any other premises shall be purchased in the name of the firm .... then said sum of Twenty five thousand dollars shall be increased in amount to the sum expended either in the extinguishment of any or all of the said yearly ground rents or in the purchase of any other premises. And if any portion of the premises in the name of the firm shall be sold or encumbered .... then said sum of Twenty five thousand dollars shall be reduced in amount the sum realized from the Sale or encumbrance thereof.” Held, that the increase provided for was that which would result from the extinguishment of ground rents and the purchase of other premises, but it did not include moneys spent on new buildings and additions and improvements to the plant of the firm.</p>

Appeal, No. 137, July T., 1894, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 702, on verdict for defendants. Assumpsit for breach of contract to sell real estate. Before Thayer, P. J. At the trial it appeared that defendants agreed in writing to sell to plaintiff the premises No. 33 North 11th street in the city of Philadelphia. At the time of the sale there was a lease on the property which still had several years to run.

<p>Will — Trusts and trustees — Separate use trust.</p> <p>Where the purpose to create a separate use trust is clear, no particular form of words is necessary.</p> <p>Testator by -his will directed that during the life of his wife his real estate should remain undivided and unapportioned, and that one third of the net income should be paid to her and the remainder divided equally among his children, naming them. He further directed as follows: ‘ ‘ This arrangement I desire to continue during the life of my wife .... At her decease it is my will that my children do as they think best. It is, however, my will (should my children agree to a division of my estate after the death of my wife) that the separate portions of my daughters .... shall be separately secured to them and to their use beyond the dictation of the husband of either of them.” The daughters were all married at the date of the will. Held, that the daughters took a valid separate use trust which went into effect upon the death of the widow.</p> <p>The intent of the testator was to secure the shares of his daughters to their separate use, and the contingency of the widow’s death, and the partition by the children of the common estate did not go to the creation of the separate use but to the time and occasion for putting it into formal execution.</p>

<p>Appeal, No. 251, Jan. T., 1895, by-William B. Cobb, from decree of O. C. Pbila. Co., April T., 1891, No. 185, dismissing exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The material portions of the will and some of the facts appear in Steinmetz’s Estate (next preceding case.)</p> <p>The daughter Emma M. was at the time of the will married to the appellant, William B. Cobb. She died during the lifetime of her mother, leaving a last will, by which she devised all her property, real and personal, to William B. Cobb.</p> <p>Cobb claimed that his wife died seized of a vested estate in her father’s realty, subject only to the life estate of the widow, and that the same passed to him under his wife’s will; or if it did not so pass, that he was entitled to the same as tenant by the curtesy.</p> <p>The auditing judge held that Mrs. Cobb had no power to devise her share; that by reason of her death during the lifetime of the life tenant, she was" seized of no estate in which her husband took any interest by curtesy; and that the other devisees were entitled to divide among themselves the whole proceeds. The court in banc dismissed the exceptions filed by Mr. Cobb.</p> <p>Error assigned was decree dismissing exceptions.</p> <p>As the contingency upon which a trust was to arise of the share of Emma M. Cobb did not occur prior to her death, her share was never held in trust.</p> <p>The devise by Emma M. Cobb to her husband of her interest in the real estate of her father vested in him her equitable fee simple: Lancaster v. Dolan, 3 Johns. Ch. 113; Thomas v. Fol-well, 2 Whart. 16; Jones’s App., 57 Pa. 372; MacConnell v. Lindsay, 131 Pa. 485; Hays v. Leonard, 155 Pa. 478; act of June 3, 1887, P. L. 332; act of April 11, 1848, P, L. 536 ; 2 Perry on Trusts, 257; Bispham’s Eq. 151; act of April 8, 1833, P. L. 249.</p> <p>The daughters of Steinmetz as to two thirds his estate were subject to no life estate of their mother. The husband took an estate by curtesy therein.</p>

Appeal, No. 1, July T., 1894, by plaintiff, from decree of C. P. Montgomery Co., Oct. T., 1893, No. 7, dismissing bill in equity. Bill in equity for an injunction to restrain the construction of a porch.

<p>Appeal, No. 146, Jan. T., 1895, by plaintiff, from decree of C. P. Montgomery Co., June T., 1894, No. 5, dismissing bill in equity.</p> <p>Bill in equity to restrain the construction of a street railway.</p> <p>The case was heard on bill, answer and proofs. Swartz, P. J., filed the following opinion, by which the facts appear:</p> <p>“ The defendant company obtained the consent of Plymouth township to build an electric railway upon a public road in said township. The plaintiff contends that the right to build such electric railway expired on July 20, 1894, and this bill was brought to restrain the defendant company from doing any further work upon the public roads of Plymouth township.</p> <p>“ FINDING OF FACTS.</p> <p>“1. The defendant company was chartered to build a street railway from Barren Hill to Chestnut Hill and from Barren Hill to Norristown, under the act of May 14, 1889, P. L. 217. The proposed road passes through Whitemarsh township, Plymouth township, Springfield township, the borough of Norris-town, and enters the city and county of Philadelphia.</p> <p>“ 2. Consent by all these municipalities was given to the defendant company to build the proposed railway. The supervisors of Plymouth township gave their consent upon the 20th of May, 1898. The written agreement giving such consent contained the following provision: ‘ And it is further stipulated and agreed that the said company shall build its said railway over the roads herein described within fourteen months after the date hereof.’</p> <p>“ 3. On the 25th of July, 1894, the supervisors of the said township of Plymouth notified the defendant company that the time for building the railway terminated on July 20,1894, and that the consent of said township to build said railway was revoked.</p> <p>“ 4. On July 3,1894, the defendant company placed some ties on the Germantown and Perkiomen turnpike road in Plymouth township. The turnpike road was abandoned some years ago and has been under the care of the supervisors of the respective townships through which it passes. The ten or more ties were laid, spaced almost two and one half feet apart, and trenches were dug to receive them, the length of the ties. The ties were covered up and suitably laid with a view to be straightened up when further construction came along. At this time and prior thereto work was being done at the other end of the proposed railway. The survey of the whole road was completed on July 19, 1894, at least to the line dividing Plymouth township from the borough of Norristown. The construction in Whitemarsh began June 30,1894. The proper mode of construction was at the beginning of the proposed line, that is between Chestnut Hill and Barren Hill.</p> <p>“ 5. At the time this bill was filed, the defendant was at work with a large force of men in Plymouth township.</p> <p>“ 6. On July 21,1894, the supervisors of Plymouth township gave their consent to the Conshohocken company to build a passenger railway on the road in question — that is the German-town and Perkiomen turnpike. This agreement gave said company two years in which to build said railway, and the exclusive right to said township, at least this is the apparent intent of said agreement.</p> <p>“ CONCLUSIONS OB’ LAW.</p> <p>“ [1. The agreement between the plaintiff and the defendant did not work a lawful change as to the time given by the act of May 14, 1889, in which the railway must be constructed. The defendant had two years in which to complete the construction notwithstanding said agreement.] [1]</p> <p>“ [2. If the defendant failed to comply with the time limit fixed by the statute, the commonwealth alone can move for a forfeiture for such laches.] [2]</p> <p>“ [3. The violation of the limit of fourteen months, even if such limit is binding on the defendant company, is not ipso facto, a forfeiture by the agreement. A breach as to this provision is not made a cause of forfeiture by the agreement.] [3]</p> <p>“ In support of these conclusions we offer our opinion filed refusing the preliminary injunction and add the following:</p> <p>“We again examined carefully the case of Allegheny v. Millville &c. Railway Co., 159 Pa. 411. It is true the language of the court is broad enough to sustain the right of the turnpike to impose the condition as to the fourteen months, but we must apply the opinion to the case then decided and the facts do not raise the issue now before us. [We admit that the consent may be coupled with conditions that are binding upon the railway company, but can the township make conditions that conflict with the terms upon which the charter was granted ? The legislature says you shall have two years to build. The township says, no, you can have but fourteen months. If the township may overrule the legislature in this particular, it may do the same as to any other provision in the act. The township is not hurt; if it does not approve of the act, it may withhold its consent from the chartered company.] [4]</p> <p>“ If a township may ignore any of the provisions found in the act of 1889, its sections, numbering twenty, may as well be stricken down and in their place we should have but a single section, declaring that street railways may be constructed.</p> <p>“ People ex rel. West Side Street Railway Co. v. Barnard, 110 N. Y. 548, does not overrule In re King’s County Elevated Railway, 105 N. Y. 114. In the former case the question of power in a municipality to impose conditions repugnant to the legislative grant was not considered.</p> <p>“ [Even if the township impose the condition that the railway be built in fourteen months, it has not in the case before us stipulated that failure to so build shall terminate all rights under the agreement.] [3] Forfeitures are not favorites with the law, and if the township intended a breach of the agreement to have that effect, it would have been an easy matter to say so in the contract: Reck v. Hatboro Mutual Live Stock & Protective Ins. Co., 163 Pa. 443. Here there was an attempt to forfeit the right of the defendant company without any notice to it. The purpose is manifest. A rival corporation obtains the consent to use the public roads in question. The supervisors grant to it the right to build within two years. It is very evident the township did not consider the fourteen months limit of any consequence. Why stop the active work of one corporation and give the grant to another ? If the necessities for a street railway are so great, the action of the supervisors is calculated to bring about still more delay.</p> <p>“ The township has ample protection under the act of 1889. If the road is not built in two years, the commonwealth will, no doubt, afford relief.</p> <p>“ And now, Nov. 5, 1891, the prothonotary will notify the parties or their counsel of the filing of this report and opinion, and if no exceptions are filed thereto within thirty days from the time of the service of such notice, the prothonotary will enter a decree dismissing the bill at the cost of the plaintiff.</p> <p>The court entered a decree dismissing the bill.</p> <p>¡Errors assigned, among others, were (1-5) portions of opinion as above, quoting them, and (15) decree dismissing the bill.</p> <p>The condition imposed upon the appellee, to complete its road within fourteen months, was valid: Allegheny City v. Ry., 159 Pa. 414; Pittsburg’s App., 115 Pa. 4.</p> <p>The appellants were entitled to take advantage of the nonperformance of the condition to complete: People v. Mutual Gas Light Co. of Detroit, 88 Mich. 154 ; Archbald Borough v. Carbondale Traction Co., 3 Dist. Rep. 751; Elliott on Roads and Streets, 584 and note; Allegheny City v. Millville etc. Street Railway, 159 Pa. 411.</p> <p>There are no circumstances which should induce a court of equity to relieve the appellee from the consequences of its failure to perform the condition to complete: Booth’s Street Railway Law, secs. 46, 47, 61.</p> <p>Equity has no jurisdiction: Lejee v. Continental P. R., 10 Phila. 362; Com. v. Allegheny Bridge Co., 20 Pa. 185 ; West Pa. R. R. Co.’s App., 104 Pa. 899; Hinchman v. P. & W. C. Turnpike Road, 160 Pa. 150; Atty. Geni. v. Lombard & South P. R. Co., 1 W. N. C. 489; Rafferty v. Central Traction Co., 147 Pa. 586 ; Larimer Ry. Co. v. Ry. Co., 187 Pa. 547.</p> <p>Even where a charter provides a time limit of construction it has always been held that such a provision is not self executory and that on noncompliance with the limit of time, forfeiture must be judicially ascertained and declared: Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 524; In re Brooklyn El. R. R., 125 N. Y. 484; Pacific R. R. v. Leavenworth City, 1 Dill. C. C. 893; In re Brooklyn etc. R. R., 72 N. Y. 245; Atchison St. Ry. v. Nave., 38 Kan. 744; Chicago v. C. & W. I. R. R., 105 111. 73; Oakland R. R. v. R. R., 45 Cal. 365; People v. Manhattan Co., 9 Wend. 351; Booth on Street Railways, sec. 47; Com. ,v. Commercial Bank, 28 Pa. 383 ; 2 Washburn on Real Property, sec. '4; Nicoll v. N. Y. & E. R. R., 12 N. Y. 121; Schulenberg v. Harriman, 21 Wall. 44.</p> <p>Neither the act of 1889 nor the language of the Plymouth “ consent ” contains any language that could be construed as a forfeiture or condition subsequent: P. F. W. & C. R. v. Pitts-burg, 1 Pittsb. 392; 2 Story’s Eq. Jurisprudence, pars. 771,772,. 775, 776; Easton P. R. Co. v. Easton, 133 Pa. 505.</p> <p>The limitation of fourteen months for completing the appellee’s line was invalid as contrary to the act of assembly which gave the appellee two years for that purpose : Com. v. Collins, 8 Watts, 349; Tamaqua etc. Ry. v. Inter-County S. Ry., 52 Leg. Int. 14; Kings Co. El. R. Case, 105 N. Y. 114; People v. Barnard, 110 N. Y. 552.</p> <p>The appellee was within the time, even under the strictest rule asked for by appellant: Kings County El. R. R. Case, 105 N. Y. 117.</p>

<p>Malicious prosecution — False imprisonment — Evidence—Judge's direction for acquittal — Justice of the peace.</p> <p>In an action to recover damages for malicious prosecution, where the plaintiff claims that there was no probable cause for the prosecution, testimony, to the effect that at the trial of the plaintiff the judge directed a verdict of acquittal and instructed the jury to hold the prosecutor liable for costs, is inadmissible.</p> <p>In such a case the inquiry as to probable cause goes back to the commencement of the prosecution, and it relates to the facts then known and as they then appeared. The remarks of the trial judge were directed to the question of actual guilt as it appeared after a full investigation and after hearing the testimony of both sides. They were based upon a state of facts different from those which led to the arrest, and were therefore irrelevant.</p> <p>A justice of the peace illegally ordering or causing a person to be arrested, or refusing to accept bail Where the offense charged is bailable, is liable in damages to the injured party in an action of trespass under the act of 1887.</p> <p>Where in such a case the plaintiff’s statement avers the original wrongful arrest and a subsequent wrongful committal to prison, but does not aver the refusal to admit to bail, but the latter fact appears by the evidence, a judgment on a verdict for plaintiff will be sustained.</p>

<p>Will — Power to partition estate— Vested estate.</p> <p>Where a testator devises all of his real estate to his wife for life with . the power to divide and parcel out the same amongst his five sons, naming them, upon such conditions and terms as she shall deem best and right, the widow may allot a share of the real estate to a daughter of a deceased son.</p> <p>Will — Power of appointment — Jurisdiction.</p> <p>No decree can properly be made upon a conveyance by an executor or trustee under a power conferred by will, unless the aid of the court is required to supply some omission in the terms of the instrument creating the power.</p>

Appeal, No. 8, Jan. T., 1895, by-defendant, from judgment of C. P. Berks Co., Sept. T., 1891, No. 5, on verdict for plaintiffs. Trespass to recover damages for injuries to mules. Before Endlich, J. At the trial it appeared that on Oct. 6, 1890, Wills and Gar nett, of Cynthiana, Kentucky, shipped to the plaintiffs at Fleet-wood, Berks county, Pa., a carload of forty-two mules and four horse colts.

<p>Negligence — Townships—Dangerous road — Norses.</p> <p>In an action to recover damages for personal injuries, it appeared that plaintiff was injured by falling with his team and wagon down a declivity extending seventy feet at the side of a public road eleven feet wide, on the other side of which there was an embankment. The descent for the first ten feet was vertical, and for the rest of the way it was so steep that the plaintiff and his horses rolled down it fifty feet until their motion was arrested by a stump. There was no guard rail or barrier of any kind at this point. The case was submitted to the jury with instructions that if the road was dangerous by reason of its proximity to a precipice it was the duty of the township to exercise common prudence to insure the safety of travelers, and to erect barriers if they were necessary for that purpose. Neld, that a judgment on a verdict should be sustained.</p> <p>The question of safety relates not only to the tendency of the horse to become frightened, but also to the facility with which he can be controlled, and it is too broad a statement to say that country roads must be so kept that “ skittish ” horses may be driven upon them with safety. There is no duty whatever to provide for the use of vicious, untrained or unmanageable horses, and whoever drives such horses upon the road does so at his peril. Per Pell, J.</p>

<p>Contract — Building contract — Lost paper — Evidence.</p> <p>Plaintiff contracted in writing with defendants to construct a building for them for $17,550. One of the specifications provided that he should tear down an old building and use such materials in the construction of the new one as were suitable, “ the net value of such materials to bo reckoned at the amount stated in the contractor’s bid, and the said amount to be deducted from the gross contract price.” The plaintiff’s bid for the new work and for the material of the old building was in writing, but had been lost or destroyed by the defendants, and there was no written evidence of tlie amount he had agreed to allow for the old material. Held, that it was competent for the plaintiff to show that his original bid was in excess of the amount stated in the contract, and that he wrote below his bid that he allowed the excess for the old building.</p> <p>Contract — Addition to written instrument after signature — Hvidence— Question for jury.</p> <p>Where an addition to a contract is written on the page following the signatures, and it appears that there was ample room for the addition on the same page with the signatures, and the evidence is conflicting as to whether or not the addition had been made with plaintiff’s knowledge before the agreement was signed, the question is for the jury to determine whether or not the addition is binding on the plaintiff.</p> <p>Building contract — Change in specifications — Delay—Penalty.</p> <p>A building contract provided that the builder should forfeit a certain sum for each day that the building remained unfinished after the time fixed by the agreement for its completion. The owners reserved the right at any time during the progress of the work to make any alterations in the plans and specifications. The contract provided that any change in the plans “ either in quantity or quality of the work” should be executed by the plaintiff “without holding the contract as violated or void in any other respect.” During the progress of the work, a change was made in the material for the front of the building from brick and granite to Indiana stone with carved panels and frieze. Held, that plaintiff was not responsible for delay necessarily resulting from the alterations in the work directed by the owners.</p>

Appeal, No. 205, Jan. T., 1895, by defendant, from judgment of C. P. Monroe Co., May T., 1893, No. 33, on verdict for plaintiff. Assumpsit upon a policy of fire insurance. At the trial it appeared that the policy was for $5,000, covering a dwelling bouse and household furniture.

