Volume 171 — Pennsylvania State Reports

Appeal No. 224, July T., 1894, by defendant, from judgment of C. P. Lycoming Co., June T., 1893, No. 204, on verdict for plaintiff. Assumpsit on an accident insurance policy for the death of plaintiff’s husband. Before Metzger, P. J. The policy in suit, in which plaintiff was named as beneficiary, contained the following clause : “ 5.

<p>Appeal, No. 417, by Bernice W. Jackson, one of the defendants, and Appeal No. 418, Jan. T., 1894, by The State Line and Sullivan Railroad Company, another defendant, from decree of C. P. Sullivan Co., Feb. T., 1882, No. 1, on bill in equity.</p> <p>Bill in equity to ascertain the quantity and value of coal mined by one of several tenants in common. Before Sittsbr, J.</p> <p>From the record it appeared that George D. Jackson died on November 23, 1879, seized of the legal title of about 102 acres of land in Cherry township.</p> <p>Josiah S. Jackson, with his two sons, the said George D. Jackson and B. Rush Jackson, did business up to the death of Josiah Jackson as Jackson & Sons in Sullivan county. While so engaged in business, the legal title to the above tract of land became vested in the said George D. Jackson. After his death his executors claimed the land as a part of his estate; and on the other hand, it was claimed by the executors of Josiah Jackson, deceased, and by B. Rush Jackson, that the legal title was held subject to a trust; one third thereof for the said Josiah Jackson, and one third for B. Rush Jackson.</p> <p>After the death of Josiah Jackson, George D. Jackson and B. Rush Jackson carried on business as Jackson Bros, in said county.</p> <p>At the time of the death of George D. Jackson the firm of Jackson Bros, was insolvent, although the members of the firm were not. The firm was also insolvent on the 17th day of September, 1880, on which last mentioned date B. Rush Jackson conveyed his undivided one third interest in the land for the recited consideration of $5,000 (the actual consideration being $1,000), to his sister Emily L. Patrick, wife of H. W. Patrick.</p> <p>To settle the disputed claims to the title of the land among these three parties, and to determine the question of the alleged trust, a bill in equity was filed by the executors of Josiah Jackson, deceased, and Emily L. Patrick, against the executors of George D. Jackson, deceased, resulting in a decree in favor of the plaintiffs, and a conveyance l)yr the defendants on the 10th day of May, 1887, of the one undivided third of said land to Emily L. Patrick, and another third to the executors of Josiah Jackson, deceased.</p> <p>By virtue of the power in the will of George D. Jackson, deceased, his executors conveyed one eighteenth part of said land to Mahlon C. Mercur and five eighteenths to The State Line and Sullivan Railroad Company, on the 19th of October, 1881, in consideration of the payment of the rate of ten cents per ton for each ton of clean coal mined from said tract. The railroad company then began to mine the coal.</p> <p>In October, 1881, Bernice W. Jackson recovered judgment against B. Rush Jackson and subsequently, at a sheriff’s sale under said judgment, bought the interest of B. Rush Jackson in said land.</p> <p>On December, 1881, the bill in this case was filed and a preliminary injunction awarded against The State Line and Sullivan Railroad Co., restraining them from further mining coal in the land. Subsequently the preliminary injunction was dissolved on the following conditions : “ The State Line and Sullivan Railroad Company shall keep an accurate account of all the coal mined and taken hereafter, and account for the same to, and pay into the hands of, a receiver to be appointed by the court, at the rate of ten cents a ton for clean coal mined and prepared for market: the said ten cents to represent the full fee simple interest of all the cotenants in the said coal, the said company, however to retain T58 parts of the said sum per ton, for its interest in the said coal. This order to remain in force, subject to the control of the court, pending the suit, or until the said receiver, under a contract to be approved by the court, shall be able to sell the coal in the tract described in the plaintiff’s bill on better terms than ten cents per ton aforesaid. James Macfarlane, Esq., of Towanda, Pa., is hereby appointed such receiver.”</p> <p>The case was referred to C. O. Dersheimer, Esq., as master, who reported that B. Rush Jackson was not insolvent when he made sale of his undivided one third interest in the land to Emily L. Patrick; that the sale was made in good faith and for a sufficient consideration, and was not intended to defraud the grantor’s creditors. He also found that twelve cents a ton instead of ten cents a ton was a fair royalty for which The State Line and Sullivan Railroad Company was bound to account to its cotenants.</p> <p>Exceptions to the master’s report were filed both by The State Line and Sullivan Railroad Company and by Bernice W. Jackson. These exceptions Were overruled by the court and a decree entered in accordance with the recommendations of the master.</p> <p>Errors assigned both by The State Line and Sullivan Railroad Company and Bernice W. Jackson were to the action of the court in overruling their exceptions, confirming the master’s report and entering the above stated decree.</p>

<p> Partnership—Action by one partner against another—Assumpsit—Account render—Equity. </p> <p>Where one of several partners has paid partnership debts for which ail are liable, he cannot recover in an action of assumpsit from another partner the share for which said other partner is liable to contribute, without a settlement of the partnership accounts. He must proceed by action of account render or by bill in equity: Leidy v. Messinger, 71 Pa. 177. Crow v. Green, 11 Pa. 6S7, followed, and Shamburg v. Abbott, 112 Pa. 6, distinguished.</p>

Appeal, No. 44, Jan T., 1895, by defendant, from judgment of C. P. Bradford Co., May T., 1889, No. 673, on verdict for plaintiff. Assumpsit to recover share of partnership debts paid by plaintiff. The plaintiff’s statement, the facts and the ruling were identical with those in Murray v. Herrick, the next preceding case. The same error was assigned by the same counsel.

