Volume 169 — Pennsylvania State Reports

<p>[Marked to be reported.]</p> <p>Negligence — Railroads—Crossings—“ Stop, look and listón.</p> <p>Where a collision takes place at the moment when a person, either on foot or in a carriage, goes upon a railroad track, he cannot recover, no matter what his testimony may be as to stopping, looking and listening, because the fact of the immediate collision conclusively proves that he did not exercise his senses as to the approaching train.</p> <p>In an action to recover damages from a railroad company for personal injuries suffered by plaintiff, in consequence of a collision at a railroad crossing of a highway on which the plaintiff was riding in a carriage, it is the duty of the court to give binding instructions for the defendant where the only evidence that the carriage was stopped and plaintiff looked and listened, is the plaintiff’s own testimony, which is flatly contradicted by the testimony of the driver of the carriage and by four other disinterested witnesses who saw the occurrence.</p> <p>Trial — Improper remarks of counsels — Withdrawal of juror.</p> <p>Where improper remarks of counsel are brought before the court by an affidavit in support of their verity, such affidavit becomes part of the record, upon the allowance of an exception and the refusal of the court to withdraw a juror, for the causes stated in the affidavit, may be assigned as error.</p> <p>Courts — Juries—Verdicts—Setting aside verdicts.</p> <p>When juries are so palpably regardless of their duty and of the sanctity of their oaths, that they permit their verdicts to. be rendered in obedience to their prejudices or their sympathies, the trial court should deal with them in a firm and decisive manner, and should reject their erroneous verdicts without the least hesitation and delay. Otherwise the administration of justice is brought into public contempt and dishonor.</p>

<p>Appeal, No. 140, Jan. T., 1895, by plaintiffs, from decree of C. P. Huntingdon Co., Dec. T., 1893, No. 69, dismissing bill in equity.</p> <p>Bill in equitj to compel the removal of a narrow gauge railroad.</p> <p>Furst, P. J., filed the following opinion:</p> <p>“FINDINGS OF FACT.</p> <p>“ First. Complainants are the heirs at law of one Joshua Booher, deceased, and the owners as tenants in common of the land described in the bill.</p> <p>“ Second. The respondents are the owners of a tract of 103 acres of ore land and timber, purchased from Joshua Booher, complainants’ father, on Nov. 12,1883, which was duly conveyed to them by deed entered of record, etc.</p> <p>“ This tract adjoins complainants’ lands on the south.</p> <p>“ Third. The complainants’ lands are composed of three several parcels, designated as follows: (a) A tract of 69 acres, upon which Joshua Booher and family resided during his lifetime ; (b) a tract of 32 acres adjoining on the east, and (e) a tract of 17 acres adjoining homestead tract on the south, all of which is shown by a diagram offered in evidence and hereto attached.</p> <p>“ Fourth. The 17-aere tract is a rough piece of land, lying along the side of the mountain. It contains deposits of ore, some timber, but is not used as farm land, and we think cannot be. It is uncultivated land.</p> <p>“ Respondents have opened a valuable ore mine on their land, and the ore therefrom is transported to the Rockhill furnaces, a few miles east from this land, the only furnaces in the neighborhood.</p> <p>“ Sixth- Joshua Booher died Nov. 29, 1888, leaving complainants as his sole heirs at law; his widow is also dead.</p> <p>“ Seventh. In November, 1890, respondents began the building of a railroad from their ore mines, so as to connect with the furnaces aforesaid, for the purpose of transporting their ore to the said furnaces. It was finished in the spring of 1891. This railroad passes across the 17-acre lot eastward, and also across the southern end of the 80-acre lot, and connects with the East Broad Top Railroad. The exact length of respondents’ railroad is not given in the evidence; it, however, is a short road, perhaps in the neighborhood of one or two miles; this fact is not proven, and, therefore, we do not report it as a material fact in the ease.</p> <p>“ Eighth. There is a roadway of a private nature running from the neighborhood of respondents’ lands north across the 17-acre and 69-acre lots, to a public road running east and west, across the 69-acre lot, both passing in close proximity to the house of complainants on the 69-acre lot.</p> <p>“Ninth. This public road continues eastward and is intersected by respondents’ railroad at a point a little distance east of the 80-acre lot.</p> <p>“ Tenth. Complainants have instituted an action of trespass against these respondents in the court of common pleas of this county to No. 26, December term, 1893, to recover damages for the alleged trespass complained of in this bill.</p> <p>“ This suit was instituted on the 15th day of November, 1893. It is as yet undisposed of. The bill in equity was filed Nov. 22, 1893.</p> <p>“ Eleventh. The respondents deny that they have committed any trespass upon complainants’ lands. They also deny that a court of equity has any jurisdiction under the bill filed and the facts proven. They also aver that an action of trespass is still pending for the same alleged trespass. These last two denials constitute the basis of the demurrer filed.</p> <p>“ Respondents justify their entry upon complainants’ lands and the building of said railroad under a grant from Joshua Booher in his deed of Nov. 12,1883, crossing the 103-acre lot.</p> <p>“ Twelfth. The grant of right of way contained in said deed is in the following words, viz:</p> <p>“ [Extract from deed of J. M. Booher and wife to Dr. Lewis Royer, Percival P. Dewees and Dr. Winfield T. Browning. Dated Nov. 12, 1883.]</p> <p>“‘And the right and privilege to go upon said parcel of land, and to search for, dig and carry away said minerals is hereby granted and conveyed by the parties of the first part to the parties of the second part and their heirs and assigns forever.* (The 17 acre tract). Also the parties of the first part hereby grant and convey to the parties of the second part, their heirs and assigns forever, the privilege and right of way over the land last described,* (17 acre tract) and over other lands owned by parties of the first part, from the lands hereinbefore described, to the public road in front of the residence or dwelling house of said Joshua M. Booher.</p> <p>“ ‘ Also the parties of the first part hereby grant and convey to the parties of the second part, their heirs and assigns forever, the privilege of placing and depositing upon any lands owned by them, all such minerals, ores, dirt and materials used for mining purposes, as the parties of the second part, their heirs and assigns may desire.’</p> <p>“ Thirteenth. The cost of building this railroad was about $11,000. The issuing of an injunction to restrain the use of same and causing the removal of the same from complainants’ lands, would produce very great hardship, and in a great measure destroy the value of respondents’ mines.</p> <p>“ Fourteenth. While the private road referred to intersects the public road near complainants’ house, the railroad of respondents connects with the public road in front of complainants’ house. That is, with the road passing in front of complainants’ house, but the point of connection is considerably farther eastward.</p> <p>“Fifteenth. The foregoing contains a substantial finding of the facts of the case.</p> <p>“ CONCLUSIONS ON LAW.</p> <p>“ First. The question lying at the threshold of this case is a legal and not an equitable one.</p> <p>“ Respondents allege and show a grant to a right of way over complainants’ land to transport their ore. Does this grant justify respondents in their uses of complainants’ land in the manner found? This is a legal question, and where it is affirmed on the one side and denied on the other, there is no jurisdiction in equity.</p> <p>“ The question thus raised is one of title rather than trespass, and therefore where a cause hinges upon a disputed title to do the act complained of, and which act is claimed to be author, ized, the title must be first settled in an action at law: Duncan v. Hollidaysburg and Gap Iron Works, 26 W. N. C. 479.</p> <p>“ Second. Trespass or ejectment is the appropriate action to settle the questions of law involved in complainants’ case. And therefore where such action has been instituted to test the title, equity will not subsequently entertain jurisdiction until the legal question has been determined. If determined favorably to complainants, equity may then interpose to prevent future acts of trespass by writ of injunction.</p> <p>“ But should the question at law be determined adversely to complainants, then, of course, the remedy is gone both at law and in equity. In all actions, therefore, where jurisdiction is dependent upon a particular question which is a legal and not an equitable one, resort must first be had to the appropriate court to establish the right.</p> <p>“ A bill filed in equity to establish such right is termed an ejectment bill and cannot be maintained.' Duncan v. Gap Iron Co., supra, and cases there cited.</p> <p>“Third. Under the facts and the law, complainants cannot recover in this form of proceeding and the bill should be dismissed.”</p> <p>The court entered a decree dismissing the bill with costs to be paid complainants. Plaintiffs appealed.</p> <p>JSrror assigned was in dismissing bill.</p>

Appeal, No. 19, July T., 1895, by defendant, from decree of C. P. Warren Co., Dec. T., 1894, No. 62, awarding a permanent injunction. Bill in equity to restrain the construction of a building upon land in borough of Warren.

<p>Appeal, No. 46, July T., 1895, by Mark Gemas, from, order of Q. S.Fayette Co., March T., 1895, No. 132, refusing a distiller’s license.</p> <p>Petition for distiller’s license under act of June 9, 1891.</p> <p>The petition, bond and justification of sureties complied with the terms of the act and the rules of court, and no remonstrances were filed against the application. The court indorsed upon the petition the following order :</p> <p>“ Now the 5th day of April, 1895, license is refused as unnecessary for the accommodation of the public.”</p> <p>Error assigned was above order, quoting it.</p>

Appeal, No. 191, Jan. T., 1895, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1893, No. 36, on verdict for plaintiff. Assumpsit on a promissory note. Before Livingston, P. J. At the trial it appeared that the note was given as part consideration for a horse sold and delivered by plaintiff to defendant on June 4, 1893. The defense was that the horse was not as warranted by the vendor.

Appeal, No. 144, July T., 1894, by plaintiff, from judgment of C. P. Lancaster Co., Sept., T., 1891, No. 86, on verdict for defendants. Assumpsit to recover moneys paid for a lot of heifers which it was claimed were not in the condition in which they were warranted.

Appeal, No. 366, Jan. T., 1895, by E. J. Ryder, Committee of Catharine Hambright, a lunatic, frían decree of O. C. Lancaster Co., overruling exceptions to auditor’s report. Exceptions to auditor’s report.

Appeal, No. 133, Jan. T., 1895, by John T. Wambaugh et al., from decree of O. C. York Co., sustaining exceptions to auditor’s report. Exceptions to auditor’s report. From the report of the auditor, James St. Ciair McCall, Esq., it appeared that the will of Barbara Striewig was as follows: “I Barbara Striewig of York City, County of York and State of Pennsylvania do hereby make this my last will and testament. “First.

<p>Appeal, No. 349, Jan. T., 1895, by Isaac Styer, from decree of O. C. Lancaster Co., directing the payment of valuation money into court.</p> <p>Buie to show cause why valuation money on land devised by testator should not be paid into court.</p> <p>From the record it appeared that testator’s will was as follows :</p> <p>“February, 17, 1854.</p> <p>“ This is my Last will and testament of David Weiler of Carnarvon township Lancaster County I David Weiler considering the uncertainty of this mortal Life and being of Sound mind and memory Blessed be Almighty God for the same do make and publish this my Last will and testament in manner and form following that is to say first I give and bequeath unto my beloved Wife mary Weiler All Raile Estate and Pernel property Dureing Hof Life time Item I Give and bequeath to my Son George and son Siles Weiler All my Raile Estate for the sum of tow thousand five Hundred Dollars and After Hor Decese that is to Say mj^ wife Mary Weiler then After All funerel Expence is Paid then All my Pernel property to be Sold and All Detes Paid then All what is Left to be Devided Eqilly Amongest my tqen Childrin or to there Airs or asinges And Lastly I Dow Abpind my Son Peter Weiler and Siles Weiler my Executors to maige Sail and Sell my Pernel propperty and Devid it in Equel Sheirs I Have Hereuto set my Hand and Seal the Seventeens Day of February in the year of our Lord one thousand Eight Hundred and fifty fore.</p> <p>“ This my Hand and seal.</p> <p>David Weiler, [Seal.]</p> <p>“ This will Shall never be broke.”</p> <p>Brubaker, J., filed the following opinion:</p> <p>“ The main question in this case is whether the devise to the testator’s sons, George and Silas, is a charge on the land. The testator disposed of his whole estate as follows: ‘ Item I give and bequeath to my son George and son Silas Weiler all my real estate for the sum of $2,500, and after her decease, that is to say, my wife, Mary Weiler, then after all funeral expense is paid, then all my personal property to be sold and all debts paid, then all what is left to be divided equally amongst my ten children or to their heirs or assigns.’</p> <p>“ The auditor to whom the matter was referred by the court to take testimony and find the facts, has found as a fact that George and Silas Weiler accepted the real estate devised to them under this clause of the will, but that the valuation moneys mentioned therein were not paid by them or by any one else for them. The land has since passed into possession of other parties, and the several interests of the devisees are now held by Isaac Styer, who is in possession of the same.</p> <p>“ The auditor further finds, among other facts, that Mary Weiler, the widow, died on Oct. 18, 1875; that Silas Weiler was adjudged a bankrupt in 1868; on December 17th of that year David G. Esbleman, the assignee in bankruptcy of Silas Weiler, conveyed all the right and title of said Silas Weiler at the time he was adjudged a bankrupt, of the thirty-acre tract of land in question, which interest was subsequently purchased by Isaac Styer, the present owner; that after the death of the widow, George Weiler on Nov. 6,1875, conveyed his undivided interest in said land to Rebecca Weiler, widow of Silas Weiler; that the sheriff of Lancaster county on á writ of venditioni ex-ponas issued out of the court of common pleas, on Oct. 6,1880, sold the interest of George Weiler in said land to John B. Good, who, in turn, sold and conveyed the same to Isaac Styer, the present owner.</p> <p>“ It is contended on the part of the rule that the land devised to the sons by the testator was subject to the charge of the valuation moneys or legacies, and that it is still subject to the payment of them. There is no doubt, in our opinion, that the acceptance of the real estate was, in law, a purchase by the devisees, to take effect after the decease of the widow, upon condition of the payment of these moneys, that this was the evident intent of the testator in making the devise to his sons can be readily seen from the disposition he makes of the moneys, which formed part of the estate for the purposes of distribution, as it is to be equally divided among his ten children, which includes the devisees. The interest that these devisees, therefore, had in the property was merely an equitable one, the legal title to the land being conditioned upon the payment of the valuation moneys.</p> <p>“It was said in Gilbert’s App., 85 Pa. 347, that ‘While, in order to make legacies a charge on land it must be found such was the testator’s intention, still it is not necessary that its ascertainment should rest on direct expression. It is enough if the intention appears by natural and obvious implication from the provisions of the will.’ ‘ In that case the testator gave certain land to one of his sons at $33.00 per acre, the proceeds thereof to be divided into eight equal shares, and distributed equally among his sons and daughters. Held, that it was the intent of the testator that the land should be charged with the payment of these legacies.’ See also Hart v. Homiller’s Exr., 23 Pa. 39; Wertz’ App., 69 Pa. 173; Kneeht’s App., 71 Pa. 333 ; Pierce, Adm’x, v. Livingston, Adm’r, 80 Pa. 99; Hoover v. Hoover, 5 Pa. 351.</p> <p>“ If the construction we have given to the will is the correct one, and the land was accepted subject to the charge, we do not see that either the sale by the assignee in bankruptcy of Silas’ interest, or the sale by the sheriff of George’s interest can effect the charge on the land. Either of these sales must necessarily be subject to the payment of the valuation moneys. Indeed, the conveyance by the assignee in bankruptcy was expressly so made.</p> <p>“We are of opinion that, as the valuation moneys in the devise under this will to George and Silas Weiler have not been paid, the rule in this case should be made absolute.</p> <p>“ We direct a decree to be drawn up by counsel for the rule, ordering and directing the said Isaac Styer, the present owner of the land, to pay the said moneys with interest from the date of the death of the widow, to wit: un Oct. 18, 1875, on the first day of April next, or, in default thereof, a writ of levari facias is to be issued to sell the same. Let the decree be so entered.”</p> <p>The court entered the following decree:</p> <p>“And now, Jan. 29, 1895, on motion of Chas. I. Landis and A. H. Fritchey, Esqs., the court orders and decrees that Isaac Styer pay to B. S. Weiler, administrator d. b. n. c. t. a. of the estate of the said David Weiler, deceased, the sum of twenty-five hundred dollars ($2,500) with interest from Oct. 18, 1875, on or before the first day of April, A. D. 1895, and that in default of such payment a writ of levari facias shall issue to sell the tract of land of the said Isaac Styer, consisting of about thirty acres of land, situated in Caernarvon township, in said county, upon which the said sum remains charged.”</p> <p>Frrrors assigned were (1) order, directing decree to be drawn, quoting the order; (2) decree as above, quoting it.</p>

<p>Constitutional law — Statutes — Local and special legislation — Act of June 6, 1893 — Burial places.</p> <p>The act of June 6, 1893, P. L. 342, entitled “An act authorizing and regulating the taking, use and occupancy of certain public burial places, under certain circumstances for purposes of common school education,” is local and special legislation and repugnant to article III. sec. 7, of the constitution forbidding the general assembly to pass any local or special law “regulating the affairs of counties, cities, townships, wards, boroughs or school districts,” or “relating to cemeteries, graveyards, or public grounds, not of the state.”</p> <p>Appeal, No. 32, July T., 1895, by the City of York School District, from order of C. P. York Co., setting aside report of viewers.</p> <p>Petition for the appointment of viewers to assess damages for the taking of one half acre of a public burial ground for school purposes.</p> <p>From the record it appeared that John Penn and John R. Coates by deed dated June 11, 1816, conveyed to the burgess and inhabitants of the borough of York “ two contiguous lots of ground called Potter’s Field, situate on the East side of Beaver Street, bounded south by New Street (now College Avenue) and north by the Roman Catholic burying ground, to have and to hold the said two contiguous lots called Potter’s Field unto the Burgess and inhabitants of the Borough of York, to be kept as a public burial place forever and for no other use, intent or purpose.” These lots have been used as a public burial place ever since the conveyance. The board of school controllers of the City of York School District, on Feb. 8,1894, passed a resolution, declaring its intention to take a half acre of this burial place for purposes of common school education under the act of June 6, 1893, P. L. 342, and presented its petition to the court of common pleas of York county for the appointment of viewers to assess damages, etc. The viewers accordingly were appointed and made their report to the court on June 4, 1894. To this report exceptions were filed by the city of York and by R. A. Gr. Ault, a citizen of said city.</p> <p>The court sustained the exceptions in an opinion by Latimer, P. J., and Bittenger, J., the material part of which is as follows :</p> <p>“We are compelled to consider the act of assembly in question unconstitutional for several reasons, which will be stated as briefly as possible.</p> <p>“ 1st. Because it impairs the validity of a contract. The deed from John Penn and John R. Coates to the municipal corporation, accepted by the latter, was a contract which is entirely abrogated by this act of assembly, a contract to hold the land to a public charitable use, which is overthrown without any adequate method being provided to secure the substitution of the money value of the land, or any part of it, for the land itself, in the continuance of the charity. And to the limited extent to which it does preserve the charity, to wit: the extent of requiring the reinterment of the dead, it substitutes another trustee, to wit: the board of school directors, in place of the one chosen by the grantors. Furthermore, instead of imposing on the substituted trustee the duty of buying other land to serve as a public burial place, it leaves it discretionary with the school board to do so, if they deem it necessary. It is to be observed that the viewers assign this very provision of the act of assembly as a reason for not awarding any damages to the city.</p> <p>“2d. We think the act of assembly unconstitutional because it is a local and special act regulating the affairs of a school district, as well as relating to a graveyard not of the state. Its very title shows that it is special and not general. It is entitled ‘An act authorizing the taking, use and occupancy of certain public burial grounds, under certain circumstances.’ It is well known that this act of assembly was prepared and its passage procured for this particular case, to enable this school board to take this burial ground; and that this was done after a special law avowedly for the same purpose had been vetoed byr the governor. It is special legislation in the guise of a general law — the most specious and vicious form that special legislation can assume. That this particular school district and this particular burial ground were intended to be affected is made manifest by the 1st section of the act in which all words of general operative effect are so hedged in and limited by other words, confining their operation as to render it extremely probable that there is no other graveyard in the commonwealth within the operation of the act. Certainly they must be very few in number. The act would'have been little, if any, more apparently'' special, if it had enacted that ‘whenever the school board of York city desired to occupy the Potter’s Field therein, it should be lawful for them,’ etc. Localization and specialization mayr be produced by matter of description, geographical or otherwise, or by words of limitation confining the operation of general terms to an individualized subject-matter. See Com. v. Patton, 88 Pa. 258; Philadelphia v. Cemetery Co., 162 Pa. 105; Weinman v. Pass. Ry. Co., 118 Pa. 192.</p> <p>“ Being local and special legislation in regard to a matter already provided for by general laws, this act violates the last paragraph of section 7 of act 3 of the constitution. The act of April 9, 1867, which is general law, provides ample machinery for school boards to acquire sites for school houses. Incident* ally it may be suggested that if the city of York desires, for any reason, to dispose of this Potter’s Field, the act of April 18, 1853, known as the Price act, affords an easy method of doing so, and still preserving the charity.</p> <p>“ Having sustained the 8th and 10th exceptions, we might recommit the report to the viewers, if these exceptions alone were involved. But as in our judgment the act of assembly under which the viewers were appointed is unconstitutional and void, we set aside the report of viewers, and dismiss the petition, thus affording the school board an opportunity, by appeal, to have our ruling reviewed. Feb. 4,1893, decreed accordingly.”</p> <p>Error assigned was order setting aside report of viewers.</p>

Appeal, No. 69, July T., 1895, by defendant, from judgment of O. P. Lancaster Co., May T., 1895, No. 39, for plaintiff on case stated. Held: that the nephew took a fee simple estate in the land. “ This case, which is the latest utterance of the Supreme Court of Pennsylvania, on this question, was affirmed by the Supreme Court for the reason given by the learned judge of the common pleas (Weand, J.), of Montgomery county, who held that, ‘whether intentional, or otherwise,…

Appeal No. 351, Jan. T., 1895, by garnishees, from judgment of C. P. Lancaster Co., March T., 1889, No. 7, on verdict for plaintiffs. Attachment execution. At the trial the jury returned the following verdict: “ Nov..27, 1893, verdict of jury for the plaintiffs for six hundred and seventy-two dollars and twenty-three cents ($672.23), and further find that the executors of the will of Wm.

Appeal No. 188, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1891, No. 25, in favor of defendant on demurrer to statement. Trespass for death of minor child. Plaintiff in her statement of claim averred that her minor son had been killed by the negligence of defendant. She also averred as follows: “ The plaintiff is the only person entitled to recover for the death of her said son.

