Volume 170 — Pennsylvania State Reports

<p>Corporations — Foreign corporations — Insolvency—Preferences—Conflict of laws.</p> <p>The directors of a New York corporation at a meeting held in New York authorized the president of the company to prefer a New York creditor by confessing judgment to him in Pennsylvania, although the corporation was at the time insolvent, and the laws of New York forbid preferences by corporations upon the eve of insolvency: held that distribution was properly awarded to the execution creditor.</p> <p>Such creditor cannot be deprived of his rights under the judgment because the foreign corporation was doing business in Pennsylvania without having complied with the requirements of the Pennsylvania statutes.</p> <p>Corporations — Execution—Preferences.</p> <p>The property of a private corporation having no public duties to perform may be taken in execution and sold under an ordinary writ of fieri facias.</p>

<p>Appeal No. 5, July T., 1895, by plaintiff, from decree of C. P. McKean Co., Feb. T., 1895, No. 1, dismissing bill in equity.</p> <p>Bill in equity to set aside a judgment, and for specific performance.</p> <p>The bill alleged a contract dated Nov. 4, 1885, between appellee of the one part, and appellant (then Rebecca B. Pierce, since intermarried with Noah Wilson) and John Banks (who afterwards assigned his interest to her) of the other part, to transfer certain leasehold estate mineral right and oil property for the consideration of $3,000 then paid and $11,500 to be thereafter paid with interest, by proceeds of oil from the premises described; that certain oil property and a leasehold estate was included to which the appellee has never had title; that in ignorance of such want of title the appellant proceeded to operate the property and produce oil therefrom to the credit of the appellee as required by said contract; that on or about March 7, 1887, appellant and her associate having discovered that appellee had made misrepresentations concerning the condition of the wells and was violating his agreement in failing to make monthly sales, the damages claimed were compromised in consideration of $667.50 in cash, a loan of $635, and a modification of contract whereby appellee should receive only seven eighths of the oil until balance paid together with the sum loaned, and then make title as required by original contract; that long afterwards and about three years after the oil had been entirely discontinued to appellee, and he had, as appellant understood, relinquished all claim in the premises, the production was transferred, without objection on his part, from the Tidewater Pipe Company, Limited, where the original contract contemplated it should be run, into the pipe line department of the Emery Manufacturing Company, whereby all charges for storage were saved ; that the said John Banks sold to appellant on the 23d day of December, 1893 ; that appellee failed thereafter to make monthly sales without intermission, had not accounted for such default nor rendered statement of oil received.</p> <p>The bill further alleged (par. 8) that the appellant ascertained on or about Jan. 1, 1890, that appellee was without good title, and consulted appellee thereon, Avho informed her in substauce that he had no title to the property in question to convey, that he would execute no other paper and do nothing further in respect to a transfer; that meantime and in consequence of the discovery of said want of title appellant caused the proportionate part of the oil then running to credit of appellee to.be withheld and thereafter run to her credit, of which appellee was duly apprised; that the appellee had then received from cash and sales of oil all but $988.47 of the contract consideration, and more than was justly due under the contract in full discharge thereof; that appellee, admitting his inability to make the title in question, tacitly acquiesced in consequence thereof in the discontinuance of the oil to his credit, remained silent and took no action for about five years, nor offered to make any other settlement or compensation for the failure of his obligation, and it was alleged that the Aalue of the oil so withheld was a grossly insufficient and inadequate measure of appellant’s damages or equiAalent for said compensation; that appellant retained the property in question by reason of the said tacit understanding, and because she had no other available remedy for the breach of the contract, and made no tender of balance otherwise due for the reason that appellee having asserted his inability to make the title required and declined to do anything further about it, such tender would as appellant was advised be unnecessary and nugatory, and for the further reason that payment by means of oil was discontinued with the knowledge and tacit assent of the appellee, as aforesaid.</p> <p>The bill further alleged that notwithstanding the premises, the appellee on or about Dec. 1,1894, made an affidavit setting forth the discontinuance of said oil to his credit and caused a confession of judgment in ejectment for the entire premises to be entered against appellant at No. 216, December term, 1894, in the court of common pleas of McKean county, which confession purports to have been entered by virtue of a warrant of attorney contained in the original contract, and upon judgment so entered appellee caused a writ of habere facias possessionem to be issued a few days only before the return day of the writ, put an employee of appellee in possession of the premises and returned the writ; that on the last Saturday before the Monday on which the writ was returnable, appellant having learned of the issue of the writ, sought by petition to obtain a stay and to open the judgment, but the time was too short to present the facts in a full and satisfactory manner necessary to a proper understanding of the premises, hence the petition was refused; that appellant designing to seek an adequate remedy in said court upon presentation of the facts as soon as possible accordingly gave notice to the pipe line company having custody of the oil, and other pipe line companies whose offices are in the city of Bradford, of appellant’s rights, and forbade delivery to appellee; that the notice being respected by said custodian company, the appellee, in order to defeat the rights of appellant, caused the tanks to be connected with the pipes of another company, the Tidewater Pipe Company, limited, into which he now proposes to run the whole production, make sale thereof and convert the proceeds to his own use.</p> <p>The bill further alleged that the pumping of the wells on the premises was being neglected; that they were not being operated in a skillful and workmanlike manner; that the production was accordingly diminished, and serious and lasting injury being . done to the wells which, if allowed to continue, would result in their practical destruction, to the great and irremediable damage of appellant;</p> <p>That the said affidavit did not set forth the entire truth nor such nor sufficient facts to warrant the confession and entry-aforesaid with reference to the authority in the contract; but that the action so taken was in execution of a purpose on the part of the appellee to fraudulently determine the contract by a pretended forfeiture and thereby deprive appellant of the property which she had acquired by payment of a full, fair and valuable consideration ;</p> <p>That by virtue of the premises in fulfillment of the original contract, modified aforesaid, appellant was entitled to a conveyance of the entire property.</p> <p>Wherefore appellant prayed for an injunction to restrain the pumping of the wells, further control thereof and interference with the repossession of appellant;</p> <p>To restrain appellee from selling the oil or depriving appellant of credit therefor;</p> <p>To restrain appellee from depriving appellant of the premises described in the original contract or any part thereof, and from exercising any ownership, control or possession therein;</p> <p>To restrain the appellee from making any sale, lease, mortgage or contract of, relating to, or in any manner affecting the property or any part thereof or interest therein;</p> <p>That the court decree that the judgment be set aside and annulled; and that restitution be awarded by restoration of the property to the appellant;</p> <p>That the appellee be decreed to specifically perform and make conveyance accordinglj’-, and that in compensation for default a proper allowance or deduction be made from the contract consideration;</p> <p>That an account be taken of such damages as well as of all moneys received by appellee from sales of oil, and of all damages suffered by appellant in consequence of being deprived of the possession of the premises, and that thereupon appellee be decreed to pay over to appellant such sum as upon account she may be entitled to receive;</p> <p>And for such other relief as equity and good conscience may require and to the court may seem meet.</p> <p>The appellee, with formal protestation, demurred in brief:</p> <p>1. That judgment in ejectment having been entered, and application to open the same having been refused, this court had no power to open or set aside the said judgment.</p> <p>2. That no tender of balance of consideration having been made by appellant he could not maintain a bill for specific performance.</p> <p>3. That the bill did not set forth sufficient facts to entitle appellant to specific performance, that upon the facts alleged the court had no jurisdiction, and the appellant had an adequate remedy at law.</p> <p>Morrison, J., filed the following opinion :</p> <p>“ It was well said by the defendant’s learned solicitors at the argument that the plaintiff’s bill is in effect: 1. A substitute for an action in ejectment. 2. A rule to strike off a judgment. 3. A bill to enforce specific performance.</p> <p>“ The first, second, third and fourth paragraphs of the prayers in the plaintiff’s bill, in effect, ask the court of equity to eject the defendant from the oil producing property described in the bill, which property is an interest in land for which ejectment will furnish an adequate remedy to the plaintiff. It is unnecessary to cite authorities to sustain the well settled doctrine that equity will not entertain jurisdiction where the plaintiff has an adequate remedy at law : Richard’s App., 100 Pa. 51; Kennedy’s App., 81* Pa. 163.</p> <p>“ It clearly appears on the face of the bill that the defendant, acting under the forfeiture clause of the agreement of November 4,1885, caused an action in ejectment to be entered on the law side of this court, and a final judgment therein was entered in favor of said Buchanan for the premises described in the bill, and upon a writ of habere facias possessionem issued thereon the sheriff put the plaintiff herein out of possession and delivered .to the said Buchanan the full, complete and exclusive possession of the premises more than a month before the filing of the bill. Therefore it is plain that the real purpose of this bill is to put the defendant out of possession and restore the plaintiff to the possession that she lost by proceedings at law. This, we think, appears very plainly by reading the bill. The judgmentin ejectment had accomplished its purpose long before the bill was filed. It is well settled that the execution of the writ, for proper reasons, might have been restrained in equity, but it is too late to do that after the writ has been fully executed by the sheriff and returned into court, which was the situation in this case when the bill was filed.</p> <p>“ It requires no argument or citation of authorities to sustain the position that a judgment on the law side of the court will not be stricken off by a bill and decree in equity.</p> <p>“We are not able to see how the plaintiff can have specific performance of the contract enforced in this action for several reasons:</p> <p>“ 1. Because she plainly violated the terms of the contract by running the oil into another pipe line than the one specified in the contract and selling the oil and converting it to her own use and refusing to pay the purchase money due on the contract.</p> <p>“ 2. The plaintiff admits that she owes nearly one thousand dollars of the purchase money, which is past due, and she has neither paid it nor offered to pay it to the defendant. How then can she have specific performance of the contract? She does not even offer to perform, or aver willingness so to do. Where the vendor is in lawful possession the vendee, to recover under his equitable title, must have tendered balance of purchase money due, and have the money in court: Dwyer v. Wright, 162 Pa. 405 ; Bell v. Clark, 111 Pa. 92.</p> <p>“ By the judgment in ejectment above mentioned it appears that the plaintiff herein owes the defendant about twenty-five hundred dollars purchase money. In her bill she admits owing nearly one thousand dollars, and she does not explain or undertake to show why she does not owe the larger sum. But for the puiposes of the question we are considering it is not material which is the correct amount.</p> <p>“ The plaintiff realizing the difficulty of enforcing specific performance without offering to pay the purchase money makes a lame attempt, in paragraph 8 of the bill to excuse herself on the ground that she was informed by the defendant in substance, that he had no title to said property to convey; that he would execute no other paper than he had already executed nor do anything further in respect to a transfer of said title. In this connection it should be noticed that the plaintiff does not point out a single defect in the title.</p> <p>“ She does not aver that she was ever disturbed in the possession and enjoyment of any part of the property, and she stands admitting that she had had the benefit of the entire production from the date of the contract in 1885 till December term, 1894, when she was ejected by the sheriff in pursuance of a judgment and writ, based upon her palpable violation and forfeiture of her contract. If the title was bad it is remarkable that in all this elaborate bill, not one defect is pointed out. If the defendant did say, in substance, what she avers in paragraph 8, we think it a proper construction that he meant to say that he would execute no other or better title than he had agreed to do by their contract. Certainly he was not required to execute any other paper until he was paid in full, or a tender was made and a demand made for the conveyance of the legal title.</p> <p>“ A plaintiff who has been in the quiet possession of premises for nearly ten years, under an equitable title, and has not paid the purchase money, nor offered to pay it, and is now out of possession by proceedings at law, does not stand on very solid ground when asking for a decree of specific performance of a contract which had been forfeited by a judgment at law, based on such plaintiff’s violation of the terms of the contract, and especially is this so, where no defect in the title is pointed out, and where the defendant acquired lawful possession of the premises.</p> <p>“ We sustain the demurrer, and enter judgment thereon in favor of the defendant.</p> <p>“ And now, to wit, March 23,1895, it is ordered, adjudged' and decreed that the plaintiff’s bill be dismissed, with costs in favor of the defendant.”</p> <p>Error assigned was in dismissing bill.</p>

<p>Negligence — Explosion of boiler — Evidence.</p> <p>In an action by a wife against her husband’s employer to recover damages for the death of her husband resulting from the explosion of a boiler, the plaintiff is not entitled to recover on the ground that the employer placed in charge of the boiler a fireman alleged to have been incompetent, instead of an engineer, where there is no evidence whatever to connect the accident with the incompeteney or negligence of the fireman.</p>

<p>Appeal, No. 34, July T., 1895, by plaintiffs, from decree of C. P. Warren Co., June T., 1894, No. 3, on bill in equity.</p> <p>Bill in equity by the creditors of the Reynolds Lumber Company against the Reynolds Lumber Company and its officers for an account, discovery, and the appointment of a receiver.</p> <p>The court after hearing on bill, answer and proofs, entered the following decree:</p> <p>“And now, November 14, 1894, this cause having been tried by the court and duly considered, it is ordered, adjudged and decreed:</p> <p>“1. That the claims of each of the plaintiffs, as creditors of the Reynolds Lumber Company, be established according to the statements contained in their bill and the findings of fact.</p> <p>“ 2. That the defendant, T. J. Rejurolds, account for all the property, money, accounts, rights and credits of the Reynolds Lumber Company which have come to his hands on or since the 7th day of August, A. D. 1893, and for the value of all the property of said corporation in Warren and McKean counties which he caused to be sold upon execution issued by him out of the court of common pleas of said counties, as stated in the bill and findings, in excess of the amount produced by said sales and actually paid to the sheriffs of said counties. Also for any indebtedness from the said T. J. Reynolds to said Reynolds Lumber Company in excess of proper legal set-offs and counterclaims. And that the amount found due upon such accounting be paid by the said T. J. Reynolds to the receiver, or so much thereof as may be necessary to satisfy the claims of the plaintiffs and any other creditors who may hereafter intervene (after crediting any dividend which they, or either of them, may receive from the funds in court in Warren and McKean counties), and the costs of this proceeding, including the fees and disbursements of the receiver.</p> <p>“ 3. That the defendants, except D. R. Rooney, pay the costs of this proceeding.</p> <p>“ 4. The plaintiffs, by their solicitor, S. T. Neill, Esq., and the defendants by the Hon. W. M. Lindsey and James O. Parmlee, Esq., their solicitors, being present in court and so requesting, the cause is referred to William Harrison Allen, Esq., to take the account and conduct the further proceedings in accordance with this decree and the rules in equity.</p> <p>“ 5. It is further adjudged and decreed that the judgments entered in the courts of common pleas of Warren and McKean counties upon single bills given by George E. Colvin in the name of the Reynolds Lumber Company to T. J. Reynolds, and the executions issued thereon by virtue of which the property of the Reynolds Lumber Company was sold are, as against the plaintiffs, and all other creditors of the Reynolds Lumber Company who may hereafter be permitted to intervene, fraudulent and void. And the said T. J. Reynolds is restrained and enjoined from claiming or accepting any benefit or advantage, dividend or distributive share in the distribution of the funds in court, or otherwise, until the claims of the plaintiffs, and any others hereafter intervening are fully satisfied.”</p> <p>JError assigned was the above decree.</p>

<p>Adverse possession — Qoal lands — Mines and mining — Separation of mineral from surface.</p> <p>The title to the surface of land, either by deed or by adverse possession, carries with it the right to the coal beneath, but this may be rebutted by evidence of a severance of the coal, and such evidence is not contradictory of that which shows title by deed or by adverse possession of the surface.</p> <p>When a severance takes place, and the holder of a stratum of coal or other mineral records his title, or enters into possession of his sub-surface estate, he is not affected by an adjudication of the title to, or possession of the surface.</p> <p>A and B, brothers, inherited land from their father, of which they made parol partition. A died, leaving B as his heir at law. B’s son John claimed title to A’s land by parol gift and adverse possession. B conveyed the coal to C, whose title defendants by sundry conveyances obtained. The testimony showed that John was present when the conveyance was made by B to 0, and that he did not object; but, on the contrary, he shared in the proceeds and saw the coal mined until his death, a period of seventeen years, without protesting against it. In a suit by his heirs against defendant for damages for mining and carrying away the coal, it was held, (1) that the evidence of John’s adverse possession of the surface in no way contradicted the evidence of his acquiescence in the sale of the coal; (2) that it was not evidence of his adverse and hostile possession of the coal; (3) that his acquiescence in the sale of the coal estopped him and his heirs from denying the sale.</p>

<p>Road law — Riding bicycle on sidewalk.</p> <p>The act of May 7, 1889, P. L. 110, providing a penalty for maliciously riding or driving any horse, or any other animal on a sidewalk, taken in connection with the act of April 28, 1889, P. L. 44, subjecting all persons using bicycles to the same restrictions as are prescribed by law in the case of persons using carriages, will sustain the conviction of a person for riding a bicycle on a sidewalk, and the imposition of the penalty provided by the act of May 7,1889.</p> <p>A sidewalk was constructed by abutting owners within the authorized roadway of a turnpike, with the consent of the turnpike company. A person was summarily convicted of riding a bicycle on this sidewalk, the informer being a resident on the road on which the sidewalk was constructed. Held, on an appeal from the summary conviction, (1) that it was no defense that the informer had not contributed to the original construction of the sidewalk; (2) that the consent of the turnpike company to the use of the sidewalk by bicyclers would not avail defendant; (8) that the fact that defendant and other bicyclers had used the sidewalk before without complaint was immaterial as a defense.</p>

