Volume 17 — Pennsylvania Superior Court Reports

Appeal, No. 203, Oct. T., 1900, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 110, refusing to take off nonsuit in case of John D. Harris v. Walter M. Shaw, Administrator of John Shaw, Deceased. Trespass for an alleged wrongful sale of plaintiff’s goods. From the record it appeared that John Shaw leased premises used as a drugstore to A. E. Norton.

<p>Petition for reargument. Superior Court of Pennsylvania, Oct. T., 1900, No. 209.</p> <p>The case was originally reported in 16 Pa. Superior Ct. 26.</p>

<p>Petition for reargument. Superior Court of Pennsylvania. Oct. T., 1900, No. 156.</p> <p>The case was originally reported in 15 Pa. Superior Ct. 58'0.</p>

Appeal, No. 148, Oct. T., 1900, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1900, No. 950, making absolute a rule for judgment for want of a sufficient affidavit of defense in case of Charles S. Schofield, Receiver of the iEtna Mutual Live Stock Insurance Company, v. Charles H. Lafferty. Assumpsit to recover an assessment levied by a receiver of a mutual insurance company.

Appeal, No. 42, Jan. T., 1901, by defendant, from judgment of C. P. Columbia Co., May T., 1898, No. 14, on verdict for plaintiff in case of O. B. Mellick v. Pennsylvania Railroad Company. Trespass to recover damages for loss sustained by the obstruction of a public road. Before Dunham, P. J., specially presiding.

Appeal, No. 19, Jan. T., 1901, by Bird Bankes et al., from order of Q. S. Columbia Co., May T., 1894, No. 5, dismissing exceptions to report of viewers in the matter of the Catawissa and Main Township Road. Exceptions to report of viewers.

Appeal, No. 9, Jan. T., 1902, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1901, No. 771, on verdict for plaintiff in case of William R. Lewis v. Lackawanna County. Assumpsit by district attorney to recover fees. Tbe parties agreed upon the following facts as undisputed: 1.

<p>Municipalities — Cities of the third class — School districts — Assessment for paving — Act of May 23, 1889, P. L. 288.</p> <p>Under the Act of May 23, 1889, P. L. 288, a city of the third class cannot maintain an action of assumpsit against a school district to recover the cost of laying a pavement in front of a piece of property owned by the school district and exclusively used for school purposes.</p>

<p>Practice, G. P. — Trial—Remarks of commonwealth's counsel — Criminal law.</p> <p>An assignment of error to the action of the trial court in overruling exceptions to remarks made by the commonwealth’s counsel to the jury, will not be considered by the appellate court, where it appears that the trial judge in sealing the bill of exceptions refused to certify to the correctness of the statement of the language alleged to have been used by counsel.</p> <p>Jury— Challenge — Appeal.</p> <p>In disposing of a challenge for cause because of an opinion formed by the juror, great weight is to be attached to the finding of the trial judge, and nothing short of palpable error in such finding will justify a reversal.</p> <p>Criminal law — Burglary—Larceny—Pleading.</p> <p>A joinder of a count for burglary with one for larceny, both offenses arising out of the same transaction, is justified by all the precedents both ancient and modern.</p> <p>If there is one count in an indictment which will sustain the sentence, it cannot be reversed.</p>

<p>Appeal, No. 25, Oct. T., 1901, by defendant, from judgment of Q. S. Lancaster Co., Aug. T., 1899, No. 4, on verdict of guilty in case of Commonwealth v. Moses Pioso.</p> <p>Indictment for forgery. Before Landis, J.</p> <p>At the trial it appeared that the defendant was charged with altering the figures “ 55 ” to “ 355 ” in a promissory note. The note was made by A. L. Brubaker to the order of M. Pioso & Sons, and indorsed by them and Uriah Bitzer. The material facts of the case appear by the opinion of the Superior Court.</p> <p>Defendant offered to prove by Gabriel Pioso, that $300 of this note was paid to Mr. Bitzer. Objected to b3T the commonwealth. Dissallowed. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [6]</p> <p>Abram Pioso, a witness called by the defendant, was asked this question: “ Q. Now Mr. Pioso, state whether or not any money was paid to Mr. Bitzer. A. Yes, sir, we paid Bitzer $300 over a year ago.”</p> <p>Objected to by the commonwealth.</p> <p>The Court: Do not answer the question until the court tells you to. Disallowed. Last answer ordered to be stricken out by the court. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [7]</p> <p>Defendant offered to prove by the witness, Gabriel Pioso, that John Hertzler, cashier or treasurer of the Lancaster Trust Company, said to witness, or in his presence, that Bitzer wanted to hold the note in suit, as a sharp bit upon his father in their business transactions. Objected to by the commonwealth. Disallowed. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [8]</p> <p>A. L. Brubaker, a witness called by the commonwealth in rebuttal, was asked: “ Q. Had you or not, when you were talking that way, heard that the note had been raised from $55.00 to $355?”</p> <p>Objected to by the defendant. Allowed. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [9]</p> <p>“ A. The time I was there the last time ? Q. Yes, sir. A. I knowed it that time, yes. The time I was there last.”</p> <p>Joseph D. Pyott, a witness called by the commonwealth, was asked the following question: “ Q. Now, with the use of those glasses again, look at the figure ‘3’ and the figures ‘55’ for comparison, and state whether or not they are written in ink of the same color? ”</p> <p>Objected to by the defendant. Allowed. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [10]</p> <p>“A. Whether these were written with the same ink? Is that what I understand you? Q. Whether the figure ‘3’ and the two ‘5’s’ are written in ink of the same color? A. The two ‘ 5’s ’ have been written with an ink which, in drying, turns brown. The ‘3 ’ has been blotted, but all the. same, it was written with an ink that turns black. Q. Now, look at the figures ‘55’ and compare them with the signature, ‘A. L. Brubaker,’ and state whether or not the two ‘ 5’s ’ are written in the same ink as the name ‘ A. L. Brubaker.’ ”</p> <p>Objected to by the defendant. Allowed. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [11]</p> <p>“ A. The only place in this signature that offers any ground for comparison is the ‘ B ’ in ‘ Brubaker.’ That is the same color as the ‘ 5’s,’ apparently. Q. Now, look at the figure ‘ 3 ’ in the ‘ 355,’ and at the ink used in filling up the note, particularly at the largest word, the word in ‘ Three hundred ’ the ‘ T ’ and see whether or not the ink in the ‘ 3 ’ is the same color as the ink used in filling up the body of the note.”</p> <p>Objected to by the defendant. Allowed. Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [12]</p> <p>“ A. The ‘ 3 ’ and the ‘ L ’ here in ‘ Lancaster ’ in the body and the ‘ T ’ in ‘ Trust,’ seems to be written in ink of the same color. I must specify those letters, because the others are fine letters and I cannot tell, but where the stroke is broad, I can see how it dried out.”</p> <p>The court charged in part as follows:</p> <p>The evidence of the commonwealth shows that A. L. Brubaker and the defendant were dealing together in horses, and, in the course of their dealings, a note, dated August 23, 1898, for $55.00, was given by Brubaker to M. Pioso & Sons. This note was for sixty days, and came' due on October 22, 1898. [Brubaker tells you that he had not kept a memorandum of the time of its maturity, and that, as he happened to pass Pioso’s place, he was called in, or went in, and they spoke about the renew; 1 of this note. He tells you he signed a new note in blank, which was to be filled up for the $55.00, and that Pioso was authorized to get some one to fill it up for that amount, as Pioso himself could not write, and he says he knew that fact;] [5] and Pioso, at the time, called his attention to the danger of signing a note in blank, and he, Pioso, then put on the corner the figures “ 55.” This note was actually filled up for $355; is dated October 5,1898; made payable to M. Pioso & Sons, and indorsed by them and Uriah Bitzer, and was purchased by the Lancaster Trust Company. Brubaker also tells you that he never authorized Pioso to fill up the note for $355. Some time after this, he asked for his old note, and Pioso informed him that it was in his other coat; but, shortly after, the note was given by Pioso to him, and is presented here before you.</p> <p>In some way or other, Brubaker says, he ascertained that there was a note of $355 in the Lancaster Trust Company, and he thereupon saw Pioso and spoke to him concerning it. He says that Pioso said to him: “ Don’t say anything to Bitzer or the boys, I will lift it to-day; ” but he did not lift it. He also had a conversation with the Pioso boys the Tuesday before the note came due. He says: “ I met Cabe; I said: ‘ What are you going to do with it?’ He said: ‘You don’t owe it, and we are going to pay it.’ ” It appears that Mr. Davis, counsel for the Piosos, went with Brubaker to the trust company to lift the note on the Saturday preceding the Monday on which the note fell due, but the trust company refused to give it to him, stating that Uriah Bitzer had instructed them not to do so. The note was protested at maturity, and was subsequently lifted by Uriah Bitzer, the indorser. Brubaker says he did not pay the discount on the renewal, nor the stamps, and that Pioso had said to him the discount was only fifty cents and that he would pay it, and Pioso corroborates him in that respect. He signed no other note except the one that was to be filled up for $55.00, he alleges.</p> <p>The defendant, on his part, admits that there was an original note for $55.00, which became due as has been stated, and that Brubaker came to his (Pioso’s) place concerning the renewal of that note. It is alleged by the defendant that he, at that time, told Brubaker that he wanted $300 for himself, and, after having said something of the danger of making a note in blank, he put the figures “ 355 ” on the corner, and not “55,” as has been stated to you by Mr. Brubaker; and that, subsequently, by the defendant’s direction, the note was filled in by his (Pioso’s) daughter for $355, and was negotiated, as has been stated to you. That, of the $355, $300 was to be for Pioso’s use, and $55.00 was to be used in lifting the $55.00 note, and that this was done, and it was agreed that, when the note became due, Pioso was to pay $300 on it, and Brubaker the $55.00. He says Brubaker understood the whole matter, and said that he would sign the note, as Pioso had done lots of favors for him. You will also remember the testimony of Harry White, that he heard Brubaker say something about a receipt for $300 in the beginning of October, 1898; and, also, that of the Pioso boys, that Brubaker came to them before the note became due, and a number of times stated he had signed a note for $355, of which $300 was for their father and $55.00 for himself, and that they then said that, if that were true, they would pay the note, and that, in pursuance of this arrangement, they went to the bank with Mr. Davis, as has been before stated.</p> <p>You have listened attentively to the testimony in this case. You will take it all into consideration in arriving at your verdict. The credibility of all the witnesses is for you. You must determine who is telling the truth. If the defendant’s statement of the understanding between Brubaker and himself is correct, that the note was only filled up for the amount which it was agreed it should be filled up for, in accordance with the figures placed upon the. note in Brubaker’s presence, then the defendant would not be guilty of the crime charged in the indictment. But, if this note was prepared to renew the $55.00 note, and Mr. Brubaker’s statement is correct, that the figures “ 55 ” were put by Pioso on the corner, and that the writing was to be filled in to correspond to those figures, and that Pioso subsequently changed the figures, or had some one to do it for him, to “ 355,” and had the writing of $355 inserted by his daughter in the note, then the defendant would be guilty in manner and form as he stands indicted. Nor would it make any difference that, before the maturity of the note, his counsel went to the bank to lift the note. If a man forges a note, he. cannot escape the responsibility for bis crime by subsequently lifting it. The whole question reverts back to the original making of the note and his conduct at that time, and, if he forged the note, and it was discounted, as has been stated, any subsequent actions, when it is discovered, cannot relieve him from the consequences of his act. [Did he, therefore, in violation of his authority, fill in the blank note, or cause it to be filled in, for a larger sum than it was understood it should be filled in for, and change the figures from “ 55 ” to “ 355 ” ? If he did, you may find him guilty in manner and form as he stands indicted. If he did not, and his story is correct, your verdict should be one of not guilty.] [4]</p> <p>The counsel for the defendant has submitted certain points, which it is our duty to read and answer in your presence.</p> <p>1. Under the evidence submitted, the verdict should be in favor of the defendant. Answer: This point is refused. The jury must pass upon the guilt or innocence of the defendant. [1]</p> <p>2. The witness for the commonwealth, A. L. Brubaker, having testified that he signed the note in blank and did not tell defendant what amount it should be filled to, it was, therefore, not a forgery. Answer: This point is refused. We have already given what we believe to be the law in the case. [2]</p> <p>3. The figures “ 355 ” are not a material part of the note in suit, and an addition of the figure “ 3 ” to the figures “ 55 ” do not constitute a forgery. Answer: If the note was to be filled up for $55.00, and, contrary to the meaning and intention of the parties, it was filled up for $355, and the figures were changed by the addition of the figure “ 3,” the defendant may be convicted in manner and form as he. stands indicted. This fact with all the other facts of the act, is for the jury. [3]</p> <p>Verdict of guilty, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1-5) above instructions, quoting them. (6-12) Rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 6, March T., 1901, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1900, on verdict for plaintiff in case of D. M. Epler, Administrator of George Strickland, Deceased, v. David M. Metzger. Assumpsit on a promissory note.

<p>Decedents' estates — Widow's exemption.</p> <p>Where a decedent dies on May 26, his will is probated on June 4, and the widow makes her demand for exemption on June 22, and nothing has been done in the mean time except to have the personal property appraised, the widow’s claim is not barred by laches.</p> <p>Where a widow makes her demand for exemption in time, and such demand has been disregarded, and all the personal property has been sold after such demand, and it appears that the real estate has been devised to the executors, the orphans’ court has jurisdiction over the claim, and while it will not award the widow an immediate payment in money, it will decree that the widow shall be paid the exemption, unless the executors shall in the mean time proceed to have an appraisement made in the mode provided by law.</p>

<p>Appeal, No. 19, March T., 1901, by defendant, from judgment of C. P. Dauphin Co., June T., 1900, No. 391, on verdict for plaintiff in case of Joseph M. Laverty v. Harrisburg Rolling Mill Company.</p> <p>Assumpsit for wages. Before Weiss, J.</p> <p>At the trial it appeared that on March 12, 1900, plaintiff, together with Robert White, were working in the employment of defendant as puddlers. Defendant claimed that plaintiff had been negligent in heating a scrap ball, which negligence had resulted in injury to machinery. There was some evidence that plaintiff had put the scrap ball into the furnace in violation of orders. It appeared that after he had placed the scrap ball in the furnace he requested leave to stop work on account of sickness, and this leave was given to him by the night boss. He quit work and did not return until after the scrap ball had been taken from the furnace, and caused the injuries to the machinery of which the defendant complained.</p> <p>The court charged in part as follows :</p> <p>You will inquire whether such an order was given to him, and you will consider all the testimony that was given on that subject; whether such order was given to him in respect to the placing of this scrap ball into this furnace; whether an order ' or directions were put on the blackboard, which came to his knowledge, or whether he had verbal orders from the boss not to put this scrap ball into that furnace. If he disobeyed that order and it resulted in no damage to the defendant, he is not responsible, because the responsibility attaches to the result as a consequence of his disobedience to the orders of the boss, if he did disobey. Could he, Laverty, anticipate that this breakdown to the machinery would be the natural consequence of his placing this ball into the furnace ? If it was, if he could so anticipate it, then blame attaches to his conduct and the company has a right to make this defense! If he could not anticipate that the placing of that ball in the furnace would bring about the breakdown to the housing and the rolls, or if his conduct in placing that scrap ball in the furnace did not as a natural consequence produce the injury, then he is not liable. If he could anticipate it, and he did not bring a reasonable amount of skill in the discharge of his duty, and if it did produce the injury complained of, then he is liable; otherwise he may not be. You will consider how that was. Consider whether the injury and breakdown to the machinery was the natural consequence of his placing this scrap ball into the furnace, in disobedience of the orders of the person who had charge of the puddlers ; or was there any intervening cause to which he did not contribute or for which he was not responsible that brought about and caused this injury. If there was any cause between the placing of this ball into the furnace and the happening of the injury to which he did not contribute, or for which he was not responsible, then he can recover in this case so far as that matter goes. It is said, however, that he is responsible if anything happened after it was put in, notwithstanding that another person, also a puddler, working with him had charge of that heat. [Our view is, that if after he had placed this ball into the furnace and between that- time and the time he left there was anything done or omitted to be done by him during the process of heating, he is liable and the defendant can make defense for that reason, notwithstanding that White was there and had charge of the heat; not because he was a tort feasor, but because he was there present and did not do, if anything he ought to have done or omitted to do, what he ought to have done, during the process of heating between the time of the placing of the ball in the furnace and the time that he left. You will consider whether he did anything, whether there is any evidence which shows that he was negligent, or that he did not do what he should have done during the time that that ball was in the furnace before he left, and you will consider that carefully. He is responsible for his acts of commission or his acts of omission, as well as his want of skill, provided these things were the causes which operated in the result and damage done to the defendant company. He left at or about six o’clock or whatever the exact time was because he says he was ill, and the nature of that illness was detailed to you. He is not responsible for what happened after he left, unless his leaving was a wilful and deliberate act. If it was done because he was indifferent and unmindful of his duty and injury resulted to the defendant company in consequence of such indifferent leaving, then he could not recover in this case, because he owes faithfulness in the discharge of his duty, and the absence or want of that faithfulness operates to a deprivation of the money which is due him.] [1] But if the injury was done at the time he left in consequence of anything he had done theretofore, whether by placing the ball in, or anything that he may have done while the ball was in the furnace, he is liable, provided those acts were the cause of the breakdown to the rolls. The product had to be put through a squeezer, and I do not recall that he was present when that part of the work was to be done. If he left unmindful of his duty and without cause, and in consequence of that unmindfulness in the discharge of his duty injury resulted to the defendant, he is responsible; otherwise we say to you he is not. [If he left for cause and the thing which produced the injury originated or was caused after the time he left, then he is not responsible and he has a right to recover in this case.] [2] Defendant presented these points:</p> <p>' 3. It having been admitted by the plaintiff that he put into the puddling furnace, as part of the charge, the scrap ball or iron in question, if the jury shall find that such act in connection with insufficient heating was the proximate cause of the breakdown, the putting of such scrap ball or iron into the furnace coupled with insufficient heating was negligence per se, and if they shall further find that the amount of damages resulting from such act or acts was greater than the claim of the plaintiff, the verdict must be for the defendant. Answer : This point is refused. [8]</p> <p>4. The fact that the negligence or want of care of others may-have contributed to the injury cannot be set up as a justification on the part of the plaintiff for his negligent act, and if the jury shall find that the injury to the defendant resulted from the want of care or negligence of the plaintiff, either by his own act or in conjunction with others, he is answerable for the wrongs done by himself as well as by his cotort feasors, and it appearing by the uncontradicted evidence that the damages resulting from such wrongful acts exceeds the amount of the claim in suit, the verdict must be for the defendant. Answer : This point as it stands is refused. [4]</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

Appeal, No. 10, March T., 1900, by defendant, from order of C. P. Franklin Co., Dec. T., 1898, No. 104, affirming order of justice of the peace in case of Commonwealth v. I. Frederick Dukehart, John W. Lohman and Harry Helman. Certiorari to justice of the peace.