<p>Appeal, No. 17, Jan. T., 1895, by plaintiff, from decree of C. P. Huntingdon Co., Sept. T., 1893, No. 63, dismissing bill in equity.</p> <p>Bill in equity to compel the construction of sidings, the erection of a station, and the restoration of a water power to a proper condition.</p> <p>The case was referred to J. F. Shock, Esq., as master.</p> <p>From the master’s report it appeared that on Feb. 15, 1884, plaintiff executed a deed for right of way to the East Broad Top Railroad & Coal Company.</p> <p>The material portions of the deed were as follows:</p> <p>“ Witnesseth. That the said I. C. Caldwell for and in consideration of the sum of one dollar, and other considerations unto him well and truly paid at or before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, and by these presents doth bargain and sell unto the said East Broad Top Railroad and Coal Company, their successors and assigns, the free and uninterrupted use and privilege of the right of way for the said railroad through and over his farm and parcel of land, situate in Cromwell township, Huntingdon county, State of Pennsylvania, sixty feet wide, with such additional widths as may be required for the construction and operation and maintaining of a double track railroad on the line as now located, a plan whereof, more particularly describing and setting out said right of way may be hereto attached, upon condition, however, that the said railroad company shall erect and maintain, at or near where the said railroad, as now located, crosses the public road leading from Orbisonia to Shade Gap, on his said premises, a passenger and freight station, with the sidings necessary for the convenient shipment of freight to and from said station, to be erected and maintained as aforesaid, during the continuance of the right of way hereby granted to the said railroad company, or their assigns, and the said Caldwell hereby agrees to give such additional land, if more than the above mentioned sixty feet may be necessary, for the purpose of the erecting and maintaining of the said stations and sidings, as provided for in this condition free of cost to the said railroad company.</p> <p>“ To have and to hold said right of way, with the incidents and appurtenances thereof, to the said East Broad Top Railroad and Coal Company, their successors and assigns, for their proper use and behalf; and the said I. C. Caldwell doth release the said company, their successors and assigns from all damages accrued, or which may accrue, by reason of the use of said way or construction of said road on said premises, subject to the conditions upon which this grant is made and above stated.” The master reported, inter alia, as follows :</p> <p>“ The injuries complained of by the plaintiff in the bill appear to resolve themselves into two classes when considered with reference to their origin. The first class may be said to consist of those growing out of the alleged violations by the defendant company of the express conditions written in the deed for the right of way, viz: to erect and maintain a passenger and freight station, etc., to build a double track railroad (alleged by plaintiff) and the violation of the implied obligation on the part of the defendant company to, if possible, so construct its road as not to injure the water power or other property of the plaintiff. The second class may be said to consist of the alleged violation of the oral conditions claimed to have been made at and before the execution of said deed and to constitute part of the consideration therefor, to wit: The alleged oral agreement to call said railroad station ‘ Caldwell.’ The alleged oral agreement to so locate the sidings provided for in said deed as that the plaintiff could reach the same by a track from his sawmill, and the alleged oral agreement to so construct their road as not to obstruct, injure or impair plaintiff’s water power, or interfere with the operation of his mill.</p> <p>“We will first consider the complaints and allegations of the second kind or class, viz: Those based upon the violation of the alleged oral conditions or agreements, for the defendant company denies that any of the alleged oral agreements were ever made by them or their agent. The deed for the right of way was drawn by D. Caldwell, Esq., at his office in Hunting-don, on the 15th day of February, 1884, and it was on that day executed by the plaintiff and delivered to Dr. Lewis Royer for the defendant company. There were present at the preparation and delivery of the said deed, David Caldwell, Esq., the scrivener of the deed, and plaintiff’s brother,!. C. Caldwell, the plaintiff, and Dr. Lewis Royer who represented the defendant company. The company desired to obtain amicably a right of way. over plaintiff’s land for their road. The plaintiff and David Caldwell as the owners of land and marketable timber in the vicinity of the line of the road, were interested in having the road made and having a shipping station established near plaintiff’s sawmill. The above named three persons were engaged for some hours on that day in reaching an agreement and putting it into the form of a deed. The result of their meeting and their negotiations, so far at least as the same is evidenced by writing, is the deed for right of way printed in the appendix to the bill. This deed is in the usual form of such indentures, except that it contains a written condition that the company erect and maintain a passenger and freight station, with the sidings necessary, etc., on plaintiff’s premises near his sawmill. It also has these significant words at the close of the habendum et tenendum clause, to wit: ‘ Subject to the conditions upon which this grant is made and above stated.’ This deed is admitted by both sides to have been executed and delivered in the form it now is. There is no objection made to anything con-, tained in it. There is no allegation that anything was omitted from it by fraud, accident or mistake. The original deed has the appearance of having been carefully written. There is unused blank space in it in which other conditions, agreements or covenants could have been written, had the parties so desired.</p> <p>“ The plaintiff avers in his bill that this deed has not written in it all the conditions agreed upon as part thereof, and as part of the consideration therefor, between himself and the defendant’s agent. He avers that, in addition to the covenants or conditions written in the deed, they orally agreed upon, and made part of the contract, the further conditions: That the station to be erected should be called ‘ Caldwell; ’ that the sidings to be made should be located to connect a side track from the sawmill with the main line of the road, and that the water power should not be injured or the mill interfered with in the construction of the road, or as a result thereof. The plaintiff produced testimony intended to explain that these agreements were omitted from the deed because of the objection of Dr. Royer that they would make it cumbersome if inserted. Dr. Royer denies that they were omitted from the deed at his instance, and says that they were never made and were for that reason not inserted. It is certain that they were not written in the deed.</p> <p>“ The bill avers a breach of all these alleged oral agreements and therefore prays that decree be made, etc. The gist of the case, therefore, lies in the answers to the questions: Were such oral agreements made as alleged, so as to constitute part of the consideration of the grant? If so made, can they now, upon parol testimony, be inserted into, and in legal effect, made to constitute part of the original written contract? If they can be, what is the character and strength of the evidence required to establish them as part of such written contract?</p> <p>“ The averments in the bill are clear and positive. The answer, which is responsive to the bill, as clearly and positively denies said averments. The testimony of the plaintiff in support of the bill is clear and positive ‘ that all of the above mentioned conditions as to the right of way through my lands were promised and agreed to be performed by Dr. Lewis Royer on behalf of the company, at and before the execution and delivery of the right of way for the said road.’ As to this, he is fully corroborated by his brother, the scrivener of the deed. On the other side, the deed itself antagonizes the bill and the plaintiff’s evidence in the following respects, viz: The scrivener, being learned in the law, knew the importance of reducing the entire contract to writing; being the brother and counsel of the plaintiff, he was interested in drawing the deed so as to express in it all agreements which were favorable to plaintiff; there was the space in the blank necessary for the purpose and it was not used; he added to the deed the words ‘ subject to the conditions upon which this grant is made and above stated,’ which expression is reasonably interpreted to mean: ‘ Subject to the conditions upon which this grant is made and which are above stated; ’ thus formally excluding any conditions but those ‘ above stated.’ In addition to this, and to the denial by the defendant that there were any conditions but thoseabove stated’ and written in the deed, the testimony of Dr. Lewis Royer is absolutely positive that ‘ no agreements whatever were made prior to time of signing the agreement that were not contained in the paper.’ ‘ There was no agreement, engagement or covenant made on part of the company, except those contained in the right of way on the da}*- of that agreement.’</p> <p>“This case is indeed remarkable for the full, perfect and complete contradictions in the testimony on the above point, when it is considered that all the witnesses are persons whose credibility would not ordinarily be questioned. On the one side we have the testimony of the plaintiff and D. Caldwell, Esq. Opposed to this is the deed and the testimony of Dr. Royer. If we consider that the testimony of D. Caldwell is neutralized or destroyed by the .contradictory testimony of Dr. Royer, there is left the testimony of the plaintiff only, against the deed. There is absoluteljr no weight or preponderance of testimony in favor of plaintiff on the first question stated above. Considering the plaintiff’s interest in its effect on his credibility, and that the deed, though drawn by his own counsel, is adverse to him, the preponderance or weight of the evidence is with the defendant more than the plaintiff. We must consider now what character of testimony is required to vary, change, amend or reform a sealed written instrument. . . .</p> <p>“In the case under consideration we have the testimony of the plaintiff and one credible witness that certain oral agreements were made. We have the answer and denial of the defendant company, supported by the testimony of one credible witness and the persuasive evidence of the deed itself, that said oral agreements were never made. If it requires the testimony of two credible witnesses, or the equivalent thereto, to overcome the responsive denial of the answer, then it clearly follows that the testimony of the credible witnesses (the plaintiff being one of them) is insufficient to overcome both the responsive denial of the answer, and the strong evidence in support of said denial, put in by defendant’s witness. The master does not know, on account of the contradictory nature of the evidence, whether the alleged oral agreements were made or not made. The testimony is irreconcilable; for Dr. Royer denies that injury to the water power was even thought of, and much less made the subject of a special oral agreement. The master cannot therefore find as a fact that the oral agreements alleged in the bill were made, even as between the plaintiff and the defendant company’s agent.</p> <p>“ This, then, leaves nothing to support the bill but the allegations of injuries which we included in the first class, viz: That the written conditions in the deed relative to the construction and maintenance of a passenger and freight station and sidings, and the construction of a double track road, and the obligation of the defendant company to so construct its road as not to injure plaintiff’s water power or retard the operations of his sawmill, have not been performed. These are alleged violations of the conditions of the contract as it was actually written, or grow out of those conditions.</p> <p>As to the first of these complaints set forth in the 4th and 11th paragraphs of the bill: The defendant company alleges performance, and holds that it is not bound to do anything more than has been done in the erection of a station, the construction of sidings or the laying of tracks. There is no doubt but that there has been performance to the extent of the erection of a shed for passengers at or near the place fixed upon in the deed for the same, and to the extent of laying a single track, and to the extent of the construction of sidings for the shipment of car load lots of freight to and from said station and sidings. The deed does not describe the character of station to be erected, nor absolutely require the construction of a double track road. Whether or not what has been done by the defendant company in the way of performance is performance of these provisions of said deed according to their true intent, under all the circumstances, as they existed therein and have developed since, are clearly matters dependent upon the proper construction of said deed. These questions, it seems to me, are of the kind that courts of law have been established to determine. In an action of ejectment or a suit for damages, the jury under proper instructions from a law judge as to the construction of the deed, would determine whether or not there has been performance. . . .</p> <p>“ The company would be bound to protect its embankment, where it extended it into an ancient water way, in such manner as that plaintiff would not be injured by the washing of debris therefrom into the tail race. That injury of this kind exists is apparent, both from the evidence and from an inspection of the premises. That the plaintiff contributes somewhat to his own injury in this respect by allowing tree tops and other rubbish thrown into this swale or old channel by him, or those under him, whereby the water is dammed back and made to rise higher upon the side of said embankment, is probable. That said water power can be fully protected from further injury of this kind by the plaintiff’s removing the above mentioned obstructions from the channel, and by the defendant’s rip-rapping the foot of its embankment with the stone upon the ground, and other stone at the points where the water comes into contact with said embankment, is also highly probable. And because the defendant has not done so, or may not do so in the future, there is no question but that such injury as the plaintiff lias sustained, or may yet sustain, by the acts or negligence of the defendant company, is reparable in damages; nor that the proper tribunal to determine the amount of such damages, whether they arise by the violation of a contract implied by the law, or based upon an oral agreement as alleged in the bill, is a court of law with its juries. Especially is this true in a case where a court of law has already taken jurisdiction. For ‘ courts of equity will not interfere where there is a concurrent jurisdiction in courts of law and where the latter have first taken cognizance unless a plain case be made in the bill.’ Crane v. Ely, 37 N. J. Eq., 564.</p> <p>“ From the records of the court of common pleas of Hunting-don county it appears that on Feb. 11, 1890, plaintiff began a suit for damages to No. 2, May T., 1890, against defendant company for the above cause of action, and that on Aug. 4, 1890,.he began a suit in ejectment to No. 41, Sept. T., 1890, against the defendant -to recover the land granted in the above mentioned deed for the right of way. These actions were both begun before the bill in this case was filed, and are both yet pending and undetermined.</p> <p>“ The master therefore finds as a fact that the oral agreements alleged in the bill as having been made, and the bill itself, so far as it depends on these, are not established and sustained .by the evidence, and he holds that the questions in the case concerning the violation of the express and implied contracts contained in and growing out of the deed, are properly cognizable in a court of law, and he finds further that a court of law had taken cognizance of the same before the bill in this case was filed, and therefore that plaintiff is not entitled to assistance or relief in a court of equity, but should be relegated to his actions at law.</p> <p>“ He therefore suggests and recommends to the court to dismiss the plaintiff’s bill in this case at the costs of the plaintiff, by a decree to be drawn for the purpose.”</p> <p>Exceptions to the master’s report were dismissed in an opinion by Bell, P. J., and the bill was dismissed.</p> <p>Error assigned was in dismissing bill.</p>

<p>Appeal, No. 9, Jan. T., 1895, by William K., Thomas and John Mackert, from order of Q. S. Northumberland Co., Feb. T., 1895, No. 1, refusing to grant a wholesale -license.</p> <p>Application for a wholesale liquor license.</p> <p>The application was refused, Savidge, P. J., filing the following opinion:</p> <p>“I know the applicants to be ‘fit persons ’ for the-grant of a license to sell liquor by wholesale. They are good men who could safely be intrusted with the privilege. The license is refused, because I do not think there is a necessity for it. This conclusion is not reached from the proofs presented in open court. It could not be. There is no remonstrance, and the record and proofs are altogether in favor of the applicants. (In addition to the 24 names on the original petition, there has been filed a supplemental petition with 87 signatures.) The gentlemen signing the petition are citizens of high character and standing. They ought to be, and probably are, familiar with the situation. Many of them, by reason of their business relations and their thorough knowledge of the demands of the community, ought to know more than I can of the necessity for this license. Yet under the law, I feel justified in refusing.</p> <p>“ From ‘ acquaintance with the. district ’ I have made up my mind the house is not necessary.</p> <p>“ The judgment of the court may be founded upon my knowledge as an individual: Kelminski’s License, 164 Pa. 281.</p> <p>“ This is an old doctrine reiterated. It ought to be as familiar to counsel as to the court. It is only too well known to the people of this district. They habitually rely upon the court to act of its own knowledge obtained from ‘ observation of the applicant and acquaintance with the district; ’ that is, knowledge individually obtained. They make no effiort to protect themselves against unfit persons and from unnecessary licenses. They rest that burden upon the court, relying upon the individual knowledge of the judge to overcome the proofs and petitions, no matter how strong, for the license.</p> <p>“ It is assumed that methods altogether different from the ordinary are to maintain in the license court. This is unfortunate. Nevertheless the law sanctions it and the people have come to believe in it thoroughly.</p> <p>“ It is distasteful to the court to rest the judicial determination of any question upon the knowledge of the judge acquired off the bench. Aside from licenses, I know of no judicial proceeding in which it would be tolerated.</p> <p>“ In answer to the argument that a license court ought to be conducted on the ordinary lines of procedure, I have only to point to the decisions which say otherwise, and to the well known attitude of the peojple forcing this cause.</p> <p>“ Prior to this year, remonstrances against licenses in the coal region portion of the county, (whence come 260 of the 344 applications on file,) have been practically unheard of. It is well known that the remonstrance filed this year was the outcome of a general misunderstanding of the decision in ‘Kelminski’s License.’</p> <p>“ The community believed the effect of that decision to be that the court could no longer raise an issue without a remonstrance, and decide such issue upon the individual knowledge of the judge. That belief has been dissipated, and it can safely be assumed that remonstrances will cease. The burden will rest, as heretofore, upon the judge as an individual, or the court,' just as you please to put it. That burden I must assume. I have assumed it in this case, as in many others decided at this term.</p> <p>“ Of course, I rarely have the desirable familiarity with applicants, houses, or the necessity for licenses applied for in the coal region. The number alone precludes personal investigation, and I am too far away to acquire the knowledge otherwise. That should not prevent my making use of the knowledge I do have of the town in which I live.</p> <p>“ There is force in the suggestion that the community of Shamokin should receive, at the hands of the court, the same treatment in license matters as Sunbury. I try to give it, using every means of knowledge at hand and every effort to treat one section of the county like another, and all fairly. If, under existing conditions, I should make mistakes, and in a measure fail, it is the fault of the law and not of the court.</p> <p>“ It is to be remembered that not one farthing of the vast revenue acquired from the licenses is available for any needed investigation. We are powerless to call in witnesses (for who will pay them), or to take one step in the direction of a proper enlightenment. There is, in the anthracite coal region, but one side to a license case, except the judge interpose such individual information and knowledge as he may be able to command. Possibly the legislature anticipated that the people would take care of themselves in this matter, as they do in private litigation and in public matters,and matters political. This anticipation may be realized elsewhere, not here, nor ever will be so long as the law permits the people to compel the judge to make use upon the bench of what he knows as a citizen, to the end that the community and the court may not be scandalized by an improper grant of licenses.</p> <p>“ Nor are the people so much to be complained of, for it is honestly believed by them, (why, I know not,) that the judge has an information in license matters, which he rarely, if ever, has even the means of acquiring.</p> <p>“ It would seem that the legislature, even though deeming it unwise to provide fund or official for supervision of the liquor traffic, might have provided some method whereby a license court could, in a judicial way, come by the information which would enable it to intelligently perform the onerous duties put upon it. It is to be hoped that the successors of the legislators who enacted the Brooks Law, may, in the near future, see their way clear to do this. Such a provision would, to that extent at least, have made the act true to the title, ‘ An act to restrain,’ etc.</p> <p>Error assigned was order refusing to grant license.</p>

<p>Appeal, No. 27, July T., 1895, by Gideon Markle and Samuel L. Culp from order of Q. S. Northumberland Co., Feb. T., 1895, No. 76, refusing to grant a wholesale liquor license.</p> <p>Application for a wholesale liquor license.</p> <p>The application was refused, Savidg-e, P. J., filing an opinion, which appears in Thomas’s Appeal (next preceding case.)</p>

<p>Liquor laws — Retail license — Discretion of court.</p> <p>AVliere the record of an application for a retail liquor license shows that the case was heard and considered by the lower court, the Supreme Court will not reverse an order refusing the license, although the lower court filed no opinion, and assigned no reason for its action. Gross’s License, 161 Pa. 84A, followed.</p>

Appeal, No. 448, Jan. T., 1894, by plaintiffs, from decree of Q. S. McKean Co., October Term, 1898, No. 69, discharging rule for mandamus.