<p>Appeal, No. 343, Jan. T., 1895, by defendant, from judgment of C. P. Union Co., Sept. T., 1893, No. 67, on verdict for plaintiff.</p> <p>Assumpsit on a promissory note.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the defendant made the following offer:</p> <p>Mr. Orwig: “We offer the will of Margaret Walls, deceased, dated the 4th of May, 1858. This offered for the purpose of showing that John Walls was executor and trustee under the will, and that his son, A. G. Walls, is a legatee. To be followed with evidence showing that Judge (John) Walls had in his hands assets belonging to his son Dr. A. G. Walls sufficient, and more than sufficient, to pay the note in suit.</p> <p>“ This offered, in connection with the testimony already in the case, as a fact to go to the jury for the purpose of enabling them to determine whether or not the note in suit was paid.”</p> <p>Mr. Leiser: “ To which the plaintiff objects:</p> <p>“ First. That it is not proper evidence for the purpose offered.</p> <p>“Second. That it is not evidence under the pleadings and the notice given to the defendant’s counsel under rules 99 and 100 of the rules of court and the specifications of matters of defense furnished to plaintiff’s counsel; no reference to the will of Margaret Walls, nor any statement of the estate of Margaret Walls, nor any claim thereunder being referred to or made part of the defense in such specification.</p> <p>“ Third. That it is not offered to be shown that the estate of Margaret Walls was ever settled, or that A. G. Walls by the settlement of that estate was entitled to anything therein.</p> <p>“Fourth. That no account of the decedent’s estate can be settled by the court of common pleas, and this court cannot before the jury settle the estate of Margaret Walls for the purpose of determining what, if anything, is coming to A. G. Walls, whose executrix is the defendant in this suit.</p> <p>“ Fifth. There has been no offer to show any such settlement nor any specific amount due or owing A. G. Walls, coming to him under the will of Margaret Walls, deceased, and</p> <p>“ Lastly. Immaterial and irrelevant.”</p> <p>Mr. Or wig: “We want to add to the purpose of our first offer the further purpose, to show that there were assets belonging to the estate of Margaret Walls in the hands of Judge Walls, and which were by the will devised to Dr. A. G. Walls; and in support of the presumption that is raised upon these facts, that when Judge Walls said there was nothing due, or he thought Gust, had no debts, he had in mind the fact that there was nothing due to himself on account of the note in suit by reason of the fact that he had never paid to his son the money that belonged to him under this will; and as a fact to go to the jury for the purpose of enabling them to determine whether or not the presumption already raised upon the evidence in the case is founded on some substantial thing in the hands of Judge Walls and belonging to his son, and for which he had not accounted, as a reason for his declaring that his son owed him nothing.”</p> <p>The Court: “Has this estate of Margaret Walls ever been settled?”</p> <p>Mr. Onvig: “ No, sir.”</p> <p>The Court: “ We sustain the objection, to which the defendant excepts and bill sealed.” [1]</p> <p>Mr. Linn: “We renew the offer of the will of Margaret Walls, deceased, together with the citation to account and the answer. This offered for the purpose of showing that between the time that this note in suit was given and the time that suit has been brought upon it there was an estate of Margaret Walls in the hands of Judge Walls; to raise a presumption that the note of one thousand dollars was paid, and to account for the nonproduction of it and nondemand of it by Judge Walls in his lifetime.</p> <p>“We offer it to show that there were such circumstances in existence after the note on which suit was brought from which payment can be presumed.”</p> <p>Mr. Leiser: “We object:</p> <p>“ First. Not evidence for the purpose offered.</p> <p>“Second. Not evidence under the pleading, not having been set out in the specifications submitted by the defendant’s coun sel to plaintiff’s counsel under the request made under rules 99 and 100. The matter now offered being in the nature of payment or set-off under the rules of court covering specification of such payment or set-off, and no notice of the matter now offered has been furnished as required by the rule.</p> <p>“ Third. That there was no settlement of the estate of Margaret Walls in the orphans’ court.</p> <p>“ Fourth. Nor is there any offer to show a settlement of the estate of Margaret Walls, deceased, in the orphans’ court, or that A. G. Walls upon such settlement became and was entitled to any sum of money from John Walls, whose administrator is the plaintiff in this case.</p> <p>“ Fifth. That no account or settlement of the estate of Margaret Walls can be made by this court in this proceeding.</p> <p>“ Sixth. That the claims are not in the same right and, therefore, the presumption would not arise in any event.</p> <p>“ Seventh. That an inspection of the papers offered shows that in no case could John Walls, or any one representing him, be called upon to account.</p> <p>“ Eighth. That an inspection of the papers offered prove that A. G. Walls in his lifetime and in the lifetime of John Walls received his full share in the estate of Margaret Walls and more.</p> <p>“ Lastly. Immaterial and irrelevant.”</p> <p>The Court: “If there had been any adjudication by the proper court to show the amount in his hands we would have no hesitancy in admitting the testimony.</p> <p>“ The difficulty I see about this is to know what this lady died seized of. She may have left a will and provided for a good many things and not have sufficient estate to carry it out. We sustain the former ruling and the defendant excepts and bill sealed.” [2]</p> <p>The will of John Walls, plaintiff’s testator, was offered in evidence by defendant, which on objection was rejected and bill sealed for defendant. [3]</p> <p>Plaintiff’s point was as follows :</p> <p>“ That no presumption of payment of the note of March 6, 1883, for one thousand dollars arises because of the nonpresentation of the claim therefor by John Walls in his lifetime to M. A. Walls, executrix of A. G. Walls, deceased, between the date of her advertisement, July 21, 1890, of grant of letters testamentary, and June 5, 1891, the date of death of John Walls, to wit, within one year from the date of the death of A. G. Walls, deceased, and grant of letters on his will; and that there is no evidence that he did not make such claim. Answer: We affirm this point.” [4]</p> <p>Verdict and judgment for plaintiff for $1,342.65. Defendant appealed.</p> <p>Errors assigned were, (1-3) rulings on evidence, quoting the bill of exceptions; (4) above instruction, quoting it.</p>

<p>Appeal, No. 39, July T., 1895, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1894, No. 837, on verdict for defendant.</p> <p>Ejectment for a tract of land in North Union township. Before Ewing, P. J.</p> <p>At the trial it appeared that plaintiff claimed title as heir at law of Priscilla Carr. Defendant claimed title under a deed purporting on the record to be the deed of Robert Carr and his wife Priscilla Carr to Amzi S. Fuller. The signature of Priscilla Carr did not appear upon the record.</p> <p>Defendant offered in evidence an agreement for the sale of the land in controversy to Amzi S. Fuller, dated Feb. 7, 1854, and signed by Robert Carr and Priscilla Carr, his wife, to be followed by proof that the money was paid as in this article stipulated, that she received all or part thereof, and that possession was taken by Mr. Fuller in pursuance of this agreement at the time, and held adversely by him and those claiming under him to the present time.</p> <p>The plaintiff objected to the admission of the article of agreement with Amzi Fuller because it is a paper purporting to convey or agreeing to convey the title of a married woman to land, and it is not acknowledged in the manner prescribed by law and it is incompetent.</p> <p>The Court: Objection overruled and bill sealed. [1]</p> <p>Defendants offered in evidence a note by A. S. Fuller to Robert Carr and Priscilla Carr, dated October 10, 1854, for $688.28, payable on the first Monday of April, 1855, and witnessed by Daniel Downer, also the assignment on the back of said note, of Robert Carr and Priscilla Carr, of all their right, title, interest, claim, property and demand, whatsoever, in and to the within bond unto Isaac Skiles, Jr., for value received, dated the 11th day of October, 1854, and signed by Robert Carr and Priscilla Carr, and sealed.</p> <p>Plaintiff objected to the admission of this note as offered by counsel, because it is incompetent to show title out of a married woman by evidence of the payment of the purchase money, while the plaintiff does not deny that the defendant’s predecessors in title bought and paid for Robert Carr’s interest in this land.</p> <p>The Court: “ Well, I don’t understand that they are offered for the purpose of showing the receipt of the purchase money by her as going to make title or estoppel either.”</p> <p>Mr. Collins: “No.”</p> <p>Mr. Robinson : “ What could be the purpose of it then?”</p> <p>The Court: “ I suppose it was to show her familiarity with the circumstances, and some evidence going to show her execution of the deed. Objection overruled and bill sealed.” [2]</p> <p>Two similar notes were offered in evidence and admitted under objection. [3, 4]</p> <p>Defendant offered in evidence record of a deed from Robert Carr and Priscilla Carr, his wife, to Amzi Fuller, dated the 9th day of October, 1854, recorded October 11, 1854, in Deed Book No. 9, at page 64.</p> <p>Mr. Robinson asked the purpose of the offer.</p> <p>.The Court: “ As a paper in the line of title.”</p> <p>The plaintiff objected to the admission of the deed in evidence as any evidence of title out of Priscilla Carr.</p> <p>The Court: “ Objection overruled and'deed admitted. This is done with the understanding that it is to be followed by testimony going to show that the original deed was executed. Bill sealed.” [5]</p> <p>The court charged in part as follows :</p> <p>“ [The defendants set up here that that deed as recorded there is not a correct transcript of the original instrument, and allege that the original instrument contains the signature and seal of Mrs. Carr, as well as that of her husband, Robert Can'.</p> <p>“ Now, that is the question that is submitted to your determination upon the testimony to which you have listened, and I want to say here that the testimony that has been admitted in this case in regard to that agreement and the participation of Mrs. Carr in the different transactions involved in the real estate deal, the declarations made by her, her receipt for the purchase money, or the payment of it in her presence with her consent, and her assignment of the obligations given for the purchase money, etc., were admitted, simply and solely as circumstances in the case going to show her connection with the transaction, what knowledge she had of it, and how far she participated in it, as bearing alone upon the question of whether or not she did sign and execute this deed. . . . They are simply to be considered as circumstances and facts surrounding the whole transaction and tending to lead you to a correct conclusion as to whether or not she did, as a fact, sign and seal the deed purporting to convey her interest in that land to Colonel Fuller.] [6] . . . .</p> <p>“ [The acknowledgment is required by the act of assembly to state that the wife was examined separate and apart from her husband; that the contents of the instrument were fully made known unto her, and that she sealed and delivered that instrument of her own free will and accord, without any coercion or compulsion of her said husband. Now as to those facts the certificate of the justice of the peace is conclusive in the absence of fraud and so forth, as I have explained to you. Those matters are not alleged here. That is true as to an instrument where these things appear. Of course it would be foolishness to insist that the certificate to a deed was conclusive of the fact that the person had signed it because the certificate said so, when the paper itself shows that he didn’t. So that if the original instrument was here, which it is not, and therein arises the trouble in this case, it would show conclusively, but the certificate of that justice of the peace is evidence of those points which are set forth in the certificate, and you ought to consider whether or not, under the facts and circumstances of this case with reference to that point, that certificate is correct as to the fact of her having signed it and sealed and delivered it as her act and deed, or whether that is a mistake, and the record of it, as made by the recorder when it was left with him, is correct.] ” [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1-5) rulings on evidence, quoting the bill of exceptions; (6, 7) instructions as above, quoting them ; (9) not instructing the jury that there was no evidence proper to be considered by them to show that the original deed of Oct. 9, 1854, was signed by Priscilla Carr.</p>

<p>Appeal No. 42, July T., 1894, by plaintiff, from judgment of C. P. Lancaster Co., Jan. T., 1889, No. 29, on verdict for defendant.</p> <p>Issue in divorce.</p> <p>The defendant had been personally served with the subpoena. At the trial plaintiff offered her own testimony to establish the charge of adultery; she testified as follows: Q. “State whether or not your husband, Christian Seitz, admitted to you he had committed adultery with Mary Patterson.”</p> <p>Defendant objected. Disallowed. Plaintiff excepted. [1]</p> <p>Plaintiff offered to testify that Christian Seitz told her he had had to do with other women, and when she asserted that that woman was Mary Patterson, he did not deny it, but remained silent.</p> <p>Defendant objected. Disallowed. Plaintiff excepted. [2]</p> <p>Plaintiff offered to testify that Christian Seitz said to her he would continue his relations with other women openly; that he had one who was as clean as she was (plaintiff) and a little better.</p> <p>Defendant objected. Disallowed. Plaintiff excepted. [3]</p> <p>Plaintiff offered to testify that Christian Seitz was frequently away from his home nearly all night.</p> <p>Defendant objected. Disallowed. Plaintiff excepted. [4]</p> <p>Plaintiff offered to testify that Christian Seitz told her that he had made a bargain with a woman to “keep” her. Witness said that was Mary Patterson, and he remained silent.</p> <p>' Defendant objected. Disallowed. Plaintiff excepted. [5]</p> <p>Plaintiff offered to testify that she found Christian Seitz in improper relations with their German girl, named Lizzie.</p> <p>All of the above to have occurred between 1873 and 1874, in 1869, 1870 and the year following 1873-4.</p> <p>Defendant objected. Disallowed. Plaintiff excepted. [6]</p> <p>Plaintiff offered to testify that Christian Seitz admitted he had committed adultery with Kate Shelly in 1871-2 and 3.</p> <p>Defendant objected. Disallowed. Plaintiff excepted. [7]</p> <p>Plaintiff further testified as follows :</p> <p>“ Q. Was or not your husband away frequently at night? A. He was. Q. How late in the night? A. I think he went away every other evening till 12 o’clock; sometimes not so late. At first when he started out he didn’t stay so late. Afterwards he would stay later. Sometimes I seen him come home around 4 o’clock in the morning. Q. Did you or not frequently upbraid him for going with other women ? A. Yes, sir.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were, (1-7) ruling on testimony, as above; quoting the bill of exceptions.</p>

<p>Fire insurance — Construction of policy — “Contents."</p> <p>The word “ contents” in a policy of fire insurance is not a certain and definite description of any particular class of goods, and its meaning must be ascertained by considering the nature and methods of the business for which the building whose contents were insured was to be used, and the understanding and intentions of the parties as expressed at the time the insurance was contracted, and evidence to that effect and for that purpose may be given at the trial of a suit to recover a loss on the policy.</p> <p>When the “contents” insured are destroyed outside of the building, plaintiff’s right to recover depends on whether the purpose of the removal was such as to detach the goods permanently from the building, and create a new or an increased hazard not contemplated when the contract for insurance was made.</p> <p>Plaintiff insured a barn and butcher shop as one building for four hundred dollars, and the contents for four hundred dollars more. He insured a smoke house for five dollars, and its contents for five hundred dollars. The barn and butcher shop were burned with their contents. The smoke house was not burned, but its contents, which had been removed to a storage room in one end of the butcher shop, were wholly consumed. Plaintiff claimed to recover thirteen hundred dollars, and testified that at the time the policy was being prepared by the president of the insurance company, it was understood by him and the president that the cured meat in the butcher shop was to be included in the insurance of the “ contents ” of the smoke house. Held, that it was not error for the court to charge that if such was the understanding between the parties, plaintiff was entitled to recover.</p> <p>Such a case does not involve an attempt to reform a written contract, but to determine its meaning and extent. The rule in equity governing the reformation of contracts is not therefore applicable to it, and the jury is at liberty to determine the question by preponderance of the evidence.</p>