<p>Contract — Agreement in writing — Seal—Consideration—Family settlement.</p> <p>An agreement in writing, under seal, based by its own recitals on a “valuable consideration,” between brothers and sisters, the purpose of which is the equalization of the distribution of an estate, and therefore in the nature of a family settlement, is a binding and enforceable obligation.</p>

Appeal, No. 223, Oct. T., 1900, by plaintiff, from judgment of C. P. Delaware Co., June T., 1899, No. 179, on verdict for plaintiff in case of Morris Williams *v. William P. Hippie. Assumpsit on a promissory note. Before Johnson, P. J. From the record it appeared that the suit was brought on a promissory note dated December 9, 1898, for 1816.46. Allowing for certain payments, the balance claimed was $562.26.

<p>Replevin — Bond—Set-off—Pending suit.</p> <p>On the trial of the scire facias on a replevin bond, given voluntarily and containing a clause to confess judgment, an offer to prove that the defendant had a pending suit against the plaintiff in another forum is properly rejected, where there is no record of any judgment accompanying the offer, and it is admitted that there is not a judgment or adjudication in defendant’s favor.</p> <p>On the trial of the scire facias on a replevin bond an offer to prove that the defendant tendered a replevin bond, which the sheriff refused to accept, and refused to execute the writ, unless a bond with surety was given containing a clause authorizing a confession of judgment, which bond was not required by any rule of court, is properly rejected where it appears that the defendants gave the bond in suit which contained the clause demanded, and there is nothing in the record to show that it was not voluntarily given.</p>

<p>Assignment for creditors — Continuance of business — Landlord and tenant — lies adjudícala.</p> <p>Where a mining company has made an assignment for the benefit of creditors,-and the landlord of mining property leased to the assignor has permitted Lhe assignee to continue mining operations for over two years, and at the end of that time has appeared before an auditor appointed to pass upon exceptions to the assignee’s account, and has claimed priority for royalties accrued subsequently to the assignment, and such claim has been disallowed by the auditor and the court, and no appeal has been taken, the landlord thereafter has no right of action against the assignee and his sureties, for an alleged improper continuance of the business.</p>

Appeal, No. 9, Oct. T., 1900, by defendant, from judgment of C. P. Northampton Co., Jan. T., 1897, No. 8, on verdict for plaintiff in case of William L. Walter v. Aaron Transue. Assumpsit for a breach of contract to lease land.

<p>Will — Adopted children — Lapse of devise or legacy — Acts of April 8, 1833, P. L. 250, May 4,1855, P. L. 431, April 2,1872, P. L. 31 and May 19, 1887, P. L. 125.</p> <p>Where a will under seal mentions a legatee as an adopted child, and the legatee has died before the testator, the will cannot operate as a deed of adoption, inasmuch as the will does not take effect until the death of the .testator, and at that time the legatee was deceased.</p> <p>A will under seal which mentions a legatee as an adopted child cannot be taken as conclusive evidence of prior adoption, where the extrinsic evidence in the record is sufficient to warrant a finding that the fact of adoption was not proved.</p> <p>The 12th section of the Act of April 8, 1833, P. L. 250, which provides that no devise or legacy in favor of a child or other lineal descendant of a testator shall be deemed or held to lapse, by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or legatee shall have issue surviving the testator, does not apply to children adopted under the Act of May 4, 1855, P. L. 431 and May 19, 1887, P. L. 125.</p>

<p>Insurance — Live stock insurance — Mutual companies — Assessments.</p> <p>Where a person in applying for and accepting membership in a mutual live stock insurance company consents to be bound, so far as rates, premiums and payments are concerned, by the terms and provisions of the constitution and by-laws of the society, and the constitution and by-laws provided in express terms that losses shall be paid by assessments, and that any person applying for membership must agree to pay all assessments made by the board of directors for losses and expenses, the member cannot be heard to say that he is not liable for assessments. Given v. Kettew, 162 Pa. 638, distinguished.</p> <p>Insurance — Live slock insurance — Agent—Parol statements as to premiums.</p> <p>Where an application for a policy in a mutual insurance company provides that the poliey to be issued thereon shall be based entirely upon the statements and declarations in the application and not upon any statements of solicitors, a policy holder cannot after the expiration of two years from the taking out of the policy and after other persons have .become members of the company, and after the company has become insolvent, be permitted to set up against the collection of assessments, parol statements made to him by a representative of the company as to the amount of premiums which he would have to pay.</p>

<p>Insurance — Mutual fire insurance — Assessments—Notice—Forfeiture.</p> <p>Where a policy of a mutual fire insurance company provides that if assessments are not paid after sixty days’ public notice, the insurance shall be suspended, and it appears that a policy holder had neglected to pay assessments after sixty days’ public notice, and after he had paid assessments of which he had personal notice on three other policies for other parties, of which he had charge, he cannot in an action for a loss incurred during his period of default aver as a ground for avoiding the forfeiture that he had no personal notice of the assessment. In such a case the policy holder was not only bound by the public notice, but it must be assumed that he had actual personal notice of the assessments. The fact that the policy was not formally marked void on the books of the company until after the fire, is immaterial.</p>

<p>Appeal, No. 8, Jan. T., 1901, by defendant, from judgment of C. P. Wyoming Co., Nov. T., 1900, No. 238, on verdict for plaintiff, in case of McKinney, Evart & Company v. L. G. Stephens.</p> <p>Assumpsit for goods sold and delivered. Before Dunham, P. J.</p> <p>At the trial it appeared that the defendant L. G. Stephens on September 5, 1895, bought at sheriff’s sale a stock of goods belonging to B. D. Cooper. After the sheriff’s sale Stephens left the goods in Cooper’s store, and permitted Cooper to continue the business under the name of “ B. D. Cooper, Agent.” Subsequently Cooper as agent bought a bill of goods from defendant in order to replenish the stock. The traveling salesman who sold the goods testified as follows: “ I called on Mr. Stephens at his store that same evening, and told him that I had been at Elmhurst, and booked an order from B. D. Cooper; that B. D. Cooper claimed that he was Mr. Stephens’s agent, and I asked him if it was true. He said B. D. Cooper was his agent.”</p> <p>The court charged in part as follows :</p> <p>[Now, gentlemen, if L. G. Stephens purchased the goods of B. D. Cooper at sheriff’s sale, and left them in the possession of Mr. Cooper, or of Mr. and Mrs. Cooper, to carry on the mercantile business there in the name of B. D. Cooper, agent, then Mr. Stephens would be responsible to any party who had furnished goods to B. D. Cooper, as agent, upon such a state of facts.] [1]</p> <p>Defendant presented these points:</p> <p>2. If the jury believe from the evidence that Loren G. Stephens was security for B. D. Cooper prior to the sale September 5, 1895, on certain notes and to secure himself took B. D. Cooper’s note, on which his store goods were sold at sheriff’s sale and bought in by Loren. G. Stephens September 5, 1895, and that Loren G. Stephens left the goods so bought by him at sheriff’s sale in the store with B. D. Cooper, or with his wife, or with both of them, and that said B. D. Cooper and his wife continued the business, and that Loren G. Stephens took no supervision over the business, and had no interest in the acquisition of the profits of the business so carried on by B. D. Cooper and his wife, or by either of them, except in the repayment to him of what B. D. Cooper owed Loren G. Stephens as security for B. D. Cooper or otherwise, such a state of facts, without more, will not constitute B. D. Cooper as the agent of Loren G. Stephens, making him liable to the plaintiffs for the goods purchased by B. D. Cooper. Answer : This point we would affirm as a matter of law if there was nothing in the case except the fact that Mr. Stephens left the goods there. But, as I said before, if he left them there and allowed Mr. Cooper to carry on the business of selling the goods and purchasing others, and at the same time holding himself out as agent, without disclosing whom he was agent for, and Mr. Stephens knew that he was holding himself out as agent, he would be responsible for the goods that he purchased. But if he simply left them there and had no notice that Cooper was selling those goods, or was purchasing other goods and holding himself out as agent, as stated in this point, we would affirm it. [2]</p> <p>8. That Stephens by placing Cooper in charge of this stock of goods clothed Cooper with apparent authority to do such acts as were usual and ordinary in the business being carried on, including the power and authority to purchase goods for and on account of Stephens. And if Cooper purchased the goods in suit under such circumstances Stephens must pay for them. Answer: That we affirm if you find from the evidence that Stephens left the goods with Cooper to sell, and did not sell the goods to Mrs. Cooper; providing, you also find that Mr. Cooper carried on the business as agent and that Mr. Stephens had knowledge that he was thus carrying on the business. [3]</p> <p>Verdict and judgment for plaintiff for $130.72. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 219, Oct. T., 1900, by plaintiff, from judgment of G. P. Lancaster Co., Aug. T., 1897, No. 95, on verdict for defendant in case of George F. Alexander v. H. L. Buckwalter.</p> <p>Assumpsit by holder against maker on a promissory note. Before Landis, J.</p> <p>At the trial defendant alleged that the note had been materially altered, and that it was not the same note as the one which he had signed.</p> <p>Defendant offered to prove by Amos K. Barr that he was present in the room at H. L. Buckwalter’s, defendant’s house, when defendant and P. O’Brien were executing the note given by H. L. Buckwalter for $125 for goods sold, and he heard and saw the said parties at and during the time said note was being executed, and that the conversation was that the words “ or order ” were to be stricken out of said note, that “ Farmers’ National Bank ” was stricken out, and “ without defalcation for value received ” was to be stricken out, and the note was not to be negotiable or payable “to order,” “ or bearer.”</p> <p>Objected to by plaintiff.</p> <p>********</p> <p>Ml. Davis: “Q. Was George F. Alexander, the plaintiff in this suit, there? A. No, sir.”</p> <p>The Court: I don’t think that would make any difference. I think we will let him answer this.</p> <p>Offer admitted and plaintiff excepts. Bill of exceptions signed and sealed. [11]</p> <p>Mr. Weaver: “ Q. Were you present then in the room when Buckwalter and P. O’Brien were there? A. Yes, sir. Q. Where were they? A. In the kitchen. Q. At a table? A. Yes, sir. Q. In writing this note what did Buckwalter say and what did O’Brien; what did they agree to about the note ? ”</p> <p>Objected to by plaintiff.</p> <p>“ Q. What was said ? ”</p> <p>Objected to by plaintiff. Admitted. Plaintiff excepts. Bill of exceptions signed and sealed. [12]</p> <p>“ A. Mr. O’Brien filled out a note. Mr. Buckwalter said, * I would not sign that.’ So he made an alteration.”</p> <p>Objected to by plaintiff.</p> <p>The Court: You did not see that?</p> <p>“ A. Just by conversation.”</p> <p>The Court: Just state exactly the conversation and nothing else.</p> <p>“ A. That is all I mean to do.”</p> <p>The Court: Nothing except the exact conversation between these two men.</p> <p>“A. Well Mr. O’Brien asked him — ”</p> <p>The Court: And give their words as near as you can.</p> <p>“ A. It is a long time ago, I cannot just remember everything, but as near as I can tell he wrote a note. The conversation he had. Buckwalter says, ‘I won’t sign that.’ ‘Well,’ he says, ‘ what will yon sign ? ’ Mr. Buckwalter 'says to him, ‘ If you will write a note payable at n^ house, at home, I will sign it, otherwise I would not sign no paper.’ He says, ‘ That is all right; payable at your house I will make it, payable right at your house,’ he says.”</p> <p>Objected to by plaintiff.</p> <p>“ A. That is about what was said. Q. What was said, if anything, in regard to the words ‘ or order ? ’</p> <p>Objected to as leading.</p> <p>“ A. He said that he would strike that out, he would not sign that. Q. What did he say in regard to the Farmers’ National Bank? A. Well he would not sign a note of that. Q. What did he -say about defalcation for value received? A. He did not want that oh either. Q. That is, Mr. 'Buck-waiter in O’Brien’s presence ? A. Yes, sir.”</p> <p>Mrs. Anna Wenger, a witness called by the defendant, was .asked this question: “Q. Did I understand you to say that you heard a certain conversation and then saw them write? A. Yes, sir. Q. Is that what you meant. A. Yes, sir.”</p> <p>The Court: We will let her state just the conversation and nothing else in regard to the note. [13]</p> <p>Objected to by plaintiff. Admitted. Plaintiff excepts. Bill of exceptions signed and sealed.</p> <p>The witness: “Well, they had a note, and Mr. Buckwalter said he would not sign a note until ‘or order’ was crossed out, and ‘ The Farmers’ National Bank ’ and ‘defalcation for value received.’ Q. Those had to be crossed out? A. Yes, sir; had to be crossed out, and Mr. O’Brien would come himself to the house for the — ”</p> <p>Objected to by plaintiff.</p> <p>• Mr. Weaver: “ Q. You heard that? A. Yes, sir. Q. You heard Mr. O’Brien and Mr. Buckwalter talking about that? A. Yes, sir.”</p> <p>The court charged as follows:</p> <p>Gentlemen of the jury: The plaintiff in this case has brought suit against H. L. Buckwalter, the defendant, to recover the amount of a promissory note, with interest. That note, which he claims is due and owing to him, reads as follows: “$125. Lancaster, October 7th, 1895. Twelve months after date, I promise to pay to the order of (‘ order of ’ is stricken over with the pen) P. O’Brien, or bearer, at the Farmers’ National Bank of Lancaster, (‘ Farmers’ National Bank of Lancaster ’ is stricken over with the pen,) to be paid at H. L. Buckwalter’s house (is inserted in the note,) one hundred and twenty-five dollars, without defalcation, for value received. (Signed) H. L. Buck-waiter. Credit the drawer.” On the back of the note appears: “ Leopard Hotel, Lancaster, Pa., $5 paid on this note. P. O’Brien.”</p> <p>The plaintiff states, that on January 29,1896, he became the owner of this note, for a valuable consideration, and that neither it, nor any portion thereof, has since been paid to him. He states to you that he obtained it from one Gallagher, who received it from other parties. The note was originally given to P. O’Brien, and bears upon its face certain erasures and alterations. Therefore, P. O’Brien testified in plaintiff’s behalf that the note was received from H. L. Buckwalter on October 7, 1895, in the condition that it now is, and Mr. Alexander says that it is now in the same condition as it was when he purchased it.</p> <p>The defendant, on his part, states that he did sign a note payable to P. O’Brien, on October 7, 1895, but that the note in suit is not the one he signed that day. He states that the note he signed read as follows: “ Lancaster, Pa., Oct. 7, 1895. Twelve months after date, I promise to pay to the (‘ order of ’ stricken out) P. O’Brien, at the (‘ Farmers’ National Bank of Lancaster,’ also with a line through these words,) to be paid at H. L. Buckwalter’s house (is inserted,) one hundred and twenty-five dollars, (‘ without defalcation, for value received,’ these words also stricken over). Credit the drawer.” And his name signed to it: “ H. L. Buckwalter.” He says he would not sign the note until these changes were made, and that the words “ or bearer ” did not appear in the note which he signed. [He states to you that this note was signed at his house, and that there were present Amos K. Barr and his daughter, Mrs. Annie Wenger. Neither of these two last named parties saw the note, and all they can testify to, is a conversation between O’Brien and the defendant, at the time they were sittiijg at the table, as they and Buckwalter himself say preparing it. You will remember what that conversation was, and to what extent it differs from the note in suit, which you have had before you and examined for yourself.] [10] Buckwalter admits that he never heard of any other note except the one in suit, that is, that no other note was ever presented to him for payment.</p> <p>[To contradict the defendant, the plaintiff called Alderman Halbach and Mr. J. D. Pyott. Mr. Halbach says that, at the hearing in this case, the defendant admitted that he signed the note, but he also states that there was some talk by Mr. Weaver at the time of the name being Mr. Buckwalter’s, but that he did not sign it.] [3]</p> <p>[In the first place, we say to you,- that if he did not sign this note at all, then it would be a forgery, and he would not be liable to the plaintiff, even though the plaintiff was an innocent holder for value'; for, if he did not sign the note, it was not his note, and he could not be held answerable for it. Therefore, it will be your duty to pass upon that question first. If you find that the note is a forgery, then you will render a verdict in favor of the defendant. If you find that it is his genuine signature, then there will be an- additional question for you to pass upon, as to whether any material alterations have been made in the note since it passed out of the hands of the maker.] [1]</p> <p>The maker of negotiable paper is always presumed to have issued it clear of all blemishes, erasures or obliterations, and, when any such appear on the face of a note, it is the duty of the holder to show that it was in that condition when issued. The policy of the law is against all tampering with written instruments, and especially commercial paper. He who takes a blemished bill or note, takes it with all its imperfections on its head. The very fact that he receives it, is presumptive evidence that it was unaltered at that time. Therefore, it being conceded in this case, that there are alterations on the face of this note — and an inspection of it shows manifest erasures and interlineations — the duty, in the first place, became incumbent upon the plaintiff to show that he was a holder for the value of the said not.e — that is, that he had paid or given something valuable for it; and, in the second place, that these erasures and interlineations were made before the note passed from the hands of Mr. Buckwalter, its maker. He has shown you that he was a bona fide holder, and that fact has not been contradicted by the defendant. In support of the second proposition, he has offered P. O’Brien to show that the note is now in the same condition as it was when it was originally given by Buck-welter, and your inspection of it and the testimony of Mr. Pyott may also be taken into consideration upon this point. It is the law that the alteration of a promissory note in a material part, without the authority of the maker, will render it void as to the maker, even in the hands of an indorsee. Where such a note has been tampered with and the alteration appears upon its face, the holder takes it with notice and is chargeable with all the consequences of such notice and cannot recover, unless the alteration is affirmatively shown by him to have been innocently made, without prejudice to the rights of the parties sought to be charged with liability, or to have been made with the concurrence of the maker. [If, therefore, you believe that this note sued upon is not the note of Buckwalter, but is forged by some one, and that the note that he gave on October 7, 1895, is not this note, then your verdict must be for the defendant.] [2] If, on the other hand, you find that this note is the genuine note that he gave on October 7, 1895, and is in the same condition as it was at that time — that is, unaltered in any material part since that time — then your verdict must be for the plaintiff for the amount of the note, with interest; for it makes no difference whether Buckwalter received any value for the note or not, nor would it make any difference if he was, at that time, and before the signing of the note, tricked into signing it, without a knowledge that the words 11 or bearer ” appeared in the note, nor would it make any difference where it was payable, because that is entirely immaterial to this case. We cannot here enter into what was the original consideration for the note. There is no testimony on that point before you, and you cannot consider that question at all. The court has said, in the progress of the trial, that that question does not enter into this case. In fact, it makes no difference if there was no consideration for the note, for the maker could have signed the note for the accommodation of O’Brien, and he would still be liable to any innocent holder for value, who afterwards became the owner of it.</p> <p>[Secondly: If Buckwalter signed the note, and you find this to be the note that he signed, but you also find that, after it was signed and delivered, it was altered by inserting the words “ or bearer ” in the note, then we say to you, that that is such a material change in the note as would render it void as against Buckwalter, and your verdict, in such case, must be for the defendant.] [4] We do not think that any serious question can arise as to the words “ without defalcation, for value received,” because there is plainly no alteration to these words on the face of the note here presented, and, if the note is a forgery, we have told you there can be no recovery, and, if the note is a genuine note, it would seem, on the face of this note, that Buckwalter is mistaken in that these words were crossed over, for no indication of that kind appears upon the face of the note itself, nor do we think that those words, as we have said, are material to this issue, for they do not, in any way, affect the recovery upon the note.</p> <p>The whole question turns upon the two points : Is this the note signed with the genuine signature of Buckwalter? Second, was the note altered after it passed out of Buckwalter’s hands in a material part, to his prejudice? If either of these questions is answered in the affirmative, your verdict must be for the defendant. But, on the other hand, if you find, as I have before stated, that it is the genuine note of Buckwalter, unchanged from the time that he signed it until the present date, your verdict must be for the plaintiff.</p> <p>The gentlemen have submitted certain points to us, which it is our duty to read and answer, and we will now proceed to do so. The plaintiff’s points are:</p> <p>1. If the jury believe the signature to be genuine of H. L. Buckwalter, the defendant, to the note in suit, then their verdict should be in favor of the plaintiff. Answer: We say, in answer to that, if the jury believe that the signature of PI. L. Buckwalter is genuine, and also believe that there are no material alterations of the note as originally signed, then the verdiet should be in favor of the plaintiff. This would not be so if the note was materially altered. [5]</p> <p>2. If the jury believe the defendant testified at the hearing, before Alderman Jacob Halbach, that it was his signature to the note in suit, he is discredited, and the verdict should be in favor of the plaintiff. Answer: We cannot affirm this point as stated, because it involves a disputed part of the testimony, which must be submitted to you to pass upon. [6]</p> <p>3. If the note in suit is genuine, then, even if the words “ or bearer ” were added afterwards, it is not such an alteration as is apparent upon the face of the note, if such words “ or bearer” were filled in the note before it passed into the hands of Alexander, the plaintiff. Answer: This point is refused. We have already stated to you the law raised by it in our general charge. [7]</p> <p>The defendant’s points were :</p> <p>1. .If the jury find that the signature to the note offered in evidence is not the signature of H. L. Buckwalter, the verdict must be for the defendant. Answer: That point is affirmed. We have already so stated to you. [8]</p> <p>2. If the jury find that the words “or bearer” were inserted in the note in question by P. O’Brien, or any one else, after he received the same from H. L. Buckwalter, the defendant, and find the note signed by H. L. Buckwalter, it was such an alteration in the said note as would make it void in the hands of the present holder, the plaintiff, and the verdict must be for the defendant. Answer: We have already stated to you that this is the law, if the alteration was made without Buckwalter’s consent. [9]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-9) above instructions, quoting them. (10-13) Rulings on evidence, quoting the bill of exceptions.</p>