Appeal, No. 268, Jan. T., 1895, by Margaret Rockell, from order of C. P. Northampton Co., August Term, 1893, No. 3, distributing proceeds of sheriff’s sale. Exceptions to report of H. J. Steele, Esq., appointed to distribute proceeds of sheriff’s sale of real estate. The property sold was levied upon as the property of John Eddinger. Margaret Rockell claimed $125 as an unpaid install ment of an annuity alleged to have been charged on the land by her father, Samuel Eddinger.

<p>Affidavit of defense — Sale—Practice, O. P.</p> <p>An affidavit of defense is sufficient which denies the grounds of liability averred in the statement and those which arise by implication from the averments made.</p> <p>While the construction of an affidavit of defense should be in favor of plaintiff and against the party malting it, a defendant is under no duty to deny a liability not fairly arising from the statement.</p> <p>Where a statement avers the sale and delivery of merchandise on a certain day, an affidavit of defense is sufficient which avers that plaintiff did not sell and deliver to defendants the merchandise on the day named, and that the defendants did not receive the said merchandise or any portion of it at any price on the said date or at any subsequent time.</p>

<p>Insurance — Fire insurance — Misrepresentation by insured.</p> <p>No recovery can be had upon a policy of fire insurance procured upon the representation that the property insured was owned by and in charge of a successful business man, when in fact the title was in a married woman who exercised no supervision over it.</p> <p>Insurance — Misrepresentations—Waiver.</p> <p>Waiver is essentially a matter of intention, and cannot arise out of acts done in ignorance of material facts, and its proof is inadequate unless it is shown that the insurer knew of the right of forfeiture at the time of doing the act.</p> <p>A stock of merchandise was insured in the name of R. Freedman. The insurance was procured by the representation of the owner’s agent that R. Freedman was a successful business man. It was owned by Rosa Freedman, a married woman, and was in charge of her brother-in-law. The property was destroyed by fire. The third day after the fire plaintiff’s husband and the agent of the insurance company met by appointment, the agent supposing that he was meeting R. Freedman, the insured. Bills were produced to “Mr. R. Freedman” for goods claimed to have been burnt, and after some examination with a view to ascertain the amount of the loss the parties separated. Proofs of loss in which the pronoun “her” appeared were made out and mailed to the company’s office, without anjr request or suggestion from the officers of the company. Subsequently the special agent of the company wrote a letter to plaintiff addressing her as “ madam,” calling her attention to the fact that a certificate of the nearest magistrate had not been attached to the proof of loss. The letter contained a distinct statement that liability was neither admitted nor denied. Held, that the evidence as to a waiver was insufficient, and that the trial judge should have directed a verdict for the defendant.</p>

Appeal No. 199, Jan. T., 1895, by defendant, from judgment of C. P. Susquehanna Co., Nov. T., 1892, No. 280, on verdict for plaintiff. Trespass for personal injuries. Before Searle, P. J. The facts appear by the opinion of the Supreme Court.

<p>Contract — Construction of contract — Advertising in street car.</p> <p>Defendant, who was engaged in the business of street railway advertising, inserted plaintiffs’ advertising card in street ears in accordance with plaintiffs’ written instructions as follows: “You are hereby authorized (upon conditions expressed or referred to herein only) to insert our advertisement as per copy to be furnished by us, in one hundred and twenty-four cars as per other side of-this contract, to occupy a space of eleven by forty-two”. . . . etc. Plaintiffs claimed that defendant had agreed by parol to permit them to substitute the advertisement of other parties. This was testified to by one witness for the plaintiffs, and distinctly denied by defendant. Under a similar contract for the previous year, plaintiffs at their own request were permitted to sublet their space to other parties. Held, (1) that the evidence was not sufficient to sustain a finding by the jury, that the written agreement between the parties was changed or modified; (2) that plaintiffs were not entitled to recover damages from defendant on the ground that he refused to permit them to sublet their space.</p>

<p>Appeal, No. 180, July T., 1894, by Samuel P. Ferree from judgment of C. P. No. 2, Phila. Co:, March T., 1894, No. 169, on verdict against him.</p> <p>Assumpsit on written contract.</p>

<p>Appeal, No. 127, Jan. T.,1895 by-plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1892, No. 289, entering compulsory nonsuit and refusal to take it off.</p> <p>Trespass for death of plaintiff’s husband. Before Arnold, J.</p> <p>At the trial it appeared that Edwin G. Gangawer, plaintiff’s husband, was killed on June 11, 1892, at a grade crossing of the Bethlehem division of defendant’s railroad, near a station called Bingen. He was driving in an open two-horse farm wagon and was struck by an express train on the north-bound track, after he had crossed the south-bound track. Further material facts, with the description of the crossing and neighboring locality are given in the opinion of the Supreme Court.</p> <p>Jacob Weaver, a witness, having testified as to the place where signals were given by approaching trains at the time of and prior to the accident, was asked:</p> <p>Q. “ Was there any change made after that? ”</p> <p>Objected to.</p> <p>Counsel for plaintiff offers to prove that prior to this accident the railroad company gave the signal for this crossing at a point about 1000 feet from this crossing, and that subsequently to the accident they made a change in that respect, and gave their signal and have continued to give their signal for the crossing at a point about 600 feet further from the crossing — that they changed the signal posts a few days after the accident.</p> <p>Objected to. Objection sustained and exception for plaintiff. [3]</p> <p>The same witness, having testified to examining the wagon tracks in the road and finding only one broad-tire track such as that made by Gangawer’s wagon, was asked:</p> <p>Q. “Was there anything in that track to indicate that Mr. Gangawer had stopped ? ”</p> <p>Objected to. Objection sustained and exception by plaintiff. [4]</p> <p>Q. “Was the track, as it approached the railroad, continuous, or was there any breaking or irregularity in it? ”</p> <p>Objected to. Objection sustained and exception for plaintiff. [5]</p> <p>Frank Brinker, a witness, having testified to his familiarity with the road by which Gangawer approached the crossing, was asked:</p> <p>Q. “ Do you know where it is customary for people to stop, look and listen for trains ? ”</p> <p>Objected to. Objection sustained and exception for plaintiff. [6]</p> <p>Q. “You, being a person frequently using this road, what do you think is a proper place to stop, look and listen for trains ? ”</p> <p>Objected to. Objection sustained and exception for plaintiff. [7]</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were (1) entry of nonsuit; (2) refusal to take off nonsuit; (3-7 j rulings on evidence, quoting the bill of exceptions.</p> <p>The proper place to stop is a question of fact and the testimony of witnesses is a proper and competent method of establishing it: Ellis v. R. R., 138 Pa. 506 ; McGill v. R. R., 152 Pa. 331; Groner v. Canal Co., 153 Pa. 390; Newhard v. R. R., 153 Pa. 418; Wharton on Evidence, sec. 21; Schum v. R. R., 107 Pa. 8; Keng v. R. R., 160 Pa. 644; Hoffmeister v. R. R., 160 Pa. 568 ; Downey v. Traction Co., 161 Pa. 131. .</p> <p>The deceased was guilty of contributory negligence: Ely v. R. R., 158 Pa. 233; Carroll v. R. R., 12 W. N. C. 348; Moore v. P. W. & B. R. R., 108 Pa. 349; Bell v. R. R., 122 Pa. 58 j Marland v. R. R., 123 Pa. 487; Irey v. R. R., 132 Pa. 563; Kraus v. R. R., 139 Pa. 272; Cleary v. R. R., 140 Pa. 19; Blight v. R. R., 143 Pa. 10; Hauser v. R. R., 147 Pa. 440; Ash v. R. R., 148 Pa. 133; Schmidt v. R. R., 149 Pa. 357; Matthews v. R. R., 148 Pa. 491; Myers v. R. R., 150 Pa. 386; Urias v. R. R., 152 Pa. 326; Smith v. R. R., 160 Pa. 117.</p>

<p>Appeal, No. 93, Jan. T., 1895, by-defendants, from decree of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 951, sustaining exceptions to referee’s report.</p> <p>Williams and Mitchell, JJ., dissent.</p> <p>Bill in equity by a partner against his copartners for an account.</p> <p>The ease was referred to J. Levering Jones, Esq., as referee, under the following agreement:</p> <p>“ That the said parties hereto refer the question of the amount due Frank W. Smith as aforesaid to J. Levering Jones as referee to take testimony, and make a report as to the law and the facts. Such report to have the same force and effect as if a bill in equity had been filed by one of the partners for a settlement of partnership accounts, and had been duly prosecuted to issue, and the said J. Levering Jones had been appointed examiner and master therein. The report of said referee to be final, unless either party within thirty days after receiving notice of such report shall file a bill in equity for the determination of the question in dispute, in which case this agreement may be filed by either party in said suit, and shall have the same force and effect therein as if the case had been prosecuted to issue, and the said report of the referee was a master’s report therein.”</p> <p>The facts of the case are fully stated in the opinion of the Supreme Court.</p> <p>The referee found in favor of defendants. The court, in an opinion by Thayer, P. J., sustained exceptions to referee’s report, and entered a decree in favor of plaintiff.</p> <p>Error assigned among others was decree in favor of plaintiff.</p>

Appeal, No. 230, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1894, No. 459, for plaintiff on case stated. Case stated to determine the ownership of a benefit fund.

Appeal, No. 73, Jan. T., 1895, by plaintiff, from decree of Q. S. Centre Co., April T., 1892, No. 28, quashing order of removal. Appeal from order of removal. The overseers of the poor of the borough of Bellefonte, by virtue of an order of removal, removed one James McFadden, a pauper, from the borough of Bellefonte to the Somerset county poor district. From this order Somerset county appealed. The only question was the last legal settlement of James McFadden.

<p>Appeals, Nos. 16, 17, 18 and 19, May T., 1895, by defendants, from judgment of C. P. Dauphin Co., Jan. T., 1891, Nos. 490, 491, 492 and 493, on appeals from tax settlements.</p> <p>Appeals by defendants to the court of common pleas of Dauphin county from settlements made by the auditor general and state treasurer on Sept. 24, 1894, charging said defendants with fifty per cent of the fees of their several offices in excess of the salaries of said officers and the amount paid by them for clerk hire.</p> <p>The cases were tried before Simonton, P. J., from whose opinions the following facts appeared:</p> <p>The defendant, William B. Mann, was, during the year 1893, prothonotary of the courts of common pleas of Philadelphia, and as such received during said year for fees of office the sum of $67,906.06; his salary for said year was $10,000; and his clerk hire was $51,625. The amount of these two sums, deducted from the gross amount of fees received, leaves a balance of $6,281.06; one half of which is claimed by the commonwealth, and charged against defendant in the settlement appealed from.</p> <p>The defendant, William G. Shields, was during the year 1893 register of wills in and for the county of Philadelphia, and as such received during said year for fees of office the sum of $88,432.22. His salary for said year was $5,000, and his clerk hire was $29,373.12. The amount of these two sums deducted from the gross amount of fees received leaves a balance of $54,059.10, one half of which, being $27,029.55, is claimed by the commonwealth and charged against defendant in the settlement appealed from.</p> <p>The defendant, James W. Latta, was during the year 1893 clerk of the court of quarter sessions of Philadelphia county, and as such received during said year for fees of office the sum of $86,065.87. His salary for said year was $5,000, and his clerk hire was $16,900. The amount of these two sums, deducted from the gross amount of fees received, leaves a balance of $64,165.87, one half of which, or $32,082.94, is claimed by the commonwealth and charged against defendant in the settlement appealed from.</p> <p>The defendant, Thomas Green, was during the year 1893 recorder of deeds in and for the county of Philadelphia, and as such received during said year for fees of office the sum of $99,091.95. His salary for said year was $10,000, and his clerk hire was $77,700. The amount of these two sums, deducted from the gross amount of fees received, leaves a balance of $11,391.95, one half of which, being $5,695.97, is claimed by the commonwealth and charged against defendant in the settlement appealed from.</p> <p>The court entered judgment for the commonwealth in each of the cases.</p> <p>Hrrors assigned in each of the cases were in directing judgment for commonwealth.</p> <p>The fifty per cent charged by the act of 1810 is not what is technically called a tax. It was charged against the officer: Cohen v. Com., 6 Pa. 111.</p> <p>The act of 1876 was passed to carry out section 5, article 14 of the constitution. The constitutional provision only refers to fees of officers. It does not refer to taxes due the commonwealth. The exception of taxes due the commonwealth, under the act of 1876, it is submitted, was overcaution, and such taxes could never have been meant by the first part of section one of the act.</p> <p>The act of 1876 is a general act, as it refers to all counties. The act of 1810 is also a general act. Section 18 of the act of' 1876 provides that all laws or parts of laws inconsistent with this act are hereby repealed, etc. A general law repeals by implication another general law with which it is inconsistent, but here are express words of repeal, so that the act of 1810, as far as the fifty per cent of the fees is concerned, must be-repealed by the act of 1876; the two acts being in that respect inconsistent.</p> <p>The best exposition of a statute or any other document is that which it has received from contemporary authority: Endlich on Int. of Statutes, 867; Potter’s Dwarns on Statutes, 179 ; Edwards v. Darby, 12 Wheat. 210; U. S. v. The Recorder, 1 Blatchford, C. C. R. 218.</p> <p>Without the act of 1810 there is nothing to indicate what the legislature meant</p> <p>By the “ fees levied for the state, which shall be to and for the use of the state,” in the first section;</p> <p>By the “ fees otherwise belonging to the state ” in the ninth section;</p> <p>By the “ fees, mileage or perquisites,” other than compensation of the officer, “ required to be paid to the state,” in the fifteenth section;</p> <p>By the provision about the “ net receipts ” in the last clause of the sixteenth section;</p> <p>Without the act of 1810, all of those provisions must be read out of the act of 1876, otherwise it would be inconsistent with its own terms.</p> <p>The act of 1810, being necessary to the intelligent consistence of the act of 1876, can in no wise be repealed by that act, either directly by the meaningless repealing clause at the close, as has been contended, or impliedly, through repugnancy. The “ two statutes can stand together,” therefore “ the posterior does not abrogate the prior: ” Erie Co. v. Bootz, 72 Pa. 196; Contested Election of Barber, 86 Pa. 392.</p> <p>The act of 1810 is not inconsistent with the act of 1876, because the latter act fixes a different and a greater salary for the county officer.</p>

<p>Public officers — Fees—Statutes—Repeal—Acts of March 10, 1810, and April 6, 1871.</p> <p>The act of March 10, 1810, 5 Smith’s Laws, page 106, requiring county officers to pay over to the commonwealth fifty per cent of all fees in excess of $1,500 was repealed as to Allegheny county by thé act of April 6, 1871, P. L. 476, and its supplement, the act of March 6, 1872, P. L. 209, providing that such fees should be paid into the county treasury.</p>