<p>Appeal, No. 465, Jan. T., 1895, by defendant, from .judgment of C. P. York Co., April T., 1889, No. 12, on verdict for plaintiff.</p> <p>Trespass for alleged wrongful levy and sale of a mule, borse, saddle and two bridles, claimed by plaintiff as her property. Before Latimer, P. J.</p> <p>This case was formerly before this court, and will be found in 168 Pa. 245.</p> <p>The property in controversy at one time belonged to George Bollinger, plaintiff’s husband. In 1887, under ail execution against Bollinger, the property was sold in Maryland, and purchased by his wife, who gave therefor a note signed by herself, by her husband, and by Jacob Bollinger and Thomas J. Gorsuch, her sureties. The note was subsequently paid by plaintiff and her sureties. In February, 1888, Bollinger went to Hanover, Pennsylvania, with the property in controversy, and on his way, with the property in his possession, it was seized by John Gallagher, a constable, one of the defendants, under an attachment at suit of John P. Johns, the other defendant. Gallagher subsequently sold the property at public sale.</p> <p>When Thomas J. Gorsuch, a witness for plaintiff, was on the stand, plaintiff offered to prove that on October 15, 1887, before the sale by the trustees, evidence of which has been introduced, Mrs. Bollinger, the plaintiff, asked Thomas J. Gorsuch and Jacob Bollinger to buy some of the stock then to be sold, so that she could go into the business of farming, and support herself and her children; that they, Gorsuch and Bollinger, agreed that if she bought things reasonably, and would manage the business herself, they would become her sureties for the price paid; that they said they were willing to bail her, but not her husband; that he had made a failure, and they believed she could manage better; that Mr. Gorsuch told Mr. Miller and Mr. Hoffacker, the trustees-, before the sale, of this arrangement; that at the sale, Mrs. Bollinger, the plaintiff, bought certain things, including those in suit, and the trustees took her note for the price of the goods bought, with Mr. Gorsuch and Jacob Bollinger as bail, which note will be proved and offered in evidence; for the purpose of showing that the plaintiff acquired the property upon her own credit, and the business upon which she proposed to enter with the aid of it; and that neither the credit nor the money of her husband entered into the purchase.</p> <p>It was objected to by defendants as not evidence in rebuttal; if evidence at all, it was evidence for the plaintiff in chief. And, further, that the declarations and intentions of the plaintiff and her alleged friends and sureties, as embraced in the offer, are not evidence against these defendants, being ex parte matters. And, further, that the note mentioned in the offer cannot be construed, and the legal effect of it shown by parol testimony.</p> <p>The Court: “ I think it is res adjudicata. The Supreme Court said that we were in error when we rejected the offer before. I will admit the offer, and seal a bill of exceptions for the defendants.” [1]</p> <p>Plaintiff proposed to show by the witness that after Mrs. Bollinger had purchased the goods at the sale referred to, the note was drawn up for the price of these goods, including the price of the black horse bought in the name of Jacob Bollinger, and that the witness procured George Bollinger to sign the note in order to make it a legal obligation of his wife, the plaintiff, in accordance with the Maryland statutes; for the purpose of showing all of the circumstances of the sale, and the giving of the note; and for the purpose of showing that the credit upon which these goods were purchased was exclusively that of Mrs. Bollinger.</p> <p>Objected to by defendants as leading, and asking the witness to put a construction upon acts and declarations of other parties ; altogether an ex parte proceeding; and that it is not admissible to allow the witness to put his construction or that of anybody else upon the transaction.</p> <p>The Court: “As I understand the offer, it is to prove what this witness did and why he did it. It seems to me that this is within the ruling of the Supreme Court. I will admit the offer.”</p> <p>Exception by the defendants, and bill sealed. [2]</p> <p>Thomas J. Gorsuch testified in rebuttal as follows:</p> <p>“ I told him that he would have to sign the note in order to bold his wife’s property — that we could not hold his wife’s property unless he did give his consent, — his consent to the transaction. That is my view of the law in our state, that the husband must join his wife; and that no obligation is binding,, unless he gives his consent to join with her.”</p> <p>Mr. Fisher: “What the witness says about his view of the law is objected to, and we respectfully ask the court to strike it out.”</p> <p>The Court: “We decline to strike it out.”</p> <p>Exceptions by the defendants, and bill sealed. [8]</p> <p>Similar offers of testimony were made and admitted under objection and exception. [4-10]</p> <p>Millard F. Taylor, having testified that he had been a practicing lawyer in Maryland for ten years, and was familiar with the law of that state, defendants proposed to prove by him that if a wife of an insolvent debtor in Maryland purchase property while the husband is in insolvent circumstances, giving in payment therefor a promissory note signed by herself and her husband as joint makers, with two sureties, such a purchase is not so exclusively on the wife’s credit as to give her a title to the property against her husband’s subsisting creditors under the Maryland law; this for the purpose of sustaining the issue on the part of the defendants.</p> <p>Objected to (by Mr. Stewart) as not evidence for the purpose offered, the witness not having shown such knowledge of the law of the state of Maryland as to entitle him to testify as an expert; that it is not competent to prove the law different from that written in the statutes of Maryland, offered in evidence by the defendants themselves, that is, to contradict a statute; that the law proposed to be proved is not applicable to the facts in evidence in this case; that the hypothetical question proposed to be put to the witness does not contain all of the elements of this case, as shown by the testimony already introduced. It is therefore irrelevant and immaterial.</p> <p>The Court: “ I will exclude that offer. I think it is different from the offer on the trial before. If the offer would undertake, or offer to show, the ruling of the court and the construction of this statute, or that no case has arisen in which this statute was officially considered, it might be evidence. As the offer stands, and as it is framed, I will exclude it, and seal a bill of exceptions for the defendants.” [11}</p> <p>The court charged in part as follows :</p> <p>“ Now, largely, the question of the ownership of this property by this wife as against her husband’s creditors depends upon the legal contractual capacity of a married woman. That is to say, it depends upon the light and power of a married woman to contract for and obtain the ownership of property. ■She was then and still is a resident of the state of Maryland. She was a resident of the state of Maryland at the time she purchased this property; and the law of Maryland, which has been offered in evidence to the court, is the law which determines the question of her right to acquire property in the way she did, and on her right to hold it as against her husband’s creditors. And section 19 of article 51 of the Code of Maryland provides that The property, real and personal, belonging to a woman at the time of her marriage, and all property which she may acquire or receive after her marriage, by purchase, gift, grant, devise, bequest, descent, or in a course of distribution, shall be protected from the debts of the husband, and not in any was liable for the payment thereof ; provided, that no acquisition of property passing to the wife from the husband after coverture shall be valid if the same has been made or granted to her in prejudice of the rights of his subsisting creditors.’</p> <p>“ [Section 20 then provides a method by which a married woman ma3' become the purchaser of personal property, and provides that when she buys on credit her husband must join with her in the note, and that then her husband may be sued upon that note, and his property as well as hers shall be liable for its payment.] [13]</p> <p>“ Under that act of the General Assembly of the State of Maryland there has been a judicial decision, — at least one, — in a case which in some of its features resembles this, inasmuch as it was a contest between a married woman and her husband’s creditors, who undertook to levy and sell property which she claimed belonged to her, on executions against him. The Maryland court of appeals said in that case, — Erdman v. Rosenthal et al., Maryland Reports, volume 60, page 312, — that ‘ The husband being in apparent possession and active control of the property and dealing with it as his own, it is incumbent upon the wife, in order to defeat the rights of the creditors of the husband, to establish by clear and undoubted proof a bona fide i-ight and title to the property. The simple assertion of title as against a husband or his creditors will not do; there must be clear affirmative proof to show how the property was acquired, and if purchased, that it was paid for by the money, or purchased upon the credit, of the wife exclusively.’</p> <p>“ And this is substantially, I think, in accord with the decisions of the Supreme Court of Pennsylvania upon the same question.</p> <p>“ Now, it is not pretended that when this property was purchased by Mrs. Bollinger she paid for it with her own money. She did not. The contrary is proven. It is proven by herself and her witnesses. It is not pretended that she had any separate estate on which parties would be willing to go her security,for the sureties, — at least one of them, — Mr. Gorsuch, as I remember, testified that they knew that she had no property at the time. But under the decision that I have just read to you by the court of appeals of Maryland, in Erdman versus Rosenthal, it is said that she may acquire property upon her own credit exclusively, if she does so. Now, did she acquire this property exclusively upon her own credit? Her husband was insolvent, admittedly, professedly, and proved so to be. She had no property. Mr. Gorsuch and Mr. Jacob Bollinger, who became her sureties on that note, said that they did it for her, that they did it practically in faith and reliance upon her; and that the husband’s credit, although he joined in the note, and joined in it because the Maryland statute required him to join in it in order to make it binding upon her, still they say that the husband’s credit did not enter into the inducements that led them to go upon this note.</p> <p>“ The credibility of every witness is for the jury. The court cannot say as a matter of law that because the evidence is all one way, therefore the jury must find all facts as the witnesses stated them. [There is nothing in this case to contradict the testimony on that subject, or Mr. Bollinger on that subject. The jury will say whether these witnesses, who are apparently entirely disinterested, have testified to the truth. If they have; and if they upon the credit and faith and reliance which they had in Mrs. Bollinger went upon that note, — the note at the judicial sale, — as her surety, looking to her for payment, and not to George Bollinger, then I say to you that under all the decisions, and under a true and proper interpretation of the statute law of Maryland which I read to you, she acquired by the purchase, on credit though it was, and on a note joined in by her husband though it was; still, if it was her credit that induced these sureties to become sureties, and not her husband’s credit in any degree, then she acquired a title to the property that she can hold against her husband’s contemporary creditors. And that is a question for you to determine. And that question depends upon the degree of credence which you give to Gorsuch and Bollinger, and to Mrs. Bollinger and her husband, George Bollinger. As I said before, there is nothing in the case to contradict them.] [14]</p> <p>“If you do not believe that testimony; if you believe this was a scheme concocted to cover up the property of the husband from those other creditors to whom he was indebted at that time, then I say to you this statute, which was enacted for the protection of married women, must not be made the means of enabling the husband to cover up with his wife’s mantle his own property, and prevent his creditors from seizing it.</p> <p>“ [Now, then, if jmu determine that question, as I have said before, in favor of the defendants, — if you disbelieve Gorsuch and Bollinger, as well as Mrs. Bollinger and her husband, that this property was purchased by her on her own credit, or that these men became the sureties on her credit, and upon their faith and reliance upon her, or airy credit in which the husband did not enter, — if you disbelieve that testimony, and if you believe that this was a scheme to cover up the husband’s property to prevent the creditors from getting it, then the wife did not by that purchase acquire the ownership of the personal property for which this suit was brought.] [15]</p> <p>“ If, on the contrary, you believe the testimony of Mr. Gorsuch and Mr. Jacob Bollinger, and Mrs. Bollinger and George Bollinger to the effect that she bought in the way she says she did, and that these men went upon the note and subsequently loaned her the money to pay that note, and exclusively relied upon her credit, and not upon the credit and faith of the husband, then the next question is for you to determine the amount of damages which she has suffered by what was clearly a seizure from her husband, and a detention and sale of the property by these defendants.”</p> <p>Verdict and judgment for plaintiff for $450.- Defendants appealed.</p> <p>Errors assigned were, (1-11) rulings on evidence, quoting the bill of exceptions; (12-15) instructions, quoting them.</p>

Appeal, No. 55, Jan. T., 1895, by Sarah K. Davidson, from order of O. C. Lancaster Co., Nov. T., 1892, No. 8, setting aside traverse in lunacy. Rule to set aside traverse in lunacy. The facts appear by the opinion of the Supreme Court. Error assigned was setting aside traverse.

Appeal, No. 56, Jan. T., 1895, by Sarah K. Davidson, from order of O. C. Lancaster Co., Nov. T., 1892, No. 3, refusing to quash inquisition in lunacy. Rule to quash inquisition in lunacy. The facts appear in the preceding case and by the opinion ■of the Supreme Court. Error assigned was refusing to quash inquisition.

<p>Appeal, No. 42, Jan. T., 1894, by Mary C. Benham, from decree of O. C. Lancaster Co., Jan. T., 1895, N0. 255, overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report.</p> <p>From the auditor’s report it appeared that Martin Denlinger died on February 10, 1893, leaving a will by which he directed, inter alia, as follows:</p> <p>“ 4th. All the rest, residue and remainder of my estate Real, Personal and Mixed, I give and bequeath the interest and income thereof ‘ after the payment, of debts, Legacy, and incidental Expenses,’ unto her my said wife Susan, for and during her life time, and after the death of my wife Susan, I do give and bequeath to the aforesaid Trustees of the W esley M. E. Church at Strasburg another sum of Five hundred dollars, in Trust, and I direct that a part of the interest and income thereof, Shall be used to Keep my burial lot in the Presbyterian grave yard in Nice good Condition, and the remainder of the yearly income to be for the benefit of the Said M. E. Church for ever.</p> <p>“ 5th. After the payment of the Colateral inheritance Taxes and the other incidental Expenses, All the rest, residue and remainder of my Estate, I do order and direct Shall be divided into two Equal parts, or Shares, and out of the one of Said Shares or parts, I do give and bequeath to my brother David, the Sum of One thousand dollars, and the remainder of the Said Share or part, I do order and direct Shall be equally divided amongst all the Children of my brothers, Henry and David, Share and Share alike.</p> <p>“And the other Share or one half part of my residuary Estate, I do order and direct Shall be Equally divided and distributed Share and Share alike, to and amongst the Children of the brothers and sisters of my wife Susan, Viz: Sarah Book, George Spiehlman, and Eliza Hildebrand, who are now deceased, and Henry Spiehlman, Maria Stoll, and Hetty Foulk, and in Case of the death of any of said Children and Legatees aforesaid leaving issue, then said issue to take the Share or part that the parent would have taken if living.”</p> <p>Before the auditor, A. J. Eberly, Esq., Mary C. Benham claimed to share in the distribution of the estate. The claimant was a daughter of Ann Githens, who was a daughter of Henry Denlinger, testator’s brother. Both Henry Denlinger and Ann Githens died some years before the testator. The auditor held that the intent of the testator was to limit the distribution of his estate to his nephews and nieces only as a class ; that Mary C. Benham being a grandniece of the testator was not of the class among whom testator directed distribution ; was not therefore a legatee and not entitled to share in the distribution.</p> <p>Exceptions by Mary C. Benham to the auditor’s report were overruled and the report confirmed by the court.</p> <p>JSrror assigned was confirming the report of the auditor.</p>

Appeals, Nos. 303 and 304, Jan. T., 1895, by defendant, from judgments of C. P. Lancaster Co., Aug. T., 1891, No. 151, and Oct. T., 1894, No. 29, on verdicts for plaintiff. Assumpsit for reimbursement under the act of April 13, 1854, for street damages, paid in excess of the amount paid by the city to the road and bridge fund of the county.

Appeal, No. 305, January Term, 1895, by plaintiff, from order of C. P. Lancaster Co., Trust Book 15, p. 313, refusing peremptory mandamus. Petition for writ of mandamus by Edwin S. Smeltz, mayor of the city of Lancaster, against S. S. Martin, treasurer of Lan caster county, to compel the payment of a portion of the liquor license fees collected by the respondent, and alleged to be due to the city of Lancaster.

<p>Contracts — Consideration—Assumption of facts not in existence.</p> <p>Where certain facts assumed by both parties are the basis of a contract, and it subsequently appears that such facts do not exist, the contract is .inoperative.</p> <p>A promise made by one in order to obtain possession of his own goods, which at the time are wrongfully withheld from him, is without consideration.</p> <p>Defendant bought a mare at a sheriff’s sale, and as an act of kindness towards the defendant in the execution left the animal temporarily with her. Subsequently Hyde, the husband of the defendant in the execution, sold the mare to plaintiff, who took her into his possession. Defendant healing of this went to plaintiff, and demanded the mare, but was refused. Plaintiff subsequently delivered the mare to defendant on the condition that if, on an indictment of larceny of the mare then pending against Hyde, there should be an acquittal, the mare should be returned, but if Hyde were convicted, defendant was to keep her. Hyde was acquitted of larceny, and subsequently plaintiff replevined the mare. Held, (1) that the contract was void, because based on a fact which did not exist, viz: that Hyde’s title would necessarily be determined by his acquittal or conviction ; (2) that there was no consideration to support defendant’s promise.</p>

Appeal No. 390, Jan. T., 1895, by defendant, from judgment of C. P. Lancaster Co., March T., 1893, No. 6, on verdict for plaintiff. Assumpsit to recover the proceeds of the sale of personal property. Before Livingston, P. J. At the trial it appeared that on April 2,1889, John N. Plank, a farmer, confessed a judgment to John T. Ellis in trust for Elizabeth M. Plank, his wife.

Appeal No. 464, Jan. T., 1895, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1892, No. 46, entering nonsuit. Assumpsit to recover the price of tobacco sold and delivered to defendants. Before Brubaker, J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 319, Jan. T., 1895, by plaintiffs, from order of Q. S. Lancaster Co., Trust Book No. 15, p. 25, sustaining exceptions to the report of viewers.</p> <p>Exceptions to report of viewers.</p> <p>From the record it appeared that the proceedings were under the act of May 25, 1887, to recover damages for injuries to plaintiffs’ land caused by the extension of the waterworks of the city of Lancaster. The viewers awarded damages in the sum of $940. The following exception, amongst others, was filed to the report of viewers :</p> <p>“ Exception 5. The water department of the city of Lancaster is regulated by the act of March 21, 1836, P. L. 134, which is not repealed by the act of 1887, and the taking and entering upon land for laying pipes, etc., is subject to the provisions of said act.”</p> <p>The court in an opinion by Brubaker, J., sustained the exception, and set aside the report of viewers and all proceedings.</p> <p>Error assigned, among others, was above order.</p>

Appeal, No. 362, Jan. T., 1895, by Henry Carpenter, from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report. From the record it appeared that the material portions of testator’s will were as follows: “ 3.

Appeal, No. 377, Jan. T., 1895, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1894, No. 28, on verdict for plaintiffs. Assumpsit on a policy of fire insurance. Before Livingston, P. J. At the trial it appeared that the policy contained a stipulation prohibiting the use of gasoline on the premises insured.