<p>Appeal, No. 297, Jan. T., 1895, by-defendants, from judgment of C. P. Lycoming Co., Dec. T., 1893, No. 88, on verdict for plaintiff.</p> <p>Trespass for the death of plaintiff’s husband. Before Metzger, P. J.</p> <p>At the trial it appeared that on the 1st day of July, 1893, Ellet Sharrer, the husband of the plaintiff, came from Montoursville to Williamsport on the train upon the Philadelphia and Reading Railroad which reached Williamsport sometime after 12 o’clock, noon on said day, where Sharrer alighted from the train after its arrival. When the train started, and after it had got under some considerable headway, he was seen to run from some point near the upper or western end of the station toward the train. He attempted to get on the train and fell, or was thrown down and rolled between the station platform and the train, and his legs getting across the rails, the last truck of the rear ear of the train passed over them. Some seven or eight hours later he died from the effects of bis injuries. This action was brought by his widow for the recovery of damages caused by his death, alleging that the accident was the result of negligence of the defendants or their employees.</p> <p>The controversy was whether, as plaintiff alleged, deceased succeeded in getting upon the steps of the platform, with the rails on either side of the steps firmly grasped in his hands, and was then seized by the brakeman on the train, and pushed off, or whether, as defendants alleged, in attempting to board the train he fell down and under the car.</p> <p>R. C. English, a witness for plaintiff, testified that he saw Sharrer run out aud jump on the train while it was in motion; that he grabbed both rails, and that he was on either the first or second step with his feet when the brakeman caught him by the hands and broke them loose from their hold on the rails, and pushed him back, when the hind wheels of the car went over him. English testified that he was 50 or 60 feet from Sharrer when he fell; that he plainly saw that the man who pushed him off wore a white cap and was in the uniform used by the employees of the railroad company.</p> <p>Ellis Sheffer was called by the plaintiff and testified that Sharrer was on the first step of the rear car, with both hands hold of the railing, that the train was moving, when all at once he saw him fall out off the platform, and his heels caught on the steps as he was going out, that that swung him around so that he struck pretty near straight with the platform and the train of cars. Witness said, “ He fell just the same as though a man was pushed off, because if a man was going to jump off, as a rule, his feet would start out the same time he did, but here his feet were the last thing. He fell clear out on the platform before his feet left the step.”</p> <p>These witnesses were contradicted by witnesses called for defendants.</p> <p>Carl Tewell, a witness for plaintiff, testified to certain declarations made by the deceased before his death, to the effect that the conductor had pushed him off.</p> <p>By Mr. Reading: I ask to have the declaration of Ellet Sharrer, as testified to by this witness, stricken from the evidence. He had been picked up and %vas being carried to the station house of the defendants when this witness reached him, and it was subsequent to that time that the declaration testified to was made.</p> <p>The court did not answer this request at the time that it was made, but on the following day, after the case was closed on both sides, and before counsel addressed the jury, the court ordered the said declarations stricken from the evidence. [3]</p> <p>The court charged in part as follows:</p> <p>[If you find the facts to be as testified to on°the part of the defendants’ witnesses here, who stated substantially that they saw this man running towards this train, and attempting to get on it while it was moving, and that they saw him have hold of the railing with but one hand, and that his feet were not planted upon the step, then your verdict would have to be for the defendants; but, on the other hand, if you should find that this man, although he did originally attempt to get on the train while it was in motion, yet if you find that he had succeeded in boarding the train, or getting on the steps of the train, and had secured a firm hold of the railing with both his hands, as stated by one of the witnesses on the part of the plaintiff, and should further find that his attempting to get on the train did not contribute in any degree to the injury that he received, but that it was wholly owing to the fact that his hands were loosened by an employee of the defendants and that he was pushed off, then your verdict must be for the plaintiff.] [13]</p> <p>Verdict and judgment for plaintiff, $3,224. Defendants appealed-.</p> <p>Errors assigned among others were, (3) in not striking out the whole of the testimony of Carl Tewell immediately upon the close of his testimony; (13) above instructions, quoting them.</p>

<p> Road law—Change of grade-—Waiver—Presumption. </p> <p>Where the grading of a street occurs as a separate act of the public and so long after the opening of the street that the assessment of damages at the time of the appropriation cannot include those from the grading, the latter may be ascertained by a second</p> <p>The right to damages for change of grade does not accrue until the actual change is made on the ground ; when therefore a property owner in a proceeding in the court of quarter sessions to open a street disclaims “ any damage for the property taken by the opening of said street,” there is no neeessai'y legal implication that he thereby waives a claim for damages by change of grade which is as yet inchoate, and for which no right of action yet exists, and there is no estoppel against the assertion of the other right when it arises.</p> <p>Where a property owner in a pi’oeeeding to open a street at an established grade disclaims any damage “for the property taken by the opening,” and the final decree in the proceedings is entered more than eight months before a change of grade is authorized by ordinance, and the property owner had a separate proceeding of his own for the assessment of damages by the change of grade, which was prematurely brought in the wrtrag court, but was pending at the time of the proceedings to open, it will not be presumed that he intended to waive damages caused by the change of grade of the street.</p> <p>The policy of continuing the jurisdiction of the quarter sessions over the opening of streets in cities of the first class considered.</p>

<p>Appeals, Nos. 70, 71 and 72, Jan. T., 1895, taken severally by Ashton S. Tourison, Phillip H. Bentz and Charles E. Loxley, from order of C. P. No. 2, Sept. T., 1891, No. 664, discharging rules to strike off appeals from assessments of benefits.</p> <p>Petition for jury of view to assess damages for the change of grade of Mount Pleasant avenue, corner of Chew street.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned, among others, were orders discharging rules to strike off appeals from the report of the viewers assessing benefits.</p>