<p>Appeal, No. 8, May T., 1895, by defendant, from judgment of C. P. Daupbin Co., Jan. T., 1894, No. 669, on appeal from tax settlement.</p> <p>Appeal from tax settlement.</p> <p>The case was tried before Simonton, P. J., without a jury.</p> <p>Simonton, P. J., delivered the following opinion :</p> <p>“ 1. Defendant is a national bank, organized under the act of Congress of June 3, 1864, and doing business in the city of Pittsburg, Pennsylvania. Its cashier reported, as required by section 7 of the act of June 8, 1891 (P. L. 242), to the auditor general that the whole number of shares of its capital stock issued was 16,000 ; the actual value of each share, $65.00 ; and the actual value of capital stock issued, $1,040,000.</p> <p>“ On this actual value of capital stock issued the auditor general and state treasurer settled an account, Nov. 18, 1893, charging defendant with a tax of four mills on each dollar of said actual value, amounting to $4,160; and from said settlement this appeal was taken, Dee. 28, 1893.</p> <p>“ 2. There were, in the city of Pittsburg, during the year 1893, twenty-seven national banks chartered under the same act of congress, and doing the ordinary and general business of a national bank, as was defendant, the aggregate par value of whose shares of capital stock was $11,200,000, its actual market value being largely in excess of the par value and estimated at $21,226,875.</p> <p>“ 3. There were in the state of Pennsylvania, during said year 1893, about 336 national banks doing the same kind of business as defendant, the aggregate par value of whose shares of capital stock was about $72,000,000, its market value being much greater, and estimated at about $128,000,000.</p> <p>“ 4. Nine of the said twenty-seven national banks doing business in the city of Pittsburg in 1893, having capital stock of the par value of $2,800,000, elected to collect from their shareholders for the year 1893 a tax of eight mills on the dollar upon the par value of their shares, as provided by section 6 of the act of June 8, 1891. The actual value of all the shares of said banks was more than three times the par value, and the amount of tax paid by said banks was therefore much less than it would have been if they had paid four mills on the actual value of all their shares.</p> <p>“ 5. There were in Pennsylvania in 1893, as shown by the report of the superintendent of banking, a number of state banks whose entire capital stock at par amounted to $8,461,559; and as reported by them to the superintendent of banking, their total capital, surplus funds and undivided profits amounted to $14,321,350 and the market value of their shares to $16,000,000, and a number of these, whose aggregate capital amounted to not less than twelve per cent of all the moneyed capital invested in shares of state banks in Pennsylvania, by electing to pay the eight'mills under said section 6, paid a less amount of tax than they would have paid if they had been taxed at the rate of four mills upon the actual value of all their shares. .</p> <p>“ These facts are found from affidavits presented on the trial and received with the consent of the commonwealth as depositions.</p> <p>“ The learned counsel for defendant have stated in writing the facts as they understand them to be shown by the evidence, and have requested us to adopt their findings as the facts of the case. Some parts of these findings are, however, conclusions of law, and these we do not adopt. But so far as these findings state matters of fact, and are not in conflict with the facts above found by us, we adopt them for the purposes of this case, to show the working of the taxing act in question and the degree to which it produces a lack of uniformity of taxes. They will, therefore, be filed herewith.</p> <p>“Section 6 of the act of June 8, 1891, provides that any bank or savings institution incorporated by this state or the United States may, in lieu of all taxation except upon its real estate, collect from its shareholders, and pay into the state treasury a tax of eight mills on the dollar on the par value of all its shares that have been subscribed for or issued; and section 7 imposes upon every national bank located within this commonwealth which fails to collect and pay said tax of eight mills a tax of four mills upon the actual value of all the shares of its capital stock. ,</p> <p>“ Defendant objects, by its first specification of appeal, that these sections of the act are repugnant to article IX. section 1 of the constitution of Pennsylvania, which ordains that ‘ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.’</p> <p>“ The contention is, that by the terms of these sections of the act in question some national banks of the state are permitted to elect to pay a less rate of tax than four mills upon the dollar of the actual value of their capital stock, while others are required to pay tax at this rate. This result does actually follow the working of the act, for the reason that the par value of the capital stock of some of these banks is so much less than the actual value that a tax upon the former at eight mills is less than a tax on the latter at four mills would be, aud naturally these banks elect to pay the eight mills, while others, whose par value • is more nearly equal to their actual value, for the same reason decline to pay the eight mills, and are taxed at the rate of four mills upon the actual value of their capital stock. Therefore, while the right of election is given to all, it is the interest of some to elect and of others not to elect, and thus actual and absolute uniformity of taxation is not attained, and is shown by the finding of facts.</p> <p>“ A discussion of the numerous cases cited by counsel for defendant, in which the courts of other states have considered and passed upon the question of the constitutionality of taxing acts, in view of the requirement in their constitutions that taxation shall be uniform, would serve no useful purpose. Many of them were cited and discussed by counsel and by the court in Com. v. Del. Div. Canal Co., 128 Pa. 594, where the defendant contended that section 4 of the act of June 30, 1885, taxing corporate loans, was unconstitutional, because the taxes imposed by it were not uniform.</p> <p>“ In that case the court below found as a fact (page 597) that ' the nominal or par value of bonds and mortgages issued by corporations is no certain measure of their actual value, which is often either above or below their par value, the actual value being dependent upon the value of the property mortgaged, the rate of interest, the date of maturity and other conditions, some bonds upon which interest is regularly paid selling as low at fifty cents on the dollar, and others as high as one hundred and fifty; ’ and in discussing the law, said: ‘ When, however, the law itself is so framed that it necessarily produces gross inequality of burden, no matter how perfectly it may be administered, it would seem impossible to avoid the conclusion that it violates the mandate of the constitution. . . . But if in one case the value to which the rate is applied is the expression of the judgment of the proper official, and in another a mere arbitrary nominal value, it is in the very nature of the case that the resulting taxes cannot be uniform. There can be no definite proportion between the value of the property of the citizen and the amount of his taxes. And, as the findings of fact show, this would be the inevitable consequence of the enforcement of the law in this case, no matter how faultless its administration might be.’ And the court below, therefore, held the taxing section there in question unconstitutional. But on appeal the Supreme Court, in an opinion by the late Mr. Justice Clark, reversed this decision, and, notwithstanding the fact that some •of the securities, taxed at their nominal or face value, sold in the market as low as fifty cents, and others as high as one hundred and fifty cents, on the dollar, held that the taxing section was constitutional, and that the taxes were uniform in the sense of that instrument.</p> <p>“ There was certainly as great a want of actual uniformity in the taxes imposed by that act as there is in those collected under the two sections of the act of June 8, 1891, in question in this ease, for, as was shown by the finding of fact quoted above, under it the same amount of tax might be imposed on a ’ bond worth $500 as upon another worth $1,500.</p> <p>“ That ease was followed by Com. v. Brush Elec. Light Co., 145 Pa. 147, where the findings of fact showed that under the normal working of section 4 of the act of June 7, 1879 (P. L. 114), the tax imposed by it on corporations ranged in amount from less than two mills to over five mills on the actual value of their respective capital stocks, as will be seen by referring to finding of fact No. 5 on page 149 of 145 Pa., and to the table prepared from the evidence and made part of said finding, which is to be found in the report of the same case in 28 W. N. 529.</p> <p>“ The court below, however, held said section constitutional, on the authority of the Del. Div. Canal Co. case above cited, and this ruling was affirmed by the Supreme Court, Mr. Justice Williams in the opinion saying: ‘ This is justified by Com. v. Canal Co., 123 Pa. 594. . . . And the learned judge was right in his conclusion that the provisions of the act of 1879 relating to this subject are not objectionable on constitutional grounds.’</p> <p>“We are unable to distinguish these cases from the one before us. The want of actual uniformity is, as the findings of fact above referred to show, not greater here than it was in those cases, and we therefore think that they preclude any further discussion of the question raised by defendant’s first specification of appeal.</p> <p>“ Defendant has specified in its appeal the further objection that the settlement is invalid, because said sections of the act of June 8,1891, are in conflict with the condition upon which the several states are permitted to tax the shares of stock in national banks, namely, ‘ that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.’</p> <p>“ The learned counsel rest their attempt to sustain this objection upon the proposition, stated in their brief, ‘ that the words, “ other moneyed capital,” in section 5219 of the United States Revised Statutes, mean particularly other moneyed capital invested in the banking business, that is, the shares of stock in banks, national or state ; ’ and this being so, that as the act of 1891 allows some national banks to pay eight mills on the par value of their shares, while others are taxed at the rate of four mills on the actual value of their shares, the requirement of the statute, that the shares of national banks shall not be taxed, at a greater rate than other moneyed capital, is violated.</p> <p>“ But an examination of the cases decided by the United States Supreme Court which are cited by counsel shows that this is not the meaning of the words ‘ other moneyed capital.’</p> <p>“Thus in Hepburn v. the School Directors, 23 Wall. 480, the argument on behalf of the plaintiff was that ‘ moneyed capital in the hands of individual citizens means private investments other than in stocks or securities.’ But in answer to this the chief justice, delivering the opinion of the court, said: ‘ It is contended that the term “ moneyed capital,” as here used, signifies money put out at interest, and that as such capital is not taxed upon more than its par or nominal value, the par of these shares is their maximum taxable value.</p> <p>“‘We cannot concede that money at interest is the only moneyed capital included in that term as here used by Congress. The words are “ other moneyed capital.” That certainly makes stock in these banks moneyed capital, and would seem to indicate that other investments in stocks and securities might be included in that descriptive term. But even if it were true that these shares can only be taxed as money at interest is, the result contended for would not necessarily follow.’ That is to say, stock in national banks is ‘ moneyed capital,’ and other investments in stock and securities are ‘ other moneyed capital.’</p> <p>“So in Mercantile Bank v. New York, 121 U. S. 188, when the court, speaking of the meaning of the words ‘ other moneyed capital,’ as used in the statute, say: ‘ Of course it includes shares in national banks; the use of the word “ other ” requires this. If bank shares were not moneyed capital, the use of the word “other” in this connection would be without significance ; ’ the meaning is the same. The contrast is between national bank shares, which are moneyed capital, and shares of stock in other institutions and securities of other kinds, which are ‘ other moneyed capital; ’ and the true meaning of this section of the revised statute is as stated in Boyer v. Boyer, 113 U. S. 689, on page 702: ‘Capital invested in national bank shares was intended to be placed upon the same footing of substantial equality in respect of taxation by state authority as the state establishes for other moneyed capital in the hands of individual citizens, however invested, whether in state bank shares or otherwise.’</p> <p>“ The statute does not deal with the question of uniformity of taxation of the shares of different national banks as between themselves, but is simply intended to protect them from taxation at a higher rate than that imposed upon moneyed capital invested otherwise than in the shares of national banks.</p> <p>“ Defendant in its appeal specifies the further objection that the taxing act upon which the settlement appealed from is based provides no means of notice to the shareholders of the stock upon which the tax is imposed.</p> <p>“ The argument is that the tax is in effect a tax upon the shareholders, and that it is imposed upon them without notice or any provision for notice to them.</p> <p>“ The principle upon which this tax is assessed with respect to notice is the same as that upon which the tax on the capital stock of other corporations is, and has been for half a century, assessed. The settlement is made against the corporation, which is considered for the purpose of taxation the representa-’ tive of the shareholders. Furthermore, it has been decided in recent cases by the Supreme court that the corporation and the shareholders, as well as the capital stock and the shares of stock, are practically the same : Com. v. Fall Brook Coal Co., 156 Pa. 488; Com. v. Lehigh Coal & Nav. Co., 162 Pa. 603. This being so, notice to the corporation would seem to be, to all intents and purposes, notice to the shareholders. And it has frequently been held that the corporation is not entitled to notice before the settlement is made, but that the requirement of the act of 1811, in relation to public accounts, that a copy of the account settled shall be mailed to the corporation, with the right of appeal from the settlement during sixty days thereafter, is a sufficient provision for notice ; and that, where the copy of the settlement was not actually received, an action brought for the amount of the tax is sufficient notice. And the law evidently presumes that the officers of the bank will notify their stockholders, for, prescribing in section 7 the duties of the auditor general in assessing this tax, it declares that ‘it shall be his further duty to hear any stockholders who may desire to be heard on the question of the valuation of the shares as aforesaid.’ For these reasons we think these objections cannot be sustained.</p> <p>“ Nor do we think this taxing act is open to the final objection specified in the appeal, that it is in conflict with amendment XIY. of the constitution of the United States, section 1, which, in part, is as follows : ‘ Nor shall any State .... deny to any person within its jurisdiction the equal protection of the laws.’</p> <p>“ The question intended to be raised by this specification was, we think, settled by the Supreme Court of the United States in Bell’s Gap Railroad Co. v. Pennsylvania, 134 U. S. 232, followed by Jennings v. Coal Ridge Improvement & Coal Co., 147 U. S. 147, and it is therefore not now open for discussion.</p> <p>“ We therefore conclude :</p> <p>“ 1. That sections 6 and 7 of the act of June 8,1891, are not repugnant to article IX. section 1 of the constitution of the state of Pennsylvania, which ordains that ‘ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.’</p> <p>“ 2. That said sections of said act are not in conflict with the condition upon which the several states are permitted to tax the shares of stock in national banks, namely: ‘ That the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.’</p> <p>“ 3. That the taxing act upon which the settlement appealed from is based does not fail to provide sufficient means of notice to the shareholders of the stock upon which the tax is imposed, and said settlement is not invalid for want of such notice.</p> <p>“ 4. That said taxing act is not in conflict with amendment XIV. of the constitution of the United States, section 1, which (inter alia) ordains as follows:‘Nor shall any State .... deny to any person within its jurisdiction the equal protection of the laws.’</p> <p>“ The commonwealth is therefore entitled to recover as follows : s</p> <p>“ Amount of tax as per settlement . . $4,160 00</p> <p>“ Interest from Jan. 1 to Nov. 22, 1894 @ 12 per cent per annum ..... 40146</p> <p>“ Attorney general’s commission, 5 per cent 208 00</p> <p>Total.....$4,769 46 ”</p> <p>Error assigned was entry of judgment for the commonwealth.</p> <p>The act of 1891 works great inequality in the taxation of banks: Cooley’s Const. Law, 493; People v. Mayor of Brooklyn, 4 Comstock, 420; School District v. Readington Twp., 36 N. J. L. 70; State v. Ruyon, 12 Vroom, 98; State v. Indianapolis, 69 Ind. 378; Exchange Bank v. Columbus, 3 Ohio, 15; New Orleans v. Davidson, 30 La. Ann. 555; Woodbridge v. Detroit, 8 Mich. 301; Porter v. R. R., 76 111. 580; Knowlton v. Supervisors, 9 Wis. 889; Marsh v. Supervisors, 42 Wis. 502; Weeks v. Milwaukee, 10 Wis. 186; Philleo v. Hiles, 42 Wis. 527; Com. v. Five Cent Savings Bank, 5 Allen, 486; Santa Clara County v. So. Pas. R. R., 18 Fed. Rep. 385 ; City Nat. Bank v. Paducah, 1 Thompson’s Nat. Bank Cases, 300; State Railroad Tax Cases, 92 U. S. 611; Londonderry v. Berger, 2 Pearson, 230; Fox’s App., 112 Pa. 352; Com. v. Del. Division Canal Co., 123 Pa. 594; Com. v. Lehigh R. R. R., 129 Pa. 455; Com. v. Sharon Coal Co., 164 Pa. 305.</p> <p>This system, containing such actual and gross necessary discriminations, not only violates the state constitution, article 9, section 1, as to uniformity, but also violates the federal statute, section 5219, under which only can any taxation of the shares of stock of national banks be levied and collected: Boyer v. Boyer, 113 U. S. 691; People v. Weaver, 100 U. S. 546; Stanley v. Supervisors of Albany, 121 U. S. 542; Pelton v. National Bank, 101 U. S. 146; Lionberger v. Rouse, 9 Wall. 468 ; Markoe v. Hartfrant, 6 Am. Law Reg. 487; Com. v. Girard Bank, 6 Phila. 431; Pleish v. Hartfrant, 2 Leg. Gaz. 77; Pittsburg v. First Nat. Bank, 55 Pa. 45; Van Allen v. Assessors, 3 Wall. 573; Del. R. R. Tax, 18 Wall. 206; Farrington v. Tennessee, 95 U. S. 679; McMahon v. Palmer, 102 N. Y. 178; Albany City Nat. Bank v. Maher, 19 Blatchf. 175; People v. Pittsburg R. R., 67 Cal. 625; Welty on Assessments, sec. 4; Mulligan v. Smith, 8 Pac. Coast Law J. 499 ; Railroad Tax, 13 Fed. Rep. 750; McCulloch v. Maryland, 4 Wheat. 316; Watson v. First Nat. Bank, 8 N. E. Rep. 97; People v. Weaver, 100 U. S. 543; Salt Lake Bank v. Golding, 2 Utah, 1; Macon v. First Nat. Bank, 59 Ga. 648; Austin v. Boston, 96 Mass. 359; Cook on Stocks, sec. 562 ; Cooley on Taxation, 6th ed. sec. 231; Porter v. Rockford, R. I. etc. R. R., 76 111. 561; Farrington v. Tennessee, 95 U. S. 679.</p> <p>The state has a right to collect the tax, if properly assessed, from the bank: National Bank v. Com., 9 Wall. 353.</p> <p>The act provides no proper notice to the shareholder: Houston v. New Orleans, 119 U. S. 265; Hagar v. Reclamation District, 111 U. S. 701; Com. v. Lehigh V. R. R., 104 Pa. 102; Com. v. Lehigh V. R. R., 129 Pa. 456.</p> <p>The act violates the fourteenth amendment of the constitution of the United States: R. R. Tax Cases, 18 Fed. Rep. 748; Bell’s Gap R. R. v. Pennsylvania, 134 U. S. 232.</p> <p>were not heard, but cited in their printed brief: Com. v. Del. Div. Canal Co., 123 Pa. 594; Com. v. Brush Electric Light Co., 145 Pa. 147; Hepburn v. School Directors, 23 Wall. 485 ; Mercantile Bank v. New York, 121 U. S. 138; Com. v. First Nat. Bank, 96 Am. Dec. 287; New Orleans v. Houston, 119 U. S. 279; County Santa Clara v. S. P. R. R., 18 Fed. Rep. 410; Davis v. Los Angeles, 86 Cal. 37; Happy v. Mosher, 48 N. Y. 313; Com. v. Lehigh Coal & Navigation Co., 162 Pa. 603; Chester City v. Pennsylvania, 134 U. S. 240; Jennings v. Coal Ridge Imp. & Coal Co., 147 U. S. 147.</p>

Appeal, No. 50, July T., 1894, by defendants, from judgment of C. P. Crawford Co., Sept. T., 1892, No. 28, on verdict for plaintiff. Ejectment for an undivided one sixth interest in a lot on the southwest corner of Centre street and Public Square in the city of Meadville. Before Henderson, P. J. At the trial it appeared that Gaylord Church died in September, 1869, leaving a will, the material portions of which were as follows : “First.

Appeal, No. 75, Jan. T., 1895, by defendant, from order of C. P. Erie Co., MayT., 1898, No. 588, discharging a rule to open judgment. Rule to open judgment. From the record it appeared that T. M. Culbertson owed Alvira Shearer $621, on a judgment note dated May 1, 1892. Alvira died on April 3,1893. On July 26,1893, the judgment note was entered up by the executor.

<p>Sheriffs interpleader — Lease—Evidence.</p> <p>On a sheriff’s interpleader to determine the ownership of growing crops and com in crib, the claimant of the property may show by parol evidence that a lease of the farm where the crops were growing, signed by the defendant in his own name, was really signed by defendant as agent for the claimant, and that the defendant had no interest in the property.</p>

Appeal, No. 277, Jan. T., 1895, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff. Trespass for malpractice. Before Sadler, P. J. At the trial it appeared that defendant, a physician, treated a minor daughter of plaintiff for a broken arm.