<p>Negligence — Railroads—Grossing tracks at station.</p> <p>The rule to “ stop, look and listen” is not always applicable to passengers leaving a train and crossing a track to reach the depot at the point of destination. There are duties which spring from the relation existing between the carrier and its passengers. It is the duty of the company to provide for the safe receiving and discharge of passengers. It is bound to exercise the strictest diligence not only in carrying them to their destination, but also in setting them down safely, if human care and foresight can do so.</p> <p>It is not necessarily negligent for a railroad company to run a train into a station where another train is receiving or discharging passengers, but circumstances may make it so, and whether running an express train at a high rate of speed into a station at approximately the moment of time a local train is discharging passengers, can be called negligence, is for the jury to say.</p> <p>Failure to look for trains when crossing a track in passing from train to station is not necessarily negligent. The circumstances of the case must determine whether this is so or not. The railroad company is bound to provide a way by which passengers may pass in safety. If the way provided crosses a track, no train should be permitted to pass over at the point where passengers are required to cross it while a train on the opposite track is receiving and discharging passengers.</p> <p>In an action against a railroad company to recover damages for the death of a young child, a verdict and judgment for plaintiff will be sustained where the evidence tends to show that the mother and the child alighted from a train on the far track from a station ; that between the place where the plaintiff and child alighted and the station platform the roadway had been filled with cinders and ashes, and that this was the way provided by the company for passengers to cross the track; that plaintiff saw other passengers directed by the conductor crossing in this way; that plaintiff stopped and looked before she went upon the first track and also between the tracks, and seeing nothing crossed over, and when she was about stepping on the station platform the child was struck by a fast express train and killed.</p>

<p>Negligence — Parent and child — Survival of action for death of child.</p> <p>Where a father brings an action of trespass to recover damages for the death of his minor daughter alleged to have been caused by the negligence of the defendant, and it appears that the daughter left neither mother, husband nor children to survive her and the father dies before the case has been brought to trial, the personal representative of the father may be substituted, and may prosecute the suit.</p>

<p>Practice, G. P. — Continuance of cause — Appearance.</p> <p>In an action of trespass against a city and a police officer for false arrest, where it appears that the writ was served on the city but not on the officer, that the city solicitor appeared for both defendants, and the officers subpceaned the witnesses, and was called by both parties as a witness, the Superior Court will not review the discretion of the lower court in refusing tlie officer’s request for a continuance, because he had not been served, and because he had not knowledge until after the trial was begun, that he was a party defendant.</p> <p>A motion to continue a cause is addressed to the sound discretion of the court, and its action is not ordinarily reviewable on appeal.</p> <p>Trespass — False arrest — Arrest without a warrant.</p> <p>Upon reasonable suspicion, founded either on his own knowledge or the information of others that a felony or such breach of the peace as will probably prove to be a felony has been committed, the officer may arrest without a warrant, but he cannot arrest for an ordinary misdemeanor unless present at the commission of the offense.</p> <p>An officer has no right to arrest without a warrant for an indecent exposure of the person, where he was not present and did not see the offense committed.</p>

Appeal, No. 13, Feb. T., 1901, by appellant, from order of C. P. Lycoming Co., Dee. T., 1898, No. 550, refusing to take off nonsuit in case of W. H. H. Miller v. The Overseers of the Poor of the City of Williamsport. Scire facias to revive judgment standing on the docket of a justice of the peace. Appeal from judgment of a justice of the peace on a scire facias.

<p>Appeal, No. 22, April T., 1901, by defendant, from order of C. P. No. 8, Allegheny Co., May T., 1898, No. 270, discharging rule to show cause why an order marking a judgment to the use of another should not.be set aside, and the defendant let into the defense, in case of Henry Imhoff v. Alvine Fronhoeffer.</p> <p>Rule to show .cause why an order marking a judgment to the use <of a third person should not be set aside, and the defendant be let into a defense.</p> <p>The facts are set forth in the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

<p>Practice, O. P. — Trial—Evidence—Province of court and jury.</p> <p>There is in every ease triable by jury a preliminary question of law for the court, whether or not there is any evidence from which the fact sought to be proved may be fairly inferred; if there is, that is sufficient to send the case to the jury, no matter how strong may be the proofs to the contrary. In deciding this preliminary question the court must of course take the evidence as true with every inference favorable to him who has the burden of proof which a jury may reasonably draw.</p> <p>In an action to recover commissions on the sale of real estate where the plaintiffs testify that they were employed by defendants to sell property at a certain commission, and that they signed the agreement of sale as agents of the defendant, the evidence is sufficient to submit the ease to the jury, although defendant denies that plaintiffs were his agents and avers that they were mere volunteers.</p>

<p>Appeal, No. 36, Oct. T., 1901, by Elizabeth L. Crawford, from decree of O. C. Montgomery Co., dismissing exceptions to auditor’s report in the Estate of Joseph Crawford, Deceased.</p> <p>Exceptions to report of J. H. Maxwell, Esq., auditor.</p> <p>Weand, J., filed the following opinion :</p> <p>By the will of Joseph Crawford it was provided, inter alia, as follows: “ I desire and hereby authorize my executors to dispose of at public sale all my real estate, household goods and furniture of every kind together with stock and farming utensils, and to pay over to my daughters hereinafter named, the following sums, viz: To my daughter, Martha Y. Anderson, the sum of two thousand dollars; to my daughter, Ann Maria Crawford, the sum of three thousand dollars; to my daughter, Elizabeth Long Crawford, two thousand five hundred dollars, and to Hannah Emily Crawford, the sum of two thousand five hundred dollars. After paying the above legacies to my daughters as above named, I desire and order my Executors to dispose of the residue and remainder of my property as follows, viz: To William H. Crawford, Martha Y. Anderson, John Y. Crawford, Ann Maria Crawford, Elizabeth Long Crawford and Hannah Emily Crawford, to be divided equally among them, share and share alike. Fourth — -The two thousand five hundred dollars first bequeathed to Elizabeth Long Crawford together with her distributive share of the other property, I desire and request may be held by my executors for the use of the said Elizabeth Long Crawford. I hereby empower them to do so. The interest accruing on the principal of the said Elizabeth Long Crawford’s share of my estate which said principal I order and desire them to invest for her use. The said interest to be paid over to her annually to dispose of as she may think proper. Should my said daughter Elizabeth Long die without lawful issue, her share held in trust by my executors shall then be equally divided between her brothers and sisters or their lawful heirs, share and share alike.”</p> <p>Wm. H. Ramsey was appointed trustee to hold the share bequeathed to Elizabeth L. Crawford, and she being now deceased, an auditor was appointed to distribute the balance remaining in the hands of the trastee.</p> <p>Before the auditor, four questions arose for his decision, viz:</p> <p>1. What estate did Elizabeth Long Crawford take ?</p> <p>2. If she took but a life estate, when did the estate in remainder vest? and in whom did it vest?</p> <p>8. If it vested in her brothers and sisters at death of Joseph Crawford, is it to be distributed amongst the heirs per stirpes or per capita ? and</p> <p>4. Should it be distributed directly to the descendants of the brothers and sisters or to the executors and administrators ?</p> <p>The auditor has found that Elizabeth Long Crawford took but a life estate; that the remainder vested in her brothers and sisters at the death of the testator; that the distribution should be per stirpes, and awarded the respective shares to the executors and administrators of the brothers and sisters, who were all deceased at the death of Elizabeth L. Crawford, and all leaving children surviving, except Anna Maria Crawford, a sister. Hannah Emily Yocum also left surviving her a husband, still living.</p> <p>Exceptions were filed to the report and error is alleged to every finding.</p> <p>If we seek the intention of the testator from the plain meaning of his language, there can be no difficulty in finding that he intended Elizabeth Long Crawford to have but a life estate. To every other son and daughter he bequeathed a legacy absolutely and without qualifying words. The share of Elizabeth, however, is to be held in trust by his executor, the principal to be invested for her use and the interest to be paid to her annually to dispose of as she may think proper. It is difficult to see why this distinction between his children should be made unless the testator intended Elizabeth’s share to be different from the others. He uses the expression “ to be held by my executors for the use,” etc., showing clearly that Elizabeth was not to receive it, and then couples it with a direction to invest and pay her the interest. When he comes to dispose of the principal after Elizabeth’s death he again speaks of “ her share held in trust,” showing that she was not to have it in her lifetime and that it was to be held in trust until that time. He created an active trust during the life of Elizabeth.</p> <p>It is contended that the use of the words “ should my daughter, Elizabeth Long, die without lawful issue,” converts this into an absolute estate. That Elizabeth, herself, had no such thought is evident from the fact that for forty-three years she made no such claim, and her administrators should now be estopped from so doing, there being no allegation that her estate is insolvent or that there would be any other claimants to the fund other than those before us.</p> <p>We think, moreover, that the legal construction to be placed upon testator’s words import but a life estate. In Bentley v. Kauffman, 86 Pa. 100,101, Chief Justice Ag-new said: “ Did Leon Kauffman take an estate for life, or absolutely, in the personalty bequeathed to him by his mother, Hannah Ann Kauffman? We think it was a bequest of the interest or income for life only. That a bequest of income or profits will carry an absolute estate in the principal or corpus of the estate in some cases is well settled, but the ground of the conclusion in such instances is that no contrary intent of the testator appears to sever the product from its source, and the fruits, therefore, carry with them that which bears them. In the interpretation of a will, however, in order to gather the testator’s intention, the words income and interest as distinguished from the corpus or principal, and the enjoyment for life only have an important bearing: Earp’s Appeal, 75 Pa. 119; Ogden’s Appeal, 70 Pa. 501. Hence when the intent clearly appears to carry the corpus or principal over to others, the words of the will must be permitted to have their proper force. Here, the bequest of the interest only, for life', connected with the provision immediately following, is inconsistent with an intent to confer the principal absolutely upon him. The provision is: ‘If my son, Leon Kauffman, should die without issue, it is my 'desire that the whole amount of my investment be given to' the orphans’ asylum.’</p> <p>The trust is an active one, intended to preserve the contingent remainders: Kay v. Scates, 87 Pa. 31; Scheets’s Est., 52 Pa. 257; Eachus’s Appeal, 91 Pa. 105.</p> <p>Moreover, a limitation over on the death of the first taker, or a direction that the interest of money shall be paid annually to him for life, is held to be evidence that he has but a life interest : Myers’s App., 19 Pa. Ill; Scheetz’s Est., supra; and in Reek’s Appeal, 78 Pa. 432, it was held, that “ all mere technical rules of construction must give way to the plainly expressed intention of testator, if that intention is lawful.” Judge Bland’s opinion in Gerhard’s Estate, 160 Pa. 253, covers all the law bearing on the case and sustains the auditor in his conclusion on this point.</p> <p>To whom, then, and at what time, did the principal vest ? It is contended that the expression, “shall then be equally divided,” fixes the time of vesting, and that as all the brothers and sisters were then dead, i. e., at death of Elizabeth, that the lawful heirs of said brothers and sisters are to be considered the remainder-men. We think this interpretation cannot, be sustained. “ Then ” was not used to fix time, but a contingency. If Elizabeth should leave no issue the estate passed to her brothers and sisters. “ Then ” was used in the' sense of “ in case ” she should so die. Having provided that the principal was to be held during Elizabeth’s lifetime, of course it could not be distributed until her death, and testator was under no necessity of again fixing the time. He was simply providing for a contingency upon the happening or not happening of which would determine the takers, but the remainder was to the brothers and sisters contingent upon Elizabeth’s death without issue. In Buzby’s Appeal, 61 Pa. 111, the court said: “ Nor will the use of the word ‘ then ’ as introductory to the bequest or devise over after the death of the tenant or legatee for life, prevent the general rule from applying, unless it is so used as clearly to indicate that the next of kin or heirs living at the death of the tenant for life are intended by the testator.”</p> <p>Where a testator directs that after the expiration of a particular interest his estate shall go to his “ right heirs according to the intestate laws of the state of Pennsylvania,” he is to be understood as meaning the person who would have taken at the time of his death, and not at the time appointed for their taking, unless the will affords clear and unequivocal evidence to the contrary. Stewart’s Estate, 147 Pa. 388, Patterson v. Hawthorn, 12 S. & R. 112, Mull v. Mull, 81 Pa. 393, and Muhlenberg’s App., 103 Pa. 587, are all to the effect that this was a vested estate in the brothers and sisters immediately upon the death of testator, subject to be divested by the birth of issue to Elizabeth, and this being so, the distribution must be made per stirpes. The nephews and nieces take what their ancestors would have taken. There is no use of the word “grandchildren,” nor anything to rebut the idea of an equal distribution amongst all his children, and he could not have anticipated the .contingency of the death of all of them before Elizabeth’s decease.</p> <p>That the distribution to the representatives of the various estates was proper is shown by Judge Ashman’s ruling in Sweed’s Est., 10 Pa. C. C. R. 463, where he said: “ It was within the discretion of the auditing judge, after the lapse of time first mentioned, and upon satisfactory proof that the daughter had made no assignment of her interest, to have ordered payment of her share to the surviving husband and child,' but he certainly committed no error in adopting the course which is ordinarily pursued, and which has the merit of being the only course which is absolutely safe.”</p> <p>And now, June 4, 1900, the exceptions are all overruled, the report of the auditor is confirmed, and distribution decreed accordingly.</p> <p>Error assigned was the decree of the court.</p>