<p> Contract—Entire contract—Failure of performance. </p> <p>A party to a contract cannot be permitted to recover* for part performance of his agreement unless prevented from performing by the other contracting party, or so trifled with that it becomes his duty to declare the contract at an end.</p> <p> Contract—Entire contract—Evidence—Burden of proof . </p> <p>Where a party to an entire contract admits nonperformance and assigns as an excuse that he “ was not permitted to complete it, although he was ready and willing to do so,” the burden of proof is upon him.</p> <p>In an action to recover on an entire contract, where nonperformance of a part of the contract is admitted, it is error for the court to charge: “ If you believe . : . . that the plaintiff refused to go on unless he received a payment of one hundred dollars, and that the contract did not provide for that payment, and that there was no custom of the trade and no understanding of the parties or acts of theirs evincing that that was the custom, and that therefore the plaintiff broke his contract and refused to go on because payment was not made, he would be entitled to recover for the value of the work less what it cost the defendant to complete the contract in accordance with its terms.”</p>

<p> Promissory notes—Accommodation maker—Affidavit of defense. </p> <p>In an action of assumpsit plaintiff averred in his statement that a promissory note had been made and delivered by him to the defendant at her request, for her accommodation, and without any consideration, upon her promise to provide funds with which to pay it at maturity, and also to indemnify and save harmless the accommodation maker, both of which promises were broken by her. Defendant filed an affidavit of defense as follows : “ It is wholly false and untrue that the promissory note set out in plaintiff’s statement was given for deponent’s accommodation or at her request. It is also wholly false and untrue that deponent undertook and promised plaintiff to provide money for the payment of said note when the same should become due and payable, or that she agreed to indemnify and save harmless the plaintiff from any loss or damage for or by reason of his giving said note or that she assumed any liability to plaintiff whatever by reason of his giving said note.” Held that the affidavit was sufficient to prevent judgment.</p>

Appeal, No. 129, Jan. T., 1895, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1894, No. 1693, discharging rule to pay the proceeds of sheriff’s sale into court. Rule to show cause why the proceeds of a sheriff’s sale of personal property should not be paid into court.