<p>Appeal, No. 416, Jan. T., 1895, by . plaintiff, from judgment of C. P. Crawford Co., May T., 1894, No. 28, for defendants on case stated.</p> <p>Case stated.</p> <p>The case stated was as follows:</p> <p>“In 1867 Cyrus Kitchen and others organized a general copartnership under the name and style of the Meadville Savings Bank, for the purpose of carrying on a general banking business in the city of Meadville, and signed Articles of Association, a copy of which is hereto attached, and marked ‘ Exhibit A,’ and made a part of this case stated.</p> <p>“ On Jan. 20, 1877, five shares of the capital stock of said association, originally issued to A. P. Ingraham, were regularly transferred to D. V. Derickson, and were held by the said Derickson until the date of his death, on July 21," 1891. The said D. V. Derickson never signed said articles of association. He was never a director or officer of said association, and was never advertised as a stockholder. Defendants’ testator made no mention in his will of his said stock.</p> <p>“The said association continued to do business after his death, without any change in the method of keeping their accounts, or any distinction between deposits prior and subsequent to said death.</p> <p>“ On Jan. 18, 1894, the Meadville Savings Bank closed its doors, and on Jan. 23,1894, made a general assignment to J. W. Smith, for the benefit of its creditors.</p> <p>“ George N. Wilcox, the plaintiff, was a depositor in said bank prior to the death of said Derickson, and on that date there was due him on open account the sum of $1,952.91. Subsequently said George N. Wilcox continued to do business with said bank, depositing from time to time, and checking against his said account; and from March 3, to April 1, 1892, his account was overdrawn. It was again overdrawn from May 6, to May 11, and again from Dec. 6, to Dec. 13, 1892. But on Jan. 13, 1894, when the doors were closed, there was due him on said account the sum of $2,742.27. The executors of said decedent never accepted the said stock of their testator under the said Articles of Association, never took any part in the business of said association, nor in any way admitted or assumed any liability as stockholders.</p> <p>“ If the court be of opinion on the above facts that the plaintiff is entitled to recover, then judgment to be entered in favor of plaintiff and against defendants for such sum as plaintiff is legally entitled to recover; otherwise judgment to be entered for defendants. Either party reserves the right to take an appeal to the Supreme Court from judgment entered hereon.”</p> <p>The material portions of the Articles of Association were as follows:</p> <p>“We, the subscribers hereto, hereby agree to form ourselves into an association by the name, style and title of the Mead-ville Savings Bank, for the purpose of dealing in exchange, bills, notes, bonds and other securities, receiving deposits and generally carrying on like business.</p> <p>“ The capital stock of said association shall consist of five hundred shares of one hundred dollars each, of which the parties have subscribed the number set opposite their respective names, and agree to pay fifty dollars on each share in cash at the time of subscribing therefor, and five dollars on each share on the first day of May next, and a like amount every thirty days thereafter until the whole is paid. The stock and interest of and in said association shall be held as and in the nature of personal and partnership property only, and shall always be liable and deemed to be hypothecated for any indebtedness or liability of the holder thereof to said association, whether presently due or otherwise; and the said stock shall not be assigned or transferred without the consent of the board of directors; and all the property of and belonging to said association, as well lands and tenements as chattels, rights and credits, shall be held by and in trust for said association as partnership or associate property and assets, and for partnership or associate purposes. The stock, shares and interest in said association shall be assignable and transferable only on the books thereof and with the assent of the board of directors, in the presence of the president and cashier, and upon such transfer the assignee or assignees of such share or shares shall thereby, as to such share or shares, succeed and become subject to all the rights and obligations of an original party thereto. Provided, that no stockholder shall be entitled to vote upon more than fifty shares of stock owned by him. Provided, also, that none of the stock of said association shall be held by a minor, either personally or by guardianship, except in pursuance of a devisee,nor by any corporation. And, provided that in case of the refusal of the board of directors to assent to the transfer of any such stock to any person competent to hold the same, then and thereupon the holder thereof shall be entitled to require of said association to receive an assignment of such share or shares of stock and to receive therefrom a sum equal to the par value of such share or shares with the addition of a proportional part of the contingent fund as indicated by the last semiannual statement of the condition of the association.</p> <p>“ This association shall continue until it shall be declared to be dissolved by the votes of the holders of a majority of the shares of stock entitled to representation at a stockholders’ meeting called for that purpose, and no general assignment of the assets of said association shall be made except in pursuance of a like vote, nor shall the death of a stockholder be, nor operate as a dissolution of said association, but the shares of such decedent shall thereupon vest in his executors or administrators or devisees of said stock who shall succeed with like effect as provided in case of a transfer upon the books of the association, except in the case of a minor devisee the stock shall stand in the name of the guardian of such minor. The holders of the stock of this association either by original subscription, transfer or otherwise, shall, by virtue of such subscription, or acceptance of such transfer, be subject to and thereby take upon themselves the several and respective duties and obligations devolved and incumbent upon them as stockholders or directors, as the ease may be.”</p> <p>Notes, P. J., of the 87th judicial district specially presiding, delivered the following opinion :</p> <p>“ On the 20th of January, 1877, D. Y. Derickson, the defendants’ testator, became a member of a partnership association doing business in the name and style of the Meadville Savings Bank, by a transfer on the books of the association, in the manner prescribed by the articles, of five shares of stock originally held by A. P. Ingraham. He died on the 21st of July, 1891, leaving a will, in which he makes no specific reference to the stock in this bank. The executors have never accepted the stock, or in any maimer acted as partners.</p> <p>“ The articles of association of the bank provide that it shall have a capital stock of $50,000 divided into 500 shares of $100 each; that the business shall be transacted by officers elected by the shareholders; that transfers of the stock may be made on the books in the manner provided by the articles; that the death of a member shall not dissolve the partnership; but that his executor, administrator or devisee shall succeed to his rights, in the manner provided in case of a transfer on the books.</p> <p>“ The plaintiff is a depositor and creditor of the bank, which owed him $2,742.27 on the 13th of January, 1894, when the bank failed and closed its doors. All of this indebtedness was com tracted by the bank after the death of D. V. Derickson. The question of law presented is whether under these facts and in view of the language of the Articles of Association the executors are liable to the plaintiff for this indebtedness.</p> <p>“ It is, perhaps, not strictly correct to say that the death of one partner works no dissolution of the firm, where by agreement of the partners the business is to be continued notwithstanding the death, for a partnership cannot exist without partners; and a dead man’s estate, apart from the persons to whom it has passed by law at his death, has no capacity to fill the place in the partnership made vacant by his death: Parsons on Contracts (1st ed.), 406-451. It is, however, well settled that the usual consequences of a dissolution, whether by transfer of the interest of a partner to another, or by death of one of the partners, may be avoided by suitable provisions in the partnership agreement, or by provisions in the will of the dying partner, if agreed to by the survivors. If such is the agreement the business may be continued after the death as before. The personal representative, or devisee, of the decedent may not •demand an account until the termination of the partnership, by the terms of the agreement. And so much of the decedent’s estate as is invested in the partnership venture, or is by him subjected to the demands of the partnership business, will pass into the hands of those to whom it is given by the law, clogged with the liabilities thus placed upon it by its former owner. These principles are well settled both in our own state and elsewhere: Gratz v. Bayard, 11 S. & B. 41; Laughlin v. Lorenz, 48 Pa. 275; 17 Am. & Eng. Eney. of Law, 1134; Lindley on Part., 1353, (*605) note 1.</p> <p>“ It seems quite clear that the liability of a deceased partner’s estate for debts contracted after his death, whether general or specific, rests not upon the common law of partnerships, or the ordinary liability of partners for firm debts, but upon the special provisions of the agreement made by the deceased partner, or the terms of his last will. A change of partners whether by transfer or by death, necessarily involves a dissolution of the firm; if the business goes on with new partners in place of the old this involves the organization of a new firm. So it was held in respect to transfers of stock in a banking partnership in Christy v. Sill, 131 Pa. 492; and the reason is much stronger in case of death than of transfer. All the cases which have held a deceased partner’s estate liable to creditors of the partnership, whose debts were contracted after the death, have rested the liability either upon the terms of the agreement or the will, and not upon any common-law liability as partner. This being so, we are called upon to determine what liability the defendants’ testator assumed when he accepted the transfer of the stock of Ingraham in this partnership. By so doing he substantially agreed to be bound by the terms of the partnership agreement. If the articles expressly declare that the whole estate of each partner shall be considered as embarked in the business and shall continue liable for losses occurring; after the death of the partner, then we may enforce the terms of this contract against the defendants, there being no question raised in behalf of creditors claiming prior liens upon the estate. But if the contract is silent upon the particular point involved here, or if its language is ambiguous and uncertain, how shall it be construed ? This, in the light of the decided cases, is the real question which we are obliged to determine.</p> <p>“In Burwell v. Mandeville, 2 How. 560, it was held that nothing short of the most clear and unambiguous language would justify the court in holding the general estate of the testator liable for the debts of a partnership, continued under his will after his death, by reason of the manifest inconvenience of such a rule; Judge Story citing with approval the case of Ex parte Garland, 10 Ves., Jr. 110, in which the inconvenience was strongly put by Lord Eldon, the lord chancellor. In Stan wood v. Owen, 14 Gray, 195, the Supreme Court of Massachusetts, intimating strongly in the opinion that the general estate of a deceased partner is not liable for firm debts contracted after his-decease, although by the articles death was not to dissolve the partnership, held that such debts could not be allowed to share with the individual debts of a decedent in the distribution of his estate.</p> <p>“By the same court, in Phillips v. Blatchford, 137 Mass. 510, it is again intimated that no general liability to creditors of the firm exists unless representatives of the estate enter into the partnership, and themselves become partners. But it was held that the partnership agreement, in the case then before the court, practically amounted to a covenant on the part of each partner to indemnify his copartners against the payment of more than a ratable proportion of .the partnership debts; and hence that one of the surviving partners, who had paid off more than his share of partnership debts, might recover against the executors for contribution.</p> <p>“ In Stewart et al. v. Robinson, 115 N. Y. 328, the principle announced in Burwell v. Mandeville, supra, was applied to the construction of a partnership agreement; and it was held that the general estate of a deceased partner was not liable, notwithstanding provisions in the agreement, for the continuance of the partnership, in the absence of clear language subjecting the general estate to such liability.</p> <p>“ The statement in the 17 Am. & Eng. Ency. of Law, 1135, that the rule of liability is different in case of a partnership having transferable shares from that applicable to other partnerships, is not in the least sustained by the cases cited. Blodgett v. The Bank, 49 Conn. 9, was a case in which the executors had actually entered into the partnership and become personally liable as partners : Kottnitz v. Alexander, 34 Tex. Rep. 689, was somewhat peculiar in its facts, but the question indicated did not arise, and the one now under consideration is not deliberately treated.</p> <p>“ There is apparent in the eases a consciousness in the minds of the judges of the extreme inconvenience of subjecting estates of decedents to a liability which might unreasonably delay their settlement, and necessitate recalling legacies and devises from the hands of their recipients years after they had been received, to satisfy demands which had no existence at the time of distribution; and a strong reluctance for these reasons to declare such a liability. A possible exception to these cases, is our own case of Laughlin v. Lorenz, supra. In that case, the principal question was not as to debts contracted after the death of a dying partner, but as to the rights of third parties growing out of the settlement, adjustment and winding up of the partnership. Incidentally the liability for such debts was involved and was decided. The language of Judge Agnjsw, in his opinion, does contain an intimation that the rule which we have found all but uniform in all other courts, viz, that the general estate is not liable for such debts unless distinctly made so by clear language either in the contract or the will, is not correct; but the converse of it, viz, that the estate is to be regarded as liable unless expressly exempted by the contract, or the will. But it is not clear that the learned judge really intended to sanction such a departure from the course of decision in other courts, nor that his mind was drawn to its consequences. The conclusion reached by him, and his brethren, may and probably did rest upon other considerations.</p> <p>“ It cannot be true that the general estate is liable unless this liability is limited by the contract, or the will of the dying partner, unless it be also true that such liability flows from the partnership relation and is, in substance, the ordinary common law liability of each partner jointly and severally with each of the others for every debt contracted by the firm. Surely a dead man cannot in the eye of the law have rights or incur liabilities. Nor can his property stand alone, by itself, disconnected from personal ownership and sustain such liability. Nor is it reasonable or logical that a person should be held to be a partner with others without his own agreement to become such express or implied. And indeed our Supreme Court has decided that executors cannot be so regarded in the absence of an agreement: Bank v. Pennock, 2 Mona. 166. Moreover, if such a liability exists by reason of the partnership relation, and the stipulation for its continuance after the death of one of the partners, how can the dying partner by provisions in his will-exempt his estate from liability ?</p> <p>“ If we are correct, as we think the great weight of authority makes clear, in saying that the liability of the estate of a deceased partner for debts contracted after his death, if any. exist, flows from the express covenant or agreement of the decedent, or the express direction in his will accepted and agreed to by the survivors, then it seems reasonable, in view of the departure from the ordinary rule of law and the extreme inconvenience of the contrary rule, that the intention substantially to embark his whole estate in the partnership, or to make it available to the partnership uses, should appear before the general estate should be held liable for such debts. What then is the true construction of the articles of copartnership to which the testator assented when he accepted a transfer of stock ?</p> <p>“ The articles provide that the death of a stockholder shall not operate as a dissolution of said association :</p> <p>“ ‘But the shares of such decedent shall thereupon vest in his executors, or administrators, or devisees, of said stock, who shall succeed with like effect as provided in case of a transfer upon the books of the association.’ It was provided in case of a transfer that ‘ the assignee or assignees of such share or shares shall thereby as to such share or shares succeed and become subject to all the rights and obligations of an original party thereto.’ And it was further provided as follows: ‘ The holders of stock in this association either by an original subscription, transfer or otherwise, shall, by virtue of such subscription, or acceptance of such transfer, be subject to and thereby take upon themselves the several and respective duties and obligations devolved and incumbent upon them as stockholders or directors, as the case may be.’</p> <p>“ While the language of the contract is that the partnership shall not be dissolved by a death, the meaning plainly is that the dissolution caused by death shall not involve the winding up of the partnership business, the settlement of the partnership account, nor the withdrawal of any portion of the capital.' An easy means is provided by which a new partnership consisting of the surviving partners and one or more new members who shall take the place of the dead partner may be formed to continue the business. The assignee in the case of a transfer becomes a partner in this new firm by acceptance of the transfer on the books of the association. And it is to be noted that in case of death the executors, administrators and devisees of the stock are mentioned together, the like provision being made as to all.</p> <p>“ Unless we are prepared to hold that one to whom stock in such partnership is devised becomes a partner in the new firm, and subject to liability as such partner by virtue of the devise itself, without any acceptance of it on his part, or acquiescence in any way in the provisions of the partnership agreement, we cannot hold that executors or administrators become so liable merely because they are such. If the stock is accepted and the relation of partner established between the survivors and the executors, the ease is free from difficulty. But where it is not so accepted they cannot be charged with liability as partners any more than could the devisee who has not accepted.</p> <p>“We fail to discover in the language used in this contract any intention on the part of the contracting parties to subject their estates, in case of their death, to the vicissitudes of the partnership business regardless of the wishes of those to whom the estate descends. Doubtless the right to an account and to withdraw the capital of the testator from the business does not exist, by reason of the partnership agreement to the contrary. And so much of the testator’s estate as was invested in the partnership remains and is liable for the debts incurred in the business. Possibly the language of the partnership agreement may be construed as a covenant by each partner with the others-to indemnify them against more than their proper share of loss. But there is nothing in the agreement which can give the creditors of the partnership, whose debts have arisen since the testator’s death, a right to resort to his general estate. For these reasons we are of opinion that upon the case stated the law is with the defendants.</p> <p>“ Judgment is therefore directed to be entered in favor of the defendants in accordance with the agreement of the parties.”</p> <p>Error assigned was entry of judgment as above.</p> <p>By express agreement a partnership may continue after the death of one of its members: Phillips v. Blatchford, 137 Mass. 510; Grata v. Bayard, 11 S. & R. 41; Laughlin v. Lorenz, 48 Pa. 275; Leaf’s App., 105-Pa. 505; Gandy v. Dickson, 36 W. N. G. 97; Butler v. Am. Co., 46 Conn. 136 ; Blodgett v. Am. Nat. Bank, 49 Conn. 9.</p> <p>The cases of continuation by virtue of a contract are decided upon their own facts: Stewart v. Robinson, 115 N. Y. 328; Robinson v. Floyd, 159 Pa. 177.</p> <p>But should not this case be determined as in the case of a corporation with general individual liability of stockholders ?‘ In a corporation of this kind the estate is held liable for debts contracted after the decease: Bailey v. Hollister, 26 N. Y. 112; Miller v. State, 15 Wall. 497; Cochran v. Wiechers, 119 N. Y. 403.</p> <p>The death of Derickson actually dissolved the partnership, notwithstanding the stipulation in the articles: “ nor shall the death of a stockholder be nor operate as a dissolution of said association : ” Pars, on Part., 4th ed. sec. 348; Shamburg v. Ruggles, 83 Pa. 148; Christy v. Sill, 131 Pa. 492; Campbell v. Floyd, 153 Pa. 84; Robinson v. Floyd, 159 Pa. 165,177; Caldwell v. Stileman, 1 Rawde, 216; Marlett v. Jackman, 3 Allen, 287; Gratz v. Bayard, 11 S. & R. 41; Laughlin v. Lorenz, 48 Pa. 275; Burwell y. Mandeville’s Exrs., 2 How. 560; Pitkin v. Pitkin, 7 Conn. 307; Ex parte Garland, 10 Ves. 110; Bras-field v. French, 59 Miss. 632; 17 Am. & Eng. Ency. of Law, 1135; Smith v. Ayer, 101 U. S. 320; Wild y. Davenport, 7 Atl. R. 295 ; Vincent v. Martin, 79 Ala. 540; Lucht v. Behrens, 28 Ohio, 231; Jones v. Walker, 103 U. S. 444.</p>

Appeal, No. 310, Jan. T., 1895, by John L. Barner, from decree of O- C. Cumberland County, opening confirmation of executor’s account. Petition to set aside confirmation of executor’s account. From the record it appeared that the executor filed a first and partial account on Feb. 11, 1893, which was confirmed without exceptions being filed on March 14, 1893.