<p>Appeal No. 231, Oct. T., 1894, by plaintiff, from judgment of common pleas No. 2 of Allegheny county, Oct. T., 1893, No. 119, on verdict for defendants.</p> <p>Action of replevin to recover possession of a team of horses. Before Magee, J.</p> <p>The facts sufficiently appear in the opinion of the Supreme Court.</p> <p>At the trial, J. C. Dieken, the plaintiff, being upon the stand, his counsel offered to prove by him that “ Mr. Martin desired to have the use of the horses, and I made an arrangement with Mr. Martin that he might have the use of the horses in consideration of feeding them, shoeing them and taking care of them.”</p> <p>Counsel for defendants objected to the competency of the witness to testify^ to anything that occurred beffme the death of Mr. Martin between the witness and Mr. Martin, as affecting the title to this property as between Mr. Martin and the witness. Objection sustained, exception noted for plaintiff and bill sealed. [1]</p> <p>Ellen J. Rynd, sworn on behalf of plaintiff. Counsel for defendants asked on cross-examination : “ Q. What became of the horses you sent to Kensington, the ones you purchased here and sent to Kensington ? ” Objected to by plaintiff. Objection overruled, exception noted for plaintiff and bill sealed. “ A. My attorney sold these horses to a gentleman here by the name of Mr. Steen.” [2] “ Q. What did you do with the horses ? ” Objected to. by plaintiff’s counsel because these are not the horses in controversy, and it is immaterial what she did with them.</p> <p>Counsel for defendants propose to show that there is a bill of sale under which Mr. Dicten claims that he owns all the horses bought at this sale ; it is in evidence that two months after that Mrs. Rynd herself told him to send two of those horses up to her farm, and he sent them. Objection overruled and exception noted for plaintiff and bill sealed. “A. I sold them.” [3]</p> <p>By Mr. Day, counsel for plaintiff: “ Q. I will read this bill of sale to refresh your memory. (Mr. Day reads Exhibit No. 2.) Now I ask the question, after this sale was made, if you had no further interest in any of the material after that time, or in the results of the disposal of it arising from the disposition of it ? ” Objected to by plaintiff’s counsel as irrelevant and incompetent. Objection overruled, exception noted for plaintiff and bill sealed. “ A. I think that I am interested in the result of the sale.” [4]'</p> <p>C. H. Noble, a witness on behalf of plaintiff, was asked on cross-examination: “ Q. Where was Mr. Rynd at that time ? ” Objected to as immaterial. “ Q. Well, Mr. Rynd wasn’t in the city, was he ? ” Objection overruled, exception noted for plaintiff and bill sealed. [5]</p> <p>Counsel for plaintiff offered in evidence Exhibits Nos. 1, 2 and 3.</p> <p>Counsel for defendant objected to Exhibit No. 3, for the same reasons as stated at the time it was identified.</p> <p>Objection to Exhibit No. 3 sustained, exception noted for plaintiff and bill sealed. [6]</p> <p>Mrs. Jennie Martin, a witness called by defendants, was asked in her examination in chief: “ Q. Mrs. Martin, do you know anything about his having bought a team of horses, a wagon and harness from Mrs. Rynd? ” Objected to, for the reason that it is not competent to contradict the sheriff’s written bill of sale; further than that, that this witness being the widow of Robert Martin, deceased, being the assignee in law of Robert Martin, is not a competent witness.</p> <p>By the Court: “She cannot answer that — not what he said. The objection as to the incompetency of the -witness is overruled, exception noted for plaintiff and bill sealed.” [7]</p> <p>Counsel for defendants offered in evidence Exhibit A.</p> <p>Plaintiff objected that the account is not a proper subject for a book of original entry; that this is not a book of original entry; that the witness has not testified that she saw Robert Martin make the entries in this book from day to day; that it is not competent to introduce these declarations of Robert Martin against the plaintiff in this case, Robert Martin being dead and the plaintiff having been excluded as a witness; further than that, that this does not show or tend to show the purchase of these horses from Ellen J. Rynd; that it is an account, if at all, between Mr. Noble and somebody named Dicken — whether J. Charles Dicken or not does not appear, or what Noble does not appear; that the account is unintelligible and no sum of indebtedness is thereon given, and it would be utterly impossible for the jury to understand what the account means if it means anything at all. It is further objected to as incompetent and irrelevant in this case because the plaintiff’s case as made out is that Robert Martin was to have the use of this team, provided he paid for the keeping and shoeing of the horses, and that he had made considerable sums of money, as,testified by Mr. Noble on the stand, for the hire of these horses.</p> <p>Objection overruled, exception noted for plaintiff and bill sealed. [8]</p> <p>Counsel for defendants renewed the offer of Exhibits B and C.</p> <p>Objected to for all the foregoing reasons, except as to the matter of proof, viz: that Mrs. Rynd and Mr. Dicken had no notice of these insurance policies being taken out; that there is no proof that Robert Martin ever claimed title to these horses, or made a purchase of them from Mr. Dicken or Mrs. Rynd; that they do not tend to prove the ownership in Robert Martin, or purchase, and that the testimony is incompetent, irrelevant and immaterial.</p> <p>Objection overruled, exception noted for plaintiff and bill sealed. [9]</p> <p>David Winters, one of the defendants, being on the stand, was asked: “ Q. Who did you have an arrangement with, if anybody ? ” Objected to by plaintiff. Objection overruled, exception noted for plaintiff and bill sealed. “ A. I had arranged with Mr. Martin about the horses; he told me about working down there.” [10]</p> <p>D. W. Brown, a witness on behalf of defendants, was asked: “ Q. Did you have any conversation with Mr. Noble in regard to these horses with Mr. Rynd, and if so, what did he tell you ? ” Objected to by plaintiff. Objection overruled, exception noted for plaintiff and bill sealed. “ A. He said he had been to see Mr. Rynd and he inquired about Mr. Rynd’s health, and he said that Mr. Rynd asked him if Bob had got the team — ‘ Bob,’ that was the way he always called Mr. Martin — and Mr. Noble said that he told him that he liad, and Mr. Rynd expressed satisfaction at that and was very glad of it.” [11]</p> <p>Joseph Carson, a witness on behalf of defendants, was asked : “ Q. Do you know who those horses were bought in for at that sale?” Objected to. “A. I do. Q. Who do you know it from? A. I know it from Martin and Mr. Noble and Mr. Brown, and those that were associated with him in their work around the place. Q. You know it from Mr. Noble, Mr. Martin and Mr. Brown, who was clerking there at the time. Now I will ask the question ; don’t answer it until you hear from me : Knowing that fact, who were they bought in for?” Objected to because the sheriff’s record is the best evidence of who thej’were bought for. Objection overruled, exception noted for plaintiff and bill sealed. “Q. Who were they bought in for? A. They were bought in for Mr. Martin; he bid on them himself at the sale, and they were charged to the plaintiff.”</p> <p>By the Court: “Q. Was it on Mr. Martin’s bid that they were knocked down? A. I think so; I wouldn’t be positive about that; but I know the word was said, charge those to the plaintiff, at that time, and the sheriff’s clerk charged them to the plaintiff at that time.” [12]</p> <p>By Mr. Day: “ The purpose of this offer is this: Mrs. Rynd has testified and shown here in evidence a transfer and sale of all her property, on January 30, 1893, that she had purchased at the sheriff’s sale of B. F. Rynd, on Irvin avenue, in Allegheny, including the leasehold of those premises, wagons, lumber and leasehold of premises on Irvin avenue ; now I want to say that she still held on and had an interest in the same, in this very material that she had conveyed to Mr. Dicken, notwithstanding Mr. Dicken says that this sale was made to him and the transfer was made to him. I offer this paper for the purpose of showing that Mrs. Rynd herself, on the 14th day of February, 1894, sold and assigned this very lease to William Creese & Co., limited. This, for the purpose of showing this transfer to Mr. Dieken is without consideration and of no effect as to evidence in this case.”</p> <p>Objected to as incompetent and immaterial.</p> <p>By Mr. Day: “ And further for the purpose, I may add, of contradicting Mr. Dieken and Mrs. Rynd in the statements they made.” .</p> <p>“ Objection overruled, exception noted for plaintiff and bill sealed.” [13]</p> <p>Alexander Boyer, a witness on behalf of defendants, was asked: “ Q. What, if anything, was said that evening by Mr. Noble in regard to those horses ? ”</p> <p>By Mr. Hall: “Q. Was Mr. Dieken there? A. No, sir.” By Mr. Hall: “ If Mr. Dieken was there, we object.”</p> <p>Objection overruled, exception noted for plaintiff and bill sealed. [14]</p> <p>Plaintiff presented the following point:</p> <p>“ Under all the evidence the verdict should be for the plaintiff. .Answer : This point I refuse.” [15]</p> <p>The points presented by the defendants were as follows :</p> <p>1. “ If the jury believe from the evidence that the horses, wagon and harness in question were bid in at the sheriff’s sale of the property of B. F. Rynd, on December 17, 1892, by J. C. Dieken, as attorney and agent of Mrs. Ellen Rynd, for Robert Martin, and the horses, wagon and harness were delivered into the possession of Robert Martin, in pursuance of that arrangement, then, although the purchase money had not been fully paid for the same, at the time of the death of Robert Martin, the plaintiff cannot maintain this action and the verdict should be for the defendant. Answer: This point is affirmed.” [16]</p> <p>3. “ If the jury believe from the evidence that Robert Martin purchased the horses, wagon and harness, and the same were delivered into his possession prior to the claim of ownership by J. C. Dieken, to wit: January 30, 1893, and he retained the same until his death, that, although Robert Martin did not pay the purchase money for the same, the plaintiff (that would be Mr. Dieken) cannot maintain this action of replevin and the verdict should be for.the defendants. Answer: This point is affirmed.” [17]</p> <p>4. “If the jury believe from the evidence that Robert Martin purchased the horses, wagon and harness from Ellen J. Rynd, through either C. H. Noble or J. C. Dicken, her attorneys and agents, prior to January 30, 1898, and possession of the same was given to Robert Martin prior to said date, and he kept possession of the same until July, 1893, the time of his death, then J. C. Dicken, who does not claim title until said January 30, 1893, cannot maintain this action of replevin and the verdict should be for the defendants. Answer: This point is affirmed.” [18]</p> <p>Plaintiff excepted to the general charge of the court, and bill sealed. [19]</p> <p>Verdict and judgment for defendants.</p> <p>• Errors assigned were (1-15) rulings on testimony; (15-18) answers to points as above, quoting them ; (19) charge of court.</p>

<p>Parol sales of real estate — Parol partition — Evidence—Gharge of court upon testimony— Question for jury.</p> <p>A., by his last will and testament, devised the use of his farm to his widow, until the youngest child should become of age, and directed that it should then be sold. He gave to his widow the right to elect whether the sale should take place at the time designated by him or not until her death. She elected that it should remain unsold until her death. Nine children survived the testator, and they elected to take the farm as realty. Ejectment was brought by the children of J., one of the sons of the testator, who claimed title as the devisees of L., another of the sons of the testator. In support of their title the plaintiffs relied upon parol sales alleged to have been made in 1836 and 1837 by the children of the testator to their three brothers, J., L. and P., and a subsequent parol partition by which the land in controversy became the property of L., under whom they claimed to have the title. The defendants asserted title under J., the father of the plaintiffs, who claimed to be the owner of seven eighths of the land as heir at law, and as the vendee of six other heirs at law of the testator, and by whom conveyances of their title were made.</p> <p>The defendants had been in possession of the land claiming title for forty years, and plaintiffs were asserting an equitable title, of which the only evidence of a parol contract was to be gathered from the declarations of the parties to strangers, there being an entire absence of any proof of parol contract made between the plaintiffs and the other heirs for a purchase of their interest or shares in said land at an agreed price, except the interest of L., which was the undivided one eighth part, and the undivided one third of the shares of S. and M., two of the daughters of the testator, which became vested in L., whose title the plaintiffs held. There was also no direct proof of the parol partition, and the evidence of such partition having been made, was to be gathered from declarations of the parties, and was wanting in definiteness and certainty. The trial judge instructed the jury that if the testimony of plaintiff was believed, it was sufficient to establish the parol sale and the parol partition. . Held, to be error in that the charge under the evidence was insufficient, as it left to the jury only the question.of the credibility of the witnesses. The court should have directed the attention of the jury to the vague and uncertain character of the testimony, and if they failed to find from the weight of the whole evidence that such agreements were made as claimed by the plaintiffs, then the plaintiffs could only recover the one undivided one eighth and the one undivided one third of the shares of S. and M., from whom they held conveyances.</p>

<p>Contract— Guaranty — Barnard of experiment.</p> <p>In a suit on a written agreement under which plaintiff agrees to erect according to plans prepared by it “ one continuous melting, regenerative tank melting furnace, with 12 working holes designed to work 86 window glass blowers in three shifts of 12 blowers each per day of twenty-four hours, the furnace to be operated with fuel gas manufactured from coal by what is known as ‘ Wellman ’ producers,” and “ to erect three of said producers and connect same with gas valve of said furnace by flues or conduits of suitable size to convey the gas from producers to valve in sufficient quantity to operate said furnace,” and “ to erect two additional producers and connect same by flues or conduits of suitable size with two blowing furnaces and three flattening ovens erected or to be erected by second party (defendant), also with floater kiln hereinafter named to be erected by first party” (plaintiff); and “first party (plaintiff) guarantees that the work will be done in a thoroughly workmanliké manner and that all material used will be oí the best quality lor the purpose required; and further that the gas flues or conduits will have capacity sufficient to supply the various furnaces and ovens named, and, while not guaranteeing absolutely the successful operation of the furnaces, first party (plaintiff) to use every endeavor in its power to make them operate successfully; ” it appeared that this method of melting glass and operating the furnace with fuel gas had hardly passed the stage of experiment, and both parties had full knowledge and experience in glass manufacture; it was held that the plaintiff was bound to show (1) that the work was done in a thoroughly workmanlike manner, and that the material used was of the best quality for the purpose; (2) that the gas flues had a capacity sufficent to supply the furnaces and ovens; (3) that it had used every endeavor in its power to make them operate successfully; but all the hazard of what was an experiment was to be assumed by defendant, and it may be assumed that plaintiff did not intend to guarantee a successful result, and that defendant did not exact such guaranty.</p> <p>Contract— Question for jury — Damages.</p> <p>In such case where defendant avers that the “ Wellman ” producers were not of a size to furnish gas in sufficient quantity, even if the flues were sufficient, and the evidence showed that “Wellman” producers were of different sizes, that the term itself imported no particular size, and that they were often made larger than those supplied by plaintiff, and the evidence of plaintiff did not- show that the term “ Wellman producer” meant just such a one as it had constructed, the question is for the jury; and if plaintiff did not put in producers of sufficient size according to the plans prepared by itself when it could have done so, it is answerable in damages.</p> <p>In such a case it was not error for the court to charge “if the Wellman producer is as the defendant claims a producer which may be erected of any size, then an agreement to erect producers as part of a plant to work thirty-six blowers is an agreement to build those producers of sufficient size and capacity to do their part of the work of said plant and plaintiff should have so built them.”</p> <p>Contract — Parol agreement — Rebuttal—Evidence.</p> <p>Where plaintiff offered in evidence the written agreement upon which it relied as a ground of recovery, it was not competent for it to set up a contemporaneous parol agreement in rebuttal of defendant’s claim for damages where no fraud or mistake was alleged which would authorize a modification of the writing. The introduction in rebuttal of such new matter was not warranted by the evidence.</p> <p>In such case it was competent to prove that the tank built and designed by plaintiff had not sufficient capacity for thirty-six men working three shifts per day.</p> <p>Contract — Damages.</p> <p>In such a case it was not error for the court to charge the jury that “if they found the plaintiff did not perform its contract then defendant was entitled to damages in (1) the amount reasonably and necessarily expended in completing the contract; (2) the expenses incurred and material lost in attempting to operate the plant so long as it was reasonable to operate it in order to ascertain whether it would operate successfully; (3) the expense incurred necessary to preserve the tank and material in it, while making necessary changes in flues and producers; (4) fair compensation on the testimony for the use of the plant while deprived of its use by failure of plaintiff to fulfill its contract.”</p> <p>Court-record— Certificate — Errors.</p> <p>The records of a court import verity, and therefore it is incumbent upon the judge who certifies to them to see to it under the full authority given by the constitution to all courts, that manifest errors are corrected.</p>