<p>Appeal, No. 288, Jan. T., 1895, by Hood Gilpin and The Fidelity Insurance, Trust and Safe Deposit Company, trustees of William H. Kern, deceased, from decree of O. C. Philas Co., April T., 1893, No. 248, sustaining exceptions to adjudication.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the following opinion of Hanna, P. J.</p> <p>The first of the exceptions to be considered to the conclusions reached by the auditing judge are those to the award to Mabel Ella Kern of the claim presented by her to recover as payee upon a promissory note signed by testator for $10,000, and in connection therewith those filed on her behalf to the findings of fact relative to the said claim.</p> <p>[After a careful re-examination of the testimony, the auditing judge willingly admits that the facts connected with the delivery of the note bjr testator to the claimant were not clearly apprehended by him, and are not stated with sufficient accuracy and precision. From this re-examination, the facts appear to be as follows: The note upon which it is sought to recover is dated July 19, 1892, signed by testator and pajuible on demand to the order of the claimant. The signature of testator being proved and the note offered in evidence, she was prima facie entitled to recover. Nor was she bound to prove consideration, as this is to be presumed: Walton’s Est., 4 Kulp, 487; Conmey v. Macfarlane, 97 Pa. 361.</p> <p>But the proof offered on the part of other creditors and the accountant, in their attempt to show a want of consideration, actually proved by uncontradicted testimony that which, after further reflection and a more careful consideration on the subject, must be held to be a valuable consideration given by claimant for the note.] [8]</p> <p>The testator was her grandfather, and entertained for her and a younger sister the kindest regard and sincerest affection, and frequently declared his desire and intention to provide for them out of his estate. His reputation was that of a man of large means, and no doubt he believed he was possessed of a handsome competency. Prior to March, 1892, testator expressed an intention to make a gift to his granddaughter, the claimant, of some shares of stock of the American Coal Company of which he was the owner. About that time he obtained a loan of $10,000 from a bank in New York by the discount of his promissory note for this amount, and deposited with the bank as collateral security one thousand shares of the stock mentioned. In July, 1892, testator recognizing the fact that he had parted with the control of the shares of stock he intended to present to his granddaughter, and also of the probable sale of the stock by the bank in case of his failure to pay his note, at the suggestion of his son, claimant’s father, he made his promissory note in favor of his granddaughter, dated July 19, 1892, for $10,000, and gave the same to his son for delivery to his daughter. When testator’s promissory note held by the bank became due and payable, he procured its renewal with the bank, who continued to hold the shares of stock as collateral. In November, 1892, the renewal note matured and was paid by him. The note for $10,000 he had given for the benefit of his granddaughter was returned to him, and the shares of stock pledged to the bank in New York he then presented to her as a gift. But it seems he did not destroy his promissory note, but retained it in his possession. At this time testator was a debtor to the bank of which he was president, upon his promissory note ; but it became necessary to substitute some other evidence of his indebtedness. He accordingly obtained from his granddaughter either her due bill or promissory note for $10,000, and delivered to her his before-mentioned promissory note for $10,000, which he had retained and not destroyed, as stated. But she returned to him his promissory note. As it appears, testator then obtained from the bank his promissory note and substituted therefor his granddaughter’s promissory note or due bill accompanied by his own note for $10,000, which she had returned to him as a collateral security. This was in November, 1892. Testator died before the debt to the bank became payable. And in May, 1893, after his death, his granddaughter paid her note or due bill held by the bank with her own money; and the bank, in the ordinary course of business, returned to her her due bill or note, together with the testator’s promissory note which she now claims upon.</p> <p>These appear to be the main facts connected with the inception of the promissory note, and the pajrment by claimant of her own due bill or note given by her to testator in exchange therefor.</p> <p>The transaction therefore was simply this : Claimant loaned testator her note or due bill as a security for his private debt. Instead of testator paying his debt, she was obliged to pay it and thus becomes his creditor and entitled to recover the amount of the promissory note he delivered to her as security therefor, with interest from November 25, 1892, the date of its maturity, and that she paid a valuable consideration for the note cannot well be doubted. The award to her in this respect is accordingly corrected.</p> <p>But claimant presented an additional claim to recover the amount of a promissory note for $80,000, delivered to her by testator as a gift for herself and sister, but which was rejected upon the ground that she failed to prove a valuable consideration for the gift. It was expressly found, however, as a fact, that the consideration for the note was a good consideration, viz, natural love and affection. But this was deemed insufficient to sustain the claim. The auditing judge has given the question careful reflection, and is now inclined to the opinion he was in error in his former conclusion. The gift by testator of his own promissory note to his granddaughter was, it is true, an executory contract. But it was actually delivered by him to her. He declared at the same time the purpose of the gift was to provide for the future comfort and maintenance of herself and sister. While it has been held in numerous instances, both in England and in this country, and is stated by Trttnkey, J., in Conmey v. Maefarlane, supra, that a simple contract, oral or written, without consideration is void, and no action can be maintained- upon it, “ the law requires that the consideration should be valuable to support an action to enforce an executory contract, but some loss or inconvenience to (he promisee upon his entering into the contract, or some benefit to the promisor is deemed a valuable consideration ; ” yet we find that, as in the ease of a grant by deed, “a consideration may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relative, being founded on motives of generosity and natural duty. A valuable consideration is such as money, marriage or the like, which the law esteems an equivalent given for the grant, and is, therefore, founded in motives of justice. Deeds made upon good consideration only are considered as merely voluntary, and are frequently set aside in favor of creditors and bona fide purchasers.*’ 2 Sharswood’s Blackstone,'*297. And so with an executory contract which is an agreement upon sufficient consideration. It may be founded upon either a good or valuable consideration. If founded upon a good consideration it may, “ however, be set aside, and the contract become void when it tends in its consequences to defraud creditors or other third persons of their just rights.” Id. *444. And, as stated in the note by Judge Shabswood, a voluntary bond under seal which imports consideration is both in law and in equity a gift of money, and must be postponed until creditors are paid ; it is fraudulent and void as to them, but it is always good against the party himself and against heirs, legatees and others who stand in no higher equity. Citing Sherk v. Endress, 3 W. & S. 255 ; Candor and Henderson’s Appeal, 27 Pa. 119. A bond payable at the donor’s death, if delivered to the donee, is an executed gift and irrevocable : Hershey’s Estate, 5 L. Bar. 1873. And a gift by a parent to her children of her sealed notes, payable at her death, is a present gift inter vivos, and irrevocable : Mack’s Appeal, 68 Pa. 231.</p> <p>It seems, therefore, to be well settled that a gift inter vivos of a sealed executory contract for the payment of money will be enforced in this state without a valuable consideration therefor.</p> <p>If this be so, there is no good reason why a similar contract but not under seal, for a good consideration, should not be held equally valid as between the original parties and those claiming under them, subject only to the rights of creditors and others holding a higher right than mere volunteers.</p> <p>In Cowen’s Estate, 3 Pitts. 471, it is held that a promissory note without other than a moral consideration is inoperative as a gift as against subsequent creditors, though the donor was solvent at the time. And in Ross’s Appeal, 127 Pa. 4, a father executed a note under seal, payable to a trustee for his children five years after date. After his death it was held that the transaction was a duly executed gift inter vivos, and there being no evidence of fraud it was not in fraud of the rights of the second wife. And while the seal imports a consideration, there was shown “ a good consideration in the natural affection of a father for his children and his obligation to provide for them.” Upon re-examination of the case of Walsh v. Kennedy, 9 Phila. 178, S. C., 2 W. N. C. 437, it appears that the note sued upon was intended as a gift by decedent to the plaintiff, but it was never delivered to him prior to decedent’s death ; that plaintiff was a former employee of decedent, was overpaid his salary, and there was no consideration for the note. The plaintiff was nonsuited in the court below, and it was held by the Supreme Court that “the note of $5,000 was intended merely as a gift, and not the evidence of a debt, and was not delivered so as to take effect as a debt or gift.” But it was not decided that if the note had been delivered by the decedent in his lifetime to the plaintiff he would not be entitled to recover.</p> <p>In the present case, as already stated, the promissory note was delivered to the claimant by testator and for a good consideration, namely, the natural love and affection of a grandfather for his granddaughter. But as it was a voluntary gift, while we are of opinion the claimant is entitled to recover, yet she should be postponed until after the payment of the claims of creditors, and no award of payment thereof will at present be made, nor until after the payment of the claims of creditors of testator existing at the date of said note, namely, December 27-1892.</p> <p>Errors assigned were (1-5) in sustaining exceptions to adjudications ; (6) in awarding Mabel Ella Kern $30,000 with interest; (7) in awarding Mabel Ella Kern $10,000 with interest; (8) portion of opinion as above, quoting it.</p>

<p>Appeal, No. 182, Jan. T., 1895, by-defendant, from judgment of C. P.. No. 1, Phila. Co., Dec. T., 1893, No. 98, on verdict for plaintiff.</p> <p>Trespass to recover damages for injuries caused to a house by water leaking from a water pipe belonging to the city. Before Biddle, J.</p> <p>The facts appear )jy the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>It appears that when the leak was discovered it arose from a service pipe, that is a pipe .taken from the main pipe. The main pipe goes down the street, and a man who wants to attach to it applies to the water department, and they put in a ferrule to enable the water to come to him. When it comes to him, he of course pays his taxes to the water department for it. Now it was found that the whole trouble arose from this service attachment from the main pipe, and it is contended that the city ought to have such a knowledge of the direction and the location of those pipes whicli could not be put in without their assent—they actually put them in themselves—that they ought to know when an accident occurs to the water arrangements in that locality where they are; but it appears that they kept no such record, and they were just as ignorant as Mr. Rumsey that any such pipe existed there at all, and it was only discovered, not from any means in their power, but by stopping off the various mains; of course that indicates' that it must be within a certain range, and they found it.</p> <p>Now it is contended that that also is an evidence of negligence on the part of the city. [(They have the whole control of this water department, and it is for you to say whether or not you think that it is negligence on their part not to have such a record at their own works as to enable them to locate a leak.) Those are the two questions for you to decide in this case.] [1]</p> <p>Defendant’s point was as follows :</p> <p>Under all the evidence in this case your verdict should be for defendant. Answer : The Court: I refuse that point. [2]</p> <p>Verdict and judgment for plaintiff for $1,717.10. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them.</p>