Appeal, No. 17, July T., 1895, by plaintiffs, from decree of C. P. Cumberland Co., May T., 1894, No. 2, dismissing bill in equity. Bill in equity for contribution. From the record it appeared that under the will of Peter Spahr, his daughter, Catharine Spotts, was trustee of certain real estate to “ possess, occupy and control ” during her life for her children. After the death of her father, Mrs. Spotts engaged in business, and contracted a large amount of debts.

Appeal, No. 482, Jan. T., 1895, by plaintiff, from judgment of C. P. Cumberland Co., on verdict for defendant. Assumpsit on a policy of fire insurance.

<p>Pensions — Soldier's Home — Voluntary payment or maintenance.</p> <p>In an action by an inmate of a Soldiers’ Home against the Home, to-recover money which he alleged he had been compelled to pay to the Home out of his pension, an affidavit of defense is sufficient which avers-that a rule of the Home required the inmates to turn over eighty per cent of their pension money to the treasurer of the Home; that upon the admission of the plaintiff to the Home he signed an agreement binding himself to comply with the rules of the Home of which he knew this to be one; that the payments for which he sued were made by him voluntarily in accordance with the contract executed by him on his admission.</p> <p>Not decided whether this rule of the Home is authorized or not.</p>

Appeal, No. 159, Jan. T., 1895, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1889, No. 367, on bill in equity. Bill in equity to compel the performance of covenants contained in a contract.

<p>Deed — Description—Boundaries—Evidence.</p> <p>Where the eastern boundary of a lot is described in a deed as “ beginning at a point on the south side of the Warren and Franklin road and the-north-east corner of ... . lot, running thence southwardly along said .... line ten perches to a post, thence eastwardly eight perches to a post, thence northwardly to a post in said road, thence westwardly along said road to the place of beginning,” and there is nothing else in the deed to show what was the lot to the east of the land, and the evidence as to the location of the eastern line is conflicting, the position of the line is a question of fact for the jury.</p>

<p>Appeal, No. 41, Jan. T., 1895, by defendant, from judgment of C. P. Warren Co., Dec. T., 1898, No. 66, on verdict for plaintiff.</p> <p>Assumpsit on a benefit certificate of a beneficial association-Before Noyes, P. J.</p> <p>At tbe trial it appeared that in 1881 plaintiff became a member of the defendant association, and took a benefit certificate which set forth that there “shall be paid to Levi Hale and Thomas Hale, subject to change at pleasure, $1,800, in the-event of the death of Susan Hale, a member, while in good standing in the organization, prior to the completed period of expectancy.” And further, under the head of “ Endowment,” “If living and in good standing twelve years from the date hereof, one-half the sum stipulated above, shall be paid to the legal payee of this certificate; the balance at death.” Attached to the certificate, and in addition to the constitution and bylaws of the defendant was an application, or copy of one, purporting to be signed by the plaintiff, a medical examination and certain other documents. In the application this clause-appeared : “ I further agree to accept said beneficiary certificate subject to such laws, rules and regulations as now exist, or may hereafter be adopted, and governing said corporation.”</p> <p>In 1898, the following by-law was passed:</p> <p>“ Sec. 14. All persons holding valid benefit certificates that have been or may be hereafter issued to them who shall live to the period of expectation of life as designated in section 2 of this article ‘ Synopsis,’ and becoming totally physically disabled, shall be entitled to receive yearly a one-tenth part of the amount specified in their benefit certificate.”</p> <p>The court charged in part as follows:</p> <p>“ [But in so far as this contract agrees to pay to Susan Hale, if she is in good standing in the organization twelve years from the date of it, one half of the amount, to wit, $900, that is a. matter altogether apart from the by-laws ; and they may amend the by-laws as they please to affect all future cases, but such amendment does not invalidate or wipe out that contract.] [1]</p> <p>“ [The benefit certificate was accepted subject to the right of the corporation to amend its by-laws and to change the contract, in so far as the by-laws make it, but not in so far as the-contract is made by the benefit certificate itself. For these reasons I think the plaintiff is entitled to recover, under the undisputed evidence, the one half mentioned in the certificate.] [2],</p> <p>Defendant’s points were among others as follows :</p> <p>“ 1. The plaintiff, as a member of the corporation, defendant, was bound by the amendment to its by-laws providing for the payment yearly, upon the arrival at the period of expectation of life, and total physical disability, of a one tenth of the amount specified in her benefit certificate, instead of the payment of the one half of the amount specified in said certificate at the arrival of such period. Answer: Answered in the negative. [8]</p> <p>“ 2. Under the agreement of the plaintiff, contained in her application for a benefit certificate, ‘ To accept said beneficiary certificate, subject to such laws, rules and regulations as now exist or may hereafter be adopted, and governing said corporation ; ’ and the authority contained in article 6 of the defendant’s charter of incorporation, to ‘Enact such constitution, by-laws, rules and regulations as from time to time shall be deemed necessary and proper for the government of such corporation including the admission or election of members, their removal or suspension, the payment of dues, fees, penalties, benefits, management of all its funds and property, and from time to time alter and modify the same as shall be therein provided,’ the defendant corporation had the power to change the by-laws in force at the time the plaintiff became a member of the defendant corporation, and to adopt in lieu thereof the amendment, section 14, by-laws of 1893, which amended section is in part as follows : ‘ All persons holding valid benefit certificates that have .been or may be hereafter issued to them who shall live to the period of expectation of life as designated in section 2 of this article, “ Synopsis,” and becoming totally physically disabled, shall be entitled to receive yearly a one tenth part of the amount specified in their benefit certificate; ’ and such new by-laws, when adopted before the period of expectation of life, became binding upon the plaintiff. Answer: As to the second point, I will refer to the general charge for my answer, in which it is fully covered.” [4]</p> <p>“ 5. Under all the evidence in the case, the verdict of the jury for the plaintiff can only be for the sum of one hundred and eighty dollars, ($180,) with interest from July 21, 1893. Answer: I answer this point in the negative.” [5]</p> <p>Verdict and judgment for plaintiff for $963.75. Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p> <p>An association organized not to do business for profit or gain, but to pecuniarily aid the widows, orphans, heirs and devisees of its members, is not an insurance company: Com. v. Equitable Beneficial Assn., 137 Pa. 412; Bacon on Benefit Soc. and Life Ins., sec. 51; Northwestern Masonic Aid Association of Chicago v. Jones,-154 Pa. 99; act of April 6, 1893, P. L. 7; Dickinson v. Ancient Order of United Workmen, 159 Pa. 258; Fraternal Guardians Assigned Est., 159 Pa. 600; Hamill v. Supreme Council Royal Arcanum, 152 Pa. 537; Beatty v. Supreme Commandery U. O. of Golden Cross, 154 Pa. 484: McAlees v. Iron Hall, 12 Cent. Rep. 415; Johnson v. R. R., 163 Pa. 127.</p> <p>When the benefit certificate was issued, it was subject to the “ medical examination, constitution and laws herewith constituting contract,” and attached thereto: Bishop v. E. O. M. A., 112 N. Y. 6 ; Benefit Assn. v. Burkhart, 110 Ind. 189; Cross-man v. Supreme Lodge, 13 N. Y. 596; Munrieh v. Supreme Lodge, 24 N. Y. 287 ; Hellenberg v. District, No. 1, I. O. of B. B., 94 N. Y. 580; Gray v. Supreme Lodge Knights of Honor, 118 Ind. 293; Hesinger v. Home Ben. Assn., 41 Minn. 516 ; Supreme Lodge v. Knight, 117 Ind. 489; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. 402; Miller v. Hillsborough Mut. Fire Assurance Assn., 6 Cent. Rep. 324; Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443 ; 2 Am. & Eng. Ency. of Law, 176.</p> <p>The power to amend by-laws is as broad as the power to enact them: Boone on Corporations, sec. 56, p. 67; Boisot on By-laws, sec. 16, p. 12; Morawetzon Private Corp. 499; Angelí & Ames on Corp., sec. 329; May v. New York Safety Fund Assn., 13 N. Y. 66 ; Sheeler’s App., 159 Pa. 594.</p> <p>A member of an incorporated beneficial society does not stand in the relation of a creditor to the society, and can claim only such benefits as are prescribed by the by-laws existing at the time he applies for relief : St. Patrick’s Male Beneficial Society v. McVey, 92 Pa. 510; McCabe v. Father Mathew Society, 24 Hun, 149; Bacon on Benefit Societies, sec. 236; Ellerbe v. Faust, 25 S. W. 390; Julia Fugure v. The Mutual Society of St. Joseph, 46 N. H. 362; Masonic Mutual Ben. Soc. v. Burk-hart, 110 Ind. 189; Poultney v. Bachman, 31 Hun, 49 ; Stohr v. San Francisco Musical Fund Society, 82 Cal. 557; Hutchinson v. Supreme Tent K. O. T. M., 52 N. Y. Rep. 199; Sheeler’s App., 159 Pa. 594; Becker v. Berlin Ben. So., 144 Pa. 232; Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 489 ; Masonic Relief Association v. McCurdey, 2 MeVey (Dist. Columbia), 79.</p> <p>were not heard, but argued in their printed brief. The amended by-laws had no retroactive operation: Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 289; West v. Grand Lodge A. O. U. W., 22 Oreg. 271; Supreme Commandery v. Ainsworth, 71 Ala. 449; Becker v. Berlin Ben. Soc., 114 Pa. 232; McDowell v. Ackley, 93 Pa. 277; Hutchinson v. Maccabees, 52 N. Y. 199; Bishop’s Admr. v. E. O. M. A., 112 N. Y. 627 ; Gray v. Pollard Bank, 3 Mass. 364: Kent v. Quicksilver Mining Co., 78 N. Y. 182; Folmer’s App., 87 Pa. 133; Black & White Smith’s Society v. Vandyke, 2 Whart. 309; Toram v. Howard Beneficial Society, 4 Pa. 519, Society for Visitation, etc., v. Com., 52 Pa. 125; St. Patrick’s Male Beneficial Society v. MeVey, 92 Pa. 510.</p>

Appeal, No. 203, Jan. T., 1895, by defendant, from judgment of C. P. Warren Co., Sept. T., 1893, No. 28, on verdict for plaintiff. Trespass for personal injuries. Before Noyes, P. J. At the trial it appeared that on May 10, 1893, plaintiff was injured by falling on the sidewalk on the west side of Main street in Columbus borough. Evidence for the plaintiff tended to show that at the point where the accident occurred the planks of the sidewalk were worn and loose.

Appeal, No. 333, Jan. T., 1895, by W: P. Trim, from decree of O. C. Warren Co., Sept. T., 1893, No. 20, dismissing appeal from register of wills. Appeal from register of wills. From the record it appeared that Ezra Trim died July 28, 1893, leaving to survive him only collateral kin.

<p>Appeal, No. 332, Jan. T., 1895, by plaintiffs, from order of C. P. Elk Co., Sept. T., 1893, No. 171, dissolving an attachment.</p> <p>Rule to dissolve attachment issued under act of March 17, 1869.</p> <p>The attachment was issued on the affidavit of M. S. Kline, which averred:</p> <p>“ That he is one of the plaintiffs above named ; that D. C. Oyster, Alfred Short and C. R. Early, surviving partners late doing business under the firm name of the Ridgway Bank, are justly indebted to the said Eliza A. Hall, Jerome Powell, W. H. Hyde, C. H. M’Cauley and M. S. Kline, doing business under the firm name of the Elk County Bank, in a sum exceeding one hundred dollars, to wit, the sum of forty-seven hundred dollars and ninety-five cents upon a certain protested draft drawn by the said Ridgway Bank upon the American Exchange National Bank of New York city, dated June 21st, 1893, for forty-six hundred seventy-nine dollars and thirty-four cents, with interest from June 21st, 1893, and protest fees $1.30.</p> <p>“That the said defendants at Ridgway, Pennsylvania, on the said 21st day of June, 1893, obtained from the deponent certain checks, notes and acceptances of the value of forty-six hundred seventy-nine dollars and thirty-four cents and then and there delivered the aforesaid draft to the said plaintiffs in payment thereof, well knowing at the time of the making and delivering of the said draft that the said defendants had no moneys on deposit or credit at the said American Exchange National Bank of New York city, for the payment thereof. That the said defendants then and there well knew that they were insolvent and unable to pay their indebtedness or said draft and that the same was made and delivered as aforesaid with intent to cheat and defraud the said plaintiffs; and the deponent further says that the said defendants then and there in manner aforesaid fraudulently contracted the said debt of forty-six hundred seventy-nine dollars and thirty-four cents for which this suit is brought. And deponent further says that the said D. C. Oyster and Alfred Short have property, stock, moneys and evidences of debt which they fraudulently conceal, with intent to defraud their creditors, and that they are about to dispose of and remove out of the jurisdiction of this court said property, moneys, stock and evidences of debt, secretly, fraudulently, and with intent to defraud this deponent and the other creditors of the said defendants.”</p> <p>On May 31, 1894, G. A. Rathbun, attorney for the defendants, obtained a rule to show cause why the attachment should not be dissolved.</p> <p>A large amount of evidence was taken, and the court subsequently made an order dissolving the attachment.</p> <p>Rrror assigned was above order.</p> <p>The dissolution of an attachment under the act of March 17, 1869, is an interlocutory order, resting in the discretion of the court of common pleas, and not reviewable in this court: Hoppes v. Houtz, 133 Pa. 34 ; Wetherald v. Shupe, 109 Pa. 389 ; Black v. Oblender, 15 Atl. Rep. 708 ; Walls v. Campbell, 125 Pa. 346; Bacon v. Horne, 123 Pa. 452; Froley v. Cent. Fire Ins. Co., 9 Phila. 219; Holland v. Atzerodt, 1 Walker, 237.</p>

<p>Mortgage — Affidavit of defense.</p> <p>On a scire facias sur mortgage against a married woman, the affidavit of defense averred that the mortgage had been given by her under an agreement with plaintiff: (1) That her liability was to be only that of a guarantor of her husband upon certain notes held by the plaintiff on which her husband was an indorser; (2) that her liability upon the notes and the mortgage in question was to be a mere contingent and conditional one; (3) that certain notes, mortgages and other securities, pledged to the plaintiff bank by her, wore to be first collected by it, and applied to the payment of her husband’s debt to it; (4) that only in case of a deficiency after enforcing the collection of these notes and other securities was there to be a resort to the mortgage in controversy; (5) that other conditions upon which alone the plaintiff had a right to proceed upon this mortgage had not been performed by it; (6) that the contingency upon which she was to pay her husband’s debt had not happened; (7) that the plaintiff had converted certain notes and securities to its own use, and transferred them to another party; (8) that it had taken a conveyance of one of the properties upon which she had a mortgage which had beeu assigned to plaintiff among the securities transferred to it, and that this property was worth more than the amount of her husband’s debt to plaintiff, and it had taken the oil therefrom and not accounted for it. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

Appeal, No. 292, Jan. T., 1895, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1892, No. 120, on verdict for plaintiff. Assumpsit to recover the price of oil sold and delivered.