<p>Appeal No. 100, July T., 1894, by The Mutual Loan, Savings and Building Association of Haddonfield, N. J., from the decree of the orphans’ court of the county of Philadelphia, entered on the 12th day of May, 1894, as of April T., No. 53, in the matter of the estates of John Lawrence and Ann Appleton, deceased, setting aside the report of the master.</p> <p>Petition for injunction to restrain sale of real estate. Before Ashman, J.</p> <p>The petition of the Union Trust Compan}*-, trustee under the will of Ann Appleton, deceased, sets forth, substantially: That on the twenty-first day of June, 1889, the petitioner was appointed by this court trustee under the will of Ann Appleton ; that said Ann Appleton by said will executed a power of appointment as to certain real property previously held in trust for her under the will of John Lawrence; that said John Lawrence died in March, 1847, seized, inter alia, of a piece of ground, No. 221 Arch street; that by his last will he bequeathed the residue of his estate, including said property, to certain trustees in trust for the use of his daughter, Ann Appleton, during her life, and after her death to such persons as the said Ann Appleton should by her will appoint; that said Ann Appleton died in March, 1883, leaving a last will, admitted to probate in Philadelphia county, whereby she appointed to her son, George W. Appleton, inter alia, the property No. 221 Arch street, devised in trust as aforesaid, during his life, and after his death to the Philadelphia Trust, Safe Deposit and Insuranee Company, in trust to manage the same, collect the income, during the lifetime of her last surviving child, all of whom were living at the death of John Lawrence, and to pay out of the proceeds thereof certain legacies during the lifetime of said survivor, and after the death of such survivor to transfer the corpus of the property to the New York Baptist Union for ministerial education; that the said trust still subsists.</p> <p>That in August, 1860, George W. Appleton and Henry Pomerene, by order of this court, became trustees of the estate of said John Lawrence, deceased; that they thereupon applied to this court for leave to mortgage certain premises belonging to the trust estate, situated at the northwest corner of Pine and Quince streets, averring in said petition that certain premises, being a portion of the property of said estate, situate on the north side of Arch street, between Second and Third streets, was incumbered by a mortgage for the sum of $1,500, the principal of which was due and demanded by the mortgagee, and that another property of said trust estate on the east side of Second street, between Market street and Chestnut street, required alteration and enlargement; that tire court granted the petition.</p> <p>That on the eighth day of October, 1870, said trustees presented to the court a further petition setting forth that they had been unable to obtain a loan for the requisite amount upon mortgage of the premises at the corner of Pine and Quince streets; that Ann Appleton, their cestui que trust for life, in protection of said premises upon Arch street, had paid off said mortgage of $1,500, and the trustees prayed that they be authorized to borrow upon the premises on the north side of Arch street, between Second and Third streets — being No. 221 — a sum not exceeding $5,000 ; that this petition was granted, and said trustees authorized to make such mortgage, apply the proceeds thereof to the repayment to Ann Appleton of the moneys advanced by her, and the alteration of the premises on Second street; that on the 24th of October, 1870, William C. Flanigen was approved as surety for said trustees under the latter order ; that upon the same day George W. Appleton and Henry Pomerene and William C. Flanigen entered into a bond conditioned in proper form for the due compliance by said trustees with said order; that William C. Flanigen afterwards died, leaving a last will,, duly probated in Philadelphia county.</p> <p>That on the twentj^-fourth day of February, 1872, George W. Appleton and Henry Pomerene, desiring to secure certain loans made by the Odd Fellows’ Building and Loan Association of Camden, to one Samuel Appleton and said George W. Appleton, and acting by apparent color of authority under said order of this court rendered Oct. 8, 1870, but in fact proceeding for the private advantage of said George W. Appleton and Samuel Appleton in order that they might procure funds with which to conduct a certain speculative land enterprise, executed on the twenty-fourth day of February, 1874, to the Odd Fellows’ Building and Loan Association of Camden, a bond conditioned for the payment of “the sum of $5,000, together with six per cent interest thereon, at such times and in such places and in such instalments as is now or may hereafter be provided for and required by the constitution- and by-laws of the said ‘ Odd Fellows’ Building and Loan Association of Camden,’ ” and executed and delivered to the said obligee a mortgage of even date with the said bond to secure the payment thereof according to its terms; that said bond and mortgage, though containing a recital of the trusteeship of the obligors, were signed by the said George W. Appleton and Henry Pomerene in their private names, and not as trustees; that the moneys loaned by the said Odd Fellows’ Building and Loan Association to said Samuel Appleton and George W. Appleton did not aggregate but $4,445. That the nominal amount of said debt of Samuel and George W. Appleton was paid about 1876, by the maturity of a certain series of stock in said building association owned by the said George W. and Samuel Appleton, and which had been pledged by them to secure the loan aforesaid, whereby the said mortgage was paid, and the authority for the issuing of such mortgage, if any such authority there had been, became exhausted and absolutely expired. That the said Samuel Appleton and George W. Appleton and the said Henry Pomerene joined to preserve in the record the outward appearance of continuing validity, and to that end abstained from causing satisfaction to be entered on the record, so that the same might serve ostensibly as additional security for later loans made to the said Samuel and George W. Appleton by the said association after the date of the above particularized loans, to wit, in the month of August, 1875, which later loans were made to them in their private capacity.</p> <p>That on March 1,1881, the Odd Fellows’ Building and Loan Association of Camden issued a writ of scire facias upon said mortgage, and caused said writ to be served upon said George W. Appleton and Henry Pomerene as trustees; that an appearance was entered in behalf of said trust estate, and an affidavit of defense filed setting up the principal facts above stated; that thereupon said writ of scire facias was discontinued, and judgment was entered up as of June term, 1881, No. 438, in the court of common pleas, No. 2, upon the bond secured by the said mortgage.</p> <p>That prior to the entering of judgment upon said bond Samuel Appleton had fully paid to the said Odd Fellows’ Building and Loan Association all debts by him owing thereto, for which the said mortgage was security.</p> <p>That after the suit had been brought upon said bond accompanying the said mortgage, George W. Appleton, who was indebted to the said Odd Fellows’ Building and Loan Association in the sum of $2,000, and being pressed to make payment of said amount by it, applied to the Mutual Loan, Savings and Building Association of Haddonfield for a loan in that amount, offering as security (1) an assignment of' the said mortgage made to the Odd Fellows’ Building Association ; (2) an assignment of a certain legacy to him b3r the will of Ann Appleton; (3) a policy of insurance for $1,000 upon his life; that the application was accepted by the said Building Association of Haddonfield, and the sum of $2,000 by them paid to the said Odd Fellows’ Building and Loan Association, and the latter association assigned to the Mutual Loan, Savings and Building Association of Haddonfield the said bond and mortgage, according to the offer of George W. Appleton. That George W. Appleton died Dec. 1, 1886. The Philadelphia Trust, Safe Deposit and Insurance Company renounced, as successor in the trust, and the Union Trust Company, as before stated, was appointed instead.</p> <p>That on the tenth day of June, 1887, a judgment entered on said mortgage bond was marked to the use of the Mutual Loan, Savings and Building Association of Haddonfield.</p> <p>That on June 10, 1887, an alias writ of venditioni exponas was issued on. the said judgment. The original writ had issued July'7, 1881, and had been stayed.</p> <p>That on June 24, 1887, Henry Pomerene, as surviving trustee of the estate of John Lawrence, deceased, obtained a rule to show cause why judgment entered on the said bond should not be opened, and the defendants let into a defense; that the court of common pleas made absolute this rule on the terms that the defense should be limited to the following issue: “ Whether George W. Appleton and Henry Pomerene, trustees, etc., the obligors in the bond in suit, fraudulently misappropriated the money obtained thereon; and whether the Odd Fellows’ Building and Loan Association of Camden, N. J., knew at the time it loaned its money on the said bond that the said money was to be misappropriated.”</p> <p>That on Nov. 8,1890, by permission of said court of common pleas, this petitioner, as trustee under the will of Ann Appleton, was allowed to intervene as defendant in said proceeding; and thereupon applied to said court for an enlargement of the issue thus before limited, so that the same should permit the offering of evidence to the point: “Has the bond in suit been satisfied as to all or some of the interests involved in the cause ;” that this application was refused by said court.</p> <p>That on Nov. 17, 1890, said issue came to trial, and verdict was rendered in favor of the plaintiff. That a new trial was refused, and final judgment entered upon the verdict; that a writ of venditioni exponas was thereupon issued, and the sheriff advertised the said trust premises for sale as upon a judgment obtained against the trust estate by the plaintiff, on Monday, June 6, 1892.</p> <p>The petition further sets forth that owing to the decision of the court of common pleas in the proceedings heretofore recited, the petitioner had no adequate remed3>- at law, and that the said property over which your honorable court lias jurisdiction will be greatly prejudiced in law and equity, and complainant prayed:</p> <p>(1) A writ of injunction against the Odd Fellows’ Building and Loan Association of Camden, the Mutual Loan, Savings and Building Association of Haddonfield, and Horatio P. Connell, sheriff, restraining them from making any sale of the said premises. (2) That the Odd Fellows’ Building and Loan Association of Camden and the Mutual Loan, Savings and Building Association of Haddonfield forthwith satisfy of record the mortgage to the former association, or that the court decree the same to have been null and void, or to have been fully paid. (3) That if the court should determine that the amount of said bond and mortgage, with interest and costs, is owing from said trust estate, the estate of the said George W. Appleton and Henry Pomerene, and the said William C. Flanigen, deceased, be ordered to pay to the said Mutual Loan, Savings and Building Association of Haddonfield the amount of such principal, with interest and costs as may be due, (4) and general relief.</p> <p>To this petition no answer was filed by the said sheriff of Philadelphia county, or the Odd Fellows’ Building and Loan Association of Camden.</p> <p>An answer was filed by William A. Flanigen, acknowledging the giving of the bond by said William C. Flanigen, which was recited in the petition of the Union Trust Company, and suggesting that Lucille Flanigen was a co-executor of the estate of William C. Flanigen, deceased.</p> <p>It was further alleged in said answer that George W. Appleton and Henry Pomerene, the trustees under the will of John Lawrence, never executed the mortgage authorized, or in anywise acted under the several orders of the orphans’ court of Philadelphia county, set forth in said petition and under which the bond given by'William C. Flanigen was executed; that the bonds and mortgages by them set forth in the sixth paragraph of the petition were not made in pursuance of the said orders of court, but were made by said trustees as individuals to secure their antecedent individual indebtedness. That it does not appear by said petition that the trustees under the will of John Lawrence had filed any account, or that any account had been lawfully stated against them, whereby the estate of William C. Flanigen, by reason of said bond, became liable to the petitioners in any sum whatever; that proceedings to a final decree must be taken against said trustees before the surety can be held responsible; that all right of action to proceed against the estate of William C. Flanigen, under the said bond, is barred by the statute of limitations.</p> <p>The separate answer of the Mutual Loan, Savings and Building Association of Haddonfield set forth that it purchased from the Odd Fellows’ Building and Loan Association of Camden, for the purposes of investment, the bond and mortgage in the petition described for the sum of $2,000, and took an assignment on the twenty-fifth day of January, 1884, and attached copies of said bond and mortgage; that the assignment was not taken by way of collateral security for a loan made by it to George W. Appleton, but was taken by it in the course of business for the consideration aforesaid; that it had no relation, direct or indirect, to the alleged personal accounts of Samuel Appleton, or either of them; that it had been judicially determined in the court of common pleas, No. 2, of Philadelphia county, in the proceeding to which the petitioner was a party, that the said Odd Fellows’ Building and Loan Association of Camden did not know at the time it loaned its money on the said bond, secured by the said mortgage, that the said money was to be misappropriated; and that George W. Appleton and Plenry Pomerene, trustees, the obligors in the bond in suit, did not misappropriate the moneys obtained thereon; and this determination was reached on the motion of the surviving trustee under the will of Ann Appleton, deceased, defendant in said issues, and a trial of the issues was had in the said court between the petitioner then of record, as trustee, and this respondent. That at the time of said investment it had no knowledge of the several matters of fact alleged in the petition by way of bar to its recovery, nor did they know of the same until after the purchase aforesaid; that all and several the complaints, charges, matters, and things in said petition averred as and for grounds of relief were fully exhibited, considered, determined, and adjudged in the said proceedings in the court of common pleas hereinbefore narrated, whereby the petitioner has been barred by the said proceeding herein.</p> <p>The answer further suggests that the will of said Ann Appleton in the petition referred to was not operative, as the execution of a power vested in her by the will of her father, John Lawrence, but was, on the contrary, operative as devise of her real estate, which at her death she owned in fee, free, clear, and discharged of all .trusts; that as Ann Appleton was alone entitled to an accounting of the said moneys raised upon the said mortgage, and as her estate passed under the will subject to the trust-making the mortgage, to the making of which she had been a party, the petitioner is not answerable to its cestuis que trustent with respect to the lien of the said judgment, is not in a position to deny the validity and effect thereof, and the pretense of an equity is unfounded. That the said petition is substantially an appeal from the court of common pleas, No. 2, of competent jurisdiction in the premises to this court, and an attempt on the part of the petitioner to secure from this court a review and reversal of the judgment of the said court of common pleas.</p> <p>That an appeal could be taken from said judgment entered in the court of common pleas, and that the petitioner has a remedy at law against the estate of William C. Flanigen, deceased.</p> <p>The case was referred to J. Levering Jones, Esq., as master, who reported as follows :</p> <p>“ John Lawrence died in March, 1847, seized in fee of a lot of ground, No. 221 Arch street. He left a will probated in Philadelphia, devising the residuary portion of his estate, which included the property mentioned, to trustees for the use of his daughter, Ann Appleton, during her life, and after her death to such persons as she might by will appoint, and, in default of such appointment, to his grandchildren and issue of any deceased.</p> <p>“In June, 1870, George W. Appleton and Henry Pomerene, who had been substituted in place of those named in the will of John Lawrence, applied to this court for leave to mortgage, in a sum not exceeding $5,000, property belonging to said trust estate, Nos. 1127-1129 Pine street. The reason for said application was stated in the petition to be that the property 221 Arch street was incumbered with a mortgage of $1,500, which was due and had been demanded, and that other property belonging to said trust estate, on the east side of Second street, between Market and Chestnut streets, required alteration and enlargement. This petition was granted, and an order for the entry of security made. No action was taken by the trustees under this order.</p> <p>“ On Oct. 8, 1870, the same trustees presented a further petition, wherein they stated that they had been unable to obtain a loan for the requisite amount upon the premises 1127-1129 Pine street, and that Ann Appleton, in protection of the said premises, No. 221 Arch street, had paid off the mortgage. The trustee, therefore, asked to be authorized to borrow upon mortgage of the premises No. 221 Arch street a sum.not exceeding $5,000. Ann Appleton, in an answer to this petition, confirmed the facts of the petition, and asked that the same be granted. The petition was granted, and George W. Appleton and Henry Pomerene, trustees, authorized to make such mortgage and apply the proceeds to the repayment of Ann Appleton of the moneys advanced by her in paying off the mortgage of $1,500, and to the alteration of the premises on Second street.</p> <p>“ On Oct. 24, 1870, William C. Flanigen was duly approved as surety for the said trustees under the latter order.</p> <p>“ William G. Flanigen subsequently died. The executors of his last will and testament are William A. and Lucille Flanigen.</p> <p>“ On Feb. 24, 1872, George W. Appleton and Henry Pomerene executed a mortgage in the sum of $5,000 to the Odd Fellows’ Building and Loan Association of Camden, on the premises 221 Arch street. They signed the mortgage without the word ‘ trustee ’ appended to either of their names. In the clause relating to the parties to the instrument they are entitled ‘trustees under the will of John Lawrence, deceased,’ and there is a recital that they, as trustees, executed a certain obligation, or writing obligatory, bearing even date therewith, which is ‘conditioned for the' payment of $5,000, with six per cent interest per annum, at such time and at such places and in such installments as is now or may hereafter be provided for and required by the constitution and by-laws of the said ‘ Odd Fellows’ Building and Loan Association of Camden.’</p> <p>“ Another recital declares the probate of the will of *John Lawrence and its provisions. The covenants throughout the mortgage are made by George W. Appleton and Henry Pomerene, as trustees.</p> <p>“ The parties to the bond accompanying the mortgage are George W. Appleton and Henry Pomerene. The covenant for payment was by them as trustees, but the bond was executed by them individually, without having the word ‘ trustees ’ appended to their names.</p> <p>“Between Feb. 26,1872, and Aug. 14, 1872, George W. Appleton borrowed and received from the said association at least $8,701.</p> <p>“About the same period Samuel Appleton, a brother of George W. Appleton, borrowed about $2,000 from the said association.</p> <p>“ A portion, of the above amount borrowed by George W. Appleton — probably between $4,000 and $5,000 — he obtained from said association upon the security of the said bond and mortgage. Upon the books of the association he was dealt with individually and not as trustee.</p> <p>“Indeed, there was no loan made to him or Henry Pomerene in Í872, or at any other time by the association, as trustee of the estate of John Lawrence, deceased.</p> <p>“ These loans were subsequently reduced in amount, but it does not appear by the books of the association that any final settlement was ever made with George W. Appleton by which it was agreed between the association and himself that the amount of money loaned him upon said bond and mortgage of $5,000 had been fully paid.</p> <p>“ It is clear he had repaid to the association before 1880 a considerable portion of the money borrowed by him in 1872 and subsequently, but in 1880 he appears to be still indebted in a considerable sum to the association, which they pressed him to pay, and to enforce the recovery of the balance due it the association entered up the bond accompanying the mortgage aforesaid, and thereupon judgment was entered as of June term, 1881, No. 438, in the court of common pleas No. 2. This proceeding was against George W. Appleton and Henry Pomerene, trustees under the will of John Lawrence, deceased.</p> <p>“ A writ of venditioni exponas issued upon said judgment July 2,1881. This writ was stayed, and no further proceedings taken at that time.</p> <p>“ The use to which George W. Appleton applied the whole of the money originally'- received by- him on said bond and mortgage is not clearly established. There is no evidence to show that at least $1,500 of it was not applied to the repayment to Ann Appleton of the money advanced by her in paying off the mortgage of $1,500, which had been on the property" No. 221 Arch street, as directed in the order of court. There is no adequate evidence to show that a portion, or even the whole of said money was not applied to the alteration and improvement of the property belonging to the trust estate on Second street, between Market and Chestnut streets, as also directed in the order of court, under the authority of which said bond and mortgage were executed.</p> <p>“ There is evidence that some of the money borrowed from the Odd Fellows’ Building and Loan Association was invested by George W. Appleton for the benefit of himself and his brother, Samuel Appleton, in the purchase of real estate, or in the improvement of the same, in which they were interested in Haddonfield. This evidence is neither clear nor exact as to when it was invested, how much was invested, and whether it was the trust funds that were so invested. The testimony in reference to the use of said trust money is entirety insufficient to show its misappropriation.</p> <p>“ On the 25th day of January, 1884, the Mutual Loan, Savings and Building Association of Haddonfield purchased and took an assignment from the Odd Fellows’ Building and Loan Association of the said bond and mortgage executed by George W. Appleton and Henry Pomerene, trustees as aforesaid, for the sum of $2,000, which amount it was agreed between the said association and George W. Appleton was at that time owing the said association upon said security.</p> <p>“ The assignment was made with the approval of the said George W. Appleton, who thereupon became a member of the said Mutual Loan, Savings and Building Association of Haddonfield. This purchase was made without any knowledge on the part of the Mutual Loan, Savings and Building Association that there had been any defense made to the mortgage, or that there was any claim by any one that the said securities were not valid and binding in their hands.</p> <p>“ The check for said bond and mortgage was paid directly by the treasurer of the Mutual Loan, Savings and Building Association to the treasurer of the Odd Fellows’ Building and Loan Association. No direct loan was made by the Mutual Loan, Savings and Building Association to George W. Appleton on said bond and mortgage. The association was a direct purchaser of the mortgage for $2,000, with the-evident understanding, as shown by subsequent events, that they did not claim any interest in the bond and mortgage beyond that amount.</p> <p>“Ann Appleton died in March, 1888. She left a last will, probated in Philadelphia, whereby she appointed to her son, George W. Appleton, inter alia, the property which had been devised in trust as aforesaid during- his life, and after his death to The Philadelphia Trust, Safe Deposit and Insurance Company in trust to manage the same, collect the income therefrom during the lifetime of her last surviving child, and to pay out of the proceeds thereof certain legacies during the lifetime of such survivor, and after the death of such survivor to transfer the corpus of the said property as therein designated. The said trust still subsists.</p> <p>“ George W. Appleton died Dec. 1, 1886, and The Philadelphia Trust, Safe Deposit and Insurance Company renounced the said trust. The Union Trust Company was duly constituted trustee in place thereof.</p> <p>“ On June 10,1887, the judgment entered on the bond under consideration was marked to the use of the Mutual Loan, Savings and Building Association of Haddonfield. On the same day an alias writ of venditioni exponas was duly issued against the premises No. 221 Arch street.</p> <p>“ On June 24, 1887, Henry Pomerene, surviving trustee, obtained from court a rule to show cause why the judgment entered on the bond should not be opened. This rule, after argument, was made absolute upon the following terms, that the defense to be heard should be limited to the following issue : ‘ Whether George W. Appleton and Henry Pomerene, trustees, etc., the obligors of the bond in suit, fraudulently misappropriated the money obtained therein, and whether the Odd Pellows’ Building and Loan Association of Camden, N. J., knew at the time it loaned its money on the said bond that the said money was to be misappropriated.’</p> <p>“ On Nov. 8, 1890, the present petitioner, the Union Trust Company, was allowed to intervene and become a party to the proceeding. It subsequently asked for an enlargement of the issue limited as before stated, which the court refused.</p> <p>“ On Nov. 17, 1890, the said issue came to a trial, and verdict was rendered in favor of the plaintiff. A new trial was refused, a writ of fi. fa., and subsequently a writ of venditioni exponas was issued, and the sheriff proceeded to advertise the premises for sale on June 6, 1892.</p> <p>“ This petition was then filed and a preliminary injunction granted.</p> <p>“ After filing of answers a motion was made for the dissolution of the injunction. Upon argument the motion was refused and the injunction continued. The cause was then referred to the master to take evidence upon the pleadings and report his findings to the court.</p> <p>“ Three questions present themselves for the consideration of the master:</p> <p>“ 1. Is the estate of Ann Appleton, deceased, indebted in the principal sum of $2,000 on the bond and mortgage held by the Mutual Loan, Savings and Building Association of Haddonfield, N. J., or, in other words, did the estate of Ann Appleton ever receive that amount of money upon loan secured by said bond and mortgage, which sum still remains unpaid ?</p> <p>“ 2. Does the circumstance that the word ‘ trustee ’ was not appended to the names of George W. Appleton and Henry Pomerene, who executed the bond and mortgage in controversy, under the authority of the orphans’ court to execute a bond and mortgage to secure a loan of a sum not exceeding $5,000, destroy the validity of the same, if it appears that at least the sum of $2,000, the balance of the principal of said loan unpaid, has been enjoyed by the estate of Ann Appleton, deceased?</p> <p>“ 3. Is there equitable ground for interference with the writ of execution issued from the court of common pleas ?</p> <p>“ It would be possible to dispose of this case by considering the first interrogatory only and rendering a decision thereon, but as the litigation in reference to this bond and mortgage has extended over a period of twelve yearn, and different phases of the controversy been argued many times before the court of common pleas ; and as in the present proceeding considerable testimony has been taken and arguments of great length and ingenuity made before the master, he has deemed it a part of his duty to consider directly the several questions abo.ve presented in the light of all the testimony, oral and record, which has been submitted to him, and to present his conclusions thereon, endeavoring by so doing to assist in the termination of litigation which has already become very complicated, aud which, if continued, will inevitably exhaust the amount of money involved.</p> <p>“ A careful reading of the testimony establishes conclusively that a partial purpose of procuring a loan upon the bond and mortgage which was given in this case was to return to Ann Appleton, the cestui que trust of George W. Appleton and Henry Pomerene, the sum of $1,500, which she had advanced for the purpose of paying off a mortgage of $1,500 that existed against the property No. 221 Arch street.</p> <p>“When Ann Appleton took an interest in that property under the will of her father, John Lawrence, she took it, so far as the evidence-shows, subject to a mortgage of $1,500. During her enjoyment of the estate under her father’s will that mortgage matured. It became necessary to pay it off, and, in order to protect the estate, Ann Appleton paid the mortgage.</p> <p>“In the application of the 8th of October, 1870, to the orphans’ court, by George W. Appleton and Henry Pomerene, for permission to raise a sum not exceeding $5,000 upon bond and mortgage upon the premises No. 221 Arch street, it was stated that one of the objects to which a portion of this sum would be devoted would be the return of the $1,500 so advanced, the balance to be applied to the alteration and enlargement of premises belonging to said trust estate on Second street, between Market and Chestnut streets.</p> <p>“ The court granted the petition. In pursuance of the authority so conferred, a bond and mortgage in the sum of $5,000 were executed by the said trustees upon the premises in question, and was given to the Odd Fellows’ Building and Loan Association.</p> <p>“ Almost contemporaneously with the giving of the bond and mortgage George W. Appleton became a subscriber to shares of stock in said association, and within a short time thereafter received from said association loans made to him in his own name aggregating $10,000. A part of the security given for such loans, with the shares of stock held by him, which were assigned to the association, was the bond and mortgage. Tt cannot be doubted that a portion of the loans amounting to over $4,000 w'ere made directly upon the security of the said bond and mortgage. No shares, however, in said association were taken by George W. Appleton as trustee. In the succeeding years these loans were reduced, but it is not clearly shown that they were ever entirely paid off, while said bond and mortgage continued to be held by said association as securit}'. In 1884, a settlement having been agreed upon between George W.' Appleton and the said association, the bond and mortgage were assigned to the Mutual Savings, Loan and Building Association of Haddonfield, for the sum of $2,000. The latter thereupon became the owner of the same, and it is by virtue of that assignment and ownership that the execution, against which the injunction in this case was obtained, was issued.</p> <p>“ When a trustee is charged with the commission of a fraud or a misappropriation of trust funds the accusation must be satisfactorily proved.</p> <p>“ Now at about the time that George W. Appleton gave the bond and mortgage in question to-the association he received over $4,000 upon it. What was done with this money ? There is not a line of evidence which indicates that the $1,500, which had been advanced by Ann Appleton in satisfaction of the mortgage previously existing on the premises No. 221 Arch street, was not returned to her. There is no competent evidence that a portion or the whole of the balance borrowed from the said association on said bond and mortgage was not applied for the purposes indicated in the decree of the orphans’ court. It is shown in a vague and indistinct way that George W. Appleton and a brother Samuel Ajopleton were in 1872 engaged in a land speculation in New Jersey, in which they invested money; but the amount of that investment, the exact location of it, and the specific sources from which the funds that they invested were derived, remain unestablished in every particular.</p> <p>“ The testimony 'of Samuel Appleton on the point is hesitating, indefinite and valueless. It would be the grossest injustice to the memory of George W. Appleton to hold him guilty of having misappropriated the balance of the fund received on said bond and mortgage upon the statements of his brother, Samuel Appleton, which are enveloped in an impenetrable mist of uncertainty.</p> <p>“ Nor was any other more convincing testimony pi-oduced for the purpose of establishing such misappropriation.</p> <p>“We must therefore conclude, whatever inferences may be drawn from the mere irregularity that appears in the execution of the bond and mortgage as to the forms of the instruments, or as to the signatures of the trustees, of a disadvantageous character to George W. Appleton, that what ought to have been done in reference to the use of the money received by him was done. We must be governed by the legal presumptions which arise in the absence of adequate testimony to show the specific act of misappropriation. All that was done, too, in connection with this mortgage was done in the lifetime of the cestui que trust, the mother of George W. Appleton. No objections appear to have been raised by her as to the conduct o£ her son, and the presumption, in the absence of contrary proof, must be that the balance now due on the bond and mortgage was expended in accordance with the decree of the orphans’ court. No other conclusion can be reached on the facts which have been presented. We must hold that the principal sum of $2,000 remaining due on the bond and mortgage that was assigned to the Mutual Savings, Loan and Building Association was used for the benefit of the estate of Ann Appleton, the cestui que trust of Henry Pomerene and George W. Appleton, trustees.</p> <p>“ This is an appeal to the equitable powers of this court. The object of equitable interference is never to work injustice to any one. It balances the conflicting claims of the parties, and secures to each his rights. It never avails itself of technicalities to work oppression. To decree an instrument to be delivered up to be canceled is a matter in the sound discretion of the court, and the power should not be exercised except in a very clear case: Stewart’s App., 78 Pa. 88.</p> <p>“ No chancellor would direct the cancellation of a deed imperfectly executed between a grantor and a grantee, and decree that the property embraced in the grant should be restored to the grantor, and that he at the same time should keep the consideration money.</p> <p>“ This illustration indicates' the principle that should govern here. The trust estate of Ann Appleton, having received the $2,000 secured by the bond and mortgage, the subject of this proceeding, that bond and mortgage having been executed under a valid decree of this court, the circumstance that the mere word ‘ trustee ’ was not appended to the names of George W. Appleton and Henry Pomerene in the execution of the instrument did not invalidate them or prevent the mortgage constituting a lien upon the property No. 221 Arch street. So far as the building association was concerned, it was empowered to loan upon security of this character, whether the borrower were a trustee or acting for himself, and whether he had one or fifty shares of stock in the association. So far as the trustees were concerned, the act of assembly does not require any specific form of bond and mortgage to be executed, and though the form used in this particular case is not in general use, the departure from the form ordinarily adopted did not make the execution of a power conferred by the decree invalid. The security that was entered took the place, too, of the fund which was realized. The object of giving the security after the decree has been made is for the purpose of guarding against errors which may exist in the proceedings. The method of making the bond and mortgage, and the manner of executing them, constitute no defense to the surety whose bond was entered, nor do they constitute any defense to the estate that enjoyed the proceeds realized upon the bond and mortgage which were given, and on which a balance of $2,000 still remains unpaid.</p> <p>“ In the body of the bond and of the mortgage the office of the grantors as trustees is shown, and the covenants are made by them as trustees, and not individually. The intention of the parties is shown in the very testimony of Henry Pomerene. It was to execute these instruments as trustees. The liability of the trust estate on these instruments is not to be abridged because of the circumstance that, through neglect or accident, the mere title of the fiduciary office was not appended to the names of the executing parties. The purpose of the instrument having been declared, the fund having been realized therefrom, and the estate having enjoyed the same, the estate has no right to require their cancellation or surrender until it has returned the money borrowed and used thereon.</p> <p>“ Nor should the orphans’ court act without hesitation upon a subject previously considered several times upon argument, before the court of common pleas, wherein a formal judgment after trial has been rendered.</p> <p>“ In a court of practically co-ordinate jurisdiction the ingenuity of counsel on behalf of the petitioner was again and again exerted to destroy the effect of the original judgment entered on the bond in controversy. The issue that was finally submitted to the verdict of the jury was, ‘ Whether George W. Appleton and Henry Pomerene, trustees, etc., the obligors of the bond in suit, fraudulently misappropriated the money therein, and whether the Odd Fellows’ Building and Loan Association of Camden, N. J., knew at the time it loaned its money on the bond that the said money was to be misappropriated.’</p> <p>“ The decision of that tribunal, everything being considered, should be treated by this court as conclusive upon both of the questions embraced in the issue stated. And the facts further show that the Mutual Loan, Savings and Building Association was an innocent purchaser for value of the mortgage in question. There is no fact shown which goes to impugn the good faith of the successive parties who have been the owners of this mortgage, and the specific finding of the jury in the court of common pleas was that the trustees, George W. Appleton and Henry Pomerene, had not fraudulently misappropriated the money obtained on the bond in suit.</p> <p>“ The conclusions of the master, upon a careful estimate of the evidence which has been presented before him in the proceeding in this court, are directly confirmatory of the conclusion which was reached by the jury in the court of common pleas.</p> <p>“For the purpose of the proceeding in equity before this court the bond and mortgage are to be considered as standing upon the same footing.</p> <p>“ While trustees, if objection were made in time, might not be permitted by the orphans’ court to carry out a decree authorizing the borrowing of monejr upon bond and mortgage in the manner adopted, and a building association with the right to impose fines or receive premiums is evidently not the intended source from which trustees should borrow money, still this loan was consummated twenty years ago. The payment of the balance due on the mortgage will wrong no one. The questions involved have been sufficiently dealt with in another court, and there is no just reason for the intervention of this, and the injunction should therefore be dismissed.”</p> <p>On exceptions the court below set aside the report of the master, and entered the following decree:</p> <p>“ And now this 12th day of May, 1894, this cause having been heard upon exceptions to the master’s report, filed on behalf of the Union Trust Company, trustee under the trust declared in the will of Ann Appleton, the court sustain the said exceptions and reverse the findings and award of the master, and the court do now declare and adjudge that the mortgage made the twenty-fourth day of February, 1872, by George W. Appleton and Henry Pomerene, trustees under the will of John Lawrence, deceased, to ‘ Odd Fellows Building and Loan Association of Camden, New Jersey,’ upon a certain lot or piece of ground and messuage situated on the north side of Arch street, between Second and Third streets in the city of Philadelphia, to secure the sum of five thousand (5,000) dollars, and recorded in the office of the recorder of deeds for the county of Philadelphia in Mortgage Book J. A. H. No. 206, p. 1, etc., afterward assigned by the said association to ‘ The Mutual Loan, Savings and Building Association of Haddonfield, New Jersey,’ is fully paid off and satisfied, and it is further ordered and decreed that ‘The Mutual Loan, Savings and Building Association of Haddonfield, N. J.,’ be restrained perpetually from making or maintaining any levy upon and from making or declaring any sale of the said premises belonging to the trust estate aforesaid. The said, ‘ The Mutual Loan, Savings and Building Association of Haddonfield, N. J.,’ their attorneys, agents, servants and employees abstain from causing a service of any further execution upon the judgment entered on the bond in the court of common pleas No. 2 as of June term, 1881, No. 438, against the said mortgaged premises, and that the said association forthwith enter satisfaction of record upon the said mortgage of record in the office of the said recorder of deeds.”</p> <p>Error assigned was entering above decree.</p>