Appeal, No. 378, Jan. T., 1895, by defendant, from judgment of C. P. Lancaster Co., Jan T., 1894, No. 16, on verdict for plaintiffs. Assumpsit on a policy of fire insurance. Before Livingston, J. The facts appear by the opinion of the Supreme Court. The court charged in part as follows : “ [The construction which I put upon this policy will leave very little for you to do. If I get wrong, of course the Supreme Court will correct me.

Appeal, No. 27, May T., 1895, by E. Theresa Riegel, Administratrix, from order of C. P. Dauphin Co., June T., 1890, No. 481, overruling exceptions to auditor’s report. Exceptions to auditor’s report. The facts will be found in Riegel v. American Life Insurance Co., 140 Pa. 193, and 153 Pa. 134. From these cases it appears that appellant at one time held a policy in the American Life Insurance Company on the life of Henry G. Leisenring for $6,000.

<p>' Criminal law — Rape—Charge of court.</p> <p>The absence of an instruction on the trial of an indictment for rape, that the prisoner might be convicted of fornication if the jury doubted his guilt of the greater charge is not ground for reversal, if it appears that no such instruction was asked for. In such case an instruction that if the jury have a reasonable doubt of the guilt of the prisoner of the crime of rape, they should acquit him altogether, necessarily includes the minor offense of fornication, and is more favorable to the prisoner than would have been an instruction that he might have been convicted of the minor offense.</p> <p>Criminal law — Sentence—Irregularity in sentence. Act of March 31, 1860, sec. 74.</p> <p>The Supreme Court will not reverse a sentence to imprisonment in a county prison, on the ground that under the sentence the term of imprisonment would expire between November 15th and February 15th. The last proviso of the 74th section of the act of March 31, 1860, applies only to persons sentenced to imprisonment in the penitentiary.</p> <p>It seems that the Supreme Court would not reverse the judgment for that reason even if the erroneous sentence was to imprisonment in the penitentiary. The utmost effect such a sentence could have would be to produce'a re-sentence.</p>

<p>Appeal No. 110, Jan. T., 1895, by William Ellsworth Johnson et al., from decree of O. C. Juniata Co., distributing balance in the hands of administrator.</p> <p>Petition to distribute balance of estate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>JSrrors assigned were (1) in awarding to the four children of James R. Johnson only $6,000 of the fund in the hands of the administrator; (2) in not awarding to said children $6,000 of the Harrisburg gas stock, or 240 shares thereof, at its par value, which in the distribution, would entitle them to $9,660.</p>

<p>Appeal, No. 6, July T., 1895, by defendant, from order of Q. S. Northumberland Co., May T., 1894, No. 1, affirming order of removal of pauper.</p> <p>Appeal from order of two justices removing John Derr and his wife Lucy, paupers, from Delaware township, Northumberland county, to Anthony township, Montour county.</p> <p>SavedG-E, P. J., filed the following opinion :</p> <p>“ The Anthony Overseers contend that John Derr lost an admitted settlement by birth in their township (a) by payment of taxes for two years successively in Delaware township; (5) by similar payment of taxes in Turbut township, Northumberland county.</p> <p>“ The payments claimed for Delaware township are of 1883 and 1884 taxes. The pauper swears he paid several years’ taxes there, but these are the only consecutive years claimed for. Payment for 1883 was undoubtedly made by Harvey Nye at the instance of Derr, but we find as a fact that no part of the taxes of 1884 were paid and therefore no settlement has been shown in Delaware township. This finding is upon the evidence of Charles Hartzell, the collector, to whom Derr swears he paid the taxes. Hartzell says: ‘John Derr never paid me any taxes. He refused to pay me. All I ever got was the county and school tax of 1883 and they were paid by Mr. Nye.’ This witness is clear, explicit, and apparently trustworthy, whilst the testimony of Derr, aside from the question of his mental incapacity, bears every mark of unreliability.</p> <p>“The county tax of 1887, and the county, school and poor taxes of 1888, charged against the pauper, were paid to the collector of Turbut township, but the payment of 1887 tax was not such a payment as is contemplated by the act of 13th of June, 1836. It was not a payment by Derr, either in person or through an agent, nor was it with his money. It is clear from the testimony of Mr. Criste, who received the tax for the collector, as well as from the testimony of Derr, that one Deeter, a candidate for a public office, either without the knowledge of Derr, or pursuant to an understanding between them, paid this tax in the expectation of securing Derr’s vote and for no other consideration.</p> <p>“ The transaction was contrary to public policy and illegal. It was not a payment by the person charged as required by the act of assembly.</p> <p>“ The law demands substantial contribution indicative, to some extent at least, of an ability to pay as distinguished from a state of pauperism. There must be a payment by the person charged. The payment must be the act of the person charged: Lawrence Overseers v. Delaware Overseers, 148 Pa. 380.</p> <p>“ One who pays taxes for votes is a mere volunteer, not an agent, and not until the elective franchise shall be legally recognized as an article of commerce to be bartered and sold, will such voluntary payment be held to be the act of the taxable within the meaning of our poor law.</p> <p>“ Finding, therefore, that John Derr had a settlement by birth in Anthony township, and that he did not acquire a settlement by payment of taxes either in Delaware township or in Turbut township, we dismiss the appeal at the costs of the defendant.”</p> <p>' Error assigned was above order.</p>

<p>[Marked to be reported.]</p> <p>Guardian and ward — Receipt of money of minor by person not appointed guardian — Education of minor.</p> <p>Where a grandfather as administrator of his son’s estate receives money belonging to his granddaughter, a minor and deaf mute, and spends the whole fund in having the child taught to speak and to hear, he cannot be ■compelled to account for the fund, although he was never appointed guardian of his granddaughter’s estate; and it is immaterial in such case that the grandfather, as administrator of his son’s estate, could not have been appointed guardian of his son’s daughter.</p> <p>A guardian is entitled to credit for moneys taken from the principal of the ward’s estate, and used in teaching the ward, a deaf mute, to speak and to heár.</p> <p>Evidence — Gift—grandfather and grandchild.</p> <p>A grandfather received from a son’s estate certain moneys belonging to his son’s daughter. He kept an account showing the amount which he held in his hands for the granddaughter, and also entries showing payments for her teaching and schooling, amounting in the aggregate to a sum largely in excess of the amount which he had received. A witness testified that the grandfather had shown him the account, and told him that he intended that the charges should be an offset against the amount due his granddaughter. Held, that the evidence was sufficient to sustain a finding that the payments made on account of the granddaughter’s schooling were not intended as a gift.</p>

<p>Appeal, No. 411, Jan. T., 1895, by defendants, from judgment of Q. S. Perry Co., on verdict of guilty.</p> <p>Indictment for embezzlement under the act of May 9, 1889, P. L. 145. Before Bell, P. J., of the 24th judicial district, specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendants’ point, among others, was as follows:</p> <p>“ 16. If the jury believe from the evidence that Willis was ordered not to take deposits on the 24th of March, 1894, the day the money of Rice was taken, and if.the money was taken that it must be returned and it was returned, the verdict must be not guilty. Answer: This point is denied. We do not think the question as to whether the money deposited was to be returned, or the fact that it was afterwards returned, is material to the ease.” [8]</p> <p>Verdict.of guilty as indicted. The court sentenced defendants to pay a joint fine of twenty dollars, and each defendant to one year’s imprisonment in the penitentiary.</p> <p>JError assigned, among others, was (8) above instruction, quoting it.</p>

Appeal, No. 51, July T., 1895, by A. M. Carpenter, from decree of O. C. Juniata Co., confirming report of auditor. Exceptions to auditor’s report.

<p>Appeal, No. 422, Jan. T., 1895, by plaintiffs, from judgment of C. P. Northumberland Co., September T., 1888, No. 857, on verdict for defendant.</p> <p>Ejectment for a lot of land in Mt. Carmel. Before Metzger, P. J., of the 29th judicial district, specially presiding.</p> <p>At the trial it appeared that plaintiffs claimed title as the children and heirs at law of Edmund Edwards, deceased. Defendant claimed under a voluntary conveyance by Edmund Edwards and Charlotte Edwards (the defendant) as his wife to Daniel Walters, trustee, dated Sept. 14, 1876, and by Daniel Walters and wife by their deed dated May 8,1878, to Charlotte Edwards, the defendant. The consideration stated in the deed from Edwards to Walters was “five dollars and natural love and affection.” The evidence tended to show that defendant was a sister-in-law of Edmund Edwards; that Edwards’s first wife died in 1868, and that after her death defendant, who was then married to a man by the name of Thomas, with her husband, removed to Edwards’s house to keep house for him. After they had lived there for several weeks Thomas left her, and in about a year and a half afterwards Edwards married her. At the time of the marriage she was not divorced from her first husband, and both Edwards and defendant knew that the first husband was living.</p> <p>The court charged in part as follows:</p> <p>“ [It is a.fact that at the time of the marriage she was not divorced from her first husband and it is also a fact that in law, therefore, the second marriage to Edwards was illegal. It is however fairly to be deduced from the evidence in this case that Edwards, when he married this defendant, knew the fact of her husband’s living at that time just as well as she did. If there was any criminality in this case they were both criminals and might both have been punished for bigamy, because it is bigamy not only in the one marrying having a husband or wife living, but it is bigamy in the other person if he knows that she has such a husband living; and I think it is fair to presume that he must have had a knowledge of her husband living from the fact that she came there and lived in his house with her husband, Thomas, before he went away; and there is no evidence in the case to show that there was any rumor, after he left, of Thomas’s death ; and the period of time at which the presumption of his death would arise had not elapsed. The presumption of law is that he was in full life, and as every one is bound to know the law he is affected with notice of the fact that she had a living husband at the time he married her. But however that may be, from that time they did live together, so far as the evidence discloses, as husband and wife. That was, probably, a period of twenty-four years, or in that neighborhood ; and I think we might be charitable enough to think that they supposed they had a right to marry, for it would seem from the papers in evidence that prior to the time this marriage took place her husband had deserted her, and there are a great many people in the community who have an idea that it is not criminal to marry under such circumstances. Nevertheless such a marriage is illegal. From what is disclosed by the evidence before us we cannot say whether the parties thought they had a right to marry or not; all that we can say to you is that so far as the evidence discloses here we have a right to presume that one was as ignorant as the other ; because, from that time on, the testimony shows that they did treat each other as husband and wife and lived together as such.] [1]</p> <p>“ [Now, these being the facts in this case there are several legal questions arising which it is the duty of the court to pass upon, and there will be nothing left for you to determine. It is claimed on the part of the defense that the conveyance was voluntary, and because of the existence of these relations between them the plaintiffs say this conveyance was void ; that it was a fraud upon him, that at least it was a constructive fraud ; that he made this deed to this woman under the belief that she was his wife, and that being mistaken the deed must be avoided. We cannot say so, gentlemen, because the parties seem both to have acted in good faith, so far as we know. They are equally innocent or equally guilty and I do not think, therefore, that it would make any difference whether he believed she was his wife or not. He treated her as such, and if he was mistaken in that belief there is no evidence to show that she misrepresented anything to him when she married him, or that she was the cause of that mistake at any time during their married life. On the contrary he had an opportunity to know all the facts before he married her and, I think, it is fair to pre* sume that he did. If he believed her to be his wife the evidence is equally strong that she believed that she was his wife, because she joins in the paper and calls herself his wife, and there is nothing here to show that it was not done in good faith; and I am loath to charge either of these parties with having committed a crime; on the contrary I think they acted in ignorance.] [2]</p> <p>“ [It was also asserted that because these are voluntary deeds, whether there was actual fraud or not, inasmuch as there was an absence of the power of revocation in the deeds, it was necessary for the defendant to show that such omission was intentional, and that it was the intention of the donor to make this conveyance absolute. Well, it is true that there is an absence in these deeds of the clause of revocation. On their face they are irrevocable, but it is equally clear, from the facts in the case, that the omission to put in that clause of revocation was not a mistake. It cannot be possible that it would have taken them so many years to discover it — a period of eleven years when the last conveyance was made — that there would have been no action taken and nothing said about it; and after the lapse of eleven years that they should make a deed and recite in that deed this very first deed, or one of the very first deeds that was made. It would seem to me that the fact that they made this conveyance in 1876 and again made a conveyance of the property in 1882 and received that back again in 1884, then again as late as 1887 made another conveyance of the part in controversy, and .of the part adjoining, in which they recite these other conveyances, or portions of them, we cannot under such a state of facts say to you that there was room for supposing that this clause of revocation was omitted by mistake. It seems to be perfectly clear that it was not omitted by mistake.] [3]</p> <p>The .court directed a verdict for defendant.</p> <p>Verdict, and judgment for defendant.</p> <p>M^ors assigned, among others, were (1-3) above instructions, quoting them.</p>

<p>Appeals Nos. 75 and 76, July T., 1895, by Galen F. Holshue, and by C. H. Gleason, trustee, junior execution creditors, from orders of O. P. Northumberland Co., July T., 1895, Nos. 113 and 129, Feb. T., 1895, refusing to set aside a prior writ of execution.</p> <p>Rule to set aside execution.</p> <p>From the record it appeared that on December 5, 1894, a writ of fi. fa. was issued on the prgecipe of C. O. Burkert, Esq., attorney of the Hooven Mercantile Company, against W. T. Morgan. Burkert was a member of the Schuylkill county bar, but not a member of the Northumberland county bar. Subsequent writs of execution were issued by appellants. Appellants filed a petition praying that the writ of the Hooven Mercantile Company be set aside, for the sole reason that the praecipe was signed and the fieri facias ordered to be issued by C. O. Burkert, Esq., a member of the bar of Schuylkill county, who was not then admitted to practice in the courts of Northumberland county. A rule to show cause was granted and service thereof accepted by the said C. O. Burkert as attorney for the Hooven Mercantile Company. An answer was duly filed by the company setting forth, inter alia, that the writ of the Hooven Mercantile Company was issued by C. O. Burkert by their authority and direction; that the defendant, W. T. Morgan, consented and was still consenting to the said execution, and denying the right of the complainants, as subsequent execution creditors, to take advantage of the irregularity in issuing the writ by direction of an attorney of another county, not admitted to the Northumberland county bar. Before the hearing W. T. Morgan, the defendant, filed an affidavit admitting the correctness of the judgment of the Hooven Mercantile Company and his indebtedness to them, and also waiving any possible irregularities in the issuing of the fieri facias on their judgment against him. To this proceeding C. A. Gleason, trustee, a subsequent execution creditor, was not a party. Upon hearing and argument the court held that the complainants, as subsequent execution creditors, had no standing to set aside the writ for such an irregularity, and discharged the rule. In the meantime a levy had been made and a large amount of personal property taken in execution and sold. After such sale and before the return day of the writ, G. F. Holshue and C. H. Gleason, trustee, the subsequent execution creditors, filed an affidavit of controversy under the rule of court. The Hooven Mercantile Company, the first execution creditor, having first filed an answer to the affidavit of controversy, took a rule on the sheriff to show cause why the money arising from said sale should not be applied on their writ. The sheriff failed to appear or answer, but an answer was filed, and the rule contested by G. F. Holshue and C. H. Gleason, trustee, the subsequent execution creditors. The affidavit of controversy and the answer raised the same question already passed upon by the court on the rule to set aside the execution of the Hooven Mercantile Company, with the additional allegation that such execution was issued on the day the judgment fell due, and also that the Hooven Mercantile Company after issuing their writ, and before the subsequent executions had been issued or came into the hands of the sheriff, advised and directed the defendant to take and cany out of his store such goods as he desired, and further allowed the defendant to remain in care of the store after the levy was made. This was denied by the Hooven Mercantile Company. This rule was made absolute by the court on the ground that the affidavit of controversy did not raise any question of law or fact which would warrant the paying into court of the money for distribution.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 23, May T., 1895, by plaintiff, from order of C. P. Fulton Co., entering nonsuit.</p> <p>Assumpsit on a bond of a trustee. Before McClean, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned, among others, was (3) refusal to take off nonsuit.</p>

Appeal No. 20, May Term, 1895, by defendant, from judgment of C. P. Dauphin Co., June Term, 1894, No. 436, on verdict for plaintiff. Appeal from tax settlement. Before Simonton, P. J. At the trial it appeared that the Hillside Cemetery Company was assessed with a state tax of five mills upon its capital stock. The defendant objected to the payment of the tax upon the ground that its entire capital stock was represented by real estate upon which local taxes had been paid.