<p> Case stated—What it must contain—Practice, G. P. </p> <p>A case stated like a special verdict must set forth, facts distinctly and unequivocally, and nothing must be left to inference; whatever is not expressly and distinctly agreed upon and set forth as admitted must not be taken to exist.</p> <p> Oase stated—Payment—Gheck—Banks. </p> <p>On a case stated to recover a debt alleged by defendant to have been paid by a check on a bank which failed before the check was presented, the court cannot infer from an averment of the acceptance of the check by the plaintiff that the check was accepted as an unconditional payment and satisfaction of the debt in the absence of a direct averment to that effect.</p> <p> Banks and banking—Ghecks—Presentation for payment—Due diligence. </p> <p>Whei'e a cheek is received after banking hours, there is no unreasonable delay in depositing the cheek for collection in the usual course of business on the day after it was received, and presenting it to the bank for payment on the next day thereafter: Bank v. Weil, 141 Pa. 457, distinguished.</p>

<p>Appeal No. 212, Jan. T., 1895, by plaintiff, from decree of C. P. No. 1, Phila. Co., June T., 1893, No. 927, dismissing bill in equity.</p> <p>Bill in equity to decree conveyance of real estate. Bréqy, J., filed the following opinion:</p> <p>1. That the plaintiff is the daughter of Catharine Brown and Dr. Gustavus Richard Brown Horner.</p> <p>2. That the defendants are the children of Dr. Horner.</p> <p>8. That on the 18th of July, 1856 (the plaintiff being then two years of age), Dr. Horner executed the following papers:</p> <p>“ Philadelphia, July 18th, 1856.</p> <p>“ Be it known unto all persons whom it may concern, that I have this day adopted as my lawful child Catharine Brown, Jr., minor, of this city, daughter of Miss Catharine Brown, formerly C. Brady, now residing therein,, and that, including the value of the house and lot named in the above letter, I devise to her, well secured property amounting to eight thousand dollars, to be held in trust for (her) benefit by the Girard Life Insurance, Annuity and Trust Company, of Philadelphia, as directed in my last will and testament of February 20th, 1855, and in the copy of it preserved by me. The above inserted word (her) was made by myself, it having been omitted.</p> <p>[seal] “ Gtjstavtjs R. B. Horner, M. D.</p> <p>“Witnesses: John Brady,</p> <p>“ William Curran.”</p> <p>“Philadelphia, July 18th, 1856.</p> <p>“ My Dear Child : Aware of the uncertainty of life and of the difficulty of having my wishes fulfilled after death, I think it necessary to inform you that the house and lot you and your mother now occupy were bought expressly by me for your use and benefit, to be held in trust by me for those purposes as long as desirable. You will, therefore, please accept them as tokens of my affection, but with the understanding that in case of your decease previous to me they revert to me, unless you should leave issue, and that your mother will continue to reside on the premises as long as she may deem proper. Should your issue die, as well as yourself, before your mother, then she shall enjoy the above property as long as she lives, and will it as she may deem fit to any other children she may have besides you. Should she die without direct heirs or issue, then the above property shall be inherited by her sister and brother, their heirs and assignees.</p> <p>“ I am, very affectionately,</p> <p>“Your father,</p> <p>“ Gustavus R. B. Horner, M. D.</p> <p>“ To Miss Catharine Brown, Jr.,</p> <p>“No. 473 North Eleventh street.</p> <p>“ Philadelphia, Penna.”</p> <p>4. That the plaintiff is the Catharine Brown, Jr., mentioned therein.</p> <p>5. That the above instruments were written on the same sheet of paper and were delivered to the mother of the plaintiff, who held them till about fifteen years ago, when they were by her delivered to plaintiff, who has since held them.</p> <p>6. That the premises in question were known as 473 North-Eleventh street, but now are known as 825 North Eleventh street.</p> <p>7. That no deed ever was made by Dr. Horner conveying the property to plaintiff.</p> <p>8. That the defendants are receiving the rents of the premises 825 North Eleventh street, and that they claim title to same by virtue of the will of Dr. Horner.</p> <p>9. That the said Dr. Gustavus Richard Brown Horner died at his home at Warrenton, in the state of Virginia, on the 8th day of August, 1892, leaving a will dated August 4, 1892, and proved at a county court in Fauquier county, Virginia, on the 22d day of August, 1892, of which will Alfred Byrne Horner and John Williams Belt are the duly appointed and qualified executors.</p> <p>10. That on April 4, 1865, Dr. Horner (who had purchased, on May 30,1864, the property on Twenty-first street), executed ■a declaration of trust as to that property in the following words :</p> <p>“ Now know ye that I, the said Gustavus R. B. Horner, do by these presents make known, admit and declare that I now hold, and will still continue to hold, the same in trust, nevertheless for the following uses, intents and purposes, that is to say, in trust to permit and suffer Catharine Brown, Sr., widow, and Catharine Brown, Jr., widow, her daughter, both of the said city, to occupy, manage, let, demise and take, receive and •enjoy the rents, issues and profits of the premises above mentioned for and during the terms of their natural lives, the}' paying all taxes and charges on said premises and all necessary ■and proper repairs thereof, and from and immediately after the •decease of the said Catharine Brown, Sr., and Catharine Brown, •Jr., to hold the same premises in trust for any issue that the said Catharine Brown, Jr., may leave surviving, to whom the said premises shall be conveyed in fee on arriving at the age of twenty-one years, but in the event of the said Catharine Brown, -Jr., dying without leaving issue, or leaving issue and such issue becoming extinct before'arriving at the age of twenty-one years ■as aforesaid, then and in such case this trust shall cease, and •the estate and premises hereby granted shall revert and vest in the said Gustavus R. B. Horner and his legal representatives.</p> <p>“In.witness whereof, I have hereunto set my hand and seal ■this fourth day of April, in the year of our Lord one thousand ■eight hundred and sixty-five.</p> <p>“ Gustavus R. B. Horner, M. D.</p> <p>“ Signed, sealed and delivered in the presence of us,</p> <p>“ C. B. Roberts,</p> <p>“ W. W. Dougherty.”</p> <p>11. That on January 20, 1879, the plaintiff then being of full age, Dr. Horner executed a deed in fee of the Twenty-first street property to the plaintiff.</p> <p>12. The plaintiff, on January 22, 1879, accepted said deed, and gave the following receipt:</p> <p>“ Philadelphia, Pa., January 22, 1879.</p> <p>“ Received of Dr. G. R. B. Horner and Mary A. T. H., his wife, their deed to me for the house and lots 314 North Twenty-first street in full, thereby releasing them from all taxes, water rents, and other claims.</p> <p>(Signed) “ Catharine B. Gboome.</p> <p>“ Witness: Thomas J. Gboome,</p> <p>“ Mary O’Brien.”</p> <p>13. That the Twenty-first street property has been occupied since June 30, 1864, by the plaintiff and her mother, pursuant to a lease of that date offered in evidence.</p> <p>14. That the value of the Eleventh street property was $3,800, and that the value of the Twenty-first street property was $5,000.</p> <p>15. That since 1866 Dr. Horner has had possession and enjoyment of the Eleventh street property to the time of his death, and there appears to have been no demand on him to account for the income of the property, until the filing of this bill after his death.</p> <p>From the facts as stated, I am of the opinion that whatever may have been the effect of the papers dated July 18,1856, the deed of the Twenty-first street property, with its accompanying occupancy, receipt, lapse of years, failure to claim rent of Eleventh street house, and so on, all indicate that Dr. Horner intended, and the plaintiff accepted, the Twenty-first street property as a substitution for any interest she may have had in the Eleventh street property.</p> <p>This conclusion requires the decree dismissing the bill.</p> <p>Bill dismissed.</p> <p>Error assigned was above decree.</p>