<p>Road lari) — Jurisdiction of Quarter Sessions.</p> <p>The acts of June 8, 1881, P. L. 68 and of May 23, 1874, P. L. 235, confer upon the courts of quarter sessions exclusive jurisdiction to appoint juries of view to assess damages and benefits caused by the narrowing of streets, alleys or highways within the county limits.</p>

<p>Referee — Effect of finding.</p> <p>The finding of facts by a referee cannot be reversed on appeal if the evidence fairly warranted it, even though there may be room for disagreement as to the correctness of his conclusions.</p> <p>Contract — Implied acceptance — Estoppel.</p> <p>Plaintiff offered defendant’s manager to supply it with certain writings of certain authors for publication for a year in weekly installments on certain terms; the manager declined to make a contract for a year, but offered to contract on other terms suggested by him. The parties separated without agreement. Subsequently, defendant published in its newspaper an announcement that certain authors named (nearly all of whom were those whose writings were embraced in plaintiff’s offer and with whom defendant had no contracts) would contribute to its pages during the ensuing year. Held, that such publication did not in law constitute an acceptance of plaintiffs proposal, but was, at most, an item of evidence to be considered in determining that question. Held further, that such publication would not operate as an estoppel so as to prevent defendantfrom showing that plaintiff’s offer was not accepted.</p>

<p>Appeal No. 188, July T., 1894, by Joseph W. Souder, Margaret Manderson and Harry N. Williams, executors, and Joseph W. Souder, individually, from decree of O. C., Phila. Co., sustaining certain exceptions of the Penn Widows’ Asylum and other legatees, to the adjudication of the auditing judge.</p> <p>Exceptions to adjudication of auditing judge.</p> <p>On the audit of the executors’ account before Penrose, J., an adjudication was filed of which the following is a part:</p> <p>“ The provision with regard to the $'7,000, payable by Joseph W. Souder, is as follows:</p> <p>“ ‘ When my brother pays the Seven thousand dollars he owes me or sells the share he gave me on the property at Chester, he is to receive all the papers he gave me as security. I wish the money disposed of as-follows: I give, devise, and bequeath to Central M. E. Church $1,000 to place those members in the Methodist Plome that have not the means themselves to the Ladies’ Plome Missionary Society of the M. E. Church $3,000; to build a Plome to educate the poor children of the South, to be called the Souder Home in honor of my mother; .... to the Ladies Foreign Missionary Society $500; . . . . to the Managers who are raising a seaside home for invalid females $500; .... to the Methodist Episcopal Hospital $500 ; .... to the Newsboys’ Home $100; to the Society for the Prevention of Cruelty to Animals $200 ; .... to the Mauagers who have a home in West Philadelphia for females who have been discharged from the Hospital $200; .... to the Managers of the Midnight Mission $200; .... to the Penn Widows’ Asylum $500,’ etc.</p> <p>“These legacies, in the opinion of the auditing judge, are a specific gift of the money to be paid by the brother, Joseph W. Souder; but whether specific, demonstrative or general, they are not payable until the debt (so-called) is paid or, at least, is or becomes collectible. It is not pretended that it has been ■paid, and the only question for consideration is, could it at any time since the death of the testatrix have been collected ?</p> <p>“ The will was executed June 17,1886. Prior to Jan. 24, 1879, Joseph W. Souder was indebted to his sister, the testatrix, in the sum of $7,000. The origin or nature of the debt "was not stated to the auditing judge, but it does not appear that the creditor held any evidence of its existence, or that it was anything else than a mere simple contract debt. At the date mentioned, Joseph W. Souder made to his sister, in consideration of the debt, an absolute conveyance of his interest in •the estate of a brother, Benjamin K. Souder, who had died some time previously. In March, 1882, Mr. Souder, recognizing the fact that the property included in the deed was not likely to pay the debt for which it had been accepted, transferred to his sister 140 shares of stock of the Chester Land Improvement Company, of the par value of $50.00 per share. This stock had no market value, either then or at the present time; but the property belonging to the company is said to be of a character to ultimately yield large profits, and Mr. Souder testified that it is his belief the stock thus assigned to the testatrix will be worth $20,000. It was therefore agreed at the time of the assignment that if he should ever pay the debt, or if upon the sale of the stock it should be paid, the testatrix, in the one case, would reassign to him, and in the other that she would give him the surplus. After the conveyance, according to the testimony, there was no right on the part of the creditor to demand payment of the debt. It was an absolute assignment in extinguishment of the debt, with a collateral agreement to reassign, as in Spering’s Appeal, 10 Smith, 199; Lauman’s App., 18 Smith, 88; Haines v. Thomson, 20 Smith, 484; R. R. Co. v. Casey, 29 Smith, .81; etc.</p> <p>“ The fact that the will speaks of the debt as still existing does not, of course, affect the rights of the other party to the transaction; and the testimony of Mr. Souder, who was called for cross-examination by counsel representing the legatees, is positive and uncontradieted that the debt was ended* qua debt; and that his right to a reconveyance or reassignment was dependent upon an optional payment by him — a right, however, which he regards as valuable and does not desire to relinquish. It may be added that the debt, as a debt, appears to have been barred by the statute of limitations at the death of the testatrix, even if it had not been previously extinguished by the arrangement between the parties.</p> <p>“ As, however, the amount of the debt may at some future time be paid by the former debtor in order to avail himself of the provision of the will as to reassignment to him, it is properly mentioned in the inventory and account as an asset; but as it has not yet been paid, it is equally proper to credit the accountants with it as not available for present distribution.”</p> <p>To this finding exceptions were filed which were sustained in an opinion by Ashman, J., which was in part as follows:</p> <p>“ The clause in the will out of which the matter in dispute arose, is as follows: ‘ I give, devise and bequeath to my brother, J. W. Souder, my three shares in the Cranberry Bogs, situate in Monmouth county, New Jersey. When my brother pays the §7,000 he owes me, or sells the share he gave me On the property at Chester, he is to receive all the papers that he gave me as security. I wish the money disposed of as follows: . . . . to the Ladies’ Home Missionary Society,’ etc.</p> <p>“ The executors, of whom the brother was one, charged themselves with the above sum as a debt due by the brother, and claimed credit in a similar sum as for a debt not collected; and the only question, aside from the character of the legacies as specific or demonstrative, which would seem likely to have arisen, was whether the debt was or was not collectible.</p> <p>“ The debtor, however, was called by the legatees as for cross-examination, and upon his testimony, the auditing judge decided that the debt no longer existed. The witness declared that, being indebted to the testatrix, he conveyed to her three houses on Oxford street, which she afterwards, in 1878 or 1880, sold, but failed to realize upon by reason of the incumbrances. He then, on Jan. 24,1879, conveyed to her by deed, the consideration of which -was expressed to be $7,000, his undivided interest in certain real estate which he had derived from his deceased brother. The property was unproductive, and, on March 80, 1882, he caused to be assigned to the testatrix one hundred and forty shares of stock in the Chester Land and Improvement Company of the par value per share of $50.00 but which, he said, had at the time no market value. He declared that the deed of Jan. 24, 1879, was delivered in payment of the debt, and that the transfer of the stock, three years afterwards, was made with the understanding that out of the proceeds, when sold, the testatrix should receive $7,000, and should give him the balance, together with a reconveyance of the properties. If this testimony can be accepted as unimpeached, it established as a fact that the debt was extinguished in 1879, and that the subsequent transfer of stock was founded upon the consideration that the grantee would reconvey. In that event, the case is at one with Haines v. Thompson, 70 Pa. 484, where the deed from the debtor to the creditor was absolute in its terms, and the alleged defeasance bore a much later date, and where the transaction was decided to have been a sale.</p> <p>“ It is very clear, however, that the testatrix regarded the debt as a continuing obligation, when, four years after the date of the deed she executed her will, and recited in it ‘the $7,000 which he owes me,’ and described the deed of Jan. 24, 1879, and assignment of stock as ‘ the papers that he gave me as security.’ The person whom she thus named as her debtor claims as legatee and devisee under her will,'and he cannot accept one part of the instrument and repudiate another part. It is a remarkable circumstance that while he insists that the deed of 1879.was in payment of the debt, he makes no such claim for the deed of the Oxford street houses which preceded it, and leaves it open to conjecture whether that conveyance passed by way of part payment of the debt or as collateral security for the debt, or whether it denoted a pure gift by him or a purchase by the testatrix. There is absolutely no evidence whatever outside of his own statements to rebut the presumption that both deeds represented out and out sales for a consideration, of which the indebtedness of the grantor formed no part. But these declarations of the debtor are exactly balanced by the testamentary declarations of the creditor. They are, moreover, irreconcilable with his transactions with the testatrix after the conveyances in question had been made. It is possible that a man may be found who will consent to part with his property as collateral security for a debt which he no longer owes, but it is not probable; and something more than his oath will be required to show that his indebtedness had been canceled before he undertook to secure it. The declarations which the legatee now makes are at variance even with his own statements of record. In the inventory which he filed in December, 1886, he set out as an asset of the estate the following: ‘ J. W. Souder, due decedent with collateral $7,000.’ If we accept the testimony of the legatee, we throw into a case which, so far as the record goes, is perfectly simple and consistent in all its parts, an element of confusion and incongruity. It is conceded that the decedent was her brother’s creditor to the extent of $7,000, and it is not pretended that she ever pressed him for payment, It would not be extraordinary that she should purchase from him some small properties, while she permitted his indebtedness to remain, nor that she should afterwards accept from him as collateral security for that debt stock which had in it a large prospective value. The will which she wrote, and the inventory which the debtor filed, are-both in harmony with this theory, and are inexplicable on any other. In opposition thereto, the debtor would have us believe that he paid his debt by a conveyance of properties whose value was far below the amount of the debt; and that years afterwards he assigned, by an instrument absolute in its terms, stock which he asserted was intrinsically worth $20,000 to secure the debt from which he had been absolved. We can only say that if the legatee is to be believed the testatrix cannot be.</p> <p>“ Tlie debt was'not barred by the statute. The transfer of the Chester stock in 1882 was a clear and distinct acknowledgment of the debt, from which a promise to pay was reasonably deducible (Palmer v. Gillespie, 95 Pa. 340), and it took place within six years of the death of the testatrix. The burden hence rested upon the accountants to show that they used due diligence to secure its payment, or that the debt itself was hopeless: Johnson’s Est., 9 W. & S. 107; Charlton’s App., 10 Cas. 473. Its non-collectibility seems to have been taken for granted upon the statement as to his insolvency of the debtor himself, certainly the last person who should have been selected as an umpire.</p> <p>“We think that the legacies in the clause of the will under review were specific. The debt of the brother was not given as a fund out of which they were to be paid, but the debt itself —in the words of the testatrix, the ‘ money ’ — was the subject of the gift, and it was severed from the rest of the estate as effectually as any article of her personal effects could have been. Where a legacy and fund are the same the legacy is specific: Welsh’s App., 28 Pa. 363. The exceptions on the points which have been discussed are sustained, and the accountants are ordered to sell the securities and to file an account of the proceeds of such sale; notice of such sale to be given to all parties in interest.”</p> <p>Penrose, J., dissents.</p> <p>Errors assigned were: (1.) In sustaining the exceptions to the adjudication on the point as to the right of the executors to claim payment of the old debt of $7,000, and as to the extinguishment of said debt by the conveyance of 1879. (2.) In not deciding that the said debt of Joseph W. Souder for $7,000 was extinguished by the conveyance of 1879. (3.) In not deciding that the transfer of the stock to decedent of the Chester Land and Improvement Company in 1882 was not collateral for a debt, but was founded on the consideration that the assignee would reconvey upon receiving $7,000. (4.) In deciding that the debt was not barred by the statute of limitations. (5.) In deciding that the burden rested on the accountants, to show that they used due diligence to secure the payment of the debt, or that the debt itself was hopeless. (6.) In ordering the accountants to sell the securities and file an- account of the proceeds of such sale. (7.) In not dismissing the exceptions to the adjudication and confirming the same.</p>

Appeal, No. 211, July T., 1894, by Joseph W. Souder, Margaret Manderson and Harry N. Williams, executors, from decree of O. C. Pliila. Co., removing said executors on petition of legatees. Petition for the removal of executors.

Appeal, No. 213, July T., 1894, by Robert Ralston and Francis W. Ralston, Jr., administrators d. b. n. c. t. a. of William Meredith, deceased, from the decree of the court of common pleas No. 4 of Phila. Co., June T., 1891, No. 264, awarding the fund to S. Davis Page, administrator d. b. n. c. t. a. of William Wurts, deceased. Exceptions to auditor’s report. Before Thayer, P. J., Wilson and Arnold, JJ.

Appeal, No. 170, July T., 1894, by-defendant, from judgment of C. P. No. 4, Pliila. Co., June T., 1893, No. 74, on point reserved. Assumpsit. Before Thayer, P. J. On April 8, 1859, the Thirteenth and Fifteenth Streets Passenger Railway Company was chartered to lay out and construct a railway on certain designated streets within the city of Philadelphia,- in which Broad street was not included.

<p>Appeal, No. 8, July T., 1894, by defendants, from judgment entered on a verdict for plaintiffs by the court of C. P. of Lehigli Co., June T., 1898, No. 8.</p> <p>Action of trespass to recover damages for closing an alley adjoining plaintiff’s property.</p> <p>The court directed a verdict for the plaintiff.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in directing the jury to find a verdict for the plaintiff.</p>

<p>Earnings of married women — Contract between husband and wife — Acts of 1887 and 1893.</p> <p>Where a husband consents to the employment of his wife and agrees that the wages shall be paid to her, she can recover them as against him, and he forfeits and surrenders to her any claim that he might otherwise have to them.</p> <p>A husband may contract directly with his wife for the performance of extra and unusual services in the course of his business outside of the family relation, and such contract will be deemed a waiver by him of all claim to her wages, and she will be entitled to be paid for such services out of the proceeds of a sale of her husband’s property.</p> <p>Personal services are a species of personal property; and as earnings represent the reward for such services, whether in money or chattels, it would seem that they may be “ acquired ” or “ owned ” or “ possessed,” within the fair meaning of the first section of the act of June 8, 1898, P. L. 344. The word “ acquire” in the act of 1893 includes everything included in the word “earned” in the act of 1887, P. L. 332. The act of 1893 was intended to place the rights and powers of married women upon a broader, more comprehensive and better defined basis than was accomplished by the act of 1887.</p>

Appeal, No. 61, Jan. T., 1895, by Martha Price, Caroline Peel and Matilda E. Price, from decree of O. C. Chester Co., setting aside the probate of the will of Henry F. Price. -The alleged will of Henry F. Price having been admitted to probate by the register of wills of Chester county, and letters testamentary granted to Charles J. Price, the executor named therein, an appeal to the orphans’ court was taken by Jennie E. Price, a daughter of Henry F. Price, and an issue was…

<p>Municipalities — Assessments for local improvements — Act of May 23, .1889.</p> <p>A reassessment made under the act of May 23, 1889, P. L. 272, of the cost of local improvements made under an ordinance passed by a city council organized under the unconstitutional act of May 24, 1887, P. L. 204, is valid, and a recovery may be had thereon.</p> <p>Municipalities — Requisites of ordinance appointing viewers.</p> <p>It is not necessary that an ordinance appointing viewer's for the reassessment of properties under the act of May 23, 1889, shall specify the streets or the properties.</p> <p>Municipalities — Validating acts — Act of May 13, 1889.</p> <p>The act of May 13, 1889, P. L. 196, legalized the councils organized under the unconstitutional act of May 24, 1887, and validated the ordinances passed by such councils: Devers v. York, 150 Pa. 208; Melick v. Williamsport, 162 Pa. 408.</p> <p>Statutes — Implied repeal — Acts of May 1, 1876, and May 24,1887.</p> <p>The act of May 24, 1887, furnished a complete system of procedure in relation to the grading and paving of streets, inconsistent with the provisions of the act of May 1, 1876, P. L. 94. It also contained a clause repealing all laws inconsistent with or supplied by it. It seems that the act of 1876 was repealed by the act of 1887. Per McCollum, J.</p>

<p>Appeal, No. 173, Jan. T., 1895, by-plaintiffs from judgment of C. P. Delaware Co., March Term, 1889, No. 2.</p> <p>Bill in equity for injunction to restrain collection of taxes. Before Clayton, P. J.</p> <p>Plaintiffs’ bill sets forth substantially that the Pennsylvania Hospital is a public charity of the state of Pennsylvania, being a public hospital for sick, poor and lunatics; that it possessed certain real estate in Delaware county which was assessed for taxation for the benefit of the county of Delaware, the schools of the township of Newton and the public roads; that the taxes were about to be collected; that the corporation plaintiff is a purely public charity without making or possessed of the means of making any profit in any respect, but is maintained by voluntary contributions and by the income from the investments of certain gifts. That certain buildings and tracts of the above land, annexed thereto, have been used for certain periods of time as a place of reception for the care of patients, and as a place of convalescence in accordance with the charter, and prays for an injunction restraining defendants from the collection of taxes, and from the assessment of the same against the property as aforesaid, which is used solely for hospital purposes. The answer generally sets forth that the defendants had no knowledge of the material facts set forth in the bill, and asks to have the same proved, and denies the conclusion arising from the facts alleged.</p> <p>It appeared from the testimonyproducedbeforetheexaminer that plaintiff purchased five farms during the jrnars from 1887 to 1890, in Newton township, Delaware county, for the purpose of establishing there the department for the insane. Two of the farms were rented, and it was agreed that the taxes should be paid upon them, three of the farms were not rented, and in 1890'a building on one of them was enlarged and fitted up as a convalescent hospital for insane patients. The three farms constituting this department were also used for grazing and the raising of crops to a great extent, but no profits were made from the crops, the proceeds being used to reduce the expenses of the department. The testimony was taken before the examiner, and certified directly to the court, and was there passed upon without the appointment of a master.</p> <p>On Dec. 17,1894, the court dissolved the injunction and dismissed the bill with costs.</p> <p>Error assigned was above decree.</p>

<p>Appeal, No. 241, Jan. T., 1895, by plaintiff, from judgment of C. P. Lebanon Co., June T., 1893, No. 53, for defendant on point reserved non obstante veredicto.</p> <p>Summons assumpsit on policy of fire insurance. Before Meily, P. J.</p> <p>At the trial it appeared that Ezra H. Light, the plaintiff, was the owner of a barn situate in Swatara township, Lebanon county, insured in the defendant company for $400. In September, 1889, he contracted to sell inter alia the premises upon which the barn was erected to David H. Tice, and at the consummation of the sale took a judgment bond as part payment of purchase money. Before the delivery of the deed to Tice, Light called upon Adam Gettle, secretary of defendant company, and asked his advice what to do with the policy so that it would be good in case of loss by fire.</p> <p>He was informed by the secretary of the company that he had an insurable interest and could retain the policy, as he had held it theretofore; that then the assessments would be sent to him and he could see that they were paid ; and that if they were sent to Tice he might permit the policy to be forfeited by not paying the assessment, and the plaintiff would know nothing about it.</p> <p>In accordance with this advice the plaintiff retained the policy, delivered the deed and took a purchase money judgment. The assessments were laid in his name, sent to him, and he paid them to the company in January, 1890, February, 1891, and in March, 1892.</p> <p>On the night of the 80th of Majq 1892, the barn was destroyed by fire, — a total loss. The company refused payment on the ground that the plaintiff had no insurable interest in the property. The plaintiff claimed that if he had no insurable interest he was misled to his injury by the secretary of the company, acting in his official capacity, and that the defendant company was estopped to set up a want of interest. Among defendant’s points was the following: “ (5) The verdict must be for the defendant. Answer: The question raised by that point is reserved.” Verdict for plaintiff for $453.06. . Subsequently the court entered judgment for defendant on the reserved point non obstante veredicto.' Plaintiff appealed.</p> <p>Error assigned, inter alia, (3) in entering judgment for defendant non obstante veredicto.</p>

<p>Evidence — Conviction for perjury — Effect of pardon.</p> <p>A pardon does away with the future consequences of a criminal act as completely as if it had never been committed.</p> <p>The English distinction between the effect of a pardon after conviction of perjury at common law, and under the statute, cannot be sustained here. In Pennsylvania the power of pardon is given by the constitution with only one exception, and the legislature cannot make any further resfrio tions directly or indirectly.</p> <p>A witness who has been convicted of perjury but pardoned by the governor is competent, notwithstanding the acts of March 33, 1860, and May 23, 1887.</p> <p>Credibility of pardoned perjurer — Question for jury.</p> <p>The credibility of such a witness however is for the jury, if either party asks that it be submitted to them.</p> <p>Criminal law — Effect of pardon — Distinction—Statutory and common law crimes.</p> <p>The early English distinction between the penal consequences of crime, whether by common law or by statute, has no basis in sound reason; all penal consequences of crime are equally results of the transgression of the law, and even the common law consequences are historically presumed to be of statutory origin.</p> <p>Statute of wills — Signature by another when sustained.</p> <p>The conditions of the statute of wills are complied with where a decedent in extremity of last Illness directs another to write out his testamentary directions and sign them, even if he was physically able to sign his name, if such signature would have been at the risk of his life.</p>

<p>Statute of limitations — Married women's promise to pay debt barred by statute — Long delay — Strict proof.</p> <p>To revive a claim against a married woman barred by the statute of limitations requires a positive promise to pay an identified debt; a mere acknowledgment, however clear, will not be sufficient. Kelly v. Eby, 141 Pa. 176, followed.</p> <p>Where a creditor waits twenty-five years, and until after the death of the debtor, before taking any steps to recover his debt, he will be held to strict proof at every step.</p> <p> Effect of several insufficient acknowledgments. </p> <p>Several insufficient acknowledgments will not constitute a sufficient one; hence both the identity of the debt and the promise to pay must appear from the same acknowledgment: Pattersonv. PTeuer, 165 Pa. 66, followed.</p> <p>Where, therefore, one witness testified that defendant’s testatrix promised to give plaintiff the amount of his claim, but failed to identify the debt otherwise than by reference to a paper which was not produced, and another witness testified that at another time plaintiff, in his presence, showed defendant’s testatrix a paper upon which he said was written $320, to which she replied “if she couldn’t raise the money why he (the plaintiff) would have it out of the land.” Eeld, that as neither acknowledgment was sufficient by itself, the plaintiff could not recover.</p>