<p>Married women — Judgment for surety — Judgment—Consideration.</p> <p>A judgment entered on a judgment note signed by a married woman as surety for her husband will be opened, notwithstanding the fact that the wife subsequently agreed to pay the note upon condition that the plaintiff should assign all his claim against the husband to her, his only claim being the note in question.</p>

<p>Sale — Warranty—Province of court and jury — Warranty of cow.</p> <p>Although to constitute a warranty no particular form of words is required, the naked averment of a fact without more is not a warranty. In connection with other circumstances it certainly may be taken in consideration, but the jury must be satisfied from the whole that the vendor actually and not constructively consented to be bound for the truth of his representation.</p> <p>In an action to recover damages for an alleged breach of warranty in the sale of a cow, where the plaintiff testifies that at the time of the sale the defendant used the words “The cow is all right,” and it turned out that the cow had mange, the plaintiff has no standing to complain that the court erred in refusing to say that these words of themselves constituted the warranty, and in saying to the jury “there must be a declaration that the cow is all right, and it must have been made by the seller intending that he would stand good for the truth of that allegation, and in addition to that the purchaser must have thereupon purchased in reliance upon that allegation.”</p>

Appeal, No. 49, Oct. T., 1900, by plaintiff, from judgment of C. P. Chester Co., on verdict for defendant, in ease of Joseph L. Entwistle, Assignee, v. The Travelers Insurance Company. Assumpsit on a policy of life insurance. Before Butler, J. The facts are stated in the opinion of the Superior Court. The court gave binding instructions for defendant. Yerdict and judgment for defendant. Plaintiff appealed. Error assigned was in giving binding instructions for defendant.

Appeal, No. 82, April T., 1901, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1899, refusing to vacate confirmation of report of viewers in case of Margaret Goehring v. Borough of Rankin. Rule to vacate confirmation of report of viewers, and to open judgment. The facts are stated in the opinion of the Superior Court. Error assigned was the order of the court.

Appeal, No. 88, April T., 1901, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1897, No. 421, on verdict for defendant, in case of the McCormick Harvesting Machine Company v. W. H. Nicholson. Assumpsit to recover the price of rope sold and delivered to defendant.

Appeal, No. 107, April T., 1901, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1896, No. 880, on verdict for plaintiff in case of Russell & Company v. Pittsburg, Neville Island and Coraopolis Railway Company. Assumpsit on a contract for a machine. Before Stowe, P. J. At the trial it appeared that the contract out of which the controversy arose was in writing, but that it did not specify the time during which the contract was to continue.

Appeal, No. 123, April T., 1901, by defendants, from judgment of C. P. No. 1, Allegheny County, Sept. T., 1898, No. 54, on verdict for plaintiff incase of Bernard Skelley v. James S. Crutchfield and Robert B. Woolfolk, trading as Crutchfield & Woolfolk. Trespass for personal injuries. Before Collier, J. At the trial it appeared that the plaintiff was injured while in the defendants’ employment by the fall of an elevator on January 18, 1898.

Appeal, No. 16, April T., 1901, by John B. Keeaan, from decree of O. C. Westmoreland Co., Aug. T., 1898, No. 62, confirming auditor’s report in the estate of James Agnew, deceased. Exceptions to report of Eugene Warden, Esq., auditor. The facts are fully stated in the opinion of the Superior Court. . Error assigned was the decree affirming the auditor’s report.

Appeal, No. 52, April T., 1901, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1900, No. 288, on bill in equity in case of Joseph E. Huffman v. Florence K. Bradshaw and Jennie Irene Bradshaw, his wife. Bill in equity for specific performance. From the opinion of the court it appeared that on December 14, 1899, Florence K. Bradshaw contracted in writing to sell and convey two lots to Joseph E. Huffman, plaintiff. Mrs. Bradshaw did not join in the agreement.

Appeal, No. 117, April T., 1901, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1899, No. 562, on verdict for defendant, in case of Bessie Davies v. William Murbach. Trespass against an executor to recover damages for neglect to award widow’s exemption. From the record it appeared that the plaintiff was the wife of Jacob Murbach, who died on July 22, 1895, and the defendant is the executor of the will of said decedent.

<p>Arbitration — Award—Mistake.</p> <p>Where an agreement for arbitration provides that the award of three arbitrators shall be final and without exception or appeal, and the arbitrators award in favor of the plaintiff, but on the day following all three of the arbitrators petition the court to have the award referred back to them, so that they might correct a mistake of fact as to a certain payment, and the plaintiff files an affidavit denying that any such mistake had been made, the court will not refer the award back to the arbitrators.</p>

Appeal, No. 92, April T., 1901, by defendants, from judgment of C. P. Westmoreland County, Aug. T., 1898, No. 500, on verdict for plaintiff in case of John J. Blank V. William R. Barnhart, William F. Sbrum and George Barnhart. Trespass for encroaching on land.

<p>Criminal law — Practice, Q. S. — Separate indictments — Appeals.</p> <p>It is improper pi’actice to take one appeal where three indictments against the same person are tried before the same jury, but separate verdicts and judgments are entered.</p> <p>Criminal law — Practice, Q. S. — Motionin arrest of judgment — Evidence.</p> <p>A motion in arrest of judgment is not the proper mode of raising questions as to the sufficiency of the evidence.</p> <p>Constitutional law — Oleomargarine—Statutes.</p> <p>The Act of May 5, 1899, P. L. 241, regulatiug the sale of oleomargarine is constitutional.</p>

<p>Appeals — Statement of question involved.</p> <p>To say that the question involved is “ the correctness of answers to certain of defendant’s points; portions of the charge specially assigned as error,” is not a compliance with the rule requiring appellant to print in his paper-book a statement of the question involved.</p> <p>Practiee, O. P. — Trial—Request for instructions.</p> <p>If specific instructions are not asked for, or if those asked for are given, the court will not be reversed for not reviewing at length, and analyzing the evidence, nor for not instructing the jury more fully as to the rules for weighing testimony.</p> <p>Malicious prosecution — Charge of court — Harmless error.</p> <p>In an action for malicious prosecution the trial judge after referring to the question of probable cause in his charge said : “ What is malice? It is a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the party guilty of the crime charged.” Held, that as the obvious purpose was to define probable cause, and that as no one reading or hearing the instructions would suppose for a moment that they were intendéd as a definition of malice, there was no reversible error.</p>

<p>Rule to quash appeal.</p>

Appeal, No. 162, April T., 1901, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1899, No. 808, on verdict for defendants in case of Duncan & Company v. Shaw Brothers. Appeal from judgment of justice of the peace.

<p>Appeal, No. 68, April T., 1901, by defendant, from judgment of C. P. Mercer Co., April T., 1899, No. 21, on verdict for plaintiff in case of Nancy Hughes v. W. T. Williams.</p> <p>Trespass for the death of plaintiff’s husband caused by the bite of a vicious dog belonging to defendant.</p> <p>At the trial it appeared that the deceased left several children who were alive at the time of his death, and also at the time of the bringing of the suit.</p> <p>The court refused defendant’s request to instruct the jury that under the declaration and the law and the facts there could be no recovery.</p> <p>Verdict and judgment for plaintiff for $324. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s request as above.</p>

Appeal, No. 119, Oct. T., 1900, by plaintiffs, from judgment of C. P. Delaware Co., Dec. T., 1898, No. 86, on verdict for plaintiffs in case of Henry B. Pratt and Amy Pratt, his wife, in right of said Amy Pratt v. Jared Darlington. Assumpsit for money had and received.

Appeal, No. 142, Oct. T., 1900, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1899, No. 888, on bill in equity, in case Rebecca W. Hansell v. Robert W. Downing. Bill in equity for an injunction. The facts are stated in the opinion of the Superior Court.

<p>Assignment for creditors — Mingling of goods — Consigned goods.</p> <p>The proceeds of consigned goods upon proper identification may be claimed from an assigned estate, for if an assignor has held the property of another upon any trust, the real owner may claim his goods, or, if they have been sold he may follow the proceeds so long as they can be directly traced. If, however, the consignee has sold the goods, collected the money, and mingled it with his own, the power of reclamation is gone. In such a case the burden of identification is on the consignors.</p> <p>Where a firm of commission merchants assign a large number of book accounts to one of their creditors, and subsequently make a general assignment for the benefit of creditox-s, and if appears that the favored ex-editor had collected from the book accounts assigned, more than sufficient to pay his debt, the excess should be paid to the assignee for creditox-s, if it is found that the goods of the vax-ious consignors wex-e inextricably mingled, and it was impossible to ascertain the amounts which had been paid by the various purchasers on account of consigned goods, prior to the assignment for creditors.</p>

Appeal, No. 45, Jan. T., 1901, by Winifred Duffy, from decree of O. C. Luzerne Co., discharging rule on executors to assign coal royalties, in the Estate of Lawrence Duffy. Rule on executor to assign coal royalties. From the record it appeared that on December 7,1898, Lawrence A. Duffy made his will by which he directed, inter alia, as follows: “ Second.

<p>Executors and administrators — Bond—Lost bond — Record—Act of April 13, 1868, P. L. 882.</p> <p>In an action upon an administrator’s bond filed in Luzerne county, where it appears that the original of the bond was lost and the record copy, which under the Act of April 13, 1868, P. L. 882, is evidence of matters therein “ contained as fully as the original would be if produced,” discloses a blank where the name of the estate should have been in which the bond was given, the suit may be maintained, where the defendants do not deny that they became sureties for the administrator, and admit this fact affirmatively in sworn statements in proceedings in the court against the administrator. In such a case the evidence is sufficient to warrant the reading into the copy of the bond, the name of the decedent’s estate.</p>

Appeal, No. 6, April T., 1901, by the Manhattan Life Insurance Company, from decree of O. C. Allegheny Co., April T., 1899, No. 51, sustaining exceptions to adjudication in the estate of James C. McKown. Exceptions to adjudication. From the record it appeared that the adjudication made no reference to allowance for a counsel fee to accountant. The accountant filed an exception to the effect that an allowance for counsel fee for $1,000 to her counsel had not been made.

Appeals, Nos. 85 and 86, April T., 1901, by James Fitzsimmons and Arch. H. Rowand, Jr., from decree of O. C. Allegheny Oo., March T., 1897, No. 74, dismissing exceptions to adjudication in estate of John Kalbfell. Exceptions to adjudication. The facts sufficiently appear by the opinion of the Superior Court. Frror assigned was in dismissing exceptions to adjudication.

<p>Banks and banking — Forged draft — Impersonation.</p> <p>A bank is not liable for the payment of a draft on a forged indorsement, where the person who committed the forgery and received the money was in fact the person to whom the drawer delivered the cheek, and whom he believed to be the payee named. In such a case the fact that the fraud was accomplished by prior correspondence to which the purchaser of the draft gave credence, does not remove the ease from the rule.</p> <p>An executor received letters purporting to be signed by a legatee. As a matter of fact the legatee was dead, and the letters were written and signed by her husband. The executor bought a draft for the amount of the legacy to the order of the legatee, and sent it in a letter addressed to the legatee. The husband forged the name of his deceased wife, and secured the money. Held, that the executor had no right of recovery against the bank which had paid the draft.</p>

<p>Appeal, No. 26, Feb. T., 1900, by defendant, from judgment of C. P.,Tioga Co., April T., 1899, No. 102, on verdict for plaintiff, in case of Erastus Rice v. Palatine Insurance Company, Limited, of Manchester, England.</p> <p>Assumpsit on a policy of fire insurance. Before Mitchell, P. J.</p> <p>At the trial it appeared that the property insured consisted of a house, and barn. The policy covered $800 on the house, and $125 on the barn. Both buildings were also insured in another company. The loss was total. The policy required that within sixty days after a fire the insured should render a sworn statement or proof of loss. The policy also provided that the company should not be liable beyond the actual cash value of the property; “ said ascertainment and estimate shall be made by the insured and this company, or, if they differ, then by appraisers.” The facts relating to the waiver of the proof of loss are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows.</p> <p>[But we have read it in connection with the other testimony upon the subject as to what really was left open in the controversy between these parties; whether it was or was not only a question as to how much the loss was and how much should be paid in settlement of that loss by this company. If that was the only thing under the circumstances that was left open between these parties, and you are satisfied that is so, under the proof, by a reasonable construction of the evidence that has been admitted before you and is for your consideration, then we think, gentlemen, if you are satisfied by that and the other evidence in the case that the defendant company intended by its conduct in this case to waive its right to insist upon these written clauses in the policy of insurance that we have spoken of before, and the one about the proof of loss, and notice of the fire, and the particulars concerning it, and about having an appraisal, by agreement, by third parties; all this the jury may reasonably conclude constituted in fact a waiver in this case. We think if thus waived they cannot now operate in favor of the defendant to bar the right of this plaintiff to have damages for this loss, under this policy by the fire in question.] [7] Defendant’s points among others were as follows:</p> <p>2. The plaintiff not having rendered to the defendant company within sixty days after the fire, nor at any time, a particular statement or proof of loss, signed and sworn to by himself, as required by the policy in suit, to wit, in lines 66-77 inclusive, he cannot recover, and the verdict must be in favor of the defendant. Answer: Refused. [1]</p> <p>8. The policy in suit having been made and accepted on the following express stipulation and condition, forming a part of the consideration thereof, to wit:</p> <p>“ If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building therein described and the several parts thereof were occupied at the time of the fire; and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged: ”</p> <p>And it being further expressly stipulated by said policy that “the loss shall not become payable until sixty days after the notice .... and satisfactory proof of the loss herein required have been received by this company: ”</p> <p>And, further, that “ no suit or action on this policy for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements: ”</p> <p>And the undisputed evidence showing that the plaintiff rendered no such statement to the defendant company at any time, the plaintiff has no right or cause of action under said policy, and your verdict must be for the defendant. Answer: Refused. [2]</p> <p>4. The policy requiring that, when the parties differ or disagree as to the amount of the loss, the same shall be ascertained by appraisers, and such submission to appraisers being by the terms of the policy expressly made a part of the consideration of the policy or contract of insurance, such submission or reference to appraisers and an award by them became and were conditions precedent to recovery on the policy, since by the terms of the policy the loss shall not become payable until sixty days after an award by appraisers, when appraisal has been required, and no suit or action on the policy for the recovery of any claim shall be sustainable in any court of law or equity until full compliance by the insured with all the requirements of the policy.</p> <p>And, the evidence showing a difference or disagreement as to the amount of loss, and no such ascertainment of amount of loss, either by agreement of the parties or by appraisal, no right of action has accrued to the plaintiff under said policy, and he cannot recover. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $945.72. Defendant appealed.</p>