<p>Mechanic's lien — Bes adjudicata — Judgment.</p> <p>The judgment of a proper court puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon the courts and juries ever afterwards, as long as it shall remain in force and unreversed.</p> <p>On .an appeal from an order refusing to enter a judgment on a scire facias sur mechanic’s lien for want of a sufficient affidavit of defense, the Supreme Court construed the agreements between the parties as not conferring the right to file liens. The judgment was affirmed and a plea filed in the lower court. Before the trial the Supreme Court applied in other cases a different rule of construction with a different result to contracts of like tenor and effect. Held, that the trial court was bound by the rule laid down by the Supreme Court in affirming the judgment, notwithstanding the different rule laid down in subsequent cases.</p>

<p>Appeal No. 118, Jan. T., 1895, by Rebecca H. Sloan, from decree of O. C. Phila. Co., Jan. T., 1887, No. 202, on exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that testator, James Watt, died on April 28, 1886. His will is dated Jan. 8, 1885 ; his codicil is dated April 12, 1886. He left no issue or wife to survive him. Testator by his will gave legacies to the amount of about $100,000. His personal estate amounted to about $65,000. His real estate, not specificalty devised, was estimated to be worth about $75,000. The material portions of the will were as follows :</p> <p>“ (14) Item. — I give and bequeath to the Presbyterian Orphanage, in the State of Pennsylvania, the sum of seven thousand dollars to build a cottage for a school, and to be named the Findlay Highland Home.</p> <p>“ (18) Item. — I give, devise and bequeath the rest, residue and remainder of my estate, real and personal, to include also every legacy and devise aforesaid that n^r lapse in my lifetime to my said three sisters, and to the survivor or survivors of them, to be equally divided among them, if more than one,' share and share alike.</p> <p>“ (21) Lastly. — I nominate and appoint the Pennsylvania Company for Insurances on Lives and Granting Annuities, of said City of Philadelphia, to be the executor of this, my last Will and Testament: and I hereby authorize and empower such executor to sell and dispose of all my real estate except the real estate herein specifically devised at public or private sale, whenever said executor will deem it prudent so to do, and to execute and deliver good and valid deed or deeds to the purchaser or purchasers thereof, in fee simple. And the purchaser or purchasers shall not be required to see to the application of the purchase money.”</p> <p>The codicil was as follows:</p> <p>“ Codicil to the last Will and Testament of James Watt, of the City and County of Philadelphia, and State of Pennsylvania, late a miller, and being in ill health, but of sound mind and memory. The said last Will and Testament bears date the third day of January, in the year of our Lord one thousand eight hundred and eighty-five.</p> <p>“I hereby annul and revoke the bequest of seven thousand dollars to the Presbyterian Orphanage in the State of Pennsylvania, and instead thereof I give and bequeath to the Pennsylvania Company for Insurances on Lives and Granting Annuities, of said City of Philadelphia, the sum of five thousand dollars in trust to invest the same in good security or securities at interest, and to pay half yearly the interest or income of said sum so invested to Jacob Michael, of said City of Philadelphia, late a miller, for and during his natural life, and on and after his decease to pay said principal sum of five thousand dollars to the Presbyterian Orphanage in the State of Pennsylvania aforesaid to build a cottage for a school, and to be named the Findlay Highland Home.</p> <p>“And I give and bequeath to the Pennsylvania Company for Insurances on Lives and Granting Annuities of said City of Philadelphia the sum of two thousand dollars in trust to invest the same in good security or securities at interest, and to pay half j'early the interest or income thereof to Josephine Halbacb, of the City of Reading, in said State of Pennsylvania, widow, for and during her natural life, and from and after her decease to pay said principal sum of two thousand dollars to the Presbyterian Orphanage in the City of Philadelphia aforesaid to build or aid in building said cottage for a school, and to be named the Findlay Highland Home.</p> <p>“AndI desire my said Will to stand confirmed in all other respects.”</p> <p>After the death of the testator, and pending the litigation in the estate, the executor collected $25,000 from rents of residuary real estate.</p> <p>The court in an opinion by Penrose, J., entered the following decree:</p> <p>“ And now Nov. 19, 1894, it is ordered, adjudged and decreed as follows :</p> <p>“1. So much of the items in the account as are rentals received from the residuary real estate, less all credits claimed for the payment of taxes and expenditures by the accountant in connection therewith and commissions claimed thereon, is awarded to the residuary devisees under the will of the decedent.</p> <p>“ 2. The sum of $2,947.21 being the net amount in the hands of the accountant arising from the sale of a part of the residuary real estate by the executors under the power in the will is awarded towards the payment of any amounts due on legacies if the personal estate be insufficient to pay the same as herein decreed, it appearing that such legacies are by the will made a charge on- all the residuary real estate of the decedent.</p> <p>“3. Interest at six per cent per annum from the date of the death of the decedent shall be paid on all legacies given to the accountant in trust, and the amounts computed and here awarded upon the said respective legacies shall be paid directly to the parties beneficially entitled thereto, and not to the accountant as trustee for such parties. Interest shall be paid on all other legacies at six per cent per annum from and after the expiration of one year from the date of the death of the decedent.</p> <p>“ 4. The principal of the personal estate shall first be applied to payment of the principal of the several legacies, pro rata, and accumulated income from the personal estate shall be separately applied in a similar manner to the payment of interest on the several legacies.</p> <p>“ 5. It appearing that certain payments have been made by the accountant by way of compromise of the claim of Mary Elliott, claiming before the court to be the widow of the decedent, and such payments having been made upon orders upon the accountant given by certain legatees to make such payments and charge the amounts thereof against the distributive shares of the respective legatees, it is directed that in the computation of interest upon the said legacies interest shall cease upon such payments from the date at which the same were made, except in the case of Josephine Cavett (otherwise Holbaeh), whose order upon the accountant was conditioned upon payment to her of interest to the date at which she shall receive her accrued interest under this decree.</p> <p>“ 6. The gift to the Presbyterian Orphanage as modified by the codicil is not void, but stands good and is paj'able as so modified, pro rata, with the other legacies.</p> <p>“ 7. It appearing that the estate has been continuously in litigation until the present time, no penalty is due the commonwealth upon the collateral inheritance tax, and interest is payable to the commonwealth thereon only to the extent that the accounts show it to have been earned.</p> <p>Errors assigned were, among others, paragraphs 2, 3 and 6 of decree, quoting them.</p> <p>The legacies are not chargeable on the land devised to the residuary legatees: Gallagher’s App., 48 Pa. 121; Cook v. Petty, 108 Pa. 138; Penny’s App., 109 Pa. 324; Bennett’s Est., 148 Pa. 139; Duvall’s Est., 146 Pa. 176; Brook-hart v. Small, 7 W. & S. 229; Nichols v. Postlethwaite, 2 Dali. 131; Paxson v. Potts, 3 N. J. Ch. 323; Witman v. Norton, 6 Binn. 395; Walter’s App., 95 Pa. 305; Van Vliet’s App., 102 Pa. 574; Montgomery v. McElroy, 3 W. & S. 370; Hassanclever v. Tucker, 2 Binn. 525; Davis’s App., 83 Pa. 348 ; Brisben’s App., 70 Pa. 410; Van Winkle v. Van Houton, 3 N. J. Eq. 172; Paxson v. Potts, 3 N. J. Eq. 313; Thomas v. Rector, 23 W. Va. 26; Read v. Cather, 18 W. Va. 263; Lupton v.. Lupton, 2 Johns. Ch. 628; Brill v. Wright, 112 N. Y. 129; Stevens v. Gregg, 10 Gill & J. (Md.) 147; Gridley v. Andrews, 8 Conn. 1.</p> <p>The existence of a power of sale has no tendency whatever to show an intention of the testator to charge the residuary realty: Perot’s App., 102 Pa. 235 ; Becker’s Est., 150 Pa. 524; McClure’s App., 72 Pa. 414; Chew v. Nicklin, 45 Pa. 84.</p> <p>Delay in the settlement of the estate which was wrought solely by the legatee should deprive his legacy of interest: Wickersham’s App., 16 Phila. 213; Huston’s App., 9 Watts, 472; Vandergifb’s App., 80 Pa. 118.</p> <p>The gift to the Presbyterian Orphanage was defeated: Attorney General v. Lord Weymouth, Ambler, 23; 1 Jarman on Wills, 211; Poulston’s Est., 11 Phila. 151; Appeal of Lutheran Congregation, 113 Pa. 34; Carl’s App., 106 Pa. 635; Hoffner’s Est., 161 Pa. 331.</p> <p>Interest should be six per cent per annum from the date of death to time of actual distribution ; English v. Harvey, 2 Rawle, 305; Eyre v. Golding, 5 Binn. 472; Hilyard’s Est., 5 W. & S. 30; Spangler’s Est., 9' W. & S. 135; Washington Brown’s Est'., 41 Leg. Int. 26; Sergeant’s Est., 9 Phila. 346; Townsend’s App., 106 Pa. 268; Steiner’s Est., 13 Phila. 358; Flickwir’s Est., 26 W. N. C. 374; Bird’s Est., 2 Pars. 168; King’s Est., 32 Leg. Int. 74.</p> <p>The act of 1885 is in derogation of the common law of the jus disponen di, and its effect is to be strictly confined to that which is within the spirit and reasons as well as its words: Manners v. Philadelphia Library Go., 93 Pa. 165; Appeal of Lutheran Congregation, 113 Pa. 34.</p> <p>Where a testator directs that certain legacies shall be paid, and devises and bequeaths to the residuary beneficiaries merely “ the rest, residue and remainder of his estate, real and personal,” the latter can take no benefit under his will until the legacies are fully paid.</p> <p>The residuary real estate was charged with the payment of all amounts due on legacies, not collectible out of the personal estate: Greville v. Brown, 7 H. of L. Cases, 698; Hassenclever v. Tucker, 3 Yeates, 294; Davis’s App., 83 Pa. 348.</p> <p>The pecuniary legatees were entitled to six per centum per annum from the time the legacies were payable.</p> <p>The effect of the codicil was not to give a new legacy to the Presbyterian Orphanage, but to diminish by |2,000 the legacy given by the will.</p>

<p>Wills — Bents from residuary real estate — Power of sale.</p> <p>A power of sale in a will does not wor-k an immediate conversion of the land as between the executor and the heir or legatee, but the title which accrued on the death of the testator remains in the heir or legatee, until divested by sale made under an order of the orphans’ court, or the power contained in the will._</p> <p>In such a case the executor has no authority to collect the rents accruing from the residuary real estate and to use them as assets of the testator’s estate.</p>

Appeal, No. 312, Jan. T., 1895, by defendant, from judgment of C. P. No. 3, Phila. Co., Deo. T., 1888, No. 987, on verdict for plaintiff. Ejectment to recover a strip of ground in the Thirty-third ward of the city of Philadelphia.

<p>Appeals, Nos. 232 and 233, July T., 1894, by S. Strouse & Co., from orders of C. P. No. 1, Phila. Co., March T.,' 1894, Nos. 613 and 614, discharging rules to show cause why proceeds of sheriff’s sale should not be paid into court and feigned issues awarded to test the validity of the judgments.</p> <p>Petition for order on sheriff to pay money into court and for issues to determine the validity of certain judgments.</p> <p>From the record it appeared that appellants on March 29, 1894, issued an attachment under the act of 1869, and attached the stock of goods and other personal property of the defendants. Prior to the date of the attachment this property had been levied upon under sundry writs of fieri facias, issued on March 21,1894, upon four judgments. The judgment in favor of James Collins Jones, trustee, was for $8,850, of which the validity of $8,000 was not disputed. The amount realized by the sale was about $6,000. The petitioners alleged fraud in the action of defendants in confessing the judgments.</p> <p>The court after hearing testimony discharged the rule for the payment of the fund realized from the sheriff’s sale into court and for the awarding of feigned issues to determine the validity of the judgments in dispute.</p> <p>Error assigned was above order.</p> <p>If any one of these judgments is successfully attacked, the proceeds of the sheriff’s sale applicable to such judgment will not go to the creditor next in order of lien, but to the attaching creditor, who successfully impugns fts validity and sets it aside: Shulze’s App., 1 Pa. 251; Schick’s App., 49 Pa. 380; Brown v. Parkinson, 56 Pa. 336; Henderson v. Henderson, 133 Pa. 399; Schwartz & Graff’s App., 21 W. N. C. 246.</p> <p>Appellant has no standing to contest the validity of the judgments or to have the fund paid into court: Shulze’s App., 1 Pa. 251; Schick’s App., 49 Pa. 380; Jacoby’s Est., 67 Pa. 434; Henderson v. Henderson, 133 Pa. 399; Fowler’s App., 87 Pa. 449.</p>

<p>Appeals, Nos. 23 and 24, July T., 1895, by John Schultz et al. and by O. W. Beaty, from order of Q. S., Warren Co., Sept. T., 1894, No. 29, in proceedings to annex territory to a borough.</p> <p>Petition for the annexation of a portion of Glade township to the borough of Warren.</p> <p>From the record it appeared that a remonstrance in the form of a petition was filed by certain citizens objecting to the inclusion of their land in the proposed annexation.</p> <p>The following motion was made:</p> <p>“And now, Sept. 5, 1894, motion on the part of O. W. Beaty, D. W. Beaty and others, who have petitioned the court to be excluded from the limits of the territory proposed to be annexed to the borough of Warren, for leave to send before the grand jury their several petitions to be excluded and their witnesses in support of such petitions.”</p> <p>The court made the following order:</p> <p>“ September 5th, 1894, the Court deeming the matter improper for determination by the Grand Jury, the motion is denied, but without prejudice to the right of the petitioners to show any facts affecting the expediency of the proposed annexation to the Grand Jury. To this action the petitioners by their counsel at the time except, and bill sealed.” [1]</p> <p>The grand jury reported in favor of the proposed annexation.</p> <p>The following exceptions were filed to the report of the grand jury:</p> <p>“ 1. The learned court erred in not submitting a petition or remonstrance of said O. W. Beaty to go before the grand jury for their hearing and recommendation. [2]</p> <p>“ 2. The learned court erred in restricting the consideration of the grand jury to the question of recommending in favor of or against annexation of the territory described in the petition, without permitting them the discretion to exclude any portion of the lands described in the petition, if in their judgment the exclusion of said lands was expedient. [3]</p> <p>“ 3. The learned court erred in not permitting the grand jury, in case they thought it expedient so to do, to exclude the lands of O. W. Beaty or any other lands from the limits of the territory to be annexed to the borough of Warren. [4]</p> <p>“ 4. The premises in the petition of O. W. Beaty are farm lands and should be excluded from annexation to the borough of Warren. [5]</p> <p>The court overruled the exceptions in an opinion by Noyes, P. J., which was in part as follows:</p> <p>" [There is no law authorizing the court to change the boundaries set forth in a petition for the incorporation of a borough, or to change its limits, except the act of April 1,1863. And this does not apply to a case like the present but only to applications for incorporation. Moreover, it is the court which is to judge of the expediency of excluding farm lands under the provisions of the act of 1863. To submit the question to the grand jury would be to deprive the court of the discretion which the legislature plainly intended it should exercise. The court possesses a discretion to grant or refuse the application, but it cannot grant something different from what the petitioners ask. The application of the residents of the northern end of the territory, described in the petition, to be excluded, is clearly beyond any power possessed by the court in any case. The petitions of O. W. Beaty, D. W. Beaty, and others, to have their individual properties excluded as farm lands are not within the powers of the court in the present case; but even if they were, we could not grant them, for the reason that these properties manifestly constitute a part of the village of Glade, and could not be ex-eluded without leaving a portion of Glade township lying between the two ends of one of the principal streets of the borough, as it would be after annexation.] ” [7]</p> <p>Errors assigned were (1) ruling on evidence; (2-5) refusing to sustain exceptions to report of grand jury, quoting exceptions ; (6) in holding that the court had no authority to exclude the petitioner’s lands as farm lands from the territory sought to be annexed to the borough of Wairen ; (7) portion of opinion as above, quoting it.</p> <p>Act of April 1, 1834, P. L. 163; act of April 3, 1851, P. L. 320; McFate’s App., 105 Pa. 326; Black v. Thicker, 59 Pa. 17; act of June 11, 1879, P. L. 150; act of May 17, 1883, P. L. 36; act of April 1, 1863, P. L. 200.</p> <p>Act of June 11, 1879, P. L. 150; Camp Hill Borough, 142 Pa. 516.</p>

Appeal, No. 40, Jan. T., 1895, by defendant from judgment of Q. S. Union Co., March Term, 1892, No. 21, on appeal from order of removal. Appeal from order of removal. McClure, P. J., found the facts to be as follows: “ 1. Barbara Stees, an unmarried woman, above seventy years of age and childless, became chargeable as a pauper upon the poor district of the township of Buffalo, Union Co., Pa. “ 2.

<p>Appeal, No. 55, July T., 1894, by Youghiogheny Bridge Co., from decree of Q. S. Fayette Co., Sept. T., 1892, No. 3, in proceedings for a county bridge.</p> <p>Petition for a county bridge over the Youghiogheny xlver from Apple street in the borough of Connellsville to Traders alley in the borough of New Haven.</p> <p>From the record it appeared that proceedings were begun Sept. 26, 1892, by petition of citizens, and the same day the court appointed viewers as provided by law, who, on Dec. 10, 1892, filed their report, finding in due form that the bridge was necessary and should be adopted as a county bridge. The court then ordered that the report be filed and laid before the grand jury at the March sessions. On March 11, 1893, the grand jury made their return approving the action of the viewers. No further action was taken in the matter until Feb. 5, 1894, when exceptions were filed.</p> <p>The court dismissed the exceptions and entered the following decree:</p> <p>“ And now, April 12,1894, this case came on to be heard at a special court duly ordered and held Feb. 10, 1894, upon exceptions to report of viewers and finding of the grand jury; and upon consideration thereof, it is ordered that all the exceptions be and are hereby overruled. And it appearing to the court that said bridge is necessary, and would be too expensive for said boroughs of Connellsville and New Haven, the report of the viewers and finding of the grand jury are approved. And it is further ordered that the same be referred to the commissioners of said county for such action as they may deem expedient and proper in accordance with law; and, if approved by them, that the same be recorded as a county bridge.”</p> <p>Error assigned among others was above decree, quoting it.</p> <p>This appeal was prematurely taken and should be dismissed. A bridge proceeding begins with the petition for viewers and is not complete until the county commissioners make the final order approving the report of viewers. An intermediate order of court is not final and is not the subject of appeal. The litigation attending the appeals from those various stages and orders in the proceeding may be entirely unnecessary, as the commissioners may refuse to approve the matter, or may so exercise the discretion conferred upon them by the act of May 25,1887, 267, that no appeal will be desired.</p>

Appeal, No. 47, July T., 1894, by defendant, from judgment of C. P. Fayette Co., June T., 1889, No. 32, on verdict for plaintiff. Trespass to recover damages for injuries to land caused by the diversion of water. Before Slagle, J., specially presiding. At the trial it appeared that in 1883, defendant constructed a dam across McCoy’s run above the property of plaintiff. In 1890 a pumping station was established on the east bank of the Youghiogheny river.

Appeal, No. 9, July T., 1895, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1894, No. 133, in favor of plaintiff on case stated. Case stated to determine the validity of fees claimed by sheriff. The case stated was in part as follows: “ William H. Wilhelm, the plaintiff, is the sheriff of defendant county, and has been since the 1st Monday of January, 1893, and as such officer he is the keeper of the common jail of said county.