<p>Appeal No. 320, Jan. T., 1894, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1887, No. 228, on verdict for defendant.</p> <p>Appeal from award of viewers.</p> <p>This was a proceeding to recover damages for the location and construction of the railroad of defendant upon plaintiff’s lot in the city of Scranton. The viewers having refused to award the plaintiff any damages, an appeal was taken by him. The verdict of the jury on the first trial was in favor of the defendant and the judgment entered thereon was reversed by this court: See Jones v. Railroad Co., 144 Pa. 629, where most of the facts appear. Shortly after this reversal, the defendant filed a release of all claim to plaintiff’s lot. On the trial, the court below overruled the offer of the plaintiff to prove that the defendant’s railroad was constructed over and upon Washington avenue and New street, in the city of Scranton, without the consent of the councils of the city. [3]</p> <p>The bond tendered plaintiff by defendant at the time of the location of defendant’s road recited that defendant had “ located its railroad track near the property of the said John Jones, in the citj'- of Scranton, and it is alleged by him that said property is and will be damaged thereby.”</p> <p>Plaintiff offered in evidence the record of a mortgage made by the defendant to the Farmers Loan & Trust Company in 1883, and covering “all the rights of way and lands now occupied or hereafter to be occupied or used in connection with ” defendant’s railroad.</p> <p>The court refused to submit the case to the jury [2] and gave binding instruction for defendant. [1]</p> <p>Errors assigned were, (1) the direction to find for the defendant ; (2) the refusal to submit the ease to the jury; (3) the ruling on evidence as above, quoting the bill of exceptions.</p>

<p>Contributory negligence — Rebuttal of presumption that deceased stopiped, looked and listened.</p> <p>The presumption that the decedent who was killed at a railroad crossing, stopped, looked and listened at a proper place before crossing, is rebutted by the fact that there was ample opportunity to see and hear an approaching train from points along the road which the decedent must have passed.</p> <p>Where, therefore, the evidence showed that ears standing upon a switch obstructed the view of the approaching train, but that before the obstruction came into the line of vision the decedent had an opportunity, at a distance of about fifty feet from the tracks, to see the track for about one thousand feet, and that at some twenty or twenty-five feet from the tracks the obstruction was again out of the line of vision, and the tracks were plainly visible for one thousand feet to and over the crossing, the legal presumption that the decedent stopped, looked and listened is rebutted, and a compulsory nonsuit was properly entered.</p>

<p>Act of June, 10, 1893 — Construction—Petition, and answer — Issue—Coal lease.</p> <p>Under the second section of the act of June 10, 1893, P. L. 415, entitled “ An act to provide for the quieting of titles to land,” the facts required to be set forth in the petition, and found by the court to be true, are the petitioner’s possession and the adversary’s denial of his title. AVhen these appear the issue is to be awarded, and if it turns out at the trial that the dispute is not over the facts, but over the law arising from them, this will. not affect the remedy, but, the right to the issue having been shown by the possession and the denial of title, the issue will go on to trial, and the judge will direct a verdict on the law as in other cases.</p> <p>Where the claim, however, is not to the land or its possession, but only to a part of the product, as e. g. coal, after it has been severed and becomes personalty, or to the duty to account and pay royalties for coal after it shall have been mined, the act does not apply, and the issue in such case will be refused.</p>

<p>Appeal, No. 154, Jan. T., 1895, by defendant, from judgment of C. P. Lackawanna Co., April T., 1892, No. 519.</p> <p>Assumpsit on fire insurance policy for damage to personal property. Before Edwabds, J.</p> <p>The material facts in this case appear in the portion of the charge of the court which is quoted, and in the opinion of the Supreme Court.</p> <p>At the trial, E. F. Bojde, one of the plaintiffs, being called as a witness, counsel for plaintiff asked him: “Q. What damage did you sustain upon the dry goods, if any ?”</p> <p>By Judge Jessup : “ Counsel for the defendant objects to the question that if any article of dry goods was injured he is entitled to state what article it was, and what was the injury to that article, the contract of insurance requires that. And we object also to any evidence being given with reference to any loss by fire until the plaintiffs shall have shown that they are entitled by the terms of the contract to make any proof in a court of justice of the amount of loss or damage under the contract.”</p> <p>By the Court: “Your objection, Judge Jessup, is to*the order in which the counsel is trying the case. Of course, after lie proves what he proposes to prove now, if he fails to show that he has complied with the preliminary conditions in the contract, of course the case cannot go to the jury. I shall overrule your objection.” Exception noted for plaintiff, at whose request a bill is sealed.</p> <p>“ A. Thirty-three and one third per cent.</p> <p>“ Q. What did it amount to ? A. A little over $2,000.” [5] Counsel for plaintiffs offered in evidence, 10th of December, 1891, what are known as proofs of loss.</p> <p>The witness, E. F. Boyle, testified:</p> <p>“ Q. Do you know when these were sent ? A. Middle of December, I think.”</p> <p>Counsel for defendant objects to the proofs of loss.</p> <p>By the Court: “ Is the receipt of them by the company admitted ?</p> <p>By Mr. Jessup: “Yes; we received them, but what we object to is this, that they are not such proofs as are called for by the contract of insurance.”</p> <p>By the Court: “ We will overrule the objection to the proofs of loss.” Exception noted for defendant, at whose request a bill is sealed. [6]</p> <p>The witness, E. F. Boyle, testified:</p> <p>By Mr. Willard: “Q. Mr. Boyle, you say you made a careful inventory of what was in your store and reduced it to writing. It is now in your hands in'that paper? A. Yes, sir. Q. Refreshing your recollection from that paper, what was the amount of goods in your store at the time of the fire ? ”</p> <p>By Judge Jessup: “Counsel for defendant objects to the question. Our only objection to that question is that witness cannot be asked to refresh his recollection from a paper which is admittedly incorrect, and thereby from such a paper state what was the amount of goods.”</p> <p>By the Court: “ The objection is overruled.” Exceptions noted for defendant at whose request a bill is sealed.</p> <p>By Mr. Willard: “ Q. Now, Mr. Boyle, answer the question ? A. Ten thousand six hundred eleven dollars and sixty cents.” [7]</p> <p>Counsel for defendant offered proofs of loss presented by the plaintiffs to the company for the sole purpose of showing that they did not comply with the provisions in the contract.</p> <p>By the Court: “ Proofs of loss having already been offered on the part of the plaintiffs and the court having passed upon the sufficiency of the same, and the proofs and depositions relating to the same having been already entered on the record of the case, the objection to the same is sustained to the present offer. Exception noted for the defendant at whose request a bill is sealed.” [8]</p> <p>The defendant being about to close his evidence and it appearing by the undisputed evidence of the plaintiffs that defendant requested an appraisal of the amount of loss by appraisers to be appointed under the terms of the policy, and that plaintiffs refused to allow the amount of loss to be liquidated, counsel for defendant asked court to strike out all evidence relating to the amount of loss from the case, for the reason that the parties had contracted and agreed in ease appraisal is requested that the amount of the loss shall be thus settled, and that that method is binding upon the plaintiffs in this case.</p> <p>By the Court: “ Motion is refused.” Exception noted for defendant at whose request a bill is sealed. [9]</p> <p>The court charged the jury in part as follows :</p> <p>“The plaintiffs, John D. Boyle’s sons, who have brought an action against the Hamburg-Bremen Insurance Company of Hamburg, Germany, seek to recover from the defendant company a certain amount of damages for loss alleged to have been sustained by them by reason of a fire ■which occurred in their store on the 24th day of November, 1891, and their action is based upon the policy which has been offered in evidence.</p> <p>“ This policy is dated Nov. 14, 1890, and continued in force for one year up to Nov. 14, 1891. There is also in evidence a renewal of that policy, bearing the same date, and continuing the insurance in force for one year, from Nov. 14, 1891, to Nov. 14, 1892. This fire, of course, occurring on Nov. 24, 1891, occurred during the lifetime of this policy, or while it was in force, provided you find certain facts which shall be called to your attention later.</p> <p>“ The amount of this policy on the face of it is $2,500, but it is in evidence that there was another policy for a like sum on the same stock of goods; so that whatever the loss is that has been suffered by the plaintiffs on account of that fire, provided you find that they are entitled to recover at all, they are only entitled in this action and on this policy for the one half of the total loss. The other insurance is considered as concurrent insurance, and, therefore, the companjq if the plaintiffs are entitled to recover, will have to pay one half of the damage, and this company, if the plaintiffs are entitled to recover, will have to pay one half of the damage. So you understand if you render a verdict at all for the plaintiffs in this case, your verdict will be for the one half of the total damages suffered by the plaintiffs.</p> <p>“ [ In a certain time after the fire, after the 24th of November, 1891, the plaintiffs sent what are known as proofs of loss to the company. The policy requires them to do this. These ■proofs of loss have been submitted to the court for inspection, and the court has assumed the responsibility, as it is the duty of the court, to pass upon the sufficiency of the proofs of loss. We have decided that they are in compliance with the terms of the policy.] [1]</p> <p>Defendant’s points, among others, were as follows :</p> <p>“ 3. That the proofs of loss given in evidence in this case by the plaintiffs, and which were objected to by defendant at the time, and tire special defects therein pointed out, were not a compliance with the requirements of the policy in this respect, and as the plaintiffs have failed and refused to furnish any additional proofs of loss or to correct those furnished at the request of the defendants, the furnishing of the same being a condition precedent to the right of the plaintiffs to maintain any action on the policy, plaintiffs are not entitled to recover. Answer: This point is refused.” [2]</p> <p>“ 5. The policy having provided ‘ In the event of a disagreement as to the amount of the loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers; the insured and this company each selecting one, and the two so chosen shall then select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately, sound value and damage, and failing to agree shall submit their differences to the umpire, and an award in writing of any two shall determine the amount of such loss ; the parties thereto shall pay the appraisers thus selected by them, and shall bear equally the expenses of the appraisement and award. This company shall hot be held to have waived any provision or condition of this policy or anjr forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisement or any examination herein provided for, and the loss shall not become payable until sixty days after notice, ascertainment, estimate and satisfactory proofs of loss herein required have been received by the company, including an award by appraisers, when an appraisal has been required.’ Under this agreement between the parties in the policy the amount of loss was to be settled and determined by appraisers, and the plaintiffs having refused to join the defendant in the selection of an appraiser and having refused to have the amount of such loss settled in the only way in which it could be settled under the policy, the plaintiffs cannot recover in this action. Answer: This point is refused.” [3]</p> <p>6. “ The contract of insurance between the parties having further provided that no suit or action on this policy for the recovery of any claim shall be sustained.in any court.of lawor equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within'twelve months next after the fire, and it being undisputed that the plaintiffs have not fully complied with the requirements of the policy, they are not entitled to recover. Answer: This point is refused.” [4]</p> <p>Verdict and judgment for plaintiffs.</p> <p>Hrrors assigned were, (1-4) above instructions; (5-9) rulings on evidence, quoting instructions, bills of exception and evidence.</p>

<p>Appeal No. 296, Jan. T., 1895, by defendants, from judgment of C. P. of Lackawanna Co., April T., 1893, No. 78, on verdict for plaintiff, in an action of ejectment.</p> <p>Action of ejectment for an undivided one eighth of a tract of land in the borough of Olyphant. Before Archbald, P. J.</p> <p>Alexander Dolph died in 1860, seized of a tract of land in the borough of Olyphant. Eight children survived him, one of whom was Laura C. Weidner, the defendant, intermarried with A. J. Weidner. Edward Dolph, one of the sons, became his administrator. In 1868, Edward purchased of his sister, Laura, all her right, title and interest (being an undivided one eighth part) of the real and personal estate of their father.</p> <p>In 1888, the said A. J. Weidner and Laura C. Weidner brought an action of ejectment against Edward Dolph for the one eighth interest in said estate which they had sold him in 1868. In 1889, Edward Dolph conveyed his interest in the property to J. B. Kerr, and in 1890 the said Kerr conveyed his interest to the plaintiff in this suit. Dolph died the same year.</p> <p>The acknowledgment of the deed from A. J. Weidner and Laura C. Weidner, his wife, was defective in that the certificate failed to show that the said Laura C. Weidner had been separately examined; and in 1890, while the aforesaid action of ejectment was pending, a bill was filed by Dolph’s executors to reform the acknowledgment of this deed. The answer of the Weidners denied that there had been any acknowledgment before the justice, N. W. Warner, who had certified the acknowledgment, or any other officer. The bill wras dismissed in the court of common pleas, an appeal was taken to this court, and the decree affirmed: Hand v. Weidner, 151 Pa. 362.</p> <p>The aforesaid action of ejectment was then brought on for trial, and in November, 1.892, a judgment was had for Mrs. Weidner, an execution issued and she was put into possession of the land. In December of the same year, a petition was filed by her under act of assembly, requiring the defeated party or claimant to bring ejectment within six months or be barred, whereupon this suit was brought.</p> <p>At the trial of the case plaintiff’s counsel offered the assignment from A. J. Weidner and his wife to Edward Dolph; it was objected to because not properly acknowledged. The objection was overruled and the evidence admitted, because of the statute curing defective acknowledgments, approved 12th of March, 1891, P. L. 53. [9]</p> <p>The defendants offered to prove, by the deposition of the justice of the peace who had certified to the acknowledgment, that there was no acknowledgment of the assignment, but on objection this evidence was excluded. [6] Defendants then offered to prove, by A. J. Weidner, that the assignment was never acknowledged by either him or his wife. This offer was excluded on the ground that as Dolph was dead one of the other parties to the deed was incompetent. [7] Defendants then offered the notes of his testimony taken in the equity suit, this was also excluded. [8] The defendants also offered to prove that the value of the property in suit was very much greater than Edward Dolph, the administrator, had paid for it, but this evidence, on objection, was excluded. [3, 4, 5] The counsel for the plaintiff and defendants each asked for binding instructions. The court directed a verdict for the plaintiff for the land described in the writ. [1, 2]</p> <p>All other facts necessary to an understanding of the case appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff.</p> <p>Errors assigned were, (3-9) ruling on testimony as above; (1, 2) directing a verdict for plaintiff.</p>

<p>Municipalities — Grading streets — Act of May 1, 1876.</p> <p>The act of May 1, 1876, providing that councils of cities not of the first class “ shall not pass any ordinance authorizing the grading or paving pf any street.... before they have caused the city engineer to make an estimate of the total cost of such improvement, particularly stating the items and the cost of each, and a map or plan of all the property liable to assessment for the cost of the same, and also caused the board of viewers to' view the property and make a schedule showing the total cash value of the same as nearly as can be ascertained, and the amount each property owner will be liable to pay for such improvement; which estimate, map or plan and schedule shall be attached to the ordinance before its passage and shall remain on file in the proper office for the benefit of all persons interested,” and declaring that any ordinance for paving, etc., passed before compliance with this requirement shall be void, is not complied with where the necessary plan, estimate, etc., are attached, as required by the act, to an ordinance which failed of passage, and are subsequently detached from this ordinance and attached to another ordinance which does pass, by the city clerk, without the authority of councils as a body. Oil City v. Morris, 1 Penny. 420; Erie City v. Brady, 127 Pa. 169, and Beaumont v. Wilkes-Barre, 142 Pa. 198, distinguished.</p> <p>In such a case the attachment of the old plan to the new ordinance by the command of councils would not be sufficient. When a plan, estimate, etc., are made in view of a specific ordinance and that ordinance with its attachments fails, they all fall together. The report of the city engineer and others need not be thrown away, and the work all done over again. If the interval is such that there is a fair presumption against any material change in the situation, councils may reasonably direct the city engineer to take up his report again and supplement it with reference to present circumstances. But in every case the prerequisites to the passage of an ordinance prescribed by the act must be had with direct reference and in the very course of the legislation itself.</p> <p>Municipal claims — Joint owners.</p> <p>A municipal claim is a proceeding in rem, and there is no authority for dividing up the assessment and filing part of it against the “right and title” of one joint owner.</p> <p>Municipal claims — Foot front rule — How question whether property is urban or rural to be decided.</p> <p>The question whether property is urban or rural, in regard to its liability for a foot front assessment for improvements, is usually for the jury, because it is one of fact; but where the facts are agreed upon, it becomes a question of law for the court. Where it is a question of law, it should be withdrawn from the jury.</p>

<p>Municipal claims — Front foot rule of assessment.</p> <p>No properties can be assessed for the cost of a sewer except those that abut on the line of it.</p> <p>Hence, when an ordinance passed by the councils of the city of Reading, a city of the third class, divided the city into sewer districts, and provided that when in any of the said districts, main sewers shall be used as local sewers, such part of the cpst of those main sewers which may also serve for local sewers, as well as the cost of all lateral or branch sewers, “ shall be assessed on the properties abutting thereon by an equal assessment by the foot front rule, which rate per foot shall be ascertained by dividing the total cost and expense of construction of the sewers in any district,, less the excess cost of any main sewer over and above the portion of the cost and expense required for local sewerage, by the total number of feet-, front of property in said district, the quotient being the price per foot,” it was held that the assessment was illegal as to the excess beyond what any particular property would have been charged for the sewer in front of it.</p> <p>It seems that the injunction should have been confined to.collecting the excess. “While the foot front rule of assessment, it is true, does not express a principle of taxation, but me.rely a convenient method, yet its foundation is not in uniformity of value, but in uniformity of benefit.” By Mr. Justice Mitchell.</p> <p>Hence also it was held to be error to enjoin the collection of the whole assessment, because of the application of the foot front rple.</p>

Appeal, No. 341, Jan. T., 1895, bj1 Jacob Van Reed, from decree of .0. C. of Berks Co., enforcing payment of arrears of an annuity charged on land with interest thereon. Petition for apportionment of charge on land. The case came up upon petition, answers and proofs. Bland, P. J., found the following facts: 1. That Samuel Jones died, testate, December 30, 1849, seized of a tract of land situate in Lower Heidelberg township, Berks county, containing 604 acres and 134 perches.

<p>[Marked to be reported.]</p> <p>Evidence— Question for jury.</p> <p>While several suits were pending against defendants, several plaintiffs in the suits joined in a written agreement by which an extension of time was granted to defendants so that a compromise might be effected; the con tract to be binding only when signed by all of the plaintiffs. O, one of the plaintiffs signed for L, another of the plaintiffs. A compromise was subsequently effected by which the defendants were to pay fifty per cent of the claims. 0 received the percentage of L’s claim, and paid it over to L, who accepted it without objection. L subsequently disavowed O’s authority to act for him, and pressed his suit against defendant. At the trial 0 testified that when he signed the paper for L he presumed he had authority; that he would not have signed it without authority, that his recollection was that he had authority. One of the defendants testified that during the negotiations for compromise L constantly referred to 0 as the person who was acting for him, and stated that if 0 signed for him it would be satisfactory. L denied this testimony, and asserted that he had given no authority to O to sign for him, and that the payment made through 0 was a general payment made on the whole sum due. Held, that the question was for the jury, and it would have been grave error to withhold it from them.</p>