<p>Taxation — Payment of taxes by mortgagee — Building and loan associations.</p> <p>Where a mortgagee is compelled by compulsion of law to pay taxes for which the owner is liable, the mortgagee may recover from the owner the amount of the taxes paid.</p> <p>Practice, G. P. — Demurrer—Affidavit of defense.</p> <p>Where a defendant has demurred to a statement in assumpsit and judgment has been entered for the plaintiff on the demurrer, the court does not abuse its discretion in subsequently refusing to open the judgment thus entered, and let the defendant into a defense upon the merits.</p>

<p>Taxation — Personal liability for taxes — Mortgagee—Trustee.</p> <p>A person who is the recorded and also the registered owner of unfinished houses by a deed absolute on its face, although in fact a mere trustee for owners, is liable to a mortgagee for the amount of taxes which the latter had been compelled to pay, where it appears that such person while in possession received enough rents to pay the taxes, but neglected to do so, and applied'the rents which he received to finishing the houses.</p>

<p>Appeal, No. 216, Oct. T., 1900, by plaintiff, from judgment of C. P. No. 4, Phila. Co., MarchT., 1899, No. 171, on verdict for plaintiff in case of Annie B. Landreth v. Henry S. McCaffrey.</p> <p>Assumpsit to recover taxes paid by mortgagee.</p> <p>The court refused binding instructions for plaintiff.</p> <p>The jury returned a verdict for plaintiff for $1,043.29, which did not include the taxes for the year 1898.</p> <p>Judgment was entered on the verdict.</p> <p>Error assigned was in not giving binding instructions for the plaintiff for the whole amount claimed.</p>

<p>Contracts — Conflict of laws — Evidence.</p> <p>In the absence of evidence that a contract was to be executed, or was executed outside the state of Pennsylvania, the transaction is governed by the law of Pennsylvania.</p> <p>Sale — Insolvency—Rescission—Maryland contract.</p> <p>The rule of the Maryland law that a purchaser who buys goods knowing his insolvency and having no reasonable expectation of paying for the goods •purchased, takes a title voidable at the election of the vendor, does not apply where the evidence establishes that the vendees were indebted at the time of the purchase, and that judgment was sometimes subsequently entered against them; but it fails to give any satisfactory information as to their assets at that time, and such light as it does throw on that point seems to indicate that the value of the stock of goods then iq their store exceeded by a considerable amount the total indebtedness.</p> <p>Where a purchaser has been imposed upon by an actual fraud and misrepresentation, the contract is voidable at the election of the vendor, upon discovery of the fraud. He must rescind promptly upon the discovery, or a conclusive presumption of ratification will arise, but he is not put to his election until he knows, or ought to have known, of the fraud. The right of rescission will not avail when the goods have passed into the hands of an innocent purchaser for value, without notice of the fraud, nor against the execution of a creditor whose debt was contracted, by the fraudulent purchaser, subsequently to his possession under this title. The reseission must be evidenced by some unequivocal act, and the vendor must return whatever he has received under the contract, retaining out of the money that has been paid the value of any goods which may have passed beyond his power to reclaim.</p> <p>When nothing has been paid on the contract and the goods have been levied upon by the sheriff at the suit of another creditor, notice to the sheriff and joining in an interpleader to try the title to the property is a sufficiently explicit declaration of the intention to rescind. As against a creditor whose debt was in existence at the time the debtor fraudulently obtained possession of the property, the vendor may; if not estopped upon other grounds, assert his right to rescind after the goods have been levied upon.</p> <p>Interpleader — Sheriff's interpleader — Act of May 26, 1897, P. L. 95.</p> <p>Where claimants in a proceeding under the interpleader Act of May 26, 1897, P.L. 95, give a bond and take the goods, the value of the goods must be determined by the verdict of a jury. When the verdict is larger in amount than the claim of the defendant in the issue, the execution creditor, the court-will so mould the verdict and the judgment as-to prevent the injustice of giving the creditor more than the amount of his claim.</p>

Appeal, No. 3, Jan. T., 1901, by plaintiff, from judgment of C. P. Luzerne Co., Dec. T., 1898, No. 257, on verdict for defendant, in case of Kanter & Cohen v. David Salsberg. Sheriff’s interpleader to determine the ownership of goods. The facts are similar to those in Mann v. Salsberg, ante, p. 280. At the trial, I. Rosenthal was called as for cross-examination by plaintiff.

<p>Interpleader — Sheriff's interpleader — Fraud—Evidence—Amendment.</p> <p>On a sheriff’s interpleader where the issue framed is to determine whether the plaintiff in the interpleader, who is the claimant of the goods, has the right to rescind the contract by which he sold the goods to the defendant in the execution, it is proper for the court to refuse to permit the plaintiff to amend his statement by adding a clause to the effect that the judgment which the defendant in the execution had confessed to the defendant in the interpleader, and under which the goods were taken in execution, was collusive and fraudulent. In such a case, if the contract was made in New York, evidence is admissible to show that the defendant in the interpleader knew, or ought to have known, that the defendant in the execution had acquired an apparent property in the goods by fraudulent practices.</p> <p>Sale — Rescission of contract — Fraud.</p> <p>When a purchaser of goods at the time of the sale represents that he has a balance of assets over liabilities of about $11,000, and it is established beyond controversy that the assets over liabilities did not amount to over $1000, the question of misrepresentation should be submitted to a jury in a proceeding to set aside the sale.</p>

Appeal, No. 27, Jan. T., 1901, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1896, No. 349, on verdict for plaintiff, in case of Frederick Goeringer v. Henry Schappert. Scire facias sur mechanic’s lien. The facts are stated in the opinion of the Superior Court. The defendant presented the following points: 1.

Appeal, No. 30, Jan. T., 1901, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1900, No. 650, discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Scranton v. Henry Beckett’s Estate. Scire, facias sur mechanic’s lien. The matérial portions of the affidavit of defense were as follows : 3.

Appeal, No. 38, Oct. T., 1900, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1895No. 423, overruling exceptions to referee’s report in case of Lindley Johnson v. John Wanamaker. Assumpsit by an architect to recover the value of plans furnished for a building. The case was referred to Charles Biddle, Esq., as referee.

Appeal, No. 146, Oct. T., 1899, by plaintiff, from judgment of C. P. No. 4, Phila. Held: and then nothing having been done afterwards, it was an abandonment of it, and did not authorize or warrant the undertaking to sell these goods by'an advertisement put up on October 12 or 13. Objections overruled. Exception noted for plaintiff.

Appeal, No. 165, Oct. T., 1900, by plaintiff, from order of C. P. McKean County, Dec. T., 1897, No. 4, refusing to take off nonsuit in case of J. E. Winings v. William Hearst, Administrator of Rebecca Hearst. Assumpsit for services rendered decedent.

Appeal, No. 211, Oct. T., 1900, by defendant, from order of C. P. Blair Co., June T., 1900, No. 26, making absolute a rule to show cause why writ of possession should not be issued to deliver real estate in possession of Mrs. Emma Lehder to D. M. McFariin, purchaser at her husband’s assignee’s sale. Rule to show cause why writ of possession should not be issued. The facts appear by the opinion of the Superior Court.

<p>Appeal, No. 195, Oct. T., 1900, by plaintiff, from order of C. P. Del. Co., March T., 1900, No. 19, distributing a fund raised by a sheriff’s sale of real estate in case of J. Frank Black et ux. v. William Roebuck et al.</p> <p>Rule on sheriff to pay money into court and to take money out of court.</p> <p>The case was heard by the court without a jury.</p> <p>From the record it appeared that the fund in controversy amounting to $432.40 was raised by the sale of certain premises on Ninth street in the borough of Upland. The liens in point of time were first a mortgage of $3,000, owned by the plaintiff, and second, municipal liens for guttering and paving sidewalk on Ninth street and on Main street. The first municipal lien, Borough of Upland v. Agnes R. Conwell, was for $143.93, the other was against Gerritt P. Rogers, for $216.74. Objection was made to the municipal liens, first because the work had not been done in accordance with a general regulation, and second, because legal notice had not been given. As to the Conwell lien, notice had been served upon the occupant, as to the Rogers lien no notice had been served upon the occupant, but notice had been mailed to the nonresident owner, and had been received by him. Other facts relating to the notices appear by the opinion of the Superior Court.</p> <p>The court awarded the whole fund to the borough of Upland.</p> <p>Error assigned was the order of the court.</p>

<p>Statutes — Repeal of statutes — General and special laws.</p> <p>Statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities; but they. do. so, when it appears to have been the purpose of the legislature. If both the general and the special acts can stand, they will be construed accordingly. If one must give way, it will depend upon the supposed intention of the lawmaker, to be collected from the entire course of legislation, whether the charter is superseded by the general statute, or whether the special charter provisions apply to the municipality,, in exclusion of the .general enactments.</p> <p>Statutes — Repeal — Policemen — Constable — Compensation — Acts of April 4, 1831, P. L. 439, sec. 25, and July 14,1897, P. L. 266.</p> <p>The Act of July 14, 1897, T. L. 266, which forbids any policeman to charge or accept any fee or other compensation in addition to his salary, repeals the 25th section of the Act of April 4, 1831, P. L. 439, which provides that policemen in the borough of Pottsville shall receive the same fees as the constables of the said borough are entitled to by law.</p> <p>Constitutional law — Local legislation — Act of July 14, 1897.</p> <p>The Act of July 14, 1897, P. L. 266, relating to the compensation of policemen does not offend against the constitutional prohibition providing that the general assembly shall not pass any local or special law regulating the fees or extending the powers and duties of constables.</p>

<p>Appeal, No. 242, Oct. T., 1900, by defendant, from judgment of C. P. No. 1, Pliila. Co., March T., 1900, No. 922, for plaintiff on ease stated in case of Philadelphia v. Edward Brabender.</p> <p>Case stated to determine the validity of a municipal ordinance.</p> <p>The case stated was as follows:</p> <p>Whereas, Edward Brabender, a citizen of Pennsylvania and a resident of Philadelphia, was on April 17, 1900, arrested by a policeman of the city of Philadelphia, without a warrant, while placing an advertisement in the vestibule of houses in the city of Philadelphia; and</p> <p>Whereas, Edward Brábender, a distributor of circulars, was brought before the Honorable Thomas W. South, a magistrate in and for the city of Philadelphia, sitting as committing magistrate of the Central Station in said city, on April 17, 1900, charged with a violation of an ordinance hereinafter mentioned, which hearing was continued to April 80, 1900, when judgment was rendered against him by the said magistrate, Thomas W. South, for the sum of $20.00; and</p> <p>Whereas, an appeal was allowed by the Hon. Craig Biddle, President Judge of court of common pleas, No. 1, for Philadelphia county, which appeal has been duly filed of record in said court, and is now pending therein—</p> <p>Now, to wit: June 6, 1900, it is agreed by and between the city of Philadelphia, acting through its solicitor, John L. Kinsey, Esq., on the one part, and the above named Edward Bra-bender on the other part, that the following case be stated and filed in said case -in said court for the opinion of the court. Said case stated to be treated as a special verdict therein.</p> <p>1. That an ordinance of the city of Philadelphia which has been lawfully passed by the select and common councils of said city was approved by the Hon. Samuel H. Ashbridge, mayor of said city, on March 31, 1900, the said ordinance being in the words following:</p> <p>“AN ORDINANCE.</p> <p>“ To amend an ordinance entitled ‘ An Ordinance supplementary to an ordinance entitled ‘ “An ordinance relating to nuisances, approved September 23,1864, approved the 7th day of March, A. D., 1882.”</p> <p>“ Section 1. The Select and Common Councils of the City of Philadelphia do ordain, That the fourth section of the ordinance approved the 7th day of March, A.D., 1882, entitled, “ An Ordinance supplementary to an ordinance entitled ‘ An Ordinance relating to nuisances, approved September 23,1864, which now reads: “ To cast or place in the streets of the city or on the footways thereof, any paper, advertisement, handbills or other waste paper. Any person or persons violating any provision of this ordinance shall forfeit and pay the sum of Twenty (20) Dollars and each and every offence, to be sued for and recovered in the manner that debts for penalties of like amount are by law sued for and recovered,” be amended so as to read: “To cast, or place in the streets of the city, or on the footways thereof, or into the vestibules or yards, or upon the porches of any dwellings or other building within the limits of the city, any paper, advertisement, handbills, circulars or waste paper. Any person or persons violating any provision of this ordinance shall forfeit and pay the sum of Twenty (20) Dollars and each and every offence, to be sued for and recovered in the manner that debts for penalties of like amount are by law sued for and recovered: Provided, That nothing herein contained shall be held to apply to newspapers and addressed envelopes.”</p> <p>2. That on April 17, 1900, the defendant was engaged in distributing circulars, hand bills, and advertisements by placing the same in vestibules of houses in the said city, and particularly that the said Edward Brabender placed an advertisement in the vestibule of the house No. 905 Race street in the said city on the last named date, the said advertisement not being a newspaper or an addressed envelope, but is what is known as a circular, of which a copy is hereto attached marked “ Exhibit A.”</p> <p>If the court be of the opinion that the said ordinance is constitutional and lawfully prevents the placing of advertisements and circulars in the vestibules of houses in the city of Philadelphia, then judgment to be entered for the plaintiff; but if not, then judgment to be entered for the defendant — the costs to follow the judgment, and either party have the right to sue out a writ of error, certiorari, appeal, or other process suitable to the bringing of the record of this case into the Superior or Supreme Court of the commonwealth of Pennsylvania, as said party may be advised is proper.</p> <p>The court in an opinion by Biddle, P. J., entered judgment for plaintiff.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 245, Oct. T., 1900, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1900, No. 20, on certiorari, in case of City of Philadelphia v. Thomas Costello.</p> <p>Certiorari to justice of the peace.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in affirming the judgment of the justice of the peace, against the defendant.</p>

<p>Appeal, No. 43, Jan. T., 1901, by defendant, from judgment of C. P. Columbia Co., May T., 1897, No. 156, on verdict for plaintiff, in case of the General Fire Extinguisher Company v. The Magee Carpet Works, Owner, and the Bloomsburg Carpet Works, Contractor.</p>

Appeal, No. 22, Jan. T., 1901, by Benjamin Lutton, from decree of O. C. Luzerne Co., No. 68, of 1894, dismissing rule to set aside the confirmation of an auditor’s report in the estate of Joseph Lutton, deceased. Rule to set aside confirmation of auditor’s report. From the record it appeared that Charles Frank obtained a judgment against Ann Lutton, administratrix of Joseph Lutton, deceased, for $177.84-for a tombstone ordered by the administratrix for the decedent.

<p>Justice of the peace — Alderman—Gosts—Serving subpoenas — Mileage— Impeachment proceedings.</p> <p>A justice of the peace who serves his own subpoenas in impeachment proceedings instituted against himself under the Act of January 14, 1804, 4 Sm. L. 107, is not entitled to fees for mileage and serving subpoenas.</p> <p>Appeals — Impeachment proceedings — Taxing costs.</p> <p>■ No appeal lies from an order of a judge taxing costs in impeachment proceedings against a justice of the peace instituted under the Act of January 14, 1804, 4 Sm. L. 107. All that the certiorari takes up is the record proper. -</p>

<p>Appeal, No. 13, Jan. T., 1901, by plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1898, No. 3, on bill in equity in case of The Spring Brook Water Company, and the Spring Brook Water Supply Co. v. M. J. Kelly.</p> <p>Bill in equity for an injunction.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 34, Jan. T., 1901, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1899, No. 519, on certiorari in case of Commonwealth v. Benjamin Ayers. Certiorari to a justice of the peace.

<p>Appeal, No. 31, Jan. T., 1901, by plaintiff, from order of C. P. Susquehanna Co., April T., 1898, No. 346, refusing to take off nonsuit, in case of Lory Stone v. George B. Rogers.</p> <p>Replevin to recover forty-three sheep. Before Searle, P. J.</p> <p>The facts sufficiently appear by the opinion of the Superior Court.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 35, Jan. T., 1901, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1897, No. 785, on verdict for plaintiff in case of John S. Miller v. The Interstate Casualty Company of New York. Assumpsit upon a policy of accident insurance. Before Edwards, J. The facts appear by the opinion of the Superior Court. At the trial the court reserved the following points : 8.