<p>Appeal, No. 25, May Term, 1895, by defendant, from judgment of C. P. Dauphin Co., September Term, 1894, No. 585, on verdict for plaintiff.</p> <p>Appeal from tax settlement. Before McPherson, J.</p> <p>At the trial it appeared that the Edison Electric Power Company (of Erie) is a corporation chartered under the general corporation act of 1874 (P. L. 73), for the purpose, as expressed in its charter, of “ manufacturing electricity and supplying the same through appropriate conductors to the public for the purpose of light, heat and power, and supplying consumers with the necessary appliances for utilizing the same.”</p> <p>The defendant company claimed that it was exempt from taxation upon its capital stock under the proviso in the act of June 1,1891, P. L. 238, which is as follows:</p> <p>“ And provided further, That the provisions of this section shall not apply to the taxation of the capital stock of corporations, limited partnerships and joint-stock associations, organized exclusively for manufacturing purposes and actually carrying on manufacturing within the state, excepting companies engaged in the brewing or distilling of spirits or malt liquors and such as enjoy and exercise the right of eminent domain.”</p> <p>The court directed a verdict for plaintiff subject to the question of law reserved whether the company was exempt from taxation. Subsequently in an opinion by McPherson, J., the court entered judgment upon the verdict in favor of the commonwealth.</p> <p>Error assigned was entry of judgment for commonwealth.</p>

Appeal, No. 26, May T., 1895, by plaintiffs, from decree of C. P. Dauphin Co., No. 153, Equity Docket, on bill in equity. Bill in equity to restrain the occupation of the pulpit and parsonage of a church. The case was referred to a master who reported in favor of the plaintiffs.

<p>Appeal, No. 114, July T., 1895, by plaintiffs, from decree of C. P. Lebanon Co., Equity Docket No. 6, 1895, refusing a preliminary injunction.</p> <p>Bill for an injunction.</p> <p>The bill alleged amongst other things that Rev. Omar Butler and Rev. W. K. Wiend are the lawful pastor and presiding elder, respectively, of the congregation or society commonly known as the Emanuel church of the Evangelical Association, located in the city of Lebanon, Pennsylvania, the corporate name of which is “ The Evangelical Church of the Evangelical Association of North America, County of Lebanon and State of Pennsylvania,” and praying, among other things, that the defendants may be restrained from interfering with the plaintiffs, Butler and Wiend, as pastor and presiding elder, respectively, in the free access by them and each of them in and to the church of said society and the pulpit thereof, and from interfering with the said plaintiffs, or either of them, in the discharge of their duties as such pastor and presiding elder, respectively, in and about said church.</p> <p>For an account of the contest between the contending factions of the Evangelical Association of North America, see Krecker et al. v. Shirey et al., 163 Pa. 534.</p> <p>It was claimed by defendants that the congregation in Lebanon was originally an independent congregation, and that its connection with the Evangelical Association had been voluntarily assumed, and could be dissolved at will; and that the deeds of the church property contained no language impressing upon the same any trust in favor of the Evangelical Association.</p> <p>The court granted a preliminary injunction, which however it subsequently refused to continue, Ehrgood, P. J., filing the following opinion :</p> <p>“ In order that a complainant ma}- be entitled to a preliminary injunction it should be made to appear that he has a clear right to the enjoyment of the subject in question, and that he has used reasonable diligence in invoking the aid of the court.</p> <p>“ The first 'proposition, applied to the case in hand, in our opinion, necessarily involves the construction of the deeds to the church property, and the facts whether at the time of the organization of the ‘ German Evangelical Congregation of the borough of Lebanon,’ it was so organized as an independent congregation, or, under the discipline of the Evangelical Association of North America, as a member of said Association; and even if an independent congregation at its inception iir what position they have placed themselves by their subsequent acts. These, among others, are questions which under the evidence now before us we will not decide at this time.</p> <p>“ The second proposition alone, however, we think should move the court to deny the motion for a continuance of the preliminary injunction. Where the petition on its face, and the evidence produced to sustain it, show a want of diligence on the part of the complainant asking for an injunction as is the case here, we- think a preliminary injunction ought to be refused.</p> <p>“ A protest on the part of the plaintiff against the acts of the defendant, or a mere threat to take legal proceedings, is not in general sufficient to exclude the consequences of laches. In refusing an application for a preliminary injunction the court does not conclude a right, but merely refuses, in the exercise of its discretion, to interfere summarily in favor of a party who has not shown due diligence in making the application.</p> <p>“We do not deem it necessary to consider the question of irreparable injury. Under all the circumstances of this case the motion to continue the preliminary injunction is refused. We will make no order for costs until final hearing. And now, May 11, 1895, this cause came on to be heard, and was fully argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed that the preliminary injunction be dissolved.”</p> <p>Error assigned was above decree.</p>

Appeal, No. 49, July T., 1895, by the President and Fellows of Yale University in New Haven, Conn., from decree of O. C. York Co., distributing estate of Martin S. Eichelberger, deceased. Exceptions to auditor’s report, distributing balance in bands of administrators. Before Bittinger, J. Martin S. Eicbelberger died in July, 1893, testate. Letters of administration, cum testamento annexo, on his estate were granted to Charles S. Weiser and Harry P. Weiser.

<p>Bridges — County bridges — Duty of county.</p> <p>Where a county purchases a bridge from a municipality it becomes liable for the safety of the bridge as a part of the public highway, and it is clothed with all powers necessary to enable it to regulate the public use of the bridge so far as its own protection and the safety of those using it may require, but it is bound to keep it open, and in good repair, and cannot close it against the public as an owner might close his house.</p> <p>Street railways — Bridges—Municipal consent — Exclusion of public.</p> <p>A street railway company which has received the consent of the local authorities to construct its tracks upon a bridge, has no right to exclude the public from the use of the bridge which forms a link in the street or highway on which it is erected, or to so use the bridge as to render it unsafe for public travel.</p> <p>If the bridge is either of insufficient strength, or of insufficient capacity to accommodate the general public travel, and also the street railway company’s cars, and cannot be so strengthened or enlarged as to do so, the local authorities are not bound to provide the street railway company with a suitable viaduct or other means of crossing the stream at the point where the bridge is situated.</p> <p>Street Railways — Bridges—Equity—Injunction.</p> <p>On a bill in equity to restrain a street railway company from laying its-tracks upon a county bridge, where the evidence tends to show that, unless the bridge is materially strengthened and enlarged, it will be neither safe, nor of sufficient capacity to accommodate both the general travel of the-public and the street railway, a preliminary injunction which has been granted to restrain the use of it by the company will be continued.</p> <p>If the county authorities arbitrarily refuse their consent to the use of a county bridge in a city by a street railway company, on the ground that the bridge will be rendered unsafe for public use, the court may appoint an engineer to examine and report what will be necessary to strengthen the bridge for street railway traffic, and, upon the filing of his report, the court may permit the street railway company to enter upon the hridge- and strengthen it, and when this has been done to the satisfaction of the court, the company may use the bridge for the purposes of its business, upon giving security to keep it in repair, pay the rental agreed upon, and perform the conditions upon which the municipal consent was given. Berks County v. Reading City, 167 Pa. 118, approved.</p>

Appeal, No. 379, Jan. T., 1894, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1889, M. L. D. No. 1, dismissing exceptions to report of referee. Scire facias on lien for taxes. The ease was referred to J. Levering Jones, Esq., as referee, who reported in favor of defendant. The facts appear by the opinion of the Supreme Court. Exceptions to the referee’s report were overruled.

<p>Appeal, No. 71, July Term, 1894, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. Term, 1893, No. 912, dismissing bill in equity.</p> <p>Bill in equity to compel the removal of a wall. Before Br^gT?, J.</p> <p>The facts appear fully by the opinion of the Supreme Court.</p> <p>JSrror assigned was decree sustaining demurrer and dismissing bill.</p>

<p>Wills — Testamentary capacity — Issue devisavit vel non — Partial insanity — Delusions.</p> <p>Partial insanity is a derangement of one or more of the faculties of the mind which prevents freedom of action. The question in any given case is whether the act under investigation was done upon consideration of existing facts, or under the influence of a delusion that controlled the will of the testator and destroyed his freedom of action.</p> <p>If a monomaniacal delusion is unalterably entertained against a child, who otherwise would have been testator’s legatee or devisee, and such delusion is shown to have been the operating motive which excluded the child, and if the supposed act or misconduct on the part of the child had no existence in fact, but was a creature of the diseased imagination of the testator, and the will was engendered by this delusion, and was its offspring, and was made under its influence, operating at the time in the testamentary act, the will cannot be sustained as a last will and testament.</p> <p>The wife and children of a man are the natural objects of his affection, and where they are disinherited by a husband and father when he comes-to dispose of his estate, the reasons for his doing so are a proper subject to enter into the consideration of a jury in the trial of an issue devisavit vel non.</p> <p>A will disinheriting a daughter will be set aside where it appears that the will was made by the father under the influence of a specific delusion, based upon no facts whatever.</p>

<p>[Marked to be reported.]</p> <p>Constitutional law — Interstate commerce — Original package — Oleomargarine.</p> <p>A package devised by a nonresident manufacturer, or put up by him, adapted for sale at retail to individual consumers, such for example as a flask of whisky or a tub or pail or roll of oleomargarine, and actually sold by him or his agent to the consumer for use as an article of food or drink, in violation of the laws of the state where such sales take place, is not an “ original package” within the meaning of the law relating to interstate commerce; and the punishment of such sales under the police power of the state is not an interference with the powers of congress, or with the commerce between the states which is protected by the constitution of the United States.</p> <p>Original package — Question for jury or court.</p> <p>The character of the package, whether original or not, is a question of fact for the jury when there are facts to be passed upon bearing upon this question; when the facts are, however, agreed upon, or presented by a special verdict, the question is one of law, and should be decided by the court.</p> <p>Original package — Presumption.</p> <p>Where a small package is prepared in another state, and brought into this state, and sold at retail, it is fair to presume that the package was intended by him who devised it for the purpose for which he used it in his business.</p> <p>A small tub of oleomargarine containing ten pounds, prepared in another state and brought into this state to be sold unbroken to a consumer for use as an article of food upon his table, and actually so sold, is not an original package within the meaning of the law relating to interstate commerce.</p> <p>Oleomargarine — Federal license — Stat'e prohibition.</p> <p>The fact that a dealer in oleomargarine has procured a license from the Internal Eevenue Department of the United States, authorizing him to deal in oleomargarine, does not authorize him to engage in the manufacture or sale of oleomargarine in violation of the state laws lawfully passed forbidding or regulating such manufacture and sale.</p>

<p>Constitutional law — Interstate commerce — Original package — Oleomargarine.</p>

<p>Appeal, No. 104, July T., 1894, by plaintiff, from judgment of Q. S. Phila. Co., Oot. T., 1898, No. 368, on special verdict.</p> <p>See next preceding case.</p>

<p>Appeal, No. 121, July T., 1894, by defendant, from order of C. P. No. 2, Philadelphia County, March T., 1894, No. 644, making absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a promissory note given by a limited partnership, formed under the act of March 21, 1836, P. L. 143. Before Jenkins, J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute a rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 88, Jan. T., 1895, by plaintiff, from order of C. P. No. 3, Phila. Co., March Term, 1894, No. 706, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a promissory note.</p> <p>The facts are substantially the same as in Fourth Street National Bank v. Whitaker, supra.</p> <p>JSrror assigned was order entering judgment.</p>

<p>Partnership — Limited partnership under the act of March 21, 1836— Liability of special partner — False certificate — Affidavit of defense.</p> <p>In an action against a special partner of a limited partnership under the act of March 21, 1836, P. L. 143, to hold him liable as a general partner, where the statement avers that a renewal certificate had been filed falsely averring that the capital of the firm was unimpaired, an affidavit of defense is sufficient to prevent judgment, which avers on information and belief that the certificate was not false, and that defendant expected to be able to prove that when the certificate was filed the special capital remained unimpaired and undiminished.</p> <p>Limited partnership — Form of certificate — Act of March 30, 1865.</p> <p>Under the act of March 30, 1865,. P. L. 46, which requires that in the certificate required to be filed by special partnerships under the act of March 21, 1836, the nature and value of the goods contributed shall be fully set forth and described, a certificate is insufficient to relieve a special partner from general liability which merely sets forth that “ the amount of the capital stock contributed by said special partners is two hundred thousand dollars, one half thereof being in goods and merchandise.” A creditor is entitled to have such a statement in detail of the nature and value of the goods or property contributed as cash, as will enable him to form his own judgment as to its value. In this particular there is no distinction between the acts of 1874, P. L. 271, and 1876, P. L. 89, and the acts of 1836 and 1865.</p> <p>Limited partnership — Renewal certificate — Reference to appraisement.</p> <p>Where the original certificate filed by a special partnership under the act of March 21, 1836, is fatally defective in having no statement of the nature and value of the goods contributed, a renewal certificate which refers to a detailed statement of the merchandise and its value as filed in the court of common pleas, but does not itself contain any statement of the nature and value of the goods is insufficient to cure the original fatally defective organization, and the partnership remains, as before, a general partnership.</p>

<p>Appeal, No. 169, July T., 1895, by defendant, from judgment of O. P. No. 2, June T., 1891, No. 89, on verdict for plaintiff.</p> <p>Replevin for a horse and wagon. Before Penntpacker, J.</p> <p>At the trial evidence for the defendant tended to show that in September, 1890, John O’Connor, who was engaged in the business of keeping wagons for hire, had in his employ George Tracy, who had formerly been in business for himself as a piano mover. At this time, O’Connor was having a wagon built, and he directed the builder to print on the wagon the words “ George Tracy, Piano Mover.” The apparent object of this was to retain the business which Tracy had built up for himself. In April, 1891, Tracy attempted to sell the wagon at a bazaar but was not successful. He subsequently encountered the defendant, who agreed to buy the horse and wagon for $125, but before paying the money, he went with Tracy to a police station and a saloon, where Tracy was identified as the George Tracy whose name was on the wagon. There was evidence that Tracy was intoxicated at the time of the sale.</p> <p>The court charged in part as follows:</p> <p>“ [ As I view this case there is very little in it for your determination. It is no doubt a hardship on the defendant that he should have paid his money away for something to which he got no title, but it appears from the undisputed testimony that this wagon belonged to the plaintiff’s testator and that he was the owner of it, and that this man Tracy, without his permission, took it off and sold it, or attempted to sell it. Under these circumstances no title was conveyed to the defendant. If, therefore, you believe the testimony in this case, it is your duty to find a verdict for the plaintiff.] ” [1]</p> <p>The defendant has submitted the following points for instruction :</p> <p>“1. If the jury believe from the evidence that the plaintiff’s decedent allowed Tracy, who sold the team to the defendant, to exercise such control and possession as to imply a right to sell, then the evidence must be for the defendant. Answer: What is meant by that is, no doubt, that the verdict must be for the defendant. Under the circumstances of this case I decline that point. [2]</p> <p>“ 2. If the jury find from the evidence that the plaintiff’s decedent allowed Tracy to put his name on the wagon, and made no effort to efface it, and thereby allowed the defendant to be misled, their verdict must be for the defendant. Anstver : I decline that point, having instructed you that the verdict ought to be for the plaintiff in the event of your believing the testimony.” [3]</p> <p>Verdict and judgment for plaintiff for $275. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 238, Jan. T., 1895, by-Charles E. Shepard et al., from decree of O. C. Montgomery County, overruling demurrer to appeal from decision of register of wills, admitting will to probate.</p> <p>Demurrer to appeal from decision of register of wills admitting to probate a paper writing alleged to be the last will and testament of Harriet Y. Shepard.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court overruled the demurrer and granted an issue devisavit vel non.</p> <p>Error assigned was decree overruling demurrer.</p>

Appeal, No. 444, Jan. T., 1894, by defendants, from judgment of C. P. Montgomery Co., on verdict for plaintiffs. Issue devisavit vel non. Before Weand, J. At the trial defendants claimed that the will was forged. The facts appear in the opinion of the Supreme Court in this case and in the next preceding one. Verdict and judgment for plaintiffs. Defendants appealed. Errors assigned were various instructions immaterial to this report.