<p>Appeal No. 37, Jan. T., 1895, by Bixley & Correll, from order of C. P. Monroe Co., confirming auditor’s report, distributing proceeds of sheriff’s sale.</p> <p>Exception to auditor’s report.</p> <p>The fund for distribution was raised by the sale of the personal property of Jefferson D. Kresge and of the alleged firm of Jefferson D. Kresge and Oscar Green.</p> <p>The auditor, reported the facts to be as follows:</p> <p>“ The validity of the following labor claims was contested, for the following reasons:—</p> <p>“That of Oscar Green, because he was a partner in the firm of Kresge & Green, and one of the defendants in the executions. Those of Chas. Eschenbach, Edwin Keiper, Chas. Kresge, Alvin Kresge and Joseph H. Smith, for the reason that none of the notices set forth the fact that the property levied on and sold was used in and about the business of the defendants. Neither do any of said notices set forth the particulars of the claims, as to whether the service was rendered by the day, month or job, nor as to rate of compensation to be allowed. The general objection is also made that all notices are of claims against Jefferson D. Kresge, alone.</p> <p>“ The objections pressed at the argument were, that in relation to the claim of Oscar Green, and the first objection to the claims of Eschenbach, Keiper, the two Kresges, and Smith. The other objections to these latter claims, though noted as above, were not insisted on at the arguments, and the auditor understands that they were abandoned. Mr. Staples made the further objection that Edwin Keiper and Chas. Eschenbach had not sufficiently proven the amounts due them. As to the other three claims represented by Mr. Lee, it was admitted that the amounts claimed were correct.</p> <p>“ Keiper and Eschenbach were called and examined as witnesses in their own behalf; and it must be admitted that their testimony is far from being as clear in support of their claims as it ought to be. They both worked on the lumber job in Tunkhannock. Keiper peeled bark, skidded logs and cut logs; was to be paid $1.00 per thousand. Eschenbach skidded and hauled logs to mill, for which lie was to be paid at first $1.50, and after they moved the mill $2.00, per thousand. Both commenced work in June and worked till the sheriff came, which appears to have been on the 23d of, January, 1894. Both were paid a little in cash, and more in goods from the store. Neither kept any book account of the amount of their work, nor of the amount of the charges against them, on account of the same. Keiper, however, swears that the balance due him is at least $50.00 and Eschenbach swears that the balance due him is at least $200, if not more; that the total amount of his work might be $600, $700, or $800, including boarding the men, and the sum total of store bill and cash received should not be $400. That no part of the $200 is for board. Both assert in their notices to the sheriff that the balances claimed are for work in December and January. Eschenbach swears that he never had a settlement with defendants, although he went once to the store for that purpose, but was told that the books were not there.</p> <p>“Doubtless some allowance is to be made for the kind of work in which these men were engaged, the character of their surroundings, the limitations of their education, and their lack of facilities for bookkeeping. It is common experience that unlearned men oftentimes keep the run of their business transactions in their heads, with a surprising degree of accuracy. Keiper swears that he did keep the run of the logs, though not in a book; and Eschenbach says that first along he’knew about what his store bill amounted to.</p> <p>“ But more than this, one of the defendants sat by with the books of Kresgé & Green, when this testimony was delivered, and the other defendant was within easy access, and neither was called to disprove the claim of either of these men. The books were not put in evidence against them, and the conclusion is unavoidable that the defendants would have been heard from if either of these claimants had claimed more than was their due.</p> <p>“ That these men did the work that thejr claimed to have done has not been denied, and it is not in the heart of the auditor to turn them out of court, because they are not better bookkeepers. This objection to the allowance of the claims is therefore dismissed. Moreover, the 3d section of the act of 1879, under which the claim is made, provides the mode o£ proceeding, and the tribunal to decide, in case of dispute as to the amount due. . . .</p> <p>“We come now to the principal question in the case. Were Jefferson D. Kresge and Oscar Green actual partners, doing business under the firm name of Kresge & Green ?</p> <p>“ Or, without regard to the actual agreement between themselves, did they, by their conduct and mode of carrying on their business, so induce the public to believe them partners, that, with respect to parties dealing with them, and whose interests may be involved, they are to be held to be partners, whether so in fact or not ?</p> <p>“ These questions are further complicated by the fact that during the time of their business connection Oscar Green was ■ a minor, under the age of 21 years.”</p> <p>In regard to this branch of the case, the auditor finds the ¡following facts:</p> <p>“1. During the whole time of his business relation with Jefferson D. Kresge, Oscar Green was a minor; being at the ¡time of this report a few months over age. At the time he «commenced business with Kresge, he was 19 years of age.</p> <p>“ 2. In April, 1892, Jefferson D. Kresge agreed with one W. W. Smith for the purchase of a stock of store goods at Effort, in Chestnuthill township. An inventory of the goods was taken in the name of Jefferson D- Kresge, amounting to something over $1,200. It was then agreed between Kresge and Green that the latter should clerk for the former at the compensation of $15.00 per month and board until he became of age, when, if everything went right, he might become a partner. In the meantime, Green was to be considered by the public as a partner. The business was to be conducted in the name of Kresge & Green. As Mr. Green very naively testifies, his name was to be used in this way, “So that business might be better, being as I had clerked there three years and was acquainted with the people.”</p> <p>“ Manifestly, the intention was to convey the impression that Green ivas a partner, or had an interest in the business. The whole subsequent conduct of the parties was in accordance with this idea. Their goods were bought and sold in the name of Kresge & Green; the store books were kept in the name of Kresge & Green ; the bank account was kept in the name of Kresge & Green, and cheeks were drawn in the name of Kresge & Green. A part, at least, of the lumber business was carried on in the name of Kresge & Green.</p> <p>“ 3. As a part of the consideration for the stock of store goods bought from Wm. Smith, Jefferson D. Kresge and Oscar Green gave six individual notes of $100 each. Green testifies that the judgment on which fi. fa. No. 29 issued was entered upon one of the notes given to Smith for store stock. This execution is against Jefferson D. Kresge and Oscar Green. Green also testifies that the judgment against Jefferson D. Kresge and Oscar Green, on which fi. fa. No. 24, Feb. T., 1894, was issued, was also entered on a note given for money borrowed from Edwin Serfass that went into the business. It thus appears that Green had not only an ostensible, but an actual interest in the concern, to the extent of the credit, if not money, which he contributed to its capital; if, indeed, a minor who gives his note as his contribution to the capital stock, and, after his arrival at full age, repudiates the obligation, as Green does in this case, can be said to have, in fact, contributed anything at all to the alleged firm’s capital. He testifies that he never contributed anything in money.</p> <p>“4. In May, 1893, Jefferson D. Kresge purchased, in his own name, the tract of timber land in Tunkhannock township, on which a part at least of his subsequent lumber operations was conducted. He took the title to this land in his own name, bought a portable sawmill, in his.own name, so far as appears; at least, according to Green, he borrowed $800 from his father, Jerome Kresge, for which he gave his individual note alone, as the fi. fa. No. 26, Feb. T., 1894, in evidence shows; and of this $800, $500 went to pay on the sawmill, and the balance on the land. Kresge hired the men in the woods, and kept the books for the Tunkhannock operations, according to Green, in Kresge’s own name. The men who worked on the lumber job in Tunkhannock were paid partly in cash, and partly, — perhaps chiefly, —in goods from the store at Effort, which, as shown, was run in the name of Kresge & Green. Green kept the account of the men in the woods, from data given him by Wilson Kresge, the foreman.</p> <p>“It is perhaps hardly necessary to recapitulate all the facts established by the testimony, having no direct bearing on the question of distribution. One thing is not denied; — that is, that Green was a minor at the time in question. It follows that all his contracts, except for necessaries, were void. . . .</p> <p>“Since Green’s arrival at full age, which was on April 12, 1894, nothing has been done by him in affirmance of his previous contracts. On the contrary, he here and now expressly repudiates them. He makes no claim on any of the goods levied on, or on the proceeds thereof, as owner, or part owner.</p> <p>“ While, if he were an adult, he would undoubtedly be bound by his acts as a partner, and his private estate also, without regard to the secret understanding between him and Kresge, yet, as a minor, he was incapable of forming a contract of partnership or any other contract; and while he-might be liable to any party injured, in an action for deceit, under the authority quoted, yet the auditor does not think that the property, even at Effort, can be held to have been, for the purposes of this distribution, partnership property. Probably the facts would fail to establish a partnership with respect to the Tunkhannock property, even had Green been an adult.</p> <p>“Holding, then, that for the purposes of this distribution, all the property sold is to be regarded as the individual property of Jefferson D. Kresge, and that consequently the proceeds arising from the sale thereof are to be applied to the different executions in the order of their priority, without regard to whether they are against Jefferson D. Kresge alone, jointly against him and another, or against the so-called firm of Kresge & Green, — nothing remains but to make distribution in accordance with these views, which, if erroneous, the court will correct.” *</p> <p>Exceptions to the auditor’s report were overruled in an opinion by Craig, P. J.</p> <p>The exceptants appealed.</p> <p>JEJrror assigned was overruling exceptions to the master’s report.</p>

<p>Appeal, No. 379, Jan. T., 1895, by plaintiff, from decree of C. P. Northampton Co., Feb. T., 1895, No. 3, on bill in equitju</p> <p>Bill in equity to compel the restoration of the original grade of a street.</p> <p>The bill averred that plaintiff was the owner of a lot of ground situated at the northeast corner of Fourth and Washington streets, in the city of Easton; that the Easton & Bethlehem Transit Company was a corporation claiming to be organized under the act of May 14, 1889, P. L. 211; that the said company obtained permission from the select and common councils of the city of Easton, by an ordinance passed on the 22d day of December, 1893, to construct and operate an electric street railway with turnouts, commencing at the western limits of the said city at the intersection of Dock street, and thence over said street to Fourth street and over Fourth street to Lehigh, etc., under the terms and conditions that had been imposed upon the Easton Transit Co., another electric railway in said city; that the said Easton & Bethlehem Transit Company was, under the terms and provisions of the said ordinances, to lay and keep the rails of their tracks on a level with existing grades or such grades as might thereafter be established by the city of Easton ; that the said Easton & Bethlehem Transit Company did not lay their tracks on South Fourth street in front and along the premises of the plaintiff in the manner provided in said ordinances, but changed the grade of the street by raising the level of the surface of the street about one foot in the center of the street and sloping thence to the curb, which was reduced from six inches to two inches in depth, and in consequence of this shallow curb made as aforesaid bv the said company, the drainage and surface water flowing over said street flooded the pavement of the plaintiff’s premises with deposits that rendered his dwelling unfit for human habitation and the premises dangerous and difficult of ingress and egress, as well as depreciated it in value; that the said tracks in front of the said premises were used by the Easton Transit Company either bjr lease or sanction of the Easton & Bethlehem Transit Company; that the city of Easton through the department of highways had under said ordinances, supervision of the work of changing the contour and cross-sections of streets to accommodate the tracks of the Easton & Bethlehem Transit Company to existing grades ; that the said'ordinances were made part of the bill of complaint and that the city had not changed or allowed the Easton & Bethlehem Transit Company to change the surface of South Fourth street except as provided in the said ordinances; that the occupation of the said street with the track of the said Easton & Bethlehem Transit Company was illegal under said ordinances, and that it was incompetent for the city of Easton to grant the said privilege to the Easton & Bethlehem Transit Company by special ordinance.</p> <p>An injunction was asked for directing the Easton & Bethle-. hem Transit Company to remove their rails from said street and restore the grade and plaintiff’s curb to the same condition that they were in before the said company’s railway was built; restraining the Easton & Bethlehem Transit Company from operating any car by electricity on said street, and requiring the city of Easton to maintain the grade of. South Fourth street according to the legally established gradients as required in the ordinances made part of the bill of complaint.</p> <p>Defendants’ demurrer denied that the plaintiff had set forth such a case as entitled him in equity to the relief prayed for; alleged that the court of common pleas had no jurisdiction sitting in equity; that plaintiff had a remedy at law; that plaintiff did not aver that the grade was not duly and legally made by the city of Easton, and did not aver that tire tracks did not conform to grade; that the ordinances referred to had been duly accepted by the Easton & Bethlehem Transit Company and constituted a contract between the company and the city ; that no case had been made entitling the plaintiff to attack the legality of consent of the city of Easton, defendant, to occupy the streets with the company’s tracks; that prayer for relief forfeited the company’s franchises without the commonwealth as a party.</p> <p>Schuyler, P. J., filed the following opinion :</p> <p>“ In the third paragraph of his bill the plaintiff alleges that the Easton & Bethlehem Transit Co., one of the defendants, ‘ obtained permission ’ under certain ordinances of the city of Easton, reciting them, to construct and operate an electric railway over South Fourth street in said city. In the fourth paragraph of his bill he alleges that the tracks of said company are used by the Easton Transit Co. In the sixth paragraph he alleges ‘ that the said two companies have no legal right to use the said street under the ordinances above recited, and that the occupation of the said street with the track of the said Easton & Bethlehem Transit Co. is illegal under the said ordinances.’</p> <p>“ Upon these allegations alone, as we understand the bill, the plaintiff prays not merely for a prohibitory injunction restraining the two companies aforesaid from operating their road, but for a mandatory injunction requiring them to remove their tracks. Of course by demurring the defendants admit the truth of the allegations, and the question is whether the facts thus established entitle the plaintiff to the relief asked for. It will be noticed that the bill does not deny absolutely the right of the two companies to occupy South Fourth street with their track, but only denies the right to occupy the street ‘under said ordinances.’ The reason assigned is that these ordinances are special, and ‘ that it was incompetent for the said city of Easton to grant the said privilege to the said Easton & Bethlehem Transit Co. by special ordinance without first providing the terms and conditions by a general ordinance.’</p> <p>“We do not think a general ordinance necessary. By act June 14, 1887, § 32, P. L. 392, it is provided in reference to cities of the second class, that no street shall be occupied by any person or corporation for any purpose ‘ without the authority of the councils of the city expressed by general ordinance duly passed and approved.’ The absence of any such enactment applicable to cities' of the third class, to which the city of Easton belongs, is quite conclusive that in the opinion of the legislature the public safety did not require it. But even if the law were otherwise there is no proper averment in the bill that a general ordinance was not passed. Every material fact, to which the plaintiff means to offer evidence, ought to be distinctly stated: Story’s Eq. PL § 528. The contention that the ordinances under consideration contravene the constitutional clause against the passing of any local or special law granting to any corporation any special or exclusive privilege, is fairly met bj^ Klingler v. Biokel, 117 Pa. 337, where it is held that a city ordinance is not a ‘law’ within the section of the constitution prohibiting special legislation. As to the contention that the city had no right to give away the privilege to occupy its streets or to create a perpetuity, it is enough to say that there is no averment in the bill that the city has done so.</p> <p>“We have thus far considered the plaintiff’s bill as if the only defendants were the two companies above named, and as if his only grievance was the occupancy of South Fourth street by said companies with the track of their railway. But the plaintiff has another grievance and a substantial one, as to which the city of Easton is made codefendant. He is the owner of a house and lot on said street, and the averment in the bill is ‘that the grade of the said Fourth street in front of the said premises was changed by raising the level of the street about one foot,’ causing irreparable injury. When or by whom the change of grade was made we are not informed, but on this single averment, we are asked to award an injunction compelling the Easton & Bethlehem Transit Co. to restore South Fourth street to the same condition it was in before the construction of its railway and also compelling the city of Easton ‘ to maintain the grade of said Fourth street in front of the premises aforesaid according to gradients established by the legal enacted ordinances of said city.’</p> <p>“We think this part of the bill is entirely too vague and uncertain to justify the relief prayed for, even if there were no other obstacles in the way of such relief. ‘It may be affirmed as an elementary rule of the most extensive influence, that the bill should state the right, title or claim of the plaintiff with accuracy and clearness; and that it should in like manner state the injury or grievance of which he complains, and the relief which he asks of the court. In other words, there must be such certainty in the averment of the title upon which the bill is founded, that the defendant may be distinctly informed of the nature of the case which he is called upon to meet. The other material facts ought also to be plainly yet succinctly alleged and with all necessary and convenient certainty as to the essential circumstances of time, place, manner and other incidents: ’ Story’s Eq. PI. § 241.</p> <p>“But suppose that the bill distinctly averred that the change of grade was made by the Easton & Bethlehem Transit Co., which seems to be the theory of the plaintiff, that alone would not be sufficient, for non constat that in making the change the company did not act merely as the agent of the city. Indeed it is a fair inference from one of the ordinances recited in the bill, and the fact is believed to be, that the change was made b3r the company with the knowledge and consent of the city authorities and under the supervision of its department of highways. If therefore the company simply made the physical change and in doing so acted as the agent of the city, which had the exclusive right to make the change, and to unmake it if neeessar}T, then the change was the act of the city, and the company can no more be enjoined to restore the original grade than one of its workmen. On the other hand, if the change of grade was made by the city, it cannot be doubted, especially in the absence of any averment that the change was illegally made, that the remedy of the plaintiff is on the law side of the court. For the reasons given we think that the case made by the bill does not entitle the plaintiff to equitable relief, and that the demurrer should be allowed. Even if the bill was in other respects free from criticism, it is an open question whether it is not bad for multifariousness : Story’s Eq. PI. §§ 271-286.</p> <p>“ February 11, 1895. Demurrer allowed.”</p> <p>Plaintiff appealed.</p> <p>Errors assigned were (1) in allowing the demurrer; (2) in holding that the ordinances granting permission to the Easton & Bethlehem Transit Company to occupy the streets of the city of Easton with its tracks, authorized the said company to change the grade ©f the streets as agent of the city of Easton; (3) in holding that the remedy of the plaintiff was on the law side of the court; (4) in holding that the bill of the plaintiff is vague and uncertain in the part charging the change of grade; (5) in not holding that the ordinances granting permission to the Easton & Bethlehem Transit Company and the Easton Transit Company to occupy the streets of the city of Easton with their tracks are utterly void.</p>

<p>Road law — Method of determining location of road.</p> <p>The proper method of determining the location of a road originally laid out by viewers is to ascertain the starting point, and the location of the middle line; then to determine the width of the road as laid out and opened, and finally to locate the outer boundaries of the road by measuring one half the width of the road each way from the middle line.</p> <p>Municvpal lien — Sidewalks.</p> <p>A borough constructed a sidewalk about two hundred and eighty feet long, and filed a lien for the cost. The owner who had neglected to build after proper notice, defended on the ground that a thin wedge at one end of the walk an inch or two inches wide at the base, and running to a point a few feet away, was over the line of the street, and for this reason no part of the sidewalk which was not over the line could be recovered for. The court charged that if any part of the sidewalk that the plaintiff notified the defendant to build on the line indicated in the notice would have to be constructed outside of the street as actually opened, the borough could not recover. Held, that the instruction was erroneous, as it left no room for the application of the maxim de minimis, and no power to distinguish between what was done rightly, and what was thought to be objectionable: Railway Co. v. Allegheny City, 92 Pa. 100; Fell v. Philadelphia, 81 Pa. 59 ; Commissioners of Kensington v. Keith, 2 Pa. 218, distinguished.</p>

Appeal, No. 374, Jan. T., 1898, by Clara M. Parker et al., from order of C. P. Lycoming Co., June T., 1892, No. 458, overruling exceptions to report of viewers. Petition of F. H. Keller, mayor of Williamsport, for appointment of viewers to assess benefits arising from tbe construction of sewers upon Park avenue and other streets in the city of Williamsport. Viewers were appointed and assessed benefits iu accordance with the prayer of tbe petition.

Appeal, No. 1, Jan. T., 1895, by-defendant, from judgment of C. P. Lycoming Co., June T., 1894, No. 51, on verdict for plaintiff. Assumpsit on a contract in writing. Before Metzger, P. J. At the trial it appeared that plaintiff claimed to recover for burners sold and delivered to defendant under a contract in writing, dated August 24, 1893. The contract was executed by J. H. Linck, chairman of the defendant company.

<p>Affidavit of defense — Contract—Entire and several contract — Parol evidence to vary written contract.</p> <p>In an action to recover the purchase money of a house sold under a written agreement, an affidavit of defense is sufficient to prevent judgment, which avers that the agreement sued on does not embody the whole contract; that the contract was for the purchase of three houses, one owned by plaintiff alone, and the other two by plaintiff and M.; that a written agreement was prepared for the purchase of the other two properties, to be executed in connection with the one sued on, and that it was not executed becauseM. was absent; that the defendant signed the-paper in suit, relying on plaintiff’s promise that the other should be executed by M. and himself not later than the next day; that it was never executed ; and that plaintiff had not tendered a deed for the other two properties, but only for the property mentioned in the writing upon which suit was brought.</p>

<p>Poacl law — Streets—Pavement—Original paving.</p> <p>No particular material is necessary to constitute a pavement. It may be made of anything which will produce a hard, firm, smooth surface for travel.</p> <p>A first pavement which, in the legal sense, exempts the abutting property owner from liability for any subsequent improvement may be defined generally as one that is put down originally, or adopted or acquiesced in subsequently by the municipal authority for the purpose, and with tire intent of changing an ordinary road into a street. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving; but if the intent and purpose are present, or can be fairly inferred, then there is paving, whatever the material may be.</p> <p>It seems that, prima facie, macadamizing is not street paving in large cities, while on the other hand there may be a presumption the other way in smaller cities or towns.</p> <p>Mere maintenance as a highway, and repairs and repavings for the purpose of such maintenance, are not sufficient to indicate municipal recognition of the highway as a street.</p> <p>An affidavit of defense to a municipal claim for paving is insufficient to prevent judgment, which merely avers that the road was macadamized by a turnpike company in 1811, so maintained until it was acquired by the city in 1873, and that since 1873 the city “has maintained the said road or turnpike as a public highway, and has repeatedly repaired and repaved the same with macadam.”</p>

<p>Appeal, No. 126, Jan. T., 1895, by-plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1892, No. 981, for defendant, on case stated.</p> <p>Case stated to determine whether rent was due by defendant to plaintiff for premises 1830 North 22d street, Philadelphia.</p> <p>The case stated set forth the fifth clause of the lease between the parties, which was as follows :</p> <p>“ Y. That either party hereto may determine this lease at the end of said term by giving the other notice thereof in writing at least three months prior thereto, but in default of such notice this lease shall continue upon the same terms and conditions as are herein contained for a further period of one year, and thereafter from year to year, unless or until terminated by either party hereto, giving to the other three months’ notice, in writing, for removal previous to the expiration of the then current term. Provided, however, That if the lessors shall have given three months’ notice, in writing, previous to the expiration of said term, or any extension or renewal thereof as above, of an intention to change the terms and conditions of this lease, and the lessee shall hold over after such notice, he shall be considered lessee under this lease, for such further period, and under the terms and conditions mentioned in such notice, and until this lease is terminated by notice, as hereinbefore provided.”</p> <p>The case stated continued as follows:</p> <p>“That on Feb. 6, 1892, the said defendant sent the following notice to said Savidge & Smith, the agents of said plaintiff, to wit:</p> <p>“ ‘ Philadelphia, Feb. 6, 1892.</p> <p>“ ‘ Messrs. Savidge & Smith,</p> <p>“ ‘ Dear Sir: At the expiration of my lease of property 1830 N. 21st., Phila., I desire to vacate the same. If the improvements now going on prove satisfactory I majr sign a new lease.</p> <p>“ ‘ Yours truly,</p> <p>“ ‘ J. A. Dempsey.’</p> <p>“ That the then current term expired on the 15th day of May, 1892.</p> <p>“ That said defendant did not vacate said premises at the expiration of his then current term, but continued in possession until the 15th day of July, 1892, when he vacated said premises.</p> <p>“ That said defendant paid his rent in full to July 15, 1892. That said plaintiff did not succeed in rerenting said premises until Dec. 1, 1892, and during the interval between July 15, and Dec. 1,1892, a period of four and one half months, the said premises remained vacant, and no rent was received by said plaintiff therefrom during said period.</p> <p>“ That plaintiff claims to recover the sum of one hundred and fiftjf-four dollars and ninety-one cents ($154.91), with interest from Nov. 1, 1892, as follows:</p> <p>Rent of said premises from Juty 15, to Dec, 1,</p> <p>1892, four and one-half months, at $30,00 per month.........$135.00</p> <p>Bill for repairs to washstand . . . 14.50</p> <p>Gas bill left unpaid by defendant . . . 5.41</p> <p>“ If the court be of the opinion that the plaintiff is legally entitled to recover from the defendant the rent of said premises for the said period of four and one half months, during which term said premises remained idle, then judgment to be entered in favor of plaintiff for the whole of said sum of one hundred and fifty-four dollars and ninety-one cents ($154.91), with interest from Nov. 1, 1892; if, however, the court be not of the opinion that plaintiff is entitled to recover the rent for said period, then judgment to be entered in favor of said plaintiff for the amount of said gas bill only, to wit, the sum of five dollars and forty-one cents ($5.41), with interest from Nov. 1, 1892.”</p> <p>The court entered judgment for plaintiff for $5.41. Plaintiff appealed.</p> <p>Error assigned was entry of judgment as above.</p>

<p>Appeal, No. 9, Jan. T., 1895, by-plaintiffs, from order of C. P. No. 3, Phila. Co., June T., 1890, No. 416, refusing to set aside nonsuit.</p> <p>Assumpsit to recover damages for breach of contract.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Depositions of several witnesses taken in Cartagena, Spain, were offered in evidence, to prove the trade custom referred to in the opinion of the Supreme Court. This evidence was objected to by defendant, and excluded by the court. [1-8]</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiffs appealed.</p> <p>Errors assigned were (1-8) rulings on evidence, quoting the bill of exceptions; (9) refusal to take off nonsuit.</p>

Appeal, No. 158, Jan. T., 1895, by plaintiffs, from order of C. P. No. 3, Phila. Co., June T., 1894, No. 919, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon a bond.

<p>Appeal, No. 167, Jan. T., 1895, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1893, No. 707, discharging rule to open judgment.</p> <p>Rule to open judgment.</p> <p>From the depositions taken in support of the rule, it appeared that in November, 1892, defendant directed Laughlin and Mc-Manus, brokers, to purchase two hundred shares of Reading Railroad stock, for which he paid in full. The brokers received and retained the certificate for the stock, and in December, 1892, at defendant’s request resold the stock and retained the pi’oceeds. Subsequently defendant directed the brokers to purchase shares of a traction company, and these in turn were sold by the brokers, and the proceeds retained by them. Similar transactions took place until on February 28, 1893, when defendant was indebted to Laughlin and McManus in the sum of $2,000, for which the judgment note in suit was given. Judgment was entered upon the note by the receiver of the firm of Laughlin and McManus, and subsequently defendant obtained a rule to open the judgment on the ground that the debt grew out of gambling transactions.</p> <p>The court discharged the rule, and defendant appealed.</p> <p>Error assigned was above order.</p>

Appeal No. 216, Jan. T., 1895, by defendants, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 1224, in favor of plaintiffs on case stated. Case stated.