Appeal, No. 25, Feb. T., 1900, by defendant, from judgment of C. P. Lycoming Co., March T., 1899, No. 267, on verdict for plaintiff in case of Rebecca W. Fowler v. The Borough of Jersey Shore. Trespass to recover damages for personal injuries. At the trial it appeared that the plaintiff was injured by breaking through a board walk on Main street in the borough of Jersey Shore on the night of August 15,1898.

Appeal, No. 2, Feb. T., 1901, % plaintiffs, from judgment of C. P. Lycoming Co., Dec. T., 1897, No. 117, on verdict for defendant, in case of F. B. Thrall and J. T. Long, trading as F. B. Thrall & Co. v. A. Wilson. Assumpsit for goods sold and delivered. Before Albright, P. J., specially presiding.

Appeal, No. 9, Feb. T., 1901, by defendant, from order of C. P. Clinton Co., May T., 1900, No. 152, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John G. Healy v. The Eastern Building and Loan Association of Syracuse, New York. Assumpsit by a withdrawing member against a building and loan association.

<p>Appeal, No. 11, Feb. T., 1901, by defendant, .from order of C. P. Sullivan Co., Sept. T., 1896, No. 38, discharging rule to set aside and strike off fieri facias for costs in case of Jeremiah Stackhouse v. Howard Lyon, trading as Lyon Lumber Company.</p> <p>Rule to set aside fieri facias for costs.</p> <p>From the record it appeared that when the case was on the trial list in May, 1897, the defendant requested a continuance, which the court granted, and made the following entry in the common pleas trial list: “ Case continued at request of and at cost of defendant. May 26, 1897.” The case was tried at September term, 1897, and a verdict rendered in favor of the defendant for 11.93. Judgment was subsequently entered on this verdict, and a fi. fa. issued against the plaintiff for debt, interest and costs, which was returned by the sheriff as follows : “ Money made and paid plaintiff’s attorney,” and the judgment duly satisfied by the prothonotary. Subsequently the plaintiff filed a bill of costs, claimed to be due him for May term, 1897, and the same day the bill was filed a fi. fa. issued. The defendant obtained a stay of this writ and a rule to strike off this fi. fa. on the ground that it was issued without authority of law under the state of the record in the case. The court in an opinion by Dunham, P. J., discharged this rule.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 12, Feb. T., 1901, by plaintiff, from order of C. P. Lycoming Co., June T., 1900, No. 51, refusing to take off nonsuit in case of Bert Whitmire v. Township of Muncy Creek. . Trespass for damages to a threshing machine. Before Mitchell, P. J. At the trial it appeared that on March 14, 1899, a steam traction engine used for threshing purposes, and owned by plaintiff fell through the floor of a bridge across Little Muncy Creek.

Appeal, No. 7, Feb. T., 1901, by defendant, from judgment of Q. S. Lycoming Co., Sept. T., 1900, No. 73, on sentence of guilty in case of Commonwealth v. Ellen Sarves. Indictment for keeping a bawdy house.

Appeal, No. 8, March T., 1900, by Lucy Savage, from decree of O. C. Cumberland Co., sustaining exceptions to auditor’s report in the estate of W. D. E. Hayes, deceased. Exceptions to report of A. G. Miller, Esq., auditor. The facts appear by the opinion of the Superior Court. The auditor allowed the claimant $235.50. Exceptions to the auditor’s report were sustained, and the amount was cut down to $20.00. . Error assigned was the decree of the court.

Appeal, No. 7, March T., 1901, by defendant, from order of Q. S. Juniata Co., Sept. T., 1809, No. 5, directing father to pay a certain sum per month for the support of his son in case of Overseers of the Poor of Walker Township v. William Knisely. Petition for an order on a father to pay a certain sum per month for the support of his son.

Appeal, No. 3, March T., 1901, by plaintiff;, from order of C. P. Fulton Co., Jan. T., 1899, No. 52, refusing to take off nonsuit in case of F. C. Austin Manufacturing Company, now to use of Florence Hanks v. The Township of Ayr. Assumpsit on township orders. Before Swope, P. J. From the record it appeared that the action was brought upon two township orders each for $125, and both signed by George W. Glenn and David Rhinelander, the two supervisors of the township of Ayr.

Appeal, No. 22, March T., 1901, by defendant, from judgment of C. P. Franklin Co., Dec. T., 1900, No. 27, on verdict for plaintiff in case of John L. Baker, Guardian, v. H. M. Small. Assumpsit on a promissory note. The facts are fully stated in the opinion of the Superior Court. The court gave binding instructions for the plaintiff. Verdict and judgment for plaintiff for $181.60. Defendant appealed. Error assigned amongst others was (1) in directing the verdict for plaintiff.

Appeal, No. 4, April T., 1901, by James A. Wakefield, from decree of O. C. Allegheny Co., March T., 1899, No. 4, directing payment of owelty in the estate of Louis Celia, deceased. Petition for a decree to have owelty paid. From the record it appeared that in partition proceedings in the estate of Louis Celia, deceased, the parties in interest entered into an agreement in writing to divide among themselves the purpart specified in the return of the sheriff’s inquest.

Appeal, No. 44, April T., 1901, by-defendants, from judgment of C. P. No. 2, Allegheny Co., July T., 1898, No. 899, on verdict for plaintiff in case of Margaret Goebeler v. C. Wilbelm and Margaret Wilbelm, his wife. Trespass for libel. Before White, P. J. From the record it appeared that the defendant, Margaret Wilhelm, wrote a letter in German, rolled the letter in some paper and threw it into the butcher shop of plaintiff’s father.

<p>Highways — Dedication of streets — Recorded plan.</p> <p>The sale of lots by a landowner according to a plan to be recorded, which is followed by placing the plan on record, implies a grant or covenant to the purchaser that the street shall be forever open for the use of the public, operating thus as a dedication to the public use ; the right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it.</p> <p>The mere making of a plan even if recorded, does not constitute a complete dedication until the rights of third parties have accrued, or by public use; the plan remains under the control of the owner, and it may be modified or abrogated by him at will. After the rights of third parties have accrued, and the public authorities have accepted the dedicated way by adopting the plan as a public improvement, and have worked thereon, the original grant becomes irrevocable as a public way in its defined boundaries. The fact that the public has access to it but from one end does not prevent it from being a public street.</p>

<p>Practice, G. P. — Pleading—Demurrer.</p> <p>A speaking demurrer or one that sets up grounds of demurrer dehors the declaration, is bad, and will not be entertained.</p> <p>A demurrer to a declaration or statement arises on its face and is never founded on matters collateral to the pleading which it opposes.</p> <p>In-an action of trespass to recover damages for loss occasioned by the obstruction of a road whereby plaintiff was prevented from completing a contract, if the statement avers that the obstruction continued until the defendant was enjoined by a decree of a court of equity, stating the term and number of the equity case, but not setting forth the record or stating whether the injunction was final or interlocutory, a demurrer to the statement is bad which avers that the bill in equity had been fully determined and ended, and that the plaintiff’s remedy for damages, if any he had, was in the equity proceedings.</p> <p>In such a case the plaintiff was not bound to set forth the record of the equity case in full, nor could the court look into that record, nor could it presume that a final decree was entered, nor could it consider as immaterial whether the decree was interlocutory or final.</p> <p>It seems that in the above case the equity suit was not necessarily res adjudicata of the question of the plaintiff’s damages.</p> <p>In a bill for an injunction it is not absolutely and in all cases necessary for the plaintiff to show the past damages he has suffered in order to obtain the full relief which he prays. The court may award them, but only as incidental to the other relief sought, and not as in specific performance as part of, or as a substitute for that relief.</p>

<p>Appeal, No. 184, April T., 1901, by-borough of Turtle Creek, from order of C. P. No. 1, Allegheny Co., June T., 1899, No. 428, sustaining exceptions to report of viewers in In re Sewer on Grant Street and Maple Avenue in Turtle Creek Borough.</p> <p>Exceptions to report of viewers.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in sustaining exceptions to report of viewers.</p>

<p>Contract — Pleadings—Rules of court — Evidence—Natural gas company.</p> <p>A natural gas company in consideration of the right to lay its pipe over and through lands agreed with the owner “to furnish off said pipeline while on said premises, free of cost,” the gas necessary to heat his dwelling, etc., the pipe and necessary fittings and labor to transport and connect up said dwelling to the gas, to be paid for by the owner of the land. The owner connected his dwelling with the pipe, and received gas therefrom until, owing to the falling off of the natural pressure, the gas company was compelled to use pumps. After this time the owner ceased to receive gas. He then brought suit against the company for breach of contract. A rule of epurt provided that in actions on contracts every material averment of fact in the pleadings, verified by affidavit shall be deemed competent evidence of the facts so alleged, and no evidence shall be admitted to controvert it, unless the adverse party shall directly deny it by proper plea verified by affidavits. The plaintiff alleged in his statement of claim that he had fitted up his dwelling with all the pipe necessary to connect the premises with said line, and had fitted up the premises with all the appliances necessary for using said gas. In the affidavit of defense the-defendant averred that the plaintiff had “ provided himself with such pipe and appliances as he deemed proper and necessary to carry and supply the gas from the main of the defendant to his premises ” and that affiant had no “ information as to the nature and character of the devices provided by the plaintiff for the purpose of drawing the gas from the said line to his premises.” Meld that the plaintiff should have been permitted to introduce on the trial the averments of his statement of claim as evidence of the fact therein alleged.</p>

<p>Appeal, No. 17, April T., 1901, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1898, No. 505, on verdict for plaintiff in case of S. G. May v. Rose A. Newingham.</p> <p>Replevin for horses and other personal property connected with a livery stable. Before McConnell, J.</p> <p>At the trial it appeared that on July 22, 1897, T. B. May leased to Rose A. Newingham, a livery stable outfit for one year and one month for the sum of #1,613, payable #600 on the day of date of the lease, and the balance in instalments at certain specified periods. The lease further provided that upon payment of said instalments and the further sum of #10.00, May would execute a bill of sale for the property to Rose A. Newingham. Defendant paid #1,300 on account of the contract. On February 28, 1898, May by indorsement on the lease assigned it to J. E. Brown, who in turn on March 1, 1898, assigned it to S. G. May.</p> <p>Counsel for defendant offered in evidence transcript of judgment of Keister & Loucks versus T. B. May and W. B. Thomas, doing a livery business under the firm name of May & Thomas, No. 485, May term, 1898. Transcript filed and judgment entered on the record in the prothonotary’s office on March 24,1898. This is for the purpose of showing that, prior to the confessed date of the assignments of the notes upon which this writ of replevin is based, suit was brought by Keister & Loucks against T. B. May, original owner of the notes and judgment obtained prior to the time that the notes were placed in bank as the property of J. E. Brown as assignee ; to be followed by other evidence that a similar judgment was thus obtained by the same plaintiffs against T. B. May, which judgments were afterwards transferred to Beaver county on which attachment execution was issued, attaching the money in the hands of Rose A. Newingham belonging to T. B. May; that,upon interrogatories filed, Rose A. Newingham admitted the moneys in her hands belonging to T. B. May, the defendant, without any knowledge on her part of any assignment having been made prior. And to be followed by evidence in addition to that already given, that the said alleged assignments were fraudulent, without consideration and for the purpose of avoiding payment of the judgment thus offered. And for the further purpose of contradicting T. B. May when he testifies that those suits or either of them, were brought at the time of the alleged transfer by him of the notes and articles of agreement to J. E. tírown.</p> <p>To which offer counsel for plaintiff object that it is immaterial and irrelevant to the present plaintiff on the record when the suits were brought before the justice or the judgments obtained thereon before him, or when the transcripts were entered in the common pleas without bringing home to her some fraudulent act with reference to her title to the notes which had begun on February 28,1898, a date prior to the entry of judgment before a justice, prior to the taking of judgments on the transcripts in the common pleas and long prior to the entry of the judgments in Beaver county and the service of the attachments thereon on Mrs. Newingham, defendant.</p> <p>Mr. Gaither: The offer is for the further purpose of showing that Rose A. Newingham, the original party to the agreement with T. B. May, innocently and ignorantly answered interrogatories served on her, attaching money of T. B. May in her hands, admitting that she was indebted to T. B. May, thus resulting in judgments of Keister & Loucks against her for the indebtedness of T. B. May, and causing her to pay out of her estate the judgments thus existing against the said T. B. May.</p> <p>Mr. Bell: To the further offer, counsel for the plaintiff objects, for the reason that the proceedings growing out of the attachment did not originally connect Rose A. Newingham, the defendant in this suit, at all. It was a thing done among other people. The judgments proposed to be offered were judgments against T. B. May held by other people than Rose A. Newingham, and if she permitted judgments to go against her on attachment execution without investigation as to whether T. B. May was the owner of the notes in suit at the time the attachment execution process was served upon her,— if she neglected to take the proper means of inquiry and acted without information, it is her own default. It was her duty in answering that process to know absolutely whether T. B. May, the original promisee of the notes, was still the owner and holder thereof. Any service of attachment execution upon her in order to divert the funds from any innocent holder is inoperative for that purpose and cannot change the property which the innocent holder of those notes might then have acquired. It was further her duty, under the law, to contest at every point the process of garnishment served upon her, and if she failed to contest that she cannot now allege a liability against the assignee of the notes whose right had accrued prior to the service of the attachment execution.</p> <p>The Court: The substance of the offer is to show that T. B. May, for the purpose of avoiding payment of a claim of Keister & Loucks, made an assignment of the notes that were given by Rose A. Newingham to him as consideration money for a livery stable. If that be true, it would be fraudulentas to Keister & Loucks and could not have the intended effect. But the balance of the offer shows that the judgment against Rose A. Newingham in Beaver county was obtained on her own answer as a garnishee, and as a garnishee it was her duty to inform herself of the essential facts that were contained in her answer, and her merely having answered ignorantly would give her no right to set up a judgment there obtained against her as proof of an intended fraud against her by T. B. May. The intended fraud against Keister & Loucks would be defeated by the law, if such an intention existed, but the offer does not purport to show that any fraud was intended against Rose A. Newingham by reason of the assignment complained of. As to the parties intended to be defrauded assignments of that sort are void. At the time that Rose A. Newingham made her answer, the transfer through her answer would take effect. At that date this assignment by the law through the judgment against the garnishee could take nothing except what was then in T. B. May, and at that time T. B. May had nothing in him because he had made an assignment to another person prior to that date. Rose A. Newingham could have ascertained this fact, and it was a duty that she as garnishee inform herself of the facts contained in her answer. Her merely answering ignorantly of the fact will not entitle the proposed evidence to be introduced into this case. The objection is therefore sustained. Exception. [1]</p> <p>Mr. Gaither: We offer the same transcript in evidence to be followed by proof that an exemplification of the record was taken to Beaver county and attachment execution issued thereon on moneys of T. B. May in the hands of Rose A. Newingham; that Rose A. Newingham answered the interrogatories that she had moneys of T. B. May in her handstand that she did not know of any assignment, to be followed by proof that the alleged assignments in this case were fraudulent and made for the purpose of hindering and delaying creditors; that such assignments resulted in a loss to Rose A. Newingham of the amounts paid by her out of her own estate of the two judgments to be offered in evidence against T. B. May. This for the purpose of showing that T. B. May did have the ownership and possession of the indebtedness owing by Rose A. Newingham so far as she was concerned in these attachment proceedings, and that by reason of his said fraudulent act she has been compelled to pay the amounts of the judgments.</p> <p>To which offer counsel for the plaintiff objects, for the reasons given to a similar offer of the testimony proposed to be given, which objection is here renewed. All because the same is immaterial and irrelevant.</p> <p>The Court: It is not proposed in this offer to show that T. B. May sought to defeat the enforcement of any legal right that existed in Rose A. Newingham at the time of the alleged fraudulent assignment. By reason of this fact, no claim of hers was sought to be defeated by reason of the facts set up in the offer. In substance, therefore, the offer is the same as the one previously passed on by the court and for the same reason we reject it. An exception may be noted for the defendant. [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 100, April T., 1901, by defendant, from judgment of C. P. Washington Co., Nov. T., 1899, No. 108, on verdict for plaintiffs, in case of John Jenkins et ux. v. Josiah K. McMichael.</p> <p>Ejectment for an undivided one-half interest in land in the borough of West Washington. Before Taylor, J.</p> <p>At the trial it appeared that in 1842, George W. Boyd sold the land in dispute to one Bowman for $600. Bowman paid on account $100, and went into possession of the property under the articles of agreement. Shortly thereafter he sold his interest in the lands to P. F. Marshman. Marshman went into possession but never paid the balance of the purchase money, or obtained a deed of the land from Boyd. Marshman died intestate, leaving a brother as one of his heirs who conveyed a half interest in the land to the plaintiff. Plaintiff claimed title by adverse possession. Boyd’s heirs conveyed the land to the defendant, who obtained possession on March 21, 1899. Plaintiff offered various matters in evidence tending to show the adverse possession of Marshman, all of which were admitted. [1, 2.]</p> <p>The court charged in part as follows :</p> <p>[So, if you should find, under the evidence here, that1 Dr Marshman not only had possession of this property in 1855 under the arrangement between Boyd and Bowman, but that he had paid part of the purchase money, then there was due him, on the payment of the balance of the purchase money to Boyd, a deed for this property ; and if he did not get the deed, then it was incumbent upon Boyd to take some steps to oust him of possession and pay back to him the purchase money, if any had been paid.] [3]</p> <p>[Now it is conceded, as we said a while ago, down until the death of George Boyd, that he never, so far as there is any evidence in this case, asserted any ownership or title — never undertook to dispossess the Marshmans or any of them from living in tins property; and the plaintiffs claim that that is a circumstance in this case, along with another item of evidence that cropped out, why he left, that George Boyd didn’t claim any interest in this property, and while, between the time of his death —if the statute of limitations had not run against him in favor of the plaintiff before his death and before his wife’s death— the wife would have had the right of possession of it during her lifetime, but the reason she never joined in this deed was because he left with another woman; yet if the statute of limitations, of twenty-one years, elapsed since 1855 under the requirements of the law, then Mrs. Boyd would not have had any interest in it, because her title depended altogether on whether George Boyd, her husband, had any title, and if the statute of limitations had cut him out, it would also cut her out, and there is where they claim the matter ends, that Boyd never having asserted any ownership, living until 1888, and once having the legal title in him, and having sold to Bowman and he to Marsh-man, the plaintiffs claim they have shown in this case to the satisfaction of a jury that Boyd had no interest in there, — he either had conveyed it all away and got the purchase money for it or he had gotten enough to satisfy him that that was all he could get when his wife would not join in the deed, and he just simply abandoned it and left.] [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions. (3, 4) Portions of charge as above, quoting them.</p>

Appeal, No. 119, April T., 1901, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1900, No. 152, for plaintiff on case tried by the court without a jury in suit of J. W. Emery for use of J. E. Clark v. Z. T. Regester. Assumpsit for breach of contract. The facts are fully stated in the opinion of the.Superior Court. Error assigned was in entering judgment for plaintiff for $1.00 and costs.