<p>Appeal, No. 450, Jan. T., 1894, by defendant, from judgment of C. P. Montgomery Co., Dec. T., 1893, No. 151, discharging rule to open judgment.</p> <p>Rule to open judgment.</p> <p>From the record it appeared that on April 4, 1887, defendant gave a judgment note to plaintiff for $1000, witnessed by William F. Smith. Judgment was entered on the note January 2, 1894, after the death of plaintiff.</p> <p>The material portion of the testimony of Mr. Smith, the subscribing witness, will be found fully quoted in the opinion of the Supreme Court, together with the other facts necessary to an understanding of the case.</p> <p>The court, in an opinion by Swartz, P. J., held that the evidence was insufficient to contradict the terms of an instrument under seal, citing Jackson v. Payne, 114 Pa. 67; Fulton v. Hood, 34 Pa. 365; Thomas v. Loose, 114 Pa. 45; Yan Yoorhis v. Rea Bros., 153 Pa. 19, and discharged the rule to open a judgment.</p> <p>JError assigned was above order.</p>

<p>Appeal, No. 31, July T., 1894, by defendant, from judgment of C. P. Lehigh Co., Nov. T., 1891, No. 44, on verdict for plaintiff.</p> <p>Trespass for libel. Before Albright, P. J.</p> <p>Plaintiff’s statement was as follows :</p> <p>“ Annie E. Seip, the plaintiff in this suit, by Joseph Hunter, her attorhey,-files this her statement against William H. Deshler, the defendant above named, who was summoned to answer the plaintiff, the said Annie E. Seip, in an action of trespass. For that, whereas, The said Annie E. Seip is a person of sound mind, and a good, true, honest and virtuous citizen of the commonwealth of Pennsylvania, and as such hath always conducted herself, and, until the committing of the said grievance hereinafter mentioned, was always reputed to be a person of good fame and credit, and of good sound mind, and free from all taint of insanity, and hath never been guilty, nor until the committing of the said grievance, been suspected to have been guilty of fornication or any other such crime, nor was the plaintiff before suspected of being insane, or having any taint of insanity, by means of which said premises she, the said plaintiff, before the committing of the said grievance, had deservedly obtained the good opinion of all her neighbors and all other persons to whom she was known. Nevertheless, the said defendant, well knowing the premises, but contriving and maliciously intending to vilify and asperse the reputation and character of the said plaintiff, and to bring her into very great infamy and disgrace, and subject her, the said plaintiff, to prosecution and punishment for fornication, on the 31sb day of October, A. D. 1890, at Allentown, in said county, did wickedly and maliciously, make, write, and publish, and send through the United States mails, at Allentown, directed to the residence of the said plaintiff, No. -, Hamilton street, Allentown, in said county, a certain malicious, false and scandalous writing and libel, of and concerning the said plaintiff, said writing and libel being contained in a letter written and published and addressed to the said plaintiff, as aforesaid, by the said defendant, and containing amongst other things certain false, malicious and scandalous matters, according to the terms following, to wit: “ Mrs. Annie E. Seip, (meaning the said plaintiff,) you (meaning the said plaintiff) have every dollar due from your (meaning the said plaintiff) much abused sister Emma, (meaning Emma Keiper, sister of the said plaintiff,) either as agent, as executrix, or individually. Yes, more than you (meaning the said plaintiff) are entitled to, but the misfortune is you (meaning the said plaintiff) and yours (meaning the said plaintiff and Henry A. Heckman) are too - ignorant or insane (meaning and intending said plaintiff, and that plaintiff was insane). You, (meaning the said plaintiff,) Mr. Trexler, (meaning Frank M. Trexler, an attorney at law,) who just lately gave you (meaning the said plaintiff) the “ Bounce ” may be able to explain, but I (meaning the said defendant) suppose will not, as he (meaning the said Frank M. Trexler), too, has enough. Yes, a superabundance of the H. S. H. Combination. “ Poor thing, poor thing,” (meaning the said plaintiff,) what will insanity not accomplish? Emma has her quarterly receipts in full from her sisters. She has your (meaning the said plaintiff) receipts and release as per auditor’s report, and no doubt thinks as I (meaning the said defendant) would under similar circumstances, you (meaning the said plaintiff) and yours (meaning the said plaintiff and the said Henry A. Heckman) could now kiss her--- and go to-. Your (meaning the said plaintiff) action against your sisters and myself (meaning the said defendant) have been so outrageous that they (meaning the said plaintiff’s sisters) are now insisting upon your (meaning the said plaintiff) immediate arrest, but I (meaning the said defendant) am urging continued leniency, but so help me, God, I, meaning the said defendant) am at the rope’s end. No more forgery, etc., etc. Your learned Friend. Give H. an extra, (meaning and intending the said Henry A. Heckman, of Allentown, Pennsylvania,) thus meaning and intending that the said plaintiff had been criminally intimate with the said Henry A. Heckman, and had committed fornication with him, and that plaintiff should commit the crime of fornicatio'n with the said Henry A. Heckman. The said Annie E. Seip in fact saith that she is nowise guilty of fornication, and that she is not insane, but of good sound mind, and that the said William H. Deshler, the defendant, well knew said charges to be false when he made them. By reason of the making and publishing of which said malicious, false and scandalous libel, so as aforesaid published by the said defendant, she, the said plaintiff, is very much injured and damaged in her reputation, and has suffered in character and feelings. Whereupon the said Annie E. Seip hath sustained and claims damages to the amount of ten thousand dollars.”</p> <p>The alleged libelous letter was as follows:</p> <p>“Mrs. Annie E. Seip: — You have every dollar due you from your much abused sister Emma, either as agent, as executrix or individually — yes more than you are entitled to — but the misfortune is you (and yours) are too-- ignorant or insane to know it.</p> <p>“ Your Mr. Trexler, who just lately gave you the bounce, may be able to explain, but I suppose will not, as he too has enough, yes, a superbundance of the H. S. H. combination.</p> <p>“ ‘Poor thing, poor thing,’ what will insanity not accomplish!</p> <p>“ Emma has her quarterly receipts in full from her sisters.</p> <p>“ She has your receipts and release as per auditor’s report, and no doubt thinks, as I would under similar circumstances, you and yours could now kiss her-and go to-. Your actions against your sisters and myself have been so outrageous that they are now insisting upon your immediate arrest, but I am urging continued leniency, but so help me God, I am at the rope’s end. No more forgery, &c., &e.</p> <p>“ Your Learned Friend.</p> <p>“ Give H. an extra.”</p> <p>Under objection and exception the following letters were admitted in evidence. [6, 7]</p> <p>“Allentown, Pa., March 22d, 1890.</p> <p>“Mrs. Annie E. Seip,</p> <p>“ My endeavor at reconciliation is ended.</p> <p>“ Sisterly love hath deserted you — good common sense you have none — the influence over you is most damnable. After March 25th, 1890, look for no mercy from those who until then are willing to take you by the hand and forgive you once more — take the risk. Yours,</p> <p>• “ W. H. Deshler.”</p> <p>“ Allentown, Pa., August 9th, 1889.</p> <p>“ Mrs. Annie E. Seip,</p> <p>“ I think it would prove wisdom on your part if you would take back the warrant of attorney in the hands of Mr. Trexler — your action will open a fraudulent transaction of which you was the chief — which to you will result in injury — I will most assuredly proceed to the bitter end if you insist on keeping on with your unwise and unprofitable course. By the time you are finished you have nothing left. Yours,</p> <p>“ W. H. D.</p> <p>“ Act the sister, before it is too late.”</p> <p>The court charged in part as follows:</p> <p>“ Henry A. Heckman testifies that the plaintiff had a place of business, and where she also resided, on an upper floor of a building in this city, and that Mr. Heckman represented helas her agent in certain mining operations which she was interestéd in, in Columbia county, this state, and also' in regard to certain matters relating to her deceased mother’s estate; that he was her agent; that on the morning of the 1st of November the plaintiff and Mr. Heckman were at her place ; that the letter carrier — because in this town now, and at that time it seems the letter carriers’ system had been introduced and letters were brought around to people — came to the place, came up the stairs and without ascending the last flight leading to Mrs. Seip’s rooms, called out ‘ mail; ’ that Mr. Heckman went and received from the carrier this letter; that believing that it related to certain business of Mrs. Seip, the mining concerns in Columbia county, and he being authorized, as he, and she say, to receive her letters and open them, he opened it and read it before it came to her hands, and that he then called her attention to it. If that is proved, then there was a sufficient publication to entitle the plaintiff to recover so far as publication is concerned. But if the letter came to her hands first, and she opened it and afterwards handed it to Heckman or anybody else, then there was no publication, excepting that which she made herself, and she cannot recover.</p> <p>“ [The defendant asserts that the letter was actually received by Mrs. Seip first, and that the pretense that Mr. Heckman first saw it is unfounded, and that it is set up simply in order to help out the plaintiff’s case to show publication, which the defendant says the plaintiff found out subsequently was necessary in order to give her a cause of action.</p> <p>“ The defendant claims that he has proved that at the time in question Mr. Heckman was in Columbia county, in the neighborhood of Espy, which is near Bloomsburg, looking after Mrs. Seip’s mine. The letter is postmarked ‘ October 31st, 1890,’ late in the evening, and the theory of the plaintiff is, as well as of the defendant, and it is a fact that the letter came to Mrs. Seip’s place on the morning of November 1, 1890, which, it seems, was a Saturday morning. The defendant asks you to find from what he has shown in this reference that Mr. Heck-man was in Columbia county on the 31st of October, 1890, and also on the 1st of November following. Upon that question there is evidence on both sides. The plaintiff has called witnesses from whose testimony she claims you can find that the witnesses who were called by the defendant on that point are mistaken, and that Heckman was not in Columbia county at the time of the reception of this letter; that he had been there on the 4th of July of that year, and then not again until in December of the same year. The defendant also claims to have testimony from which he contends that you can find that if Heckman was in Allentown at all on Saturday, the 1st of November, it was not until in the evening, and that he had returned from Columbia county then, and from all that the defendant has shown in this regard, he claims that he has established that it is not true that Heckman on Saturday morning of November 1st was at Mrs. Seip’s place and opened and saw this letter. All that bears upon this question you will consider, and regard the weight of the evidence, and if it is proved that there was publication in the way the plaintiff asserts, that is, that Mr. Heckman saw the letter before it came to Mrs. Seip’s hands, then you will say there was publication, and then that requisite of the plaintiff’s case to entitle her to recover is made out.</p> <p>“ If you find by the weight of the evidence that Mr. Heck-man did not receive the letter first, before Mrs. Seip received it as it came through the mails, then you will say that there was no publication, and then the plaintiff has no cause of action, and you will find for the defendant.] [4]</p> <p>“ According to the definition of a libel, as I have already stated it to you, the making and publication must be malicious, and what is meant by this term ‘ malicious ’ or ‘ malice,’ as it affects this case, I will endeavor to explain to you. Malice is popularly understood to mean ill will or spite. As the term is used in law, at least as applicable to this case, it means something more. Spite and ill will are what might be termed positive malice. Malice in contemplation of law is where a person does a wrongful act intentionally. If the letter in suit is what is recognized in law as a libel — and concerning that I will give you instruction presently — then the intentional making and publication of it would be a wrongful act, and if done intentionally —and there is no pretense here that if the defendant did what is charged that he did not do it intentionally — then such intentional doing of the wrongful act is malicious as applicable to a civil action for libel. Is the letter malicious; is the letter actionable ; is it. a libel ? Not every writing which in its terms is uncomplimentary of another, or even abusive of another, even if it is published, amounts to a libel. The law cannot take notice of every writing of that description so as to give an action for damages. According to certain rules it is ascertained what writings are libelous and what are not libelous.</p> <p>“ Where the terms of a writing are not doubtful but plain it is the province and duty of the court to declare whether the writing is libelous or not, and in an action of this nature, it is the duty of the jury their to be guided by such instruction of the court because it is the announcement of a rule of action —the announcement of a law. The law after all is nothing more than a rule which the people have made for their own government.</p> <p>“ The letter in question as to the matter which you are to decide about is in the opinion of the court of dubious meaning. Just here I will say to you that the claim and assertion on the plaintiff’s part that there is a charge of fornication — carnal intercourse between the plaintiff and another — the allegation being that Mr. Heckman was meant — cannot be found from the letter itself. The only allusion that is claimed to be of that nature is in the postscript, and, in the opinion of the court, in order to make out that charge there would have to be added or brought into the letter a word after that last word ‘ extra ’ in place of that dash, which would imply sexual intercourse, and for a court or jury to say that the line means that, would be hunting for a meaning. If the conclusion claimed for by the plaintiff were reached it would be finding a bad meaning where the writing itself does not naturally lead to that conclusion. Therefore we give you positive instruction that so far as the elaim on plaintiff’s part that there is a charge of sexual commerce is concerned in this letter — fornication—it does not exist and that is out of the case.</p> <p>“In the letter certain matters are said about the plaintiff which are certainly not complimentary. They relate to disputes about the estate of the deceased mother of the plaintiff. Those matters are not libelous. ■ The only matter which may be libelous is the charge, if it amounts to that, of insanity. There are two allusions in the letter of that nature, that is, which the plaintiff claims are of that nature. They are ambiguous, uncertain and of dubious meaning. As I said to you before, if the meaning were plain and open the court would have to decide whether those references and statements are libelous or not. But inasmuch as they are not plain, the letter is referred to you, gentlemen of the jury, to find from everything that has a legitimate bearing upon the question whether the meaning is that some party is insane and that the plaintiff, Mrs. Seip, is that party.</p> <p>“ [Where a person covers up his meaning by writing which is ambiguous, uncertain, dubious, but the ordinary experience, the common sense — if such a term may be used — of a juror convinces him that it implies a charge, the juror may conclude that certain things were meant, although they are not expressed in distinct and plain terms. So we say to you here, that if the allusions in this letter mean that the party referred to is of unsound mind — is insane — is deprived of reason — and that Mrs. Seip is the one that is meant to be insane, then we say to you that the letter is libelous and is actionable.] [3] If that is not found, then it is not actionable, and then even if the defendant wrote it and it was published as the plaintiff says, the plaintiff cannot recover because then it is not a libel.</p> <p>“ Insanity, or the condition of one being of unsound mind, is taken notice of by our laws. Where that condition of mind exists the unfortunate party thus afflicted is subject to certain regulations. He or she is liable to have the control of his or-her property taken out of his or her hands, and he or she is liable to be taken charge of and confined in -an asylum or elsewhere, and for those reasons, outside of the influence that it may have upon the character of the party and the estimation in which she or he is held in the community, I declare to you that in Pennsylvania a written charge that another is insane, if it is maliciously made and is not true, is actionable.</p> <p>“You have heard the argument for the defendant that the allusions, that is, the words ‘insanity’ and ‘insane’ simply mean foolishness or want of judgment on the part of the person alluded to, and that it does not bear the meaning that the party mentioned, or not mentioned but intimated, is insane in fact. If that is all it means, then it does not amount to a charge of insanity.</p> <p>“ It is also argued that you can find that the allegation of insanity does not refer to Mrs. Seip, but that it means somebody else, possibly Mr. Heckman, or some one else, and that she is simply under the influence of persons who are insane. If it is not proved that she is meant, that it is meant that she is insane, then the matter is not libelous. Words are to be taken in the sense in which the world understands them, that is, the people generally who are familiar with the language in question, and here it is the English language, the letter being in English. Therefore it is referred to you to say, gentlemen, whether these words, which in the opinion of the court are dubious, that is, the words from which the plaintiff alleges that you can find that insanity is charged, actually do mean that, and that Mrs. Seip is the one meant. In short, does the letter, according to the meaning of words as they are usually accepted by people, mean that the writer of the letter asserted or charged that Mrs. Seip, the plaintiff, was insane. If that is established, then we say to you that the letter is libelous, and if it was made by the defendant and was published, then the plaintiff is entitled to recover. . If you do not find that the meaning of the letter is, and the words in question here mean, that Mrs. Seip is of unsound mind, then the letter is not libelous, and your verdict must be for the defendant.”</p> <p>Defendant’s points were among others as follows :</p> <p>“ 1. Under the evidence the verdict must be for the defendant. Answer: Negatived. [1]</p> <p>“ 2. No extrinsic facts having been averred with a colloquium in the plaintiff’s statement, there is nothing before the court and jury but the letter set out in the pleadings. Standing alone the court must consider it. As a matter of law the letter as set forth in the pleadings is not libelous. Answer: Negatived. [2]</p> <p>“4. If the jury pass on the question of damages they cannot consider the whole letter, but only such parts of it as are declared upon as libelous and are submitted to them by the court to pass upon. Those parts of the letter that are not legally libelous can have no bearing on the question of damages. Ansiver: Negatived. [5]</p> <p>“8. There is a fatal variance between the paper offered in evidence and the words set forth in the statement; the words ‘ know it ’ are omitted after words ‘ ignorant or insane.’ Answer : Negatived. [8]</p> <p>“9. No legal publication is averred in the statement. As this is essential to a recovery by the plaintiff, the verdict must be for the defendant. Answer: Negatived.” [9]</p> <p>Verdict and judgment for plaintiff for $1,450. Defendant appealed.</p> <p>Errors assigned were (1-5, 8, 9) above instructions, quoting them; (6, 7) rulings on evidence, quoting the bill of exceptions; (10) refusal to arrest judgment.</p>

<p>Appeal, No. 58, Jan. T., 1895, by defendants, from judgment of C. P. Montgomery Co., June T., 1894, No. 852, for defendants non obstante veredicto.</p> <p>Assumpsit to recover damages for breach of an agreement to se]l real estate. Before Swartz, P. J.</p> <p>At the trial it appeared that William W. Richards, executor of John Richards, deceased, made an agreement with William H. Yerkes, agent, for the sale of a tract of land in Upper Merion township. The agreement gave Mr. Yerkes, or his principal, an option to buy the premises at $5,400. This option was to expire on January 1,1891. On September 8, 1890, William W. Richards, as trustee under the will of said John Richards, deceased, sold said premises to Samuel W. Moore for $6,000. The legatees under the will of John Richards joined in this deed.</p> <p>A few days after this conveyance the plaintiff elected to take a deed for the premises under the terms of his option, and tendered the consideration money as in his agreement provided.</p> <p>The executor, William W. Richards, died, and his death was suggested on the record. Martha W. and Anna R. Richards succeeded to the trust under the will of John Richards by appointment of the orphans’ court. They were substituted as defendants in place of said William W. Richards, executor of John Richards. William H. Yerkes testified that he bought the property as agent for his wife, Emily Irene Yerkes.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>After the charge the court made the following entry upon the record : “ I reserve the question whether there is any evidence in this case to be submitted to the jury upon which the plaintiff is entitled to recover.”</p> <p>Verdict for plaintiff for $360.</p> <p>The court subsequently in an opinion by Swartz, P. J., entered judgment for defendant, on the question reserved, non obstante veredicto. Plaintiff appealed.</p> <p>JErrors assigned were, (1) that the question of law was improperly reserved; (2) in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 121, Jan. T., 1895, by plaintiff, from decree of C. P. Montgomery Co., Oct. T., 1893, No. 6, on bill in equity. Bill in equity to compel a transfer of stock in a corporation. The names of the parties as they stood upon the record were as follows: John M. Kennedy v. John J. McCloskey, William Johnston, William A. Flanagan, David S. Brown, George L. Schofield, William Brown and Murrill A. Furbush. The facts are fully stated in the opinion of the Supreme Court.

<p>Appeal, No. 461, Jan. T., 1894, by defendant, from judgment of C. P. Chester Co., Aug. T., 1893, No. 115, on verdict for plaintiff.</p> <p>Appeal by plaintiff from the report of a jury of view, assessing damages for injuries sustained by reason of the defendant’s location and construction of its pipe line upon his farm. Before Hemphill, J.</p> <p>At the trial Josiah E. Mewes, a witness for the plaintiff, was asked the question:</p> <p>“ Q. Before the location of this pipe line across this farm of your brother, what was it worth per acre? A. I would judge it would fetch $80.00 an acre. Q. Since the location of that pipe line upon the premises, what in your judgment would it bring ?</p> <p>Mr. Reid: “ I object to the question, on the ground that he has not given sufficient testimony showing that he is competent to testify as to what it is worth now with the pipe line upon it.”</p> <p>By the Court: “ Q. Down to what time are you familiar with the sales ? A. The sales of properties around, those that have been sold? Q. All the sales that have taken place ? Down to what date are you familiar with the sales, and prices that have been paid? A. There was the Cochran property sold last spring. Q. That is the last sale you know of in your neighborhood? A. Yes. Q. Down to what time have you been familiar with the asking price in your neighborhood? A. About six months ago.”</p> <p>By Mr. Monaghan: “ Q. Since the pipe line has been located through this farm, what in your judgment is it worth?”</p> <p>Mr. Reid: “ I object.”</p> <p>The Court: “Objection overruled. Bill sealed.”</p> <p>“Q. Just viewing everything, in the condition it is? A. I would make a depreciation of $30.00 to the acre.</p> <p>By the Court: “ Q. It is worth $50.00 an acre now, in your judgment? A. Yes. Q. That is what it would bring in the market? A. Yes.” [1]</p> <p>R. W. Schrack, a wdtness for plaintiff, was asked the questions :</p> <p>“ Q. Have you observed, either from this pipe line, or other pipe lines with which you have been familial-, the effect of the construction of a pipe line upon land? A. Yes, sir. Q. The general effect? ' A. Yes, sir. Q. And in the market as well? A. I cannot say I could in the market. Q. That is, whether it increases or decreases the value of real estate ? A. I know of one property that was sold. Q. Do you know the general effect? A. Yes. Q. You have known this property for many years. If you have a judgment of its value immediately before the construction of the pipe line I wish you would give it ? Q. What in your judgment was the value of this farm before the construction of the pipe line? A. About $70.00 an acre. Q. And what is your judgment of its value since the construe tion of the pipe line ? ”</p> <p>Mr. Reid : “ I object to that question.”</p> <p>The Court: “ Objection overruled. Bill sealed.”</p> <p>“A. I think it would be worth $15.00 to $20.00 per acre less.” ■</p> <p>The Court: “ Q. Have you any knowledge of sales of property through which pipe lines have passed ? A. Not this pipe</p> <p>line. Q. Or any other pipe line? A. Yes. Q. You speak from that knowledge ? A. Yes, sir.” [2]</p> <p>Eli Thompson, a witness for defendant, was asked:</p> <p>“ Q. Where do you live ? A. Kennet Square, at present. Q. Have you any personal knowledge of the effect of a pipe line upon the sale of real estafetas an easement? A. Yes. Q. What is it, and how do you know it? A. By the sale of a property. Q. Where and when? A. It was the Cope property that I was executor for. I sold that property in the fall of 1892. Q. With a pipe line on it? A. With a pipe line on it. Q. What in your judgment was the effect of the pipe line as to whether or not it depreciated the selling price of the property ? ”</p> <p>Mr. Holding: “ I object.”</p> <p>The Court: “ I do not think he is competent. He has only testified to one instance.”</p> <p>Mr. Reid: “I am asking him about that one instance. I offer to ask him what was the effect of the pipe line upon the selling price of that property.”</p> <p>Mr. Holding : “ I object.”</p> <p>The Court: “ Objection sustained. Bill sealed.” [3]</p> <p>The testimony as to the qualifications of the three witnesses appears by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,612.50. Defendant appealed.</p> <p>Errors assigned were, (1-3) rulings on evidence, quoting the bill of exceptions.</p>

<p>Pipe line — Eminent domain — Evidence—Expert witness — Competency of witness.</p> <p>A witness is competent to testify as to the damages caused by the construction of a pipe line across a farm, where it appears that he lived in the neighborhood, and knew the character of the soil of the farm, the kind and quality of the improvements upon it and the selling prices, and the prices for which lands had been offered in the locality during the two years prior to the trial; but one who has never seen the farm is not competent to testify as to the effect of the construction and maintenance of a pipe line upon his own farm.</p> <p>It is not improper for the court to refuse to charge in an action to recover damages for the construction of a pipe line, that greater weight is to be given to the testimony of those who have knowledge and observation of several sales of land upon which pipe lines had been constructed than of a witness who had knowledge of but one such sale. The question in such a case is one for the determination of the jury under all the evidence, and the credibility they may attach to testimony of the respective witnesses.</p>

Appeal, No. 517, Jan. T., 1894, by Rush Donley, from order of C. P. Chester Co., Oct. T., 1892, No. 7, dismissing exceptions to confirmation of sheriff’s sale. Exceptions to confirmation of sheriff’s sale. The facts appear by the opinion of the Supreme Court. Frror assigned was the order dismissing exceptions to confirmation of the sheriff’s sale.

Appeal, No. 506, Jan. T., 1894, by plaintiff, from judgment of C. P. Schuylkill Co., July T., 1892, No. 8, on verdict for defendants. Assumpsit on a bond given in attachment proceedings under the act of March 17, 1869, P. L. 9. The facts and the material assignments of error are stated in the opinion of the Supreme Court. Verdict and judgment for defendants.

<p>Building association — Assignment of stock — Attachment execution — Marshaling assets — Equity.</p> <p>Where a member of a building association borrows money from the association, and to secure the loan gives a mortgage on his real estate, and makes an assignment of his stock, in which he elects to appropriate the amount realized from the stock at its maturity in payment of the loan, an attachment creditor whose attachment is subsequent to the mortgage and assignment cannot compel the association to exhaust the security furnished by the mortgage before resorting to the security afforded by the assignment.</p> <p>Subrogation — Notice—Equity—Attachment execution — Building association.</p> <p>Where a loan by a building association is secured by a mortgage and an assignment of the stock of the association, and a subsequent attaching creditor desires to enforce any equity which he may have to subrogation to the rights of the mortgagee, he must notify the association of his equity, and of his intention to enforce it, and caution the association to do no act by which his security may be diminished.</p> <p>Where the attaching creditor procures a sale of the real estate subject to the mortgage, but secures nothing therefrom towards payment of his debt, and gives no notice to the association of his purpose to compel it to resort in the first instance to the real estate for the payment of its claim, or in the event of its refusing to do so to demand subrogation to its rights as mortgagee, he cannot complain of the appropriation of the amount realized on the stock to the payment of the loan, nor of the cancellation of the mortgage.</p> <p>Building association — Mortgage—Sheriff's sale — Notice—Estoppel. r</p> <p>Where a loan by a building association is secured by a mortgage and an assignment of the association’s stock, the assignment containing an election on the part of the assignor to appropriate the amount realized from the stock at its maturity in payment of the loan, a subsequent attaching creditor who procures a sale of the real estate under his judgment, cannot complain of a notice given by the association at the sheriff’s sale that purchasers would take the property subject to the association’s mort-</p>

<p>Sale— Change of Possession — Fraud—Evidence.</p> <p>The Supreme Court will not reverse a judgment on a verdict in favor of plaintiff in a feigned issue to determine the ownership of personal property, where it appears by the evidence that plaintiff’s vendor took possession of the property under a bill of sale, for a full consideration, from the original owners who were the judgment debtors of the defendant; and where the integrity of the transaction and the sufficiency of the possession taken and maintained in consummation of them, is established by the verdict of the jury in accordance with the evidence.</p> <p>The bill of sale in such a case being the foundation of plaintiff’s claim to the properly, was properly admitted in evidence, and the question whether it formed a part of a scheme to defraud the creditors of the makers of it was for the jury.</p>

Appeal, No. 301, Jan. T., 1895, by-defendant, from judgment of C. P. Schuylkill Co., May T., 1886, No. 12, on verdict for plaintiff. Assumpsit to recover assessment on policy No. 628. Before Pershing, P. J. This case and the next succeeding case were tried together by the court without a jury under the act of April 22, 1874, P. L. 109. The facts appear by the opinion of the Supreme Court.

Appeal, No. 302, Jan. T., 1895, by defendant, from judgment of C. P. Schuylkill Co., May. T., 1886, No. 13, on verdict for plaintiff. Assumpsit to recover assessment on policy No. 525. Before Pershing, P. J. See next preceding case.

<p>[Marked to be reported.]</p> <p>Trusts and trustees — Attorney at law — Fraud—Ejectment — Equitable ejectment.</p> <p>The relations between attorney and client are confidential and fiduciary, and an attorney who procures from his client a transfer to himself of property which the client held in trust, cannot escape the obligations which rest on his client in relation to said property.</p> <p>Where a mortgagor owned real estate, subject to an easement, and entered into an agreement with the mortgagee to foreclose it and make sale of the property, for the purpose of effecting a transfer of title in the premises to a third party, in order to revest the mortgagee with a portion of the land, free from the easement, the attorney of the mortgagee who had charge of the whole transaction for both parties, with full knowledge of its details and its purpose, and who took an assignment of the mortgage to himself the day before the sale, and bought in the property at the sale for a nominal sum, is bound to the mortgagor by the same trust relation which existed between the mortgagor and the mortgagee, and as the mortgagee under his agreement would have been compelled to reeonvey the land to the mortgagor when repaid the amount of the mortgage and all costs and expenses to which he had been subjected, the attorney is bound to do the same.</p> <p>An action of ejectment to enforce such a trust is an equitable action, and whether the attorney took as an innocent purchaser without notice was, under the facts as stated, a question of law for the court, and not a question ■of fact to be submitted to the jury. The court should have directed the jury to find a verdict conditioned for the payment of the debt and interest ■of the judgment assigned to the attorney, together with all lawful expenses incurred by the attorney in and about the management and care of the trust estate.</p> <p>A verdict finding that the defendant is a purchaser without notice, when the law imputes notice on the uncontested facts before the jury, is entitled to no weight.</p>

<p>Appeal, No. 267, Jan. T., 1895, by plaintiff, from order of C. P. Lackawanna Co., May T., 1894, No. 671, reversing judgment of alderman on certiorari.</p> <p>Certiorari from judgment of alderman convicting defendant of violating the Sunday law of 1894.</p> <p>From the record it appeared that the information upon which the warrant issued was as follows :</p> <p>“The information of F. A. Doney, of the city of Scranton, taken upon his oath, before I. L. Post, Esquire, an alderman, in and for the 17th ward, of said city, the 8th day of May, A. D. 1894; the said F. A. Doney saith that on the sixth day of May, A. D. 1894, Emma E. Gelbert did have her place of business, 19 Lackawanna avenue, in said city of Scranton, open for business, and did herself do and perform worldly business by the sale of sodawater, bread, milk, candy and other articles, contrary to the act of assembly of April 22, 1894.”</p> <p>The warrant under which defendant was arrested was as follows:</p> <p>“ To any Constable of said County, Greeting:</p> <p>“You are hereby commanded to take the body of Emma E. Gelbert, 19 Lackawanna Avenue, if she be found in said county, and bring her before I. L. Post, one of our aldermen in and for said county, to answer the Commonwealth upon a charge, founded on the oath of F. A. Doney, charging defendant with having opened her place of business May 6th, 1894, being the Lord’s day, commonly called Sunday, and herself performing worldly employment, contrary to the Act of Assembly of April 22d, 1794, all contrary to the law, etc., and further to be dealt with according to law. And for so doing this shall be your warrant.</p> <p>“ Witness our said Alderman at Scranton who hath hereunto set his hand and seal the 8th day of May, A. D. 1894.</p> <p>“ (Signed) Isaac L. Post,</p> <p>“Alderman 17th Ward, [seal.] ”</p> <p>Defendant was convicted by the magistrate, and the case was taken into the common pleas by certiorari.</p> <p>The court in an opinion by Archbald, P. J., reversed the judgment.</p> <p>Error assigned was order reversing judgment.</p>

<p>Appeal No. 278, Jan. T., 1895, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1894, No. 30, reversing judgment of alderman.</p> <p>Certiorari from judgment of alderman convicting defendant of violating Sunday law of 1794.</p> <p>. The written complaint, which was the foundation of the pro ceeding, was as follows:</p> <p>“ The information of F. A. Dony of the city of Scranton, taken upon his oath before I. L. Post, Esq., an alderman in and for the Seventeenth ward oE said city, the 22d day of May, A. D. 1894, the said F. A. Dony saith that on the 20th day of May, A D. 1894, John H. Phelps of the said city of Scranton did keep open on the first day of the week, commonly called Sundaj', his place of business at the corner of Wyoming avenue and Spruce street, as on other days, and did sell soda water and other beverages and articles contrary to the act of assembly of 22d April, 1794.”</p> <p>The warrant followed the complaint and did not state the county in which the alleged offense was committed.</p> <p>Judgment was entered against the defendant by the alderman.</p> <p>The court in an opinion by Edwards, J., reversed the judgment.</p> <p>JError assigned was order as above, reversing judgment.</p>

Appeal, No. 53, Jan. T., 1895, by plaintiff, from order of C. P. Lackawanna Co., June T., 1889, No. 437, refusing to direct manner of removing case to another county, and entering judgment on verdict. Ejectment for coal in Lackawanna township. Before Savage, P. J., specially presiding. On September 15,1894, plaintiff filed of record the following paper: “ 1.

<p>Appeal, No. 161, Jan. T., 1895, by-plaintiff, from judgment of C. P. Lackawanna Co., April T., 1893, No. 469, on verdict for defendant.</p> <p>Assumpsit to recover the value of coal mined by plaintiff’s cotenant. Before McClure, P. J., specially presiding.</p> <p>At the trial plaintiff claimed to be the owner of an undivided one fourth of all the coal in one hundred and eight acres of land known as the Anderson farm in Throop borough. On December 30, 1886, certain other parties who claimed an interest in the land executed a lease or contract for the sale of all of the coal in the land to the Paneoast Coal Company. The interest of the Winton Coal Company, Limited, in the coal, was stated in the lease as only an undivided one eighth, instead of one fourth. Plaintiff accordingly refused to execute the lease, although the thirteenth paragraph thereof provided that nothing contained therein should alter or affect the title, interest or estate of any of the grantors.</p> <p>Counsel for plaintiff proposed to show by the statements offered, which are admitted to be the correct amount of coal mined by the defendant from the Anderson tract, the amount which they mined; the value of which coal the plaintiff admitted was the amount stipulated to be paid in the lease ; this to be followed by evidence that the defendant had paid to the several tenants in common a portion of the interest which each held, and had paid the plaintiff in this suit one half of the amount to which the plaintiff was entitled; and also to be followed bj' evidence that the coal mined by the Pancoast Coal Company had been sold by the Pancoast Coal Company, and the money had been received by the Pancoast Coal Company for all the coal mined from this property and sold up to the time of bringing this suit.</p> <p>This was objected to by the defendant as immaterial, irrelevant and incompetent.</p> <p>The court ruled that the rights of the parties could not be settled in an action of assumpsit, they being admitted to be tenants in common; sustained the objections, rejected the evidence and sealed a bill for the plaintiff. [1]</p> <p>The court charged as follows :</p> <p>“ [This being a suit, as we understand it, between one co-tenant and another, seeking to recover for the value of coal removed from lands, and the court being of opinion that the remed3’- is not by action of assumpsit as brought b3" the plaintiff, but an action of account render under the act of assembly of 1850, we direct 3'our verdict to be in favor of the defendant in this ease.] ” [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2) in directing verdict for defendant; (3) charge of court as above, quoting it.</p>

Appeal, No. 77, July T., 1894, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1890, No. 227, on verdict for defendant. Trespass for cutting timber. Before Albright, P. J., specially presiding. The facts appear by the opinion of the Supreme Court, and by the charge of the court below. The diagram on page 447 shows the official survey upon which the patent to Charles K. Fisher, dated Feb. 21, 1890, was issued.

Appeal, No. 202, Jan. T., 1895, by plaintiff, from judgment n. o. v. of C. P. Lackawanna Co., Sept. T., 1893, No. 100, on verdict for plaintiff. Assumpsit on two policies of life insurance. Before- Arch-bald, P. J. At the trial it appeared that policy No. 2,441,554 was for $132, and policy No. 2,541,215 was for $500.

<p>Appeal, No. 204, Jan. T., 1894, by defendant, Frank Aulenbach, from judgment of C. P. Berks Co., Feb. T., 1893, No. 39, on verdict for plaintiff.</p> <p>Trespass for assault and battery. Before Ermentrout, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>When Henry T. Wentzel, a witness for plaintiff, was on the stand, he was asked this question:</p> <p>Mr. Rulil: “ Q. I asked Mr. Epler this morning, when upon the stand, whether.he said in your presence at that hearing that he had been told by Mr. Aulenbach and Mr. Plaak to break down this fence and go through, whatever might happen, and he said that no such conversation, nothing of that kind was said at the hearing before you. State how that is.”</p> <p>Mr. Jacobs : “ Objected to because it would not be evidence as against Mr. Haak or Mr. Aulenbach, they not being present, and the proposition does not embody any such statement that they were present.”</p> <p>Mr. Ruhl: “ It is offered for the purpose of contradicting Mr. Epler.”</p> <p>Mr. Jacobs: “ It could only go to the credibility of Mr. Epler alone, and as this suit is being tried against the whole of these people, it cannot be admitted. Objected to, further, for the reason that it is irrelevant, because the plaintiff in his testimony has stated that he constructed this fence across the street, and the plaintiff, thus far, has not shown title to the ground over which this fence was constructed, and it would be the contradiction of Mr. Epler upon an entirely irrelevant matter.”</p> <p>Mr. Ruhl: “ This to be followed by evidence that the plaintiff had title.”</p> <p>The Court: “ Question admitted. Exception for defendant. Bill sealed.”</p> <p>“A. Well, it was said in n^ office they were to go through and knock it down. Q. Who said that? A. Old man Epler. Q. Give us his exact words, as near as you can. A. He said that he was ordered to go through and tear the fence down, no matter what the costs, that they would stand by him, Haak and Aulenbach.” [1]</p> <p>Defendant’s point was as follows: “Under all the evidence in the case the plaintiff cannot recover against Frank Aulenbach, one of the defendants. Answer: Negatived.” [2]</p> <p>Verdict and judgment for plaintiff against Frank Aulenbach, Calvin Epler, Samuel Kupp and Jacob Epler for $380. Frank Aulenbach appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions ; (2) above instructions, quoting them.</p>

<p>Will — Trusts and trustees — Spendthrift trust — Separate use trust.</p> <p>A testator creates a valid spendthrift trust in favor of a daughter who is a child at the date of the will, where he gives her share to trustees in trust “ for her sole and separate use, during her natural life, so that she may receive the income, rents, issues and profits thereof, as and when the same shall have accrued and become payable, with her own separate hand or as she by her sole and separate act may direct, and so that the same shall not be in any manner pledged, appropriated, disposed of, or parted with by anticipation, or before the same shall have accrued and become payable, and shall not be in any manner liable for the debts or to the interference or control of any husband whom she may marry, or be subject to execution, attachment, sequestration or adversary proceedings of any sort for her own debts, or for any debts or liabilities whatever; and upon, and from and after her decease, in trust for the use of her issue living at her death.”</p> <p>Will — Power of appointment — Appointment to issue and husband.</p> <p>Where a daughter’s shave is given to trustees for her life, the daughter has no power to appoint to others than her issue and surviving husband, where the will directs that her share shall be held “ from and after her decease, in trust for the use of her issue living at her death, in such parts, shares and proportions, or of such one or more of them to the exclusion of another or the others, for such estate or estates, in such manner and under such trusts as she by last will and testament, or writing in nature thereof, under her own separate hand and whether married or single, and if married, notwithstanding her coverture, may have directed or appointed, .... and to the extent of one-half of the accruing income of her share of my estate after her death, to such provision for the use and benefits of such surviving husband during his natural life, or during his widowhood, as she may appoint or direct by last will or by testamentary act, such as aforesaid, which she is hereby empowered for that purpose to make, whether she leave issue surviving her or not.”</p> <p>Intestate laws — Illegitimates—Act of April 27,1855, see. 8 — Will.</p> <p>Where a will made in 1850 gives a life estate in trust for a daughter with power of appointment, and directs that in default of appointment the estate shall be “for the use of such person or persons, and for such estate or estates as would then be entitled to the same if she had then died, the absolute owner of the same, a widow and intestate,” and the daughter dies after the passage of the act of April 27,1855, P. L. 868, unmarried, but leaving illegitimate children, the disability of the children to inherit from their mother is removed by the act; and the fact of the inheritable capacity having been conferred by statute after the estate vested in the mother does not prejudice the right of her children to take from her.</p> <p>Trusts and Trustees — Devastavit—Attachment execution — Spendthrift trust — Will.</p> <p>Where a daughter’s share is protected by a spendthrift trust, and a portion of her share is wasted by the trustee who is her brother, and the court substitutes the brother’s share for that out of which he had wronged his sister, the money thus substituted becomes a part of the trust estate, and is protected against the sister’s creditors.</p> <p>Where a trustee has committed a devastavit, and a fund realized from his bond has been distributed to certain of the cestuis que trust, one of the cestuis que trust who did not share in the distribution is entitled to have her loss made good out of a fund subsequently accruing to the trustee personally from the estate out of which the trust estate was created.</p>

<p>Dower — Interest on arrears of interest.</p> <p>Where a widow is entitled to annual interest in lieu of dower, she is entitled to have interest on arrears of interest from the time the same fall due.</p> <p>Trusts and trustees — Creditors—Statute of limitation.</p> <p>A testator may create an express active trust of his estate, real or peri sonal, which shall subject it to the claims of creditors beyond the statutory limitations. Where such a trust is created the debts do not lose their right on the trust estate short of the period which would raise the presumption of payment.</p> <p>Testator after devising his real estate to his executors in trust to sell or mortgage the same for the payment of debts and legacies, directed that until a certain date named none of the devisees would have a right to insist on the sale of the real estate, except at the discretion of the executors. I-Ie further directed as follows: “If with a just regard to the rights of creditors (which are of course to be first regarded) my executors should in their judgment and discretion conceive it more advantageous to the probable ultimate interest of my family that my residuary real estate or any part thereof should remain unsold I recommend that there be no sale of the same.” He then directed that after the debts were all paid, the executors should convey what remained by allotments to the legatees. Held, that the will contained not a mere power to sell, which unexecuted for five years vested the estate in the heirs, but that it created an actual trust resting on a legal title which vested the estate in the executors until the execution of the trust.</p>

<p>Will — Trust and trustees.</p>

<p>Alley — Abandonment—Evidence.</p> <p>A person who accepts a deed, with actual as well as constructive notice and knowledge of the existence and location of a private alley designed for the different owners of portions of a tract of land, although the deed contains no reference to the alley, will not be held to have abandoned the alley by reason of such acceptance, or because he abstained from fencing off the alley, or because he did not remove an apple tree which was standing in the space covered by the alley when he took the conveyance, or because he erected a grape arbor partly within the space covered by the alley.</p>

<p>Appeal, No. 189, Jan. T., 1895, by defendant, from judgment of C. P. Berks Co., June T., 1893, No. 45, on verdict for plaintiff.</p> <p>Replevin to recover possession of a lot of beer kegs. Before Endlioh, J.</p> <p>At the trial it appeared that in December, 1892, plaintiff, through its agent, sold to Eyring a quantity of kegs upon a credit of four months. The parties had been dealing with each other before, but the size of the order upon this occasion greatly exceeded any former one. Calling Eyring’s attention to that circumstance, the agent asked him how he stood financially. Eyring replied, “ I am in better condition than ever I was.” On March 7, 1898, Eyring made an assignment for benefit of creditors, his affairs being in a state of hopeless insolvency.</p> <p>The inventory filed by the assignee showed assets amounting to about $4,000, and liabilities amounting to about $52,000.</p> <p>There was no evidence of any special losses between, the date of the sale and the date of the assignment.</p> <p>The court charged in part as follows:</p> <p>“ [I take it to be the experience of mankind in general and a rule of common sense that a man is ordinarily presumed to know at any time, when dealing with another, whether at that time he is in a solvent condition or not. It may be presumed that a business man has such an interest in his own affairs, and keeps such a control over his own expenditures and incomings, that he may at any time have a definite idea as to whether he is solvent or not. I think that will be taken to be so general an experience among mankind, that it is no more than right that the law should presume that a man at any time knows when he is solvent, whether he is telling the truth or not. It is, moreover, a presumption of the law that whenever a man does something or says something he intends the natural consequences of his act. Now, gentlemen, these are presumptions which may justify a jury, where they find a man made certain representations as to his solvency, to find that, at the time, he knew either that they were true or that they were untrue, and, if they were untrue, that he meant them to have a certain effect upon the seller of the goods to him.] ” [1]</p> <p>Defendant’s point was as follows:</p> <p>“ Under all the evidence in the case, the verdict must be for the defendant. Answer: Declined.” [2]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

Appeal, No. 367, Jan. T., 1895, by plaintiff, from decree of C. P. Berks Co., No. 603 Equity Docket, 1894, dismissing bill in equity. Bill in equity to declare void a executor’s sale. The case was tried before Ebmentkout, P. J. Plaintiff’s contention was that the sale was void, inasmuch as Solomon Schweitzer, one of the executors, had bid at the sale, through his agent Lewis Moyer.

Appeal, No. 459, Jan. T., 1894, by defendants, from decree of C. P. Northampton Co., April T., 1892, No. 2, on bill in equity. Bill in equity to determine the right to possession of the property of the St. John’s German Church of the Evangelical Association at Bethlehem, Pennsylvania. Before Mayer, P. J., of the 25th judicial district, specially presiding.

<p>Gift — Evidence—Decedents' estates.</p> <p>In an action to recover securities which plaintiff claimed as a gift from her aunt, but which she had surrendered to her aunt’s administrator, it is competent for the plaintiff to show that she had only been induced to surrender the securities to the administrator by a threat of imprisonment if she refused</p> <p>Where a niece claims that her aunt with whom she lived had given her securities in her last illness, and the niece offers evidence showing a long-continued friendly intercourse between her aunt and herself, it is improper, in an action by the niece to recover the securities from the aunt’s administrator, to admit evidence that the aunt shortly before her last illness had told the niece that she could not keep her any longer, and that she would have to get out; unless the offer contain the reason why her aunt told her this, or the purpose of the offer be disclosed.</p> <p>Gift — Conversion—Assumpsit.</p> <p>Where an administrator, by threat of imprisonment, compels the surrender to himself of securities claimed by the person holding them as a gift from the decedent, and the administrator converts the securities into money, the person claiming the securities may maintain an action of replevin or waive the tort and sue in assumpsit to recover the value of them; and in such an action it is proper for the court to charge that although the property was taken from plaintiff by defendant in his official capacity, at the time believing he had a right to do so, yet, if it was proven the plaintiff was the owner, she was entitled to recover from him individually its value, with interest from the date it was taken.</p> <p>Gift — Evidence—Statement—Charge of court.</p> <p>In an action of assumpsit where the plaintiff in her statement avers title and right of possession, and that defendant converted the property into money, and the plaintiff offered evidence tending to show an absolute gift, and a gift in expectation of death, it is proper for the court to instruct the jury, not only as to what constitutes an absolute gift, but also as to what constitutes a donatio mortis causa.</p>

<p>Executors and administrators — Legacies charged on land — Sale—Act of February 24,1834.</p> <p>An executor has nothing to do with legacies expressly charged on land, either primarily, or as part of the residuary estate of testator, and such legacies can only be enforced in the orphans’ court by the legatee.</p> <p>Testator gave a dwelling house to his wife for life, but directed that if it should prove that she should find it necessary or more convenient to make sale thereof, for her maintenance and well-keeping, his executor should sell the house and invest the proceeds, the interest of which, and the capital if necessary, to be used for the maintenance of the widow, and whatever should remain of his estate after the death of the widow, to be left to his three children, share and share alike. After testator’s death his son moved into the house, and the widow lived with him, being supported by the son. Several years after testator’s death a contract was entered into between the son and his mother by which she agreed to pay him a certain amount per week from the death of her husband for maintenance, and to make no charge for the rent of the property. Three years after this she gave her son an order on the executor of her husband to sell the property, which order she afterwards revoked. The executor proceeded to make sale, but his attempt to sell was resisted by the other children, and pending the litigation which ensued the mother died. Subsequently the son recovered a judgment against his mother’s administrator for the amount due him for her support. On this judgment he issued attachment execution against the administrator of his mother and also against the executor of his father and summoned them as garnishees. The latter made no defense, and judgment was taken against him. The son then presented a petition to the orphans’ court averring his substitution to the rights of his mother as legatee, and praying for a sale of the homestead property to satisfy his judgment. Held, (1) that the son was not so substituted to his mother’s rights as to make him a legatee within the meaning of the act of Feb. 24, 1834, P. L. 73; (2) inasmuch as the residuary legatees were not parties to the attachment proceedings against the executor, they were not concluded by the judgment in those proceedings; (3) the residuary legatees having a right to be heard in equity, before equity appropriates their estate to creditors, the orphans’ court had no jurisdiction to order the sale of the property.</p>

Appeal, No. 493, Jan. T., 1894, by plaintiff, from judgment of C. P. Bradford Co., Dec. T., 1890, No. 166, on verdict for defendant. Ejectment for a tract of land in Windham and Warren townships.

<p>[Marked to be reported.]</p> <p>Judgment — Revival .of judgment — Gonveyanoe of land subject to judgment —Recording deed — .Possession—Notice to judgment creditor — Terre tenant.</p> <p>If the purchaser of land subject to the lien of a judgment takes possession or records Ms deed, the plaintiff in the judgment is bound to take notice of the situation of the purchaser as a terre tenant, and thereafter upon the revival of the judgment to give him notice; but if the purchaser fail to record his deed, or take possession, and the plaintiff in the judgment has no knowledge, actual or constructive, of the conveyance, the purchaser does not become a terre tenant of the land, and a revival of the judgment thereafter without notice to him will continue its lien upon the land, whether the judgment of revival is obtained by means of a writ of scire facias regularly issued, or by an amicable scire facias.</p> <p>Where a judgment creditor revives the lien of his judgment by an amicable scire facias, and about a year afterwards discovers that the owner of the land had secretly conveyed it to Ms wife before the revival, the judgment creditor need take no steps to protect his lien until the appropriate time to revive it, when he may issue a sci fa. to revive, with notice to the defendant’s wife as terre tenant, and base the proceedings upon the previous revival.</p> <p>If the judgment creditor immediately after the discovery of the secret conveyance, and four years before it is necessary to revive the judgment against the defendant, issues a scire facias to revive the original judgment, with notice to the terre tenant, the new writ is'unnecessary and irregular, but issuing it will not be construed as an abandonment of the lien obtained by the amicable revival.</p>

<p>[Marked, to be reported.</p> <p>■ Judgment — Revival of judgment — Conveyance of land subject to judgment.</p> <p>Where a judgment creditor revives the lien of his judgment by an amicable scire facias, and about a year afterwards discovers that the owner of the land had secretly conveyed it to his wife, the judgment creditor need take no steps to protect his lien until the appropriate time to revive it, when he may issue a sci. fa. to revive, with notice to the defendant’s wife as terre tenant, and base the proceedings upon the previous revival.</p> <p>If the judgment creditor immediately after the discovery of the secret conveyance, and four years before it is necessary to revive the revived judgment, issues a scire facias to revive the original judgment, his action will not be construed as an abandonment of the lien obtained by the amicable revival, but a judgment on the new writ cannot be sustained.</p>

Appeal, No. 34, Jan. T., 1895, by B. A. Tyler, from decree of O. C. Susquehanna Co., Jan. T., 1890, No. 71, dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

Appeal, No. 111, Jan. T., 1895, by-defendant, from order of C. P. Bradford Co., May T., 1894, No. 595, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit for alleged breach of covenant in deed against incumbrances. From the record it appeared that N. C. Harris sold to Samuel Marsh.two tracts of land in Clinton county, and on December 24, 1891, conveyed the premises by deed of special warranty at the request of Marsh to the plaintiffs.