Appeal, No. 239, Jan T., 1895, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1893, No. 776, refusing to set aside nonsuit. Trespass to recover damages for personal injuries. The facts appear by the opinion of the Supreme Court. Error assigned, among others, was refusal to take off non-suit.

Appeal, No. 225, Jan. T., 1895, by the Fidelity Insurance, Trust & Safe Deposit Company, from decree of O. C. Phila. Co., Jan. T., 1881, No. 337, dismissing exceptions to adjudication. Exceptions to adjudication. From the testimony taken before the auditing judge, and from the record, it appeared that Narcisse Francois Honoré Denis, the testator, died on January 7,1867, leaving a widow and children.

Appeal, No. 196, Jan. T., 1895, by city of Philadelphia, from order of C. P. No. 8, Phila. Co., June T., 1894, No. 791, dismissing exceptions to report of viewers. Petition for appointment of viewers to assess damages for the change of grade of Orthodox street. The report of the viewers was in part as follows: “11.

<p>[Marked to be reported.]</p> <p>- Road law — Widening street — Damages—Leasehold interest.</p> <p>A tenant who has leased a building after the passage of an ordinance providing for the widening of the street upon which the building is situated, is entitled to recover damages for the injury caused by the demolition and re-erection of the front of a building which had been erected before the enactment of the ordinance.</p>

Appeal, No. 316, Jan T., 1895, by City of Philadelphia, from judgment of C. P. No. 4, Phila. Co., June T., 1893, No. 445, on verdict for plaintiff. Appeal from report of viewers. At the trial, it appeared that plaintiff was the tenant of No. 710 Chestnut street at a monthly rental of $375 with a tenancy from year to year.

Appeal, No. 252, Jan. T., 1895, by defendauts, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1891, No. 176, on verdict for plaintiff. Scire facias sur mechanic’s lien. Before Arnold, J. At the trial it appeared that the record owner of the property against which liens were filed was Isabella Heron, sister of the contractor, Patrick Heron. The building contract provided that no lien should be filed.

Appeal, No. 180, Jan. T., 1895, by defendant, from judgment of C. P. No. 8, Phila. Co., Dec. T, 1892, No. 903, on verdict for plaintiff. Trespass for personal injuries.

<p>Appeal No. 101, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1892, No. 1260, on verdict for defendant.</p> <p>Scire facias sur municipal lien for taxes. Before Penny-packer, J.</p> <p>At the trial it appeared that the property in question was purchased on May 24, 1889, by a corporation known as the Keystone Battery A, National Guard, of Pennsylvania. In the summer of 1889, the company began the construction of an armory upon the lot from funds collected by voluntary subscriptions. After the foundation walls had been erected, and a part of the stone for the superstructure laid, the lot was found unsuitable, and the work was stopped. The company, however, did not formally undertake to sell the lot until November, 1891. In July, 1892, it was sold to the University of Pennsylvania. The proceeds of t.he sale, together with other funds collected, were applied to the erection of an armory elsewhere, which is now completed and in occupation. The city claimed to collect the tax assessed for the year 1891 upon the lot in question. The court gave binding instructions for defendant. Plaintiff appealed.</p> <p>¡Error assigned was above instruction.</p>

Appeal, No. 35, Jan. T., 1895, by defendant, from judgment of C. P. Clearfield Co., Feb. T., 1890. No. 163, on verdict for plaintiff. Assumpsit on a written contract. The facts appear by the opinion of the Supreme Court.

Appeal, No. 54, Jan. T., 1895, by-defendant, from judgment of O. P. Huntingdon Co., Dec. T., 1893, No. 12, on verdict for plaintiff. Trespass to recover damages for the death of plaintiff’s husband. Before Furst, P. J. The facts appear by the opinion of the Supreme Court.

Appeal, No. 63, Jan. T., 1895, by-defendant, from judgment of C. P. Clearfield Co., Sept. T., 1893, No. 594, on verdict for plaintiff. Trespass to recover damages for personal injuries alleged to have been sustained upon a defective sidewalk.

<p>Promissory note — Alteration —Frau d.</p> <p>An alteration of a negotiable promissory note made by a visible interlineation of the words, “ with interest at six per cent,” without the knowledge or consent of the maker, renders the note absolutely void even in the hands of an innocent purchaser for value.</p> <p>The rule of public policy which insures the protection of such an instrument from fraud and substitution will prevent the holder from amending his statement so as to waive the claim for interest and recover the principal on the note as originally made.</p>

Appeal, No. 221, Jan. T., 1895, by-defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1894, No. 42, on verdict for plaintiff. Assumpsit on a promissory note. Before Ftjrst, P. J. At the trial it appeared that on February 12, 1892, defendant delivered the note in suit which was for $5,150, to L. B. Doty. At the time L. B. Doty was soliciting subscriptions for the stock of a proposed company to purchase the Bedford Springs Hotel property.

<p>Railroads — Eminent domain — Consequential damages.</p> <p>Whore a railroad company constructs its railroad upon a portion of a town lot, the owner of the lot is entitled to recover, not only the value of the land actually taken,'but also damages for the depreciation in the value of the remainder of the lot, and the jury, in determining the amount of such damages, may consider all the injuries which would probably and naturally result from the reasonable and usual operation of the railroad, such as annoyance from smoke, noise, dust, and jarring of the house by passing trains.</p> <p>In such a ease it is proper to admit evidence of the construction of a water tank near plaintiff’s building, not as ground for damages by such construction, but that its location with reference to the property multiplied trains at that point, and that-a more frequent use of the roadbed on plaintiff’s property was the result.</p>

Appeal, No. 30, July T., 1894, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1892, No. 192, on verdict for plaintiffs. Trespass to recover damages for the death of plaintiffs’ son. At the trial, it appeared that plaintiffs’ son, a minor, was employed by defendant company as a track laj-er. There was evidence which tended to show that Samuel Evans, an employee of defendant, had charge of the work where Evilhock was employed.

<p>Appeal, No. 431, Jan. T., 1895, by defendant, from judgment of C. P. Erie Co., Sept. T., 1891, No. Ill, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Gunnison, P. J.</p> <p>At the trial it appeared that in April, 1886, plaintiff was' struck by the doors of a fire engine house which were suddenly and violently opened across the pavement on which she was walking. The doors were heavy wooden doors, ten or twelve feet high and six feet wide, which swung outward half way across the pavement. Large steel springs were attached to the outside of the doors, and so arranged as to open them rapidly when the bolts were drawn.</p> <p>The court charged in part as follows:</p> <p>“ If these doors, in the necessary operation of them, if their construction was such that they were dangerous to passers-by, the city is responsible for the result of such negligence as that.</p> <p>“You will see where the distinction is, and it is perhaps a pretty fine distinction. If the operating of these doors with reasonable care would have provided against danger and accident to the passer-by the city is not liable. If the necessary and natural, or probable operation of these doors was dangerous, even although accompanied by the exercise of ordinary care on the part of employees, then the city is liable for the result.</p> <p>“ The testimony in the case is somewhat contradictory. On the part of the plaintiff it is shown that these doors were frequently opened without any one appearing to be near them; that they were opened, after having started, with considerable violence and force; that frequently passer-s-by have been seen to hasten to avoid them as they were being opened — to dodge aside.</p> <p>“ The testimony on the part of the defendant is to the effect that they were never opened without some one being in charge ; some one assisting in the opening; some one being at the doors themselves; that they couldn’t be opened without at least starting them from the threshold; and some of the witnesses say that the springs, as the doors opened, became weaker — of course the tension would be less — -and that, therefore, the force was ’ less as it opened wider, until it came to a full stop when" in a direction across the walk itself.</p> <p>“ It may be that these doors were operated negligently at this time, and if not operated negligently that the accident would not have occurred.</p> <p>“ If the city provided them so that with ordinary care — now would it be ordinary care for an employee of the fire department to always take hold of the door and open it, and follow it out until it was open ? If that would be ordinary care, and by the use of that care accident would have been avoided, the city is not liable.</p> <p>“But if they were not so constructed that an employee of the fire department could open them in that way with safety, or conveniently — if they were so constructed that by opening the doors in that manner an employee would be in danger, for instance, from the horses, when they started out on the occasion-of an alarm of fire — then it would be a faulty construction, not the negligence entirely, of the employee, although the employee might have been negligent — it would be then, in some degree, at least, the negligence of the city; it would be concurrent negligence; and where an accident results from the concurrent negligence of two persons a plaintiff may bring suit against either one of them, or both of them, to recover damages.</p> <p>“ If you find that the injury in this case resulted from the negligence of the firemen and not from the faulty construction of the building, your verdict would be for the defendant, you find, on the other hand, that it was the result of the faulty construction of the building — if without the negligence of the city of Erie the accident would not have occurred, your verdict should be for the plaintiff.”</p> <p>Defendant’s points, among others, were as follows :</p> <p>“ 8. That the evidence in the above stated case does not show that the building opposite which the plaintiff was injured was dangerous in itself or the manner of its construction, and that the defendant is not liable for the injury suffered by the plaintiff, as alleged in her declaration. Answer: This point is refused.” [1]</p> <p>“ 4. That under all the evidence in this case the verdict of the jury must be for the defendant. Answer: This point is also refused.” [2]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 457, Jan. T., 1895, by Joe A. Davis, from decree of O. C. Erie Co., May T., 1891, No. 152, sustaining exceptions to master’s report.</p> <p>Exceptions to master’s report.</p> <p>Testator executed his last will and testament, March 7,1880, and died June 2, 1891. The only clause in his will material to this case is the following: “ My law books to be taken in charge by H. H. Benson; but to be divided among my nephews who may read law — not to be sold — never—rather to be burned.”</p> <p>Four nephews claimed an interest in the library. The executors under the will of the testator being in doubt as to whether the duty of making a division of said law books devolved on H. H. Benson, individually, or upon the executors of the will; also as to who were the legal beneficiaries under said provision in the will, petitioned the court to decree as to the proper person to make a division, and also the persons entitled to participate in the division of said books.</p> <p>The court appointed E. S. Whittelsey, master, who found the following facts :</p> <p>Two of the nephews, James B. Benson of Pa., and J. A. Davis of Ill., were admitted to the bar subsequent to the date of testator’s will but-.prior to his death, and they were practicing lawyers at the time of his death. The other two, Isaac Lloyd Benson and Paul A. Benson, had both been duly registered as students at law by the testator himself, but had not been admitted to the bar at the time of his death. Paul A. Benson completed his studies, was admitted to the bar, and engaged in the practice of the law. Isaac Lloyd Benson was registered as a student on July 7, 1875, but never completed his studies, and has never been admitted to the bar. He has been engaged in other business, but testified that he had never abandonedhis intention of completing his studies and becoming a member of the bar. Two witnésses testified that he had from time to time stated this intention to them.</p> <p>The master recommended a decree that the.law books of testator be divided by H. H. Benson equally between James B. Benson,. J. A. Davis and Paul A. Benson.</p> <p>On exceptions the court, in an opinion by Gunnison, P. J.', awarded the whole of testator’s library to Paul A. Benson. J. A. Davis appealed.</p> <p>Error assigned was sustaining exceptions to the master’s report.</p>

Appeal No. 221, July T., 1891, by defendant, from judgment of O. P. Crawford Co., May T., 1893, No. 85, on verdict for plaintiff. Trespass for personal injuries. At the trial it appeared that on Thanksgiving Day of 1892, plaintiff and defendant, with three or four other persons, went gunning for rabbits. The party became lost in a swamp, and plaintiff undertook to lead them out to a public road. In doing so he walked ten or twelve feet ahead of the defendant.

<p>Equity — Accounts—Bes adjudicator.</p> <p>The property of a railroad company was transferred by the owners to a trustee under an agreement that he was to sell the property and out of the proceeds to pay certain indebtedness of the company and then account for the balance. The trustee sold the property of the company and agreed with tlie purchasers to pay all claims against it except those secured by its bonds. P. A. Ahl, who had owned the bonds and a majority of the stock of the railroad company whose property had been so transferred, was a member of the firm of P. A. Ahl & Bro., and this firm made an assignment for the benefit of creditors. The assignees subsequently filed a bill against the trustee for an accounting, and a decree was entered against him for the balance in his hands, which he paid. A claim for land damages which had been in existence for several years prior to the filing of the bill, had been known by all parties, and was ripe for adjustment at the time the account was stated by the master but was not included there in, was subsequently paid by the purchasers of the railroad property who recovered the amount from the trustee under his agreement. Held, that the trustee could not recover from the assigned estate the claim which he had been compelled to pay, as it was a part of the subject-matter of the accounting, and the decree in the equity proceeding was conclusive.</p>

<p>Appeal, No. 14, Jan. T., 1895, by plaintiff, from judgment of C. P. Warren Co., Sept. T., 1895, No. 18, on verdict for defendant.</p> <p>Assumpsit on a claim property bond. Before Noyes, P. J.</p> <p>The material portion of the bond.in suit was as follows :</p> <p>“Whereas, a writ of replevin, wherein A. Y. D. Watterson, admr. est. of H. T. Knake dec’d is plaintiff and W. H. Thompson is defendant, hath issued out of the court of common pleas, in and for the count}» of Warren, and is made returnable on the first Monday of September next for 1 piano, of the price of six hundred dollars, which the said W. H. Thompson doth unjustly detain, as it is said — and whereas, the said W. H. Thompson doth plead property in the said piano by reason whereof the same cannot be given up under the said writ.</p> <p>“Now-the condition of the above obligation is such, that if the said W. H. Thompson shall be and appear at the county court of common pleas, to be held at Warren, in and for the said county, upon the first Monday of September next, then and there to defend and make good his claim to the said piano, and shall make return of the same, if return thereof shall be adjudged by law, and shall also save, keep harmless and indemnify the said sheriff in the premises, then this obligation to be void and of no effect; or else to be and remain in full force and virtue.”</p> <p>The principal facts will be found in the opinion of the Supreme Court.</p> <p>Plaintiff claimed that the bond was insufficient in form and that the sureties accepted by the sheriff were notoriously insolvent at the time the bond was taken; or at least their financial condition was such as to warn the sheriff that they were not likely to remain solvent until the replevin suit should be determined.</p> <p>When A. J. Hazeltine, a witness for defendant, was upon the stand, he was asked this question:</p> <p>“ Q. Had you knowledge of his (J. R. Timmons’) solvency on the 6th day of June, ’91, from what transactions you had with him and from report ? ”</p> <p>Question objected to by plaintiff’s counsel, — that the question of solvency cannot be proved by report.</p> <p>, Objection overruled. Exception by plaintiff’s counsel and bill sealed.</p> <p>Pursuant to which ruling the witness answered, “I considered him solvent.” [1]</p> <p>When Bryant H. Blood, a witness for defendant, was upon the stand, defendant’s counsel proposed to ask him whether A. R. Blood, on the 6th of June, 1891, was solvent or insolvent. It was objected to, that the witness could only testify to what Blood had and what he owed, from which the inference of solvency or insolvency could be deduced. The objection was overruled, and bill sealed for plaintiff.</p> <p>Pursuant to which ruling the witness replied that A. R. Blood was solvent. [2]</p> <p>When D. L. Gerould, a witness for defendant, was upon the stand, he was asked the question:</p> <p>“ Q. What was Blood’s condition as to being solvent or insolvent, upon the 6th of June, ’91?”</p> <p>Objected to for the same reasons given to the testimony of Bryant H. Blood.</p> <p>The court admitted his testimony as follows:</p> <p>“ I should consider him solvent.” [3]</p> <p>When William Muir, a witness for defendant, was upon the stand, he was asked this question :</p> <p>“Q. Did you know Blood’s reputation at that time for solvency, among business men in this neighborhood?”</p> <p>Objected to as above.</p> <p>Objection overruled.' Exception by plaintiff and bill sealed.</p> <p>Pursuant to this ruling witness testified that he did know the general reputation of A. R. Blood for solvency at the time indicated by the question and that it was good. [4]</p> <p>Plaintiff’s points, among others, were as follows:</p> <p>“9. By making return that he (said Fuellhart) had taken ‘ a claim property bond,’ the plaintiff could no longer look to the piano, which by the said Fuellhart’s act became thenceforth the property of the defendant in said replevin suit, and therefore the only remedy for plaintiff, in event of recovery in the replevin suit, was either by action upon the bond in the name of the sheriff for use of the plaintiff (had said bond been in proper form and sufficient), or by action against the sheriff for taking an imperfect or insufficient bond.” Answer (after reading and answering the plaintiff’s 11th point): “I answer the other points presented by the plaintiff in the negative, except so far as they have been adopted and affirmed in the general charge.” [6]</p> <p>“ 5. The condition in said alleged defendant’s property bond that said Thompson ‘shall make return of the same ’ (the piano) ‘if return thereof shall be adjudged,’is mere surplusage, as under the law and practice in such case, no such return of the property could be adjudged.” Answer (after reading and answering plaintiff’s 11th point): “I answer the other points presented by the plaintiff in the negative, except so far as they have been adopted and affirmed in the general charge. [7]</p> <p>The court charged in part as follows :</p> <p>“ [Several legal questions are raised in this case, some of which have been a little troublesome for the court. The first one of these is, whether or not the bond taken by the sheriff is in such form as to satisfy the requirement of the law. It is claimed by the plaintiff that it is not, and that the sheriff is liable by reason of taking the bond which is not in such form as to enable the defendant to get any benefit out of it. The only condition in the bond which is necessary to refer to is the condition, ‘That if the said W. H. Thompson shall be and appear at the county court of common pleas to be held at Warren, in and for the said county, upon the first Monday of September next, then and there to defend and make good his claim to the said piano/ and so on, then the bond ‘ to be void; or else1 to be in full force and virtue.’ It is claimed by the plaintiff that this means merely that Thompson shall be and appear at the September court for the purpose of making good his claim ; and as he did that-entered his appearance in due course .of the proceeding — he has satisfied the condition, and therefore the bond was of no value; that it has never been broken and was of no use to the plaintiff in that suit,</p> <p>“We think this is not a correct interpretation of the language used here. We think it means, in substance, that the defendant, the obligor, Thompson, should appear on the first Monday of September next, and should thereafter in due course of the proceedings make good his claim of title to the property. If he failed to do that, the bond is forfeited. And had the sureties been good and responsible, the plaintiff in this suit might collect the amount of the judgment from them — Thompson being himself insolvent.] [8]</p> <p>“ [With respect to the replevin bond given by the plaintiff, before the sheriff seized the property in the replevin, the law is established in Pennsylvania that the sheriff is responsible for the sufficiency of the sureties, not only at the time the bond is executed, but until the end of the proceedings. And it is argued, with a good deal of force, that the reasons which lean to such a construction apply with equal force to the claim property bond given by the defendant who keeps the property, claiming it as his own. In both cases the bond is taken by the sheriff, who is the sole judge of the sufficiency of the sureties. Both bonds contain a clause for the indemnification of the sheriff. Suits upon them must be brought in the name of the sheriff for the use of the person injured. In all these particulars they are alike, and the reasoning would seem to apply as well to one as to the other.</p> <p>“But it seems to us a very harsh rule that the sheriff should be held responsible for what he could not possibly foresee, and what may happen afterwards, notwithstanding the greatest foresight. It has been said in all the decisions of the state, I think, that the rule which makes him so liable on a replevin bond is a harsh one; but courts have felt bound to follow an established precedent, as the legislature so far has not seen fit to interfere and change it.</p> <p>“There being no authority in this case requiring me to hold otherwise, I think that justice and the.better reasoning of the case requires me to hold, that, if the sheriff, in good faith and with reasonable diligence and care, exercised his discretion and released the property only upon a bond which at the time was sufficient, he has done his duty, and ought not to be held in any further liability.]” [9]</p> <p>“ [I have said to you that the form of the bond is sufficient. Did the sheriff use due care and reasonable diligence to secure sureties who would be responsible, and probably responsible at the end of the proceedings ? He was bound to know that these sureties could not be called upon to pay until the end of the replevin proceedings. Of course, he was bound to require sureties whom he had reasonable cause for believing that they would not only be good at the moment, but good at the end of the proceedings; that they should be solvent — having sufficient estate to answer the amount of the bond, and such credit as would lead to a reasonable probability that they would be solvent at the end of the replevin proceedings. If he did that, made a reasonable inquiry as to these facts, acted as a prudent man would act in his own business, and just as careful, then he discharged his duty, and he would not be responsible. But if he failed in this respect he is responsible. If he failed to secure proper sureties bjr his own negligence, or failed to give such attention and care as a prudent man would give to his own business, under similar circumstances, then he would be liable to the plaintiff, otherwise not. If, when this bond was executed, the sureties were in fact — or if only one was in fact such a surety as I have described, having estate sufficient to answer the bond, and of such credit as would lead to a reasonable probability that he would continue to be good to the end of the proceedings, the sheriff would not be liable, even although .the sureties afterwards became insolvent, and the debt be lost by the plaintiff by reason of it. I think, gentlemen, this covers all the legal questions in the case.] [10]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned, among others, were (1-4) rulings on evidence, quoting the bill of exceptions; (6-10} above instructions, quoting them.</p>

<p>Corporations — Execution—Fien facias — Act of April 7,1870.</p> <p>If a corporation is purely private, and the public has no direct interest in its operations, or rights concerning them, its property, however useful and necessary for the conduct of its business, may be sold under an ordinary writ of fieri facias in the same manner as the property of t an individual ; and in such case the plaintiff in the execution is entitled to the fund raised by the sale, to the exclusion of general creditors. Neither I-Iopkins and Johnson’s Appeal, 90 Pa. 69, nor Bank v. Coke Co., 137 Pa. 601, are in conflict with this principle.</p> <p>Distinction shown between Foster v. Fowler, 60 Pa. 27, and Guest v. Water Co., 142 Pa. 610, on the one hand, and Girard Point Storage Co. v. Southwark Founding Co., 105 Pa. 248, and McLeod v. Central Normal School, 152 Pa. 575, on the other.</p>

<p>Justice of the peace — Penalties for taking illegal fees — Acts of March 28, 1814, and April, 2, 1868.</p> <p>The penalties provided by the act of March 28, 1814, P. L. 352, against justices of the peace for charging illegal fees are not applicable to the taking of fees illegal under the act of April 2, 1868, P. L. 3. The latter act provides no penalty, and the only punishment for taking a fee illegal under it is by indictment.</p>

Appeal, No. 372, Jan. T., 1895, by defendants, from judgment of C. P. Potter Co., June T., 1892, No. 117, on verdict for plaintiffs. Scire facias sur mechanics lien for material sold and delivered. Before Olmsted, P. J. At the trial defendants claimed that defective materials had been furnished for the roof, and they also claimed that store fronts furnished bjr plaintiffs were of poor quality.

Appeal, No. 213, Jan. T., 1895, by defendant, from judgment of C. P. Elk Co., on verdict for plaintiff. Assumpsit on policy of fire insurance. Before Mayer, P. J. At the trial it appeared that the policy sued upon was issued to plaintiff, Cora E. Mix.