<p>Appeal, No. 140, April T., 1901, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1900, No. 234, dismissing libel for divorce in case of Andrew Horn v. Carrie L. Horn. Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.</p> <p>Libel for divorce on ground of desertion.</p> <p>Frazer, P. J., filed the following opinion:</p> <p>The libellant and respondent were married on August 9, 1877, at the city of Williamsport, and lived together in that city as man and wife until some time in April, 1896, when the libellant came to Pittsburg to engage in business. The ground alleged for a divorce is wilful and malicious desertion upon the part of the respondent, the libellant claiming that the respondent has refused, without cause, to come to this city and live with him. A husband’s right to change his home, if his business or convenience requires it, cannot be denied, and if he provides another suitable and proper place of residence for his wife, it is her duty to accompany him to the new home; and, if she refuses to do so without cause, her refusal constitutes a desertion for which a divorce may be granted. If the .libellant for business purposes came to Pittsburg, and in good faith requested his wife to follow him, provided a home for her here, and she refused without cause to come, she is guilty of desertion, and a divorce should be granted. The burden is on the libellant to establish these facts. [From the evidence it appears that libellant’s first request to his wife to come here to live was made in the latter part of December, 1896. To that request she replied that a change at that time was not advisable, as she and her daughter could live more cheaply at Williams-port than Pittsburg, and for the further reason that the daughter would graduate at the high school in the following June.] [1] Respondent was not again asked to come to Pittsburg until December, 1899. [In the mean time, in the month of June preceding, libellant visited Williamsport for the purpose of seeing his daughter graduate. At that time, instead of staying at his own home while there, he remained at the house of a married daughter, ignoring his wife entirely, although requested by her and the single daughter to come home. His stay in Williamsport was brief, lasting only a few days.] [2] After his return to Pittsburg no request was made by him that his wife come here until December, following. To that request his daughter, acting for her mother and herself, replied that she, the daughter, would be through with her shorthand studies about Christmas, “ and then mamma and I will both come together;” and requesting that libellant send money enough to pay rent and household bills, amounting in all to about $130. In response to this request he remitted $25.00. The rent was not paid, and the only other remittance was one of $35.00 in April following.] [3] Since that time libellant has had no further communication with his family.</p> <p>[I have examined all of the letters offered in evidence, and have also carefully read over the testimony taken at the hearing, and am not satisfied that there has been a wilful and malicious desertion upon the part of the respondent.] [4] [In fact, the testimony shows a willingness upon the part of both wife and daughter to come to Pittsburg as soon as they received money enough from the libellant to pay their debts and have their household goods relieved from the claim of their landlord for back rent.] [5] The testimony and letters rather indicate, to my mind, that libellant has not acted in good faith. [If he was desirous of having his wife come here to live, why has he not paid her bills, for which he is both legally and morally bound ?] [6] [and why did he, “ of his own choice,” remain at the house of his daughter in Williamsport in June, 1899, instead of staying at his own home with his wife ?] [7] These acts upon his part he has failed to explain. [His attempt to show that he had provided a suitable and proper home here for his wife was an utter failure, and not worthy of consideration.] [8] [The testimony fails to sustain the allegation of desertion as set forth in the libel, and a decree is therefore refused.] [9] The costs of these proceedings to be paid by libellant.</p> <p>[And now, to wit: February 26, 1901, the above case having come on to be heard on libel, answer and proofs, and after argument of counsel, and upon due consideration, it is ordered, adjudged and decreed, that the libel filed in said ease be dismissed, at the costs of the libellant.] [10]</p>

<p>Mines and mining — Quarrying on another's land — Treble damages — Act of May 8, 1876, P. L. 142.</p> <p>The Act of May 8, 1876, P. L. 142, imposing treble damages upon any person mining or digging out “ any coal, iron or other minerals, knowing the same to be upon the lands of another,” applies to the act of digging and carrying away building stone from an open quarry on the surface of the ground.</p>

Appeal, No. 146, April T., 1901, by W. L. Bird, from decree of O. C. Allegheny Co., June T., 1891, No. 343, ordering restitution in the estate of Theodore Kreimendahl. Petition for a decree ordering restitution. Over, J., filed the following opinion: STATEMENT.

<p>Justice of the peace — Jurisdiction—Contract—Tort—Form of action — Injury to horse.</p> <p>The “ causes of action arising from contract, either express or implied,” which are within the jurisdiction of a justice of the peace, are those which arise from an agreement or understanding immediately between the parties, and do not have their foundation in the compact of government, to which every member of society is supposed to be a party. It is not the form of the action but the nature of the subject-matter of it which must decide the question of jurisdiction. The right to maintain an action of debt or assumpsit may arise ex maleficio, where there is not the semblance of a contract, as in oases of official misfeasance or of penalties imposed by statute, but the form of the action does not change the essence of its cause, and what was tort before does not become a breach of contract.</p> <p>When the action springs simply from tort, and is not dependent upon any contract relation or course of dealing between the parties, and the injury is consequential it lies not within the statutory jurisdiction of a justice of the peace. When the plaintiff’s claim is founded upon a contract, other than those specifically excepted by the statute, and does not exceed the amount limited, it is within the jurisdiction of a justice of thepeace; whether the action be in assumpsit or in case for a breach of duty imposed by the contract.</p> <p>Whore a horse has been loaned on a gratuitous bailment, and on a promise that good care should be taken of it, and the horse is returned in a.n injured condition, the owner may maintain an action of trespass before a justice of the peace to recover damages for the injury.</p>

Appeal, No. 6, Feb. T., 1901, by defendant, from judgment of C. P. Lycoming Co., June T., 1899, No. 488, on verdict for plaintiff in case of Isaac Barton v. Harry Reynolds. Replevin for a steamboat and other personal property.

Appeal, No. 151, April T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny County, July T., 1899, No. 268, on verdict for plaintiff in case of L. A. Raisig & Company for use of W. I. Mitchell v. P. L. Graf. Assumpsit on an account. Before Frazer, P. J. At the trial it appeared that at one time the defendant was the bookkeeper of Raisig & Company and in the books of the firm he kept a personal account.

Appeal, No. 4, March T., 1902, by defendant, from judgment of Q. S. Cumberland Co., on indictment for nuisance in case of Commonwealth v. John D. Greybill. Indictment for nuisance. Before Simonton, P. J., specially presiding. At the trial it appeared that a siding had for many years been maintained from the tracks of the Cumberland Valley Railroad in the borough of Carlisle across Main street to defendant’s flour mill.

Appeal, No. 90, April T., 1901, by John Dorn, from order of C. P. Indiana Co., March T., 1900, No. 48, setting aside appraisement of personal property for exemption, in case of Commonwealth at the suggestion of the First National Bank of Indiana and J. A. C. Ruffner for use of W. S. Byers v. C. W. Brown, H. W. Brown, John Hill, John Dorn and Alex S. Work. Motion to set aside appraisement of personal property for exemption.

Appeal, No. 104, April T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1898, No. 516, on verdict for plaintiff in case of Maurice Kapp v. John Shields. Assumpsit for rent against a surety in a lease. Before Shafer, J. At the trial the defendant claimed that the matter was res adjudicata by reason of a judgment recovered at September term, 1895, No. 488.

Appeal, Nos. 81 and 82, April T., 1901, by James B. Zimmerman, administrator of Henry Zimmerman, deceased, from decree of O. C. Green Co., June T., 1898, No. 4, overruling exceptions to auditor’s report in the estate of Henry Zimmerman, deceased. Exceptions to account of H. B. Axtell, Esq., auditor. The case turned wholly on the questions of fact. Errors assigned were in overruling exceptions to auditor’s report.

Appeal, No. 149, April T., 1.901, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1899, No. 172, on verdict for plaintiff in case of Emma B. Duffy v. The Alta Friendly Society. Assumpsit for death benefits. Before Frazer, P. J. The facts appear by the opinion of the Superior Court. The court refused to give binding instructions for defendant. Verdict and judgment for plaintiff for $270.62. Defendant appealed.

Appeal, No. 97, April T., 1901, by defendant, from judgment of C. P. Clarion Co., May T., 1899, No. 155, on verdict for plaintiff in case of Virginia Beer v. The Township of Clarion. Trespass to recover damages for personal injuries. Before Clark, P. J. The facts appear by the opinion of the Superior Court. The court refused binding instructions for defendant. Verdict and judgment for plaintiff for $875. Defendant appealed.

Appeal, No. 5, April T., 1901, by defendant, from order of Q. S. Cambria Co., March T., 1900, No. 26, for support in case of Commonwealth v. James H. Haylow. Proceedings for support. Babkeb, P. J., filed the following opinion: Cohabitation and reputation constitute sufficient evidence of marriage in all jurisdictions in this country and in England. The inference or presumption of marriage, however, arising from proof of cohabitation and reputation, may be rebutted.

<p>Appeal, No. 92, April T., 1900, by plaintiff, from judgment of C. P. Cambria Co., June T., 1897, No. 286, on -verdict for plaintiff non obstante veredicto in case of Joseph J. Konicz v. The Orient Insurance Company of Hartford, Conn.</p> <p>Assumpsit on policies of fire insurance issued by tbe Orient Insurance Company and Teutonia Insurance Company. Before Barker, P. J.</p> <p>The defendant’s principal contention was that the second statement of proof of loss had not been executed by the plaintiff, but by an attorney in fact; and that when the insured neglected to furnish a second proof of loss in answer to a demand of the company, he was bound to stand on such second paper, and that the second paper had been executed by the attorney in fact.</p> <p>The court charged as follows :</p> <p>The plaintiff in these cases seeks to-recover from two insurance companies the value of the loss of certain property situate in the borough of Hasting, this county, which had been insured by these two companies, and the cases have been tried together by consent of counsel, in order to save time. The defendant companies do not contend as to the amount of the loss or as to the amount the plaintiff would be entitled to recover, if entitled to recover at all.- Both companies, however, set up as matters of defense that there are certain things required of the plaintiff in these cases before he can recover on the policies. These raise pure questions of law, and it is our policy, where the questions are at all serious, not to dispose of them hastily, as the law provides the manner by which the court can reserve questions of law by subsequently placing on record the reasons for the conclusions of the court in such way that they can be intelligibly reviewed by a higher court. Now, for those reasons, and in order that we may dispose of the questions of law now before us, we shall instruct that you render verdicts for the plaintiff, and we will reserve those, questions of law, disposing of them by filing an opinion and giving the parties full opportunity in that way of reviewing the decision of the court in case it is regarded as erroneous. In these two cases we direct you to render verdicts for the plaintiff in the sum of $1,000 in each case, subject to the questions of law set forth in the points submitted to us by the defendant’s counsel, which questions of law we reserve. The points submitted by the defendants’ counsel we need not read now, because they are directed to be filed and made part of the record in the case. There are one or two disputed questions of fact in the eases, but they are of such a nature or character that they only bear on the questions of law which we will have to determine, and it is not necessary for us to submit those disputed questions of fact to you.</p> <p>defendant’s points.</p> <p>1. The plaintiff having elected to furnish a second proof of loss in answer to the demand of each insurance company, he is bound thereby and must stand thereon.</p> <p>2. The uncontradicted testimony being that the second proof of loss was not signed or sworn to by the insured; but that insured’s name was signed thereto by the justice of the peace, who affixed his jurat thereto, without having administered an oath to the plaintiff, without having the plaintiff present, and without ever having seen the plaintiff, and this having been done in the presence of, and at the request of A. N. Euszkauskas, who presented a power of attorney purporting to have been executed by said plaintiff, there was such fraud and false swearing on the part of the assured as will prevent recovery in this action.</p> <p>3. Where the policy in this case allows concurrent insurance and by its terms provides that the insured in case of loss, is entitled to recover no greater proportion of the loss than the amount of the policy bears to the amount of the existing insurance, and further provides that the insured in his particular statement shall set forth the other insurance, if any, on said property, or any portion thereof, with copies of the written portion of each policy and indorsement thereon, and generally the matters required in lines sixty-six to eighty both inclusive of the policy, to be set forth in the particular statement, or proof of loss, such proof of loss must be furnished as a preliminary to bringing suit, and must be signed and sworn to by the insured himself.</p> <p>4. Where the insured refuses to present himself for proper examination under oath, after being notified so to do, there can be no recovery under the terms of the policy in suit.</p> <p>5. Where notice was given to the insured’s attorney in fact, that the insured would be required to present himself for examination under oath, and the attorney in fact failed to produce the insured or give definite information as to where insured could be found, and as a matter of fact, tbe insurer could not find the insured, there can be no recovery until such examination under oath, has been made.</p> <p>6. That the defendant company having been commanded by an injunction issued by the court of common pleas of Cambria county, sitting in equity, to “ absolutely desist from settling ” the claim of Joseph J. Konicz against the said company, and having been restrained by said injunction from paying moneys, or any part thereof arising from said insurance to said Joseph J. Konicz or any one in his behalf, and said injunction not having been dissolved, no interest can be recovered on any money judgment that may be entered against the defendant.</p> <p>7. That upon the whole case the verdict should be for the defendant.</p> <p>We reserve the questions of law raised by the above points.</p> <p>To which charge of the court and the rulings therein plaintiff excepts and prays that a bill of exceptions be signed and sealed, which is accordingly done.</p> <p>Yerdict for plaintiff.</p> <p>The court entered judgment for defendant non obstante veredicto. Plaintiff appealed.</p> <p>Frror assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Evidence — Competency of witness — Party dead — Clause E of section 5 of the Act of May 23, 1887, P. L. 158 — Ejectment.</p> <p>In an action of ejectment where the plaintiff claims title under unrecorded articles of agreement with the former owner, dead at the time of the trial, under which articles all of the purchase money was paid, and the defendant claims under a subsequent recorded deed from the same owner, containing a clause of general warranty, the plaintiff is not a competent witness to prove that the defendant had notice of the articles of agreement prior to the execution of the deed to him. In such a case the interest of the plaintiff is adverse to the right of the deceased, inasmuch as the latter’s estate is liable under the general warranty in the deed, if the defendant’s title fails.</p>

<p>Partnership — Receiver—Sale of partnership property pending suit for receiver.</p> <p>Pending an equity suit by one partner against another for an accounting and a receiver, in which no order has been made restraining the partners from selling partnership property and receiving the proceeds thereof, one partner may sell property which he claims as his own, but which the court subsequently finds to be partnership property, and receive the proceeds thereof, and a receiver subsequently appointed cannot successfully maintain an action of assumpsit to recover from the purchaser the value of the articles purchased.</p>