<p>. Appeals—Sheriff—Interpleader—Practice, 8. 0.</p> <p>No appeal lies from an order of the court of common pleas granting a sheriff’s interpleader rule and subsequently awarding an issue.</p> <p>■ An appeal from a judgment on a verdict in interpleader proceedings does not bring up the affidavits, or admission, it' any, upon which the court below acted in granting the rule and awarding the issue.</p> <p> Partnership—Promissory notes—Execution—Partnership debts. </p> <p>Where a creditor of a partnership accepts the note of one of the partners for the firm debt, with full knowledge of the existence of the partnership, he cannot after recovering judgment on the note against the partner who gave it, levy on the partnership goods in satisfaction of the judgment.</p> <p>If the creditor first acquires knowledge of the existence of the partnership after accepting the note, and befoi'e suit, he should so bring his action and frame his statement of claim as to promptly present the facts and show that it was his purpose to proceed against the firm as for a partnership debt. Ross v. Howell, 84 Pa. 129, and Callender v. Robinson, 96 Pa. 454, distinguished.</p>

<p>Appeal, No. 198, Jan. T., 1895, by G. Heide Norris, one of the defendants, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1891, No. 184, sustaining exceptions to report of referee.</p> <p>Assumpsit to recover on a contract for locating and surveying a railroad.</p> <p>The case was referred by agreement to N. Dubois Miller, Esq., as referee.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>The referee found for the defendants.</p> <p>Exceptions to the referee’s report were sustained by the court in an opinion by Jenkins, J., and judgment entered for plaintiff for $5,000, with interest from September 28, 1889.</p> <p>Errors assigned were in sustaining exceptions to referee’s report.</p>

<p>Appeal, No. 201, Jan. T., 1895, by ■defendant, from judgment of C. P. Phila. Co., Sept. T., 1892, No. 800, on verdict for plaintiff.</p> <p>Trespass for the death of plaintiff’s husband. Before Jenkins, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points, among others, were as follows:</p> <p>2. If the negligence of the defendant is alleged to consist in the failure to have the bell of the locomotive which is said to have struck the plaintiff’s husband rung as the train was approaching Engleside station, then such allegation is not sufficiently supported by any evidence in the cause, and the jury are not warranted in finding any such negligence. Answer : Refused. [2]</p> <p>3. There is no evidence in the cause of any negligence on the part of the defendant, and the verdict of the jury should be for it. Answer: Refused. [3]</p> <p>5. There is a presumption that the engineer and fireman of the locomotive which struck the plaintiff’s husband did their duty in ringing the bell as the locomotive approached the station; and the defendant is entitled to the benefit of this presumption unless and until it is rebutted by positive testimony that the bell was not rung. Answer: I affirm that point. The evidence of the boy Reuben Allen, if you believe his evidence, you may find from that that the bell was not rung, and that there was no notice given of the approach of the train. [4]</p> <p>6. Under all the evidence in the cause the verdict should be for the defendant. Answer: Refused. [5]</p> <p>"Verdict and judgment for plaintiff for $15,000. Defendant appealed.</p> <p>Errors assigned were, (1) in not withdrawing the case from the consideration of the jury, and either entering a nonsuit,' or directing the jury to find for the defendant; (2-5) above instructions, quoting them.</p>