Appeal, No. 10, July T., 1895, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1894, No. 888, on verdict for plaintiff. Assumpsit by architect on contract for supervising building of a court house. Before Mestrezat, J. At the trial it appeared that plaintiff was employed by-defendant in 1888 to provide plans for the erection of a jail and for some alterations in the court house, and to supervise-the work.

Appeal, No. 445, Jan. T., 1895, by plaintiff, from order of C. P. Union Co., Dec. T., 1893, No. 126, making absolute a rule to open judgment. Buie to open judgment. From the record it appears that in 1876 plaintiff received from his wife $1,163, which lie used in paying off charges upon his farm. He gave a judgment note for $1,200, payable one day after date to a trustee for his wife.

Appeal, No. 264, Jan. T., 1895, by defendant, from judgment of C. P. No. 1, PhLla Co., Dec. T., 1891, No. 599, on verdict for plaintiff. Held: amongst other security for the payment of this indebtedness, $116,077 of promissory notes then about to mature, which on Feb. 17,1891, at the request of the Spring Garden National Bank, the committee delivered to that bank, and in consideration therefor received from the bank other promissory notes amounting to $116,081, 'which…

Appeal, No. 242, Jan. T., 1894, by defendant, from judgment of C. P. Tioga Co., Nov. T., 1887, No. 302, on verdict for plaintiff. Trespass to recover damages for a wrong done to plaintiff by an executed scheme to extort money from him by means of his arrest. The case was referred to S. F. Channell as referee under the local act of Feb. 28, 1870, P. L. 219.

Appeal No. 111, Oct. T., 1894, by defendants, from judgment of C. P. No. 8, Allegheny Co., May T., 1892, No. 707, on verdict for plaintiffs. Assumpsit for goods sold and delivered. Before Porter, J. At the trial plaintiffs claimed to recover the value of two car loads of steel scrap alleged to have been furnished under the following order: “ Jennings Brothers & Company, Limited, “ Office, Preble Avenue, Allegheny, P. 0., Pittsburg. “No. 1,955.

Appeal, No. 157, Oct. T., 1894, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1898, No. 120, on verdict for plaintiff. Trespass to recover damages for loss of property alleged to have been destroyed by the negligence of defendants’ workmen. Before White, J. At the trial it appeared that defendants were engaged in the tin roofing business. Plaintiff employed them to repair the roof of his house.

Appeal, No. 209, Oct. T., 1894, by defendant, from judgment of O. P. No. 2, Allegheny Co., July T., 1893, No. 625, on verdict for plaintiff. Assumpsit on a policy of life insurance.

Appeal, No. 254, Oct. T., 1894, by defendant, from judgment of C.P. No. 2, Allegheny Co., Oet. T., 1893, No. 623, on verdict for plaintiffs. Ejectment to recover two lots on Buena Vista street in Allegheny city. Before White, J. The facts appear by the charge of the court, and the opinion of the Supreme Court.

Appeal, No. 284, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 3, Allegheny County, Nov. Term, 1892, No. 173, entering nonsuit. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit. The rule of stop, look and listen is not to be inflexibly applied to foot passengers or others in crossing a street railway: Ehrisman v. Ry., 150 Pa. 180; Carson v. Federal St. Ry.

Appeal, No. 309, Oct. T., 1894, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1894, No. 449, for plaintiff on case stated. Held: that it aptly describes property held by a warehouseman under an ordinary bailment. Affirmations and warranties with respect to title are no part of the policy, and, even if so, they would be held not to apply to a risk such as the present: Grandin v. Ins. Co., 107 Pa. 26; Tyler v. iEtna Ins.

Appeal, No. 321, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1894, No. 688; for defendants, on case stated. Assumpsit to recover balance of purchase money under articles of agreement for the sale of land.

<p>Landlord and Tenant — •Notice—Termination of lease — Holding over— Waiver.</p> <p>A lease from year to year required that notice of an intention to terminate the lease should be in writing. Three months before the end of the year the lessee gave verbal notice to the lessor’s agent of his intention to vacate the premises at the end of the year. The agent did not insist ou the written notice or ask for one. Before the end of the year the lessee told the agent that he would be willing to remain on the premises as tenant from month to month. The agent told him that he would communicate with the lessor, and let him know in time. The agent had no further communication with the lessee until after the end of the year. The lessee remained in possession, and about a month after the termination of the year was informed by the lessor that he would not be accepted as a tenant from month to month. Held, that while a jury would be justified in finding a waiver of the written notice, yet the agent’s conduct did not create a new tenancy, and the tenant held over as tenant from year to year.</p>

Appeal, No. 374, Jan. T., 1894, by plaintiff, from decree of C. P. No. 4, Phila. Co., March T., 1889, No. 469, on bill in equity. Bill in equity for an injunction to restrain the diversion of freight from plaintiff’s railroad. The case was referred to Henry Flanders, Esq., as examiner and master, who reported as follows: “First.

Appeal, No. 117, July T., 1894, by Jennie Bonowitz et al., from decree of O. C. Phila. Co., Jan. T., 1894, No. 268, dismissing exceptions to adjudication. Exceptions to adjudication.

<p>Landlord and tenant-Rent — Repairs.</p> <p>No implied covenant that the landlord warrants the leased premises to be tenantable, or that he undertakes to keep them so, arises out of the relation of landlord and tenant, and in the absence of a provision in a lease that the lessor shall repair, it is no defense to an action for the rent that the demised premises are not in a tenantable condition.</p> <p>A tenant occupied premises for nine years and seven months under a lease which bound him to keep them in good repair, and which he was at liberty to terminate at the end of any current year upon thirty days’ notice. He paid the rent for the first seven months of the tenth year, and then abandoned the premises, alleging that they were not in habitable condition. Held, that he was liable for the rent for the remainder of the year.</p> <p>In an action for rent an offer by the tenant to prove “ that he was told previously to his removal that they would take the property, and that he might leave it,” is incompetent for vagueness inasmuch as the offer does not state by whom the tenant was told that the property would be taken.</p> <p>The leaving of the key with the lessor’s agent where the evidence shows there was no acceptance of the surrender of the lease, and the putting of a bill “ for rent” or “for sale” on premises vacated by a tenant before the expiration of his term, does not deprive the landlord of his right to collect the rent until the expiration of the term.</p>

<p>Liquor laws — Gift of liquor on Sunday — Elections.</p> <p>The act of May 18, 1887, P. L. 108, is, as it declares, “ to restrain and regulate the sale” of intoxicating liquors, and a person not a liquor dealer, who goes to his neighbcu’s house on Sunday for the purpose of asking him to go to the polls, and while in his neighbor’s wagon shed gives him a drink of whiskey, is not guilty of violating its provisions.</p>

<p>Appeal, No. 109, July T., 1894, by plaintiffs, from decree of C. P. Chester Co., No. 283, in equity.</p> <p>Bill in equity by taxpayers for an injunction to restrain the defendants from increasing the debt of the township of Willis-town, Chester county, Pennsylvania, by the sum of 140,000 in pursuance of an election which purported to authorize such increase. It was alleged that said election was illegal in that the question being voted on was not printed on the official ballot prescribed by law, but on separate ballots. The defendants demurred. The court in an opinion by Hemphill, J., sustained the demurrer and dismissed the bill.</p> <p>Error assigned was in dismissing bill.</p> <p>The question involved in this case has been expressly decided in Ripple v. Lackawanna Co., 146 Pa. 532.</p> <p>The Baker ballot law of 1893 is entirely inconsistent on the question here involved, with the act of June 9,1891, amending the act of April 20, 1874.</p> <p>All acts of assembly are to be construed, if possible, so as to avoid violating the constitution of the state. If, then, interpretation is doubtful, that meaning will be adopted which obeys the constitution.</p> <p>It was the evident purpose of the framers of the constitution of 1874 to make all laws pertaining to all elections uniform: 5 Const. Debates, 165; Rishel v. Luther, 2 Dist. Rep. 770; Cusiek’s Election, 26 W. N. C. 425.</p> <p>The language of the constitution cannot be construed to apply to one class of elections and not to others. It must cover all: Rishel v. Luther, 2 Dist. Rep. 770; Wright v. Barber, 5 W. N. C. 444; Cusick’s Election, 26 W. N. C. 425.</p> <p>The two statutes for consideration are not upon the same subject. If the latter act repeals the first act or any of its provisions, it must be by implication : Homer v. Com., 106 Pa. 221.</p> <p>To constitute a repeal by implication there must be such a manifest and total repugnancy in the provisions of the new law as to lead to the conclusion that the latter law abrogated and was designed to abrogate the former: Sifred v. Com., 104 Pa. 179.</p> <p>If this act was to apply to and repeal the provisions for the class of elections, provided for in the bill of 1891, the title does not fairly give notice of such subject and would be calculated to mislead inquiry: Allegheny Co. Home’s App., 77 Pa. 77.</p>

Appeal, No. 32, Jan. T., 1895, by defendants, from judgment of C. P. Blair Co., Oct. T., 1892, No. 85, on verdict for plaintiffs. Held: and Morris voted the 808 shares standing in his name. The tellers allowed the ballots to be deposited, but rejected in the count the 258 shares in controversy. The writ of quo warranto was issued on Aug. 1, 1892. Defendants moved to quash the writ for the following reasons: “ First.

<p>Criminal laxo — Murder—Continuance—Discretion of court.</p> <p>The Supreme Court will not reverse a judgment on a verdict of guilty of murder in the first degree because the lower court refused a continuance, where there is nothing on the record to show an abuse of discretion in the action of the lower court, or that a postponement of the trial would have resulted in strengthening the defense in any respect.</p> <p>Evidence — Blending relevant with irrelevant matters — Review.</p> <p>In civil cases the rule of evidence is that “ where an offer blends irrelevant and inadmissible matters with a matter relevant and admissible, and it is made and rejected as a whole, the rejection of it is not error; ” but this rule ought not to be summoned to sustain a ruling prejudicial to the interests of a defendant on trial for murder.</p> <p>Where an offer of evidence is improperly rejected, but immediately afterwards under another offer the evidence is admitted in full, the ruling on the first offer is not a ground for reversing the judgment.</p> <p>Murder — Insanity—Evidence.</p> <p>Insanity is an independent defense, and he who sets it up must show the existence of it by fairly preponderating evidence.</p> <p>Evidence — Confession—Voluntary statement.</p> <p>Where a prisoner is warned that any statement he might make concerning a murder with which he is charged may be used against him, and that he need not say anything about it unless he desires to do so, and he subsequently makes a statement, such statement may be used as evidence at his trial.</p>

<p>Appeal, No. 386, Jan. T., 1895, by defendant, from judgment of Q. S. Northampton Co., Oct. T., 1894, No. 27, on verdict of guilty.</p> <p>Indictment for embezzlement as consignee. Before Schuyler, P. J.</p> <p>At the trial it appeared that on Sept. 13, 1894, the prisoner wrote to A. B. McKeel, as follows :</p> <p>“ Vegetables a Specialty. A complete line in season.</p> <p>Fresh Fish, Robert P. Harris, Sweet Potatoes, Wholesale Commission</p> <p>Clams, Merchant and Shipper Cranberries, Fruits, Vegetables, Oysters, &e.</p> <p>Crabs, Receiver and Shipper Green Truck, of York State</p> <p>Snappers, &c. Plums and Grapes. Strawberries.</p> <p>“220 West Third Street,</p> <p>“So. Bethlehem, Pa., Sept. 13, 1894.</p> <p> “Dear Sir: </p> <p>“ I am handling a large amount of grapes this season and I understand you are a large shipper I write you in order to open some business with you if you have began shipping yet you may ship me a consignment of about 500 large and 500 small baskets of Concords by freight for first shipment would prefer them in car lots as I handle large quantities of grapes in -this section of the country will handle all the grapes you can possible ship on commission or will buy outright from you my charges are 10 Per c all shipments receive my own personal attention Hoping to hear from you and we can do a big business together this year</p> <p>“Yours Resp.</p> <p>“ Robt. P. Harris ”</p> <p>McKeel replied by telegraph as follows:</p> <p>“9th mo. 15th/94</p> <p>“ Will ship you to-day a mixt lot of grapes — 5 lb. Baskets. For sample. By freight.</p> <p>“ Respt. A. V. McKeel.”</p> <p>He subsequently wrote as follows :</p> <p>“ 9th mo. 17th/94 5 p. M.</p> <p>“ Robebt P. Habbis,</p> <p>“ Bear Sir: Shipt you the 15th inst. by Lehigh Valley RRcL</p> <p>150 — 51b Delaware Grapes</p> <p>30 “ Concords “</p> <p>2 “ Niagara “</p> <p>“ Expected to have written you this morning.</p> <p>“ Please write of what kinds you can do the best with.</p> <p>“ The print stamped with our name will all be found alright. —Concords & Niagaras now — & Catawbas later.</p> <p>“ Respectfully A. V. McKeel ”</p> <p>Harris wrote the following letters:</p> <p>“ 220 West Third Street,</p> <p>“ So. Bethlehem, Pa., Sept. 21, 1894.</p> <p>“ Mr. A V McKeel</p> <p>“ Bear Sir: Rec your grapes and came in very fine condition thought they were very nice Ship me as many as you possibly can of Delawares Concords and Niagaras as they are the best selling grapes in this city got 18c for Delawares wholesaleBrightons dont sell very good here also send bill with this order and I will forward you a cheek for full amount you forgot to state in your letter how much the grapes was write and let me know send bill for full amount and oblige</p> <p>“ Yours Resp</p> <p>“ Robt. P. Habbis.”</p> <p>“220 West Third Street,</p> <p>“ So. Bethelehem, Pa., Sept. 29, 1894.</p> <p>“ Mr. A. V. McKeel.</p> <p>“Bear Sir: Rec your grapes and also letter grapes were nice-you may ship mea car lot of mixed grapes will give you 12c out right for them as they run Nigras Concords Catawbas and Linsleys ship as soon as you possibly can also send bill with grapes for full amount and will forward you a check on receipt of at once also have sent you stencil wire to me at once-when you ship at my expence and Oblige</p> <p>“ Yours Resp.</p> <p>“Robebt P. Habbis.”</p> <p>Defendant claimed that he bought the goods outright and did not take them to sell on commission.</p> <p>The court charged as follows :</p> <p>“ The indictment which you have been sworn to try, charges the defendant, Robert P. Harris, with having received into his possession as consignee, a quantity of grapes belonging to the prosecutor, and with having sold the grapes, and with having appropriated the proceeds of sale fraudulently to his own use.</p> <p>“ [The indictment has been framed under the following act of assembly: “ If any consignee or factor having the possession of merchandise, with authority to sell the same, or having possession of any bill of lading, permit, certificate, receipt or order for the delivery of merchandise with the like authority, shall deposit, or pledge such merchandise or document, consigned or intrusted to him as aforesaid, as a security for any money borrowed, or negotiable instrument received by such consignee or factor, and shall apply or dispose of the same to his own use, in violation of good faith, with intent to defraud the owner of such merchandise, and if any consignee or factor shall, with like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale or other disposition of such merchandise, such consignee or factor in every such case shall be guilty of a misdemeanor, and sentenced to pay a fine, not exceeding two thousand dollars, and undergo an imprisonment, not exceeding five years.] ” [4]</p> <p>“ [To constitute this offense, the commonwealth must have satisfied you that the defendant received these grapes as consignee. Many of you among the jury understand what is meant by consignee as distinguished from purchaser. A consignee is a person to whom merchandise or personal property of any kind is committed for the purpose of sale.] [1] Where there is a sale, the title to the property, whether the property is paid for or not, passes to the purchaser, but in the case of a consignment, there the title to the property remains in the consignor, and all that the consignee receives is the right to sell that property for, and on account of, the consignor. [But you know, gentlemen, the difference between a sale of property and a consignment for the mere purposes of a sale.] [2]</p> <p>“ [The first question for you to determine is, what was this contract between the prosecutor and defendant ? Was it a sale, or was it a consignment? That question you will determine from the letters which have been given in evidence on both sides and from all the other facts and circumstances in the case. If you examine these letters and the other facts in the case and you are unable to say whether beyond a reasonable doubt the defendant is guilty or not, then you must give the defendant the benefit of that doubt and return a verdict of not guilty. If, however, after a careful review of all the evidence in the ease, you are satisfied beyond a reasonable doubt that the contract was a consignment then you will inquire further whether the defendant sold the property and appropriated the proceeds to his own use with a fraudulent intent.] [3] It is an element in the case that the defendant must have received the property into his possession. There is no dispute about that. That is admitted. There is another element in the case that the defendant must have sold the property. That is also admitted.</p> <p>“ In the third place it is necessary for the commonwealth to satisfy you that the defendant appropriated the proceeds of the property to his own use. It is admitted by the defense that he did appropriate a part of the money received from the sale of these grapes to his own use. If that was done with a fraudulent intent and the property was consigned to him instead of having been sold to him, then it would be your duty to return a verdict of guilty. If, however, you have a reasonable doubt whether the money was appropriated by the defendant with a fraudulent intent, you must give the defendant the benefit of that doubt and return a verdict of not guilty.</p> <p>“ It has been said to you, and very properly, that in the eye of the law this is a very grave and a very serious offense, that is the offense against which this act of assembly is directed. It has •been said with reason, that you ought not to convict the defendant upon slight evidence. That is very true and a very proper caution to give to the jury, and I repeat it to you now, as I have in substance said, that you must be satisfied from the evidence beyond a reasonable doubt of the guilt of the defendant; and, if you have a reasonable doubt as to any one of the essential features of this case, you must give the defendant the benefit of that doubt and return a verdict of not guilty.</p> <p>“ But there is another view of the case which it is proper I should call your attention to. Whilst beyond all question in contemplation of the legislature, this offense of a consignee appropriating property consigned to his own use is a most serious offense, and because it is a most serious offense, if you are satisfied beyond a reasonable doubt of the defendant’s guilt, then all the more important it is that the defendant who is guilty of such an offense should not escape the punishment which the-enormity of the offense entitles him to receive.] ” [5]</p> <p>The court refused to instruct the jury to find a verdict of not guilty.</p> <p>Verdict of guilty, upon which the court sentenced the prisoner to pay a fine of one dollar, and to undergo an imprisonment in the county prison for one year.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p> <p>The defendant was a purchaser of the goods and not a consignee: Com. v. Newcomer, 49 Pa. 478; English act of Geo. IV. c. 94; Wood v. Rowcliffe, 6 Hare, 188; Monk v. Wittenbury, 2 B. & Ad. 484.</p> <p>We think the court committed clear error in referring to the definition of the word “ consignee ” as being a matter of no-importance, and in giving to the jury the defective definition we complain of in our first assignment of error: Wharton’s Criminal Pleading and Practice, 8th ed. sec. 709; Meyers v. Com., 83 Pa. 143.</p> <p>Instead of telling the jury they were to judge, the court should have construed these written instruments, these letters, and said there was nothing in them to convict the defendant: Com. v. McManus, 143 Pa. 97; Hargrave’s note to Coke, Litt. 155; Wharton’s Criminal Practice and Pleading, 8th ed. 807.</p> <p>The court first read the entire section of the act to the jury, gave them the definition and the punishment. Courts should never refer to the punishment prescribed by the act: Com. v. Switzer, 134 Pa. 389: Catasauqua Mfg. Co. v. Hopkins, 141 Pa. 45.</p> <p>If we are correct in our position that the court should pass on the legal questions, the letters being in writing, the court should have done so, and should have directed the jury to return a verdict of not guilty: Bishop on Criminal Procedure 3d ed. sec. 977; People v. Bennett, 49 N. Y. 137.</p> <p>The contract between the prosecution and the defendant was one of consignment, and Harris was a consignee: 3 Am. & Eng. Ency. of Law, 817; Story on Agency, sec. 33.</p> <p>The complaint in appellant’s argument that the court’s instruction to the jury was erroneous because the court did not charge the jury that the acceptance of the trust was necessary to constitute the contract of consignment, is without force, because the defendant’s proposition to the prosecutor was in evidence, the prosecutor complied with the proposition, the minds of the parties therefore having met, and because of the acceptance of the grapes by the defendant.</p> <p>A jury may take out with them any writings that have been given in evidence, without distinction as to sealed or unsealed, except the depositions of witnesses: Alexander v. Jameson, 5 Binn. 238; M’Cully v. Barr, 17 S. & R. 445; Sholly v. Diller, 2 Rawle, 179; Spence v. Spence, 4 Watts, 165.</p> <p>Although parts of a charge when taken separately may seem to be erroneous and indicate a leaning to one side or the other, there is no error if, taken as a whole, the questions at issue are fairly left to the jury: Reese v. Reese, 90 Pa. 89; Lehigh Yalley R. R. v. Brandtmaier, 113 Pa. 610; Reeves v. Del., Lack. & West. R. R., 30 Pa. 454; Irvin v. Kutruff, 152 Pa. 609; Peirson v. Duncan, 162 Pa. 187; Fox v. Fox, 96 Pa. 60; Henry v. Klopfer, 147 Pa. 178.</p>

<p>Appeal No. 84, July T.,. 1894, by Philip H. Walker et al., from order of Q. S. Clinton Co., Sept. T., 1892, No. 1, Miscellaneous Docket, incorporating the borough of Flemington.</p> <p>Petition for the incorporation of a borough.</p> <p>From the record it appeared that on May 11, 1892, the grand jury filed a report in favor of incorporating the borough in accordance with the prayer of the petitioners.</p> <p>The following exceptions were filed to the report.</p> <p>“ 1. The return handed in to the court was not the finding of the majority of the grand jury. A vote was taken the day before the return was made, which resulted in a majority of one in the grand jury in favor of the borough. After the adjournment two of the grand jurors who had voted in favor of the borough desired to change their vote, and consulted counsel not concerned upon either side as to their right to have the finding reconsidered, and he advised them that they had such right. They sent then for one of the witnesses called by the remonstrants, to appear before the grand jury, the next morning, and when he came, at their request, they informed him of their intention to change their votes. When the grand jury met the next morning they requested a reconsideration of the case, which the foreman refused, stating that he had signed the return, and it was too late to reconsider, after which the foreman handed in the return as it now stands. [1]</p> <p>“ 2. A clear majority of the freeholders residing within the limits of said proposed borough were not petitioners for the same. At the time the petition was submitted to the grand jury it was signed by eighty-nine persons, of whom eleven had withdrawn their names by leave of court, seventy-eight remaining as petitioners. The remonstrance was signed by sixty-five persons besides the eleven who had withdrawn their names from the petition, making seventy-six who were then opposed to the borough. A considerable number of the petitioners were not freeholders, so that a majority of the freeholders then appeared as opposing the borough. Since the hearing before the grand jury six more of the petitioners have withdrawn their names, so that now, of the alleged freeholders residing within said limits, eighty-two are opposed to the borough and seventy-two in favor of it. [2]</p> <p>“3. The village of Flemington is at one end of the territory proposed to be incorporated, and does not cover much, if any, over one third of said territory. At the other end said territory comes up to the line of the city of Lock Haven. A considerable portion, probably one third, of the residents within the lines of the proposed borough live on the hill adjoining the city of Lock Haven, forming geographically part of said city, and separated from the village of Flemington by nearly half a mile of territory, which is altogether used for farm land, with but few houses; the said residents adjoining Lock Haven being, with one exception, unwilling to be included in said borough. [4]</p> <p>“ 4. A large amount of farm land, not included within the village of Flemington, or needed for borough purposes, is included within the proposed limits. There are three public roads leading 'from Lock Haven to Flemington. The one turns off from Fairview street at the house of Alexander Montgomery, turns to the left about half way from the city to the village of Flemington, till it reaches the turnpike, then immediately leaves the turnpike, going over the hill to the right, till it enters Flemington. This road lies all the way between Alexander Montgomery’s house and the village of Flemington through farm lands. The middle road, known as the turnpike, -is built up about one and a half squares from the Lock Haven city line, and is within the limits of Price’s addition to Lock Haven. It then passes for a quarter of a mile through farm lands before entering the village of Flemington. The third road leads a ound the hill in the direction of the canal, and runs for half a mile through farm land, there being but four houses from the city line to Sturdevant street in Flemington.</p> <p>“ There are two cross streets laid out on the plot of Price’s addition to Lock Haven, and open'ed, on the right side of the turnpike, going away from Lock Haven, extending one square to the right, with which exception there are no cross streets between the city of Lock Haven and the town of Flemington, on any of said roads.” [5]</p> <p>Mayer, P. J., filed the following opinion on the exceptions :</p> <p>“We have carefully considered the exceptions filed to said application and the testimony bearing on the same.</p> <p>“ The first of the exceptions cannot be considered for the reason that the court is bound to accept the return of the grand jury, and cannot take into consideration what occurred after the grand jury had made their finding.</p> <p>“ As to the second exception, we are satisfied, after carefully reading the testimony, that the weight of evidence shows that the requisite number of freeholders signed the original petition in order to give the court jurisdiction. [After the petitioners had signed the original petition and it was laid before the grand jury they could not withdraw their names .so as to defeat the application.] [3] The second exception is therefore not sustained.</p> <p>“ [As the court has changed the boundary of the proposed borough by a new line, excluding from the borough that portion adjoining the city of Lock Haven, which will meet the objection raised by the third exception, the new boundaries, as fixed by the decree to be entered, will also remove the objections raised by the fourth exception.] [6]</p> <p>“ All the exceptions are, therefore, overruled.”</p> <p>Errors assigned were (1,2,4,5) in overruling exceptions, quoting exceptions as above; (3, 6) portions of opinion as above; (7, 8) in decreeing the incorporation of the borough.</p> <p>In ordinary cases the proceedings of the jury are private and their findings conclusive, and the court will not go behind them. The hearing in this case was however public, and was in fact attended by all who took an interest in the case. The finding was not authoritative, or binding upon the court, but advisory only.</p> <p>The petition for a borough and the withdrawal of the petition were referred as one paper to the grand jury, by an indorsement identically the same upon each, viz: “ 11 May, 1892, leave is granted to lay the within before the Grand Jury. By the Court, John A. Sittseb, P. J.,” and both papers were marked “filed May 11, 1892.” Judge Sittseb knew when the withdrawal petition was presented to him, whether it was too late, and had it been so, would have refused it. All things are presumed to be rightly done in a court of justice and it will not be presumed that Judge Sittseb made the order too late, and when he had no right to make it, without any proof whatever.</p> <p>The court should have sustained the exception against incorporating into a borough territory, of which one half was used exclusively for farming purposes, and also the exception against incorporating into one borough two distinct villages, one a part geographically of the city of Lock Haven: Duquesne Bor., 147 Pa. 67; Tullytown Bor., 1 Dist. Rep. 295.</p> <p>The majority which gives jurisdiction must be a clear majority, not depending upon a shifting to one side or the other of two or three names, or upon the reconciling of conflicting testimony, or upon the credibility of the respective witnesses : Taylorsport Borough, 21 W. N. C. 534.</p> <p>Grand jurors will not be permitted to testify or give information relative to the proceedings which occurred before the grand jury: Zeigler v. Com., 22 W. N. C. Ill; State v. Baker, 20 Mo. 338; Thomas & Merriman on Jurors, 742.</p> <p>The legislature have vested in the court and grand jury the discretion to determine whether or not the conditions prescribed by law to entitle the petitioners to be incorporated into a borough have been complied with: Rand v. King, 134 Pa. 641; Blooming Valley Borough, 56 Pa. 66; Tailor Borough, 160 Pa. 479.</p> <p>The court may confirm the charter of the borough and at the same time modify the boundaries so as to protect the right of surrounding landowners and do justice to all the interests to be affected: Tullytown Borough, 1 Dist. Rep. 292.</p> <p>Though the opinion of the grand jury is of great assistance in determining disputed questions of fact the court must exercise an independent judgment: Edgewood v. Borough, 130 Pa. 348; Incorporation of Lehman, 4 Pa. C. C. 37; Sworesville Borough, 5 Kulp, 171.</p>

<p>Mechanic's lien — Subcontractor—Lumping charge — Amendment.</p> <p>A subcontractor must specify the items of his claim for work or material, and a lumping charge for either does not satisfy the requirement of the statute, and should be stricken off on motion.</p> <p>Such a defect is not purely formal, it is substantial, and it cannot be remedied by an amendment made after the expiration of the time allowed for filing the lien.</p>

Appeal, No. 100, Jan. T., 1895, by defendant from order of C. P. No. 2 Phila. Co., June T., 1894, No. 782, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover the amount of a deposit.

<p>Negligence — Railroads—Grossings—“ Stop, look and listen."</p> <p>In an action to recover damages for the death of plaintiff’s husband a nonsuit entered for contributory negligence will be. sustained, although the case is a close one, where the plaintiff’s evidence shows that the deceased approached a r-ailroad crossing in a wagon ; that he stopped about five or ten feet from the track, at a point where the track, when not obscured by mist or smoke, could be seen for a distance of from 900 feet to a mile; that there was a slight mist, and the track was obscured by smoko for 100 feet from where he was when he began to cross, walking his horses; that he was struck after he had passed four tracks; that no signal was given by the train which struck him, and that the speed of the train was about forty miles an hour.</p>

<p>Sale — Rescission—Misrepresentations—Partnership.</p> <p>Where a partnership makes a false statement to a mercantile agency and subsequently is dissolved and a new firm is organized under the same name, and goods are sold to the new firm before the statement to the mercantile agency comes to the knowledge of the vendor, the sale of the goods cannot be subsequently rescinded by the vendor, on the ground that the statement to the mercantile agency was false.</p>

<p>Appeal, No. 149, July T., 1894, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1890, No. 494, on verdict for plaintiff.</p> <p>Assumpsit on a policy of life insurance. Before Lynch, J.</p> <p>At the trial it appeared that the policy in suit was dated April 21, 1884. The assured died on May 4,1888. The present suit was begun on Aug. 1,1890. The policy contained the following provisions:</p> <p>“Ninth. No suit or action at law or in equity shall be maintainable to enforce the performance of this contract until after the filing in the principal office of the company of the above mentioned proof of death, nor unless such suit or action shall be commenced within six months next after the decease of the person insured under this policy; and it is expressly agreed that should any suit or action be commenced after the expiration of said six months, the lapse of time shall be deemed as conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding.”</p> <p>“ Twelfth. If the insured shall die three or more years after the date hereof, and after all due premiums shall have been received by the company, this policy shall be incontestable.”</p> <p>The court charged in part as follows :</p> <p>“ The court instructs you that the ninth clause of this policy, providing that suit must be commenced within six months after death, is qualified and controlled, so far as this case is concerned, by the twelfth clause, and that the ninth clause has reference to suit upon a policy that had not been issued three years before the death of the insured. When the death did not occur until more than three years after the date of the policy, the ninth clause does not apply, and it is not essential that suit be commenced within six months after the death of the assured.” [6]</p> <p>Defendant’s point among others was as follows :</p> <p>“ 1. That the policy offered in evidence contains a condition that no suit or action at law or in equity shall be maintainable to enforce the performance of this contract, unless such suit or action shall be commenced within six months next after the .decease of the person insured under this policy, and the insured having died on the 4th day of May, 1888, this suit having been brought on the 1st day of August, 1890, which was more than six months after the death of the insured, the failure to bring this suit within six months after the death of the insured is a bar to this action, and the verdict must be for the defendant. Answer: That point is refused.” [1]</p> <p>Verdict and judgment for plaintiff for -$625. Defendant appealed.</p> <p>Errors assigned among others were (1, 6) above instructions, quoting them.</p> <p>The failure to bring the suit within six months after the death of the insured was a bar to recovery: Cray v. Hartford Fire Ins Co., 1 Blatch. (U. S.) 280 ; Steen v. Niagara Fire Co., 42 Am. Rep. 297 ; Thomas v. Prudential Ins, Co., 148 Pa. 594; Warner v. Ins. Co., 1 Walker, 315; Wilson v. Ins. Co.', 27 Vt. 99; Hocking v. Howard Ins. Co., 130 Pa. 170; 2 Chitty on Const. 1214; Farmer’s Mut. Ins. Co. v. Barr, 94 Pa. 345; Wajmesboro Mut. Fire Ins. Co. v. Con-over, 98 Pa. 384; Universal Ins. Co. v. Weiss, 106 Pa. 20; Riddlesbarger v. Ins. Co., 7 Wall. 386 ; Starck Admr. v. Union C. L. Ins. Co., 134 Pa. 45; Wilkinson v. Ins. Co., 72 N. Y. 499; Williams v. Vt. N. Fire Ins. Co., 20 Vt. 222.</p> <p>It is a cardinal rule of interpretation that effect should, if possible, be given to each and every part of a contract, so that it may stand as a whole and carry out the intention of the parties: Ins. Co. v. Cropper, 32 Pa. 356.</p> <p>The condition of the policy being against the statute of limitations of this state, against justice and common right, and being the language of the insurer, it must be construed strictly against her and in favor of the insured: Phila. Tool Co. v. Assurance Co., 132 Pa. 236; Grandin v. Ins. Co., 107 Pa. 38; Ins. Co. v. Mund to use of Biddle, 102 Pa. 94; Imperial Ins. Co. v. Dunham, 117 Pa. 460; Ins. Co. v. Hoffman, 125 Pa. 626; Merrick v. Ins. Co., 54 Pa. 277; Stafford v. Walker, 12 S. & R. 190; Ins. Co. v. Tomlinson, 125 Ind. 84 ; Baley v. Ins. Co., 80 N. Y. 21; Richards on Ins. sec. 43, p. 53 ; Livingston v. Sickles, 7 Hill, 253; Ins. Co. v. Brock, 57 Pa. 74; Bole v. Ins. Co., 159 Pa. 56 ; Dougherty v. Ins. Co., 154 Pa. 385; Roe v. Ins. Co., 149 Pa. 94; Ivrug v. Ins. Co., 147 Pa. 272 ; Pickett v. Ins. Co., 144 Pa. 79 ; Doud v. Ins. Co., 141 Pa. 47 ; Humphreys v. Benefit Association, 139 Pa. 264; Hears v. Ins. Co., 92 Pa. 15.</p> <p>In Western Insurance Co. v. Cropper, 32 Pa. 351, it was held “if an exception in a policy be capable of two interpretations equally reasonable, that must be adopted which is most favorable to the assured, for the language is that of the insurers.” This principle is recognized and approved in Edwards v. Metropolitan Life Ins., 5 Kulp, 259 ; Com. v. Ins. Co., 2 Lane. 253 ; Ames v. N. Y. Union Ins. Co., 14 N. Y. 253; The Mayor &c. v. Hamilton Fire Ins. Co., 39 N. Y. 45; Miller v. Hartford Fire Ins. Co., 70 Iowa, 704; Coursin v. Penna. Ins. C»o., 46 Pa. 323; Swartz v. Ins. Co., 39 L. I. 264; Commonwealth Ins. Co. v. Berger et al., 42 Pa. 292; Insurance Co. v. O’Maley, 82 Pa. 401; Teutonia Ins. Co. v. Mund to use of Biddle, 102 Pa. 89 ; Hoffman v. iEtna Ins. Co., 32 N. Y. 405.</p>