<p>Deeds — Recording act — Act of March 18, 1775.</p> <p>A deed recorded after the expiration of six months from the date of its execution, has priority over a subsequent deed recorded within six months from its execution, if the recording of the first deed is prior in date to the recording of the second deed. (Fries v. Null, 154 Pa. 573, followed.) The grantee in the second deed by taking possession and making improvements, does not thereby acquire a title superior to that of the grantee in the first deed.</p> <p>Where an owner of land conveys it by deed, but retains possession, and thereafter makes a second deed and delivers possession to the grantee in it, and the first deed is recorded after six months from its date, but prior to the recording of the second deed which, however, is recorded within six months from its date, and the grantee in the first deed is ignorant of the entry upon and use of the land by the grantee under the second deed, the grantee in the first deed is entitled to recover the land in ejectment.</p>

<p>' Negligence — Damages—Review of discretion of lower court — New trial.</p> <p>The appellate courts have power to review the discretionary act of the trial court in refusing to grant a new trial because of the alleged inadequacy of the verdict, but this power is exceptional in character and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied.</p> <p>No mere difference of opinion, nothing short of a clear conviction compelled by the evidence, that the jury must have been influenced by partiality, passion or prejudice or by some misconception of the law or the evidence, will justify an appellate court in declaring that the trial court was guilty of an abuse of discretion in refusing a new trial for inadequacy of damages, where neither the evidence in the particular case nor the law applicable thereto furnished any definite standard by which they might be measured, and the jury had no other guide in arriving at the amount to be awarded but pure conjecture.</p> <p>The appellate court will not review the act of a trial court in refusing to grant a new trial in an accident case on account of inadequacy of the verdict, where it appears that the verdict was substantial and not merely nominal, that the plaintiff, a boy, thirteen years old, was badly hurt, was disfigured, suffered much pain and underwent several operations, that some of his minor injuries were permanent, that he was confined to his bed for about a month, and did not return to his school for about three months.</p> <p>Negligence — Street railways — Contributory negligence — Evidence—Appeals.</p> <p>In an action to recover damages for personal injuries resulting from the negligence of defendant, where the verdict is in favor of the plaintiff, the exclusion of evidence which tended to show the defendant’s negligence,</p> <p>- and instructions to the effect that the plaintiff was of sufficient age and maturity to be guilty of contributory negligence, are not properly assignable, as error, inasmuch as the verdict has settled both questions in the plaintiff’s favor.</p>

Appeal, No. 126, April T., 1901, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1898, No. 397, on verdict for plaintiff in case of Katherine Donoghue v. Consolidated Traction Company Trespass for personal injuries. Before Collier, J. At the trial it appeared that plaintiff was injured on July 30, 1898, while attempting to get on one of defendant’s cars. There was no serious dispute about the defendant’s negligence. Verdict for plaintiff for $200.

Appeal, No. 167, April T., 1901, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1898, No. 587, on verdict for defendant in case of John Rinard v. The Lincoln National Bank. Assumpsit to recover the proceeds of a promissory note. Before Frazer, J. At the trial it appeared that in September, 1897, the plaintiff owned a promissory note for $1,000 made by the Braxton Lumber and Coal Company.

<p>Appeal, No. 160, April T., 1901, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1898, No. 889, refusing to take off nonsuit in case of Commonwealth to use of School District of Borough of West Liberty v. Frederick Piroth, Sr., Christian Wilhelm, Charles E. Friday and Philomena Bendi, Deceased.</p> <p>Assumpsit on bond of tax collector. Before Brown, J.</p> <p>At the trial plaintiff’s counsel offered in evidence the original report of the borough auditors of date J une 8,1897, showing a deficit for the years 1893,1894 and 1895 of $298.59, and offered to show a subsequent apportionment of the total amount of said deficiency in the original report segregated into the several years, the amount of deficit existing in each year, and a subsequent report of the borough auditors made October 17, 1900.</p> <p>Objected to by defendants’ counsel as incompetent under the law.</p> <p>The Court: The objection is sustained and exception noted to plaintiff.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>jError assigned was refusal to take off nonsuit.</p>

Appeal, No. 174, April T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny County, Nov. T., 1899, No. 630, on verdict for plaintiff in case of Margaret Shaughnessy v. The Consolidated Traction Company. Trespass to recover damages for the death of plaintiff’s husband.

Appeal, No. 17, April T., 1900, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1897, No. 733, on verdict for defendant in case of E. S. Moulton and H. R. Greene, Jr., copartners, trading as Moulton & Greene, v. J. D. O’Bryan, Jr. Assumpsit for breach of contract.

Appeal, No. 11, April T., 1901, by defendant, from judgment of C. P. No. 2., Allegheny Co., April T., 1898, No. 802, on verdict for plaintiff in ease of A. R. Griffith v. M. M. Herr and H. L. Herr. Assumpsit on a promissory note. Before Shafer, J. At the trial it appeared that the note was given in part payment for the stock and fixtures of a millinery store.

Appeal, No. 135, April T., 1901, by defendant, from judgment of C. P. Butler Co., March T., 1900, No. 63, on verdict for plaintiff in case of John Halstead v. The American Natural Gas Company. Trespass guare clausum fregit. Before Greer, P. J. At the trial it appeared that in 1879, the plaintiff granted to the Natural Gas Company, Limited, the predecessor in title of the defendant, the right to lay gas pipes through his farm.

<p>Partnership — Evidence—Question for jury.</p> <p>In an action of assumpsit for goods sold and delivered where the plaintiff alleges that the goods were bought for a partnership of which the defendants were members, and the defendants deny this allegation, and the other evidence in the case as to the existence of the partnership is conflicting, the ease is for the jury.</p> <p>In an action for goods sold and delivered, where the plaintiff alleges that the defendants were partners of the person who bought the goods, and the evidence is conflicting as to whether the purchase was within the scope of the partnership business, the case is for the jury.</p> <p>Practice, G. P. — Trial—Charge of court — Review.</p> <p>In the absence of special request for more specific instructions, it is well settled that if no particular error of 'law or misstatement of the evidence can be pointed out, the court will be reviewed on the general effect of the charge and not upon sentences or paragraphs disconnected from the context which qualifies or explains them; if, as a whole, the charge was calculated to mislead, there is error in the record; if not, there is none.</p>

Appeal, No. 79, April T., 1901, by defendants, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1897, No. 289, on verdict for plaintiff in case of Holmes Harger v. Robert Jenkins, Jr., surviving partner of T. M. Jenkins & Company. Assumpsit for wages. Before Stowe, P. J. At the trial it appeared that in July, 1896, plaintiff made a contract with defendants to act as master and pilot of a river boat for one year from July 1, 1896.

<p>Husband and wife — Agreement of separation.</p> <p>A valid agreement may be made for separation between husband and wife and for an allowance for her support where the separation is inevitable and immediate, and such an agreement may be made directly between the husband and wife without the intervention of a trustee. The wife’s right under such a contract may be enforced in her own name as her separate property right.</p> <p>An agreement of separation by which the wife agrees in consideration of a payment of $20.00 per month, payable quarterly, to support her two minor children is a valid agreement based upon sufficient consideration, and cannot be defeated by the failure of the wife to comply with an alleged oral agreement to withhold testimony in a divorce suit which she had instituted against her husband.</p>

<p>Appeal, No. 103, April T., 1901, by Catharine Elsasser, from decree of O. C. Allegheny Co., May T., 1900, No. 55, dismissing exceptions to adjudication in Estate of Anton Elsasser, Deceased.</p> <p>Exceptions to adjudication.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 111, April T., 1901, by defendant, from judgment of C. P. No. 3, Allegheny County, Feb. T., 1900, No. 65, on verdict for plaintiff in case of Coleman Garrity v. Pennsylvania Casting and Machine Company.</p> <p>Trespass to recover damages for personal injuries. Before Kennedy, P. J.</p> <p>At the trial it appeared that on August 16, 1899, the plaintiff, while in the employ of the defendant company, was seriously injured by the caving in of a sewer trench in which he was working. The circumstances of the accident are fully stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff' for $1,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Negligence — Charge of court — Review.</p> <p>Where a trial judge in an effort to reconcile conflicting stories supposes a case which coincides with neither story, and leaves it for the jury to say whether or not under the circumstances of the supposed case there would have been negligence on the part of the plaintiff, the narration of the supposed case is not ground for reversing a judgment for the plaintiff, where the jury is allowed to determine whether or not there was under the supposed circumstances any negligence on the part of the defendant.</p> <p>Negligence — Damages—Evidence.</p> <p>In an accident case where there is no evidence as to the age, habits, earning capacity or industry of the plaintiff, there is nothing upon which a jury •can legitimately base a verdict in reference thereto; and if a trial judge submits these questions to a jury and leaves the entire question of damages to them without any adequate instructions to guide them, he commits substantial error.</p> <p>In an accident case it is not what is to be feared, but what is to be reasonably expected as the probable result of an injury which is to be taken into consideration by the jury.</p>

<p>Appeal, No. 127, April T., 1901, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1900, No. 143, on bill in equity in case of John Liggett v. Jacob Kaufmann, Isaack Kaufmann, Morris Kaufmann and Henry Kaufmann, partners, and trading as Kaufmann Brothers.</p> <p>Bill in equity for an injunction.</p> <p>Shaeer, J., found the facts to be as follows:</p> <p>The bill is by a landlord against a tenant, to restrain waste.</p> <p>FINDINGS OF FACT.</p> <p>1. The defendants are the owners of a large department store on Smithfield street, in the city of Pittsburg, the buildings occupied by them being erected upon lots in part leased from various owners and in part owned by the defendants themselves in fee, having been built from time to time as the properties were acquired, and all used and intended to be used, as one store.</p> <p>2. In November, 1897, the plaintiff was, and still is, the owner of a lot of ground at the corner of Smithfield and Diamond streets, adjoining properties then used by the defendants for their business; and on November 20, 1897, the plaintiff made a lease to the defendants of his said lot, of which lease “Exhibit A,” attached to the plaintiff’s bill, is a correct copy. The lease was for the term of nineteen years, and a part of the consideration for it was that the defendants should immediately build on the plaintiff’s land, “ to the height of and including seven stories complete, a building, the plans and specifications of which are for a seven-story building; and to be of a character and construction as provided for in said plans and specifications for said completed building.” This lease also contains a covenant by the defendants that, at the termination of the lease, the building shall be turned over and delivered up to the plaintiff “ in good and sound order and condition and complete repair.”</p> <p>8. At the time negotiations were carried on for the making of this lease, and at the time the lease was made, the plaintiff knew the purpose for which the defendants intended to use the building, and further knew that the defendants were endeavoring to obtain possession, by lease or purchase, of the property known as the Deckenbaugh property, fronting on Diamond street, immediately in the rear of plaintiff’s lot, to be used for the same purpose. The negotiations for this lease, and all the transactions of the plaintiff with the defendants, were carried on by the son of the plaintiff, Frank R. Liggett, who appears to have been the agent of his father in the management of the property.</p> <p>4. In pursuance of the terms of the lease of the plaintiff to the defendants, the defendants entered upon the plaintiff’s lot and built a seven-story building. The wall next to tbe Deckenbaugh property, being the wall which runs at right angles with Diamond street, was built solid throughout its whole length and height. Whether it was so built because the specifications required it to be built in that manner or not does not appear, as the specifications themselves are not in evidence.</p> <p>5. After the completion of this building the defendants purchased the above mentioned Deckenbaugh property on Diamond street, and in July, 1899, began to erect a building thereon. This building was constructed without any door or opening upon Diamond street, and that it was so constructed became plainly visible to any person passing along the street within a short time after the construction was begun, and was, in fact, known to Frank R. Liggett, the plaintiff’s agent. The only means of access to the building on the Deckenbaugh property thus in course of erection, unless the openings complained of were made, would have been in the rear, 120 feet from Diamond street, where some sort of passageway existed from the Methodist church property, which formed part of the Kaufmann store. Prior to beginning the construction of the building on the Deckenbaugh property there had been various conversations between Mr. Frank R. Liggett and the defendants, in which the defendants always claimed that they had a right to make openings through the wall, and Mr. Liggett claimed they had not.</p> <p>6. On November 11,1899, by which timé the building was in a fair state of progress, the work having been carried on without intermission from about July 1 to that time, the plaintiff, by his agent, Frank R. Liggett, sent to the .defendants a notice, “ Exhibit B,” attached to the bill, in which he informs defendants that he has heard that they are about to make openings in the wall, and forbids any changes or alterations in the wall, and gives notice.that he will take proceedings to have the same restrained by the courts. Immediately after this notice the parties had a conversation over the telephone, about' which they radically differ, Mr. Liggett claiming that the defendants’ agent said to him that they were about to make openings, and would not do so; whereas Mr. Baer, the agent of the defendants, says that the conversation was about a particular opening in the cellar wall which Liggett had seen the day before, and that he said to him over the telephone that they would not enlarge that opening, but that the plaintiff knew their position in regard to the right to make openings through the wall, .and that they would adhere to it. It does not appear to be necessary to the determination of the case to find which of the parties is right in this contention; but it does not seem very probable that the defendants, after having proceeded so far in the erection of the building for which the openings were necessary, should then abandon a claim which they confessedly made at all times before.</p> <p>7. The construction of the building was proceeded with after November 11, 1899, and on January 17, 1900, the plaintiff, by his attorney, gave notice to defendants that he was informed that they were taking out, or had taken out, a considerable section of the wall referred to, and that he would proceed to restrain them, and would require a replacement of the portion of the wall taken out; and within a few days thereafter the bill was filed. At the time of the giving of the last mentioned notice the openings complained of had been made and completed, except the finishing and framing of the openings.</p> <p>8. The openings complained of do not in any way impair the strength of the building on the plaintiff’s lot, or in any way endanger it, and do no actual harm in any way to the plaintiff. They are five in number, and can be closed up at any time at a cost of from $65.00 to $70.00, so as to leave the wall in every respect as complete as before they were made. The defendants have expended a large sum of money in the erection of their building on the Deckenbaugh property, which could not be used except in connection with the building on the plaintiff’s property by means of these openings.</p> <p>We are not convinced that the granting of an injunction herein requiring the closing of the openings complained of would produce an equitable result. The case is not that of a building already erected by an owner and demised by him; nor is it a case in which there is any negative covenant to enforce. No irreparable injury can be done to the plaintiff, nor, for that matter, any real substantial injury whatever. The waste complained of cannot be said to have been committed secretly, and was practically ended before the bill was filed.</p> <p>In view of all the circumstances of the case, we are of opinion that it is not one for an injunction, but is one in which the parties may be properly left to their legal remedy.</p> <p>The defendants have offered either to give a bond with sureties to restore the openings before the expiration or sooner determination of the lease, or place in the hands of the plaintiff $350 to secure the proper closing up of the openings. If the plaintiff is willing to accept either of these offers a decree will be made accordingly ; but if not a decree will be made dismissing the bill, the costs to be paid, one half by each of the par-' ties.</p> <p>The defendants’ offer was refused and the court subsequently dismissed the bill.</p> <p>'JError assigned was the decree of the court dismissing the bill.</p>

<p>Negligence — Street railways — Speed of car — Infant.</p> <p>In an action by a child five years old against a street railway company to recover damages for personal injuries where the question of defendant’s negligence turns upon the speed of the car, the case is for the jury, and a verdict and judgment for plaintiff will be sustained where the motorman testifies that the car was running at the rate of eight miles per hour, which was the legal rate in the city where the accident occurred, but a witness for plaintiff testifies that he supposed the car was running from fifteen to eighteen miles an hour, and it also appears that the car ran upon an up grade from eighty-five to 150 feet after the child was discovered.</p>

<p>Appeal, No. 15, April T., 1901, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1898, No. 15, on verdict for plaintiff for $260 in case of Robert T. Hooper v. United Traction Company, Lessee of Second Avenue Traction Company.</p>

<p>Criminal law — Involuntary manslaughter — Shooting an escaping burglar — Justifiable and excusable homicide.</p> <p>In Pennsylvania if homicide is justifiable or excusable there must be an entire acquittal.</p> <p>When a party may be lawfully arrested for felony, and he knowing the cause flies, so that he cannot be taken otherwise than by killing him, the constable pursuing him will be justified in killing him; or a private person will in like manner be justified if he can prove that the deceased was actually guilty of a felony.</p> <p>Where a householder sees a burglar escaping from his house and pursues him on to the porch of the house, and when he is about twenty-five feet away from the burglar, and thinking that the latter is about to escape, and that notice is useless, shoots at his legs so as to maim or mark him, and as the shot is fired the burglar jumps from the porch and receives the charge in his back, resulting in his death, and the householder is arrested and indicted for manslaughter, it is error for the courtto refuse a request to charge as follow? : “ If the jury find under the law and the evidence that the shooting of the deceased in the leg would have been justifiable, and if they further find that by a pure accident and without any carelessness on the part of the defendant, the shot produced death by enterihg a vital part of the deceased, then the defendant’s action was equally justifiable.”</p>