<p>Appeal, No. 317, Jan. T., 1895, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1894, No. 216, entering nonsuit.</p> <p>Assumpsit to recover damages for breach of contract.</p> <p>William W. Mellon was joined as a defendant when the suit was brought, but the record was subsequently amended by striking out his name.</p> <p>Plaintiff’s statement was as follows.</p> <p>“ The Bosshardt & Wilson Company, a corporation organized under the laws of the state of Pennsylvania, complains of the Crescent Oil Company, Limited, and William L. Mellon, defendants, and says:</p> <p>“ That the defendant, the Crescent Oil Company, Limited, is a partnership association limited, created by and existing under the laws of Pennsylvania engaged in the business of producing, refining, buying, and selling petroleum and its products, and generally the transaction of all matters thereto or connected therewith.</p> <p>“That on the 29th day of March, A. D. 1888, Jacob Bosshardt and Charles A. Wilson, then trading as Bosshardt & Wilson, made a contract in writing with the Atlantic Refining Company, a corporation of the state of Pennsylvania, wherein and whereby the said Bosshardt & Wilson (who had a valuable oil business a part of which was the exporting of crude petroleum to France and Cuba) agreed to buy from said Atlantic Refining Company all the crude petroleum required for said export trade for the term of five years from the 29th March, 1888, and from year to year thereafter unless terminated by giving each to the other ninety days’ notice.</p> <p>“ That said export trade amounted to about one hundred thousand barrels per }’ear, in which there was a profit to the said firm of Bosshardt & Wilson of not less than $20,000 per year.</p> <p>“ That on or about the 18th day of November, 1890, the said firm of Bosshardt & Wilson was dissolved and the said Bosshardt & Wilson Company was organized under the laws of the state of Pennsylvania and said company purchased the business of the said firm of Bosshardt & Wilson including the said contract of the 29th of March, 1888, with said Atlantic Refining Company, and said contract was in force for an additional period of one year from the 29th of March, 1893, to the 29th of March, 1894.</p> <p>“ That while said contract was in force and the said Atlantic Refining Company were required by the terms of said contract to still supply the plaintiffs with all the crude petroleum needed by theni for their said export trade with BTance, the said Atlantic Refining Company refused so to do, and the plaintiffs were compelled to buy a portion of their needed supply elsewhere, and did so purchase. While this condition of affairs was prevailing, and previous thereto, William L. Mellon on behalf of the Crescent Oil Companj' for several months prior to the 31st of May, 1893, frequently called upon the plaintiffs, the Bosshardt & Wilson Companjq for the purpose of inducing the plaintiffs to give up their said contract with the Atlantic Refining Company which was well known to the defendants, and to buy all the crude petroleum needed and required by the plaintiffs for their said valuable export trade from the said Crescent Oil Company, Limited, and that the plaintiffs should make efforts, by a visit to Paris, to increase said trade of one hundred thousand barrels per year to at least four hundred thousand barrels.</p> <p>“ And thereupon, to wit, on or about the 31st of May, 1893, the said plaintiffs entered into and made with the defendants a verbal agreement as follows :</p> <p>“ That the plaintiffs would not buy any crude petroleum for export from the Atlantic Refining Company, but would buy from the defendants for two years all the crude petroleum plaintiffs should need and require for their existing French export trade and that the plaintiffs would send, at the cost of the plaintiffs, the said Charles A. Wilson to Paris for the purpose of increasing said export trade in crude petroleum with other French refiners to an extent of at least four hundred thousand barrels per year.</p> <p>“ And thereupon the defendants agreed with the plaintiffs in consideration of the aforesaid agreement and undertaking upon the part of the plaintiffs, that they, the said defendants would sell and deliver to the plaintiffs, for export only, not less than four hundred thousand barrels of crude petroleum per annum for the period of two years to supply their existing trade and any increase thereof, and in consideration also of the fact (well known and understood by the defendants at the time of making this agreement between the plaintiffs and defendants) that the plaintiffs would, by giving up their contract with the Atlantic Refining Company, lose their French export trade, unless the defendants would comply with their agreement to supply all the crude petroleum needed and required by the plaintiffs for their then French trade, as well as any increase thereof, the defendants then and there further agreed with the plaintiffs that there should positively be no default in delivering to the plaintiffs all the oil thej1- needed for their then established export trade and any increase thereof.</p> <p>“ The defendants at the same time further agreed with the plaintiffs that they would deliver to the plaintiffs all of said oil for export at market prices, and that the cost of transportation from the oil wells to seaboard should be subsequently mutually agreed upon.</p> <p>“ That in pursuance of said agreement and mutual understanding the plaintiffs at a cost of $2,000 and upwards sent the said Charles A. Wilson to Paris for the purposes aforesaid. That in due time said Charles A. Wilson, who was accompanied by the plaintiff, Jacob Bosshardt, arrived in Paris, and after some negotiations succeeded in making a contract to supply not only the then customers of the plaintiffs, but other French refiners of petroleum at Paris, with the full quantity of four hundred thousand barrels of crude petroleum per year for two years, all of which facts were communicated to William L. Mellon, representing the said defendants, who verbally ratified the same in accordance with the agreement of the defendants so to do, first made with the plaintiffs as aforesaid in May, 1893.</p> <p>“ The plaintiffs further aver that, acting in good faith with the said defendants and in pursuance of their agreement, they, the plaintiffs, gave up their contract with the Atlantic Refining Company and were ready and willing to fully perform their part of the said agreement, and so notified the defendants.</p> <p>“ That on or about the 31st day of July, 1893, a meeting was had in Pittsburg, Pa., between the plaintiffs and defendants. That in accordance with and in consequence of said meeting the following letter was written to and received by the plaintiff corporation:</p> <p>‘“Pittsburgh, Pa., July 31st, 1893. “‘Bosshardt & Wilson Company, Philadelphia, Pa.:</p> <p>“ ‘ Gentlemen:—In accordance with an interview between the writer and your Mr. C. A. Wilson, would say that we are willing to enter into a contract with you for the furnishment of Pennsylvania crude oil (known as Washington oil) for a term of two years, and should the situation remain the same at the end of that time the contract to be continued, in an amount not exceeding four hundred thousand barrels, of forty-two gallons each, per year, at a price equal to the crude oil market price for Philadelphia delivery as quoted on the New York Produce Exchange from time to time; you guaranteeing on your part that you shall purchase and pay for at least one hundred thous- and barrels each year.</p> <p>‘“We wish to state that in the past few months we have met exceedingly low prices, which we feel are only temporary. We wish therefore, in justice to all parties concerned, to fix the minimum price of the proposed contract, based on the actual market price paid for crude oil at the wells, with transportation and handling charges delivered in bulk to the vessel, of thirty cents per barrel, and in case the quotation of the Produce Exchange advances above the minimum above fixed the price is to advance accordingly until it reaches a price equal to the actual price of oil at the wells, with fifty cents per barrel transportation and handling charges added to vessel at Marcus Hook. The fifty cents per barrel is to be the maximum price above the well price, it being understood that all the oil purchased under the contract must be for export to France and not consumed or refined in the United States.</p> <p>“ ‘ We would say further that we have always felt disposed to meet the prices of our competitors, and that we always carry a large stock of oil, which necessarily insures to our customers prompt delivery.</p> <p>‘“We extend to you a refusal of making the contract on the above basis for the term of sixty days from this date. Should it not be accepted in writing on or before that time the above is to become null and void, and without effect between us.</p> <p>‘“Yours truly,</p> <p>“ ‘ The Crescent Oil Company,</p> <p>“ ‘ W. L. Mellon,</p> <p>“ ‘ Chairman and Manager.’</p> <p>“ That this option or offer was made solely in order that it might be sent to France as evidence of plaintiff’s ability to supply oil, and in consideration of the express undertaking and agreement made by the plaintiffs at the said meeting in Pitts-burg, that they, the plaintiffs, would within sixty days of the date of said option or offer accept the terms thereof.</p> <p>“ That on or about the 19th of September, 1893, the plaintiffs notified the defendants verbally that the said undertaking, agreement, or option contained in the said letter was accepted by the plaintiffs, and the defendants thereupon expressed themselves satisfied with the said verbal acceptance, and stated that they would carry out and perform their part of the agreement.</p> <p>“ That on September 26,1893, the plaintiffs received the following letter:</p> <p>“ ‘ Pittsburgh, Pa., September 25th, 1893.</p> <p>“ ‘ JBosshardt & Wilson Company, Philadelphia, Pa.:</p> <p>“ ‘ Dear Sirs:—We wish to advise you that we withdraw our offer of July 31st to furnish four hundred thousand barrels per year of Pennsylvania crude oil for France, per terms and on basis stated in our letter of that date. You will therefore consider the same canceled.</p> <p>“ ‘ Yours truly,</p> <p>“ ‘ W. L. Mellon,</p> <p>“ ‘ Chairman and Manager.’</p> <p>“ That the plaintiffs replied to said letter as follows :</p> <p>“ ‘ Philadelphia, September 27th, 1893.</p> <p>“ ‘ The Cbescent Oil Company Limited, Pittsburgh, Pa.:</p> <p>“ ‘ Dear Sirs:—We hereby notify you that we accept and will fully carry out the option and contract given to us by your company by letter dated Pittsburgh, Pa., July 31st, 1893, for the furnishment of Pennsylvania crude oil, known as Washington oil, according to and upon the terms and conditions in said letter expressed.</p> <p>‘“We hereby repudiate your attempted withdrawal of said option and contract as expressed in your letter to us, dated Pittsburgh, Pa., September 25th, 1893. *</p> <p>“ ‘Yours truly,</p> <p>(Signed) “ ‘ Bosshabdt & Wilson Company.</p> <p>“ ‘ By J. Bosshabdt,</p> <p>“ ‘ President.’</p> <p>“ That on or about September 25,1895, the defendants wrongfully and fraudulently refused to perform their said agreements, whereby they have caused the plaintiffs to lose a large sum of money and almost all their export trade.</p> <p>“ That said plaintiffs would have made upon said four hun-< dred thousand barrels of crude petroleum per year for two years, which said defendants were bound under their contract to deliver to them, the plaintiffs, the sum of $119,250.</p> <p>“ Commission or profits one fourth per cent of one cent per gallon on four hundred thousand barrels per year for two years . . . $84,000 00</p> <p>One per cent additional of at least. . . 12,750 00</p> <p>One hundred and seventy thousand barrels per year in barrels, or total of three hundred and forty thousand barrels at five cents per barrel, 17,000 00</p> <p>Shipping commission on barrel vessels (estimated), ........ 3,300 00</p> <p>Shipping commission on bulk vessels (estimated), ....... 2,200 00</p> <p>$119,250 00</p> <p>5,500 00</p> <p>$113,750 00’”</p> <p>From the charter of the plaintiff it appeared that it was formed for the purpose of manufacturing illuminating and lubricating oils and all products of petroleum, with the right of manufacturing packages for holding the same, and transacting all the business necessarily incident thereto.</p> <p>At the trial plaintiff’s evidence tended to support the averments of the statement.</p> <p>The court, in the following opinion by Arnold, J., entered a compulsory nonsuit:</p> <p>The letter of the defendant of July 31, 1893, tendered an option to the plaintiff of a contract for a large quantity of oil, and concluded by saying, “ We extend to you a refusal of making the contract on the above basis for the term of sixty days from this date. Should it not be accepted in writing on or before that time, the above is to become null and void and without effect between us.” On September 25,1893, the defendant company withdrew the offer of July 31, and it is now contended in its behalf that no contractual relations existed between the parties. That such an option may be withdrawn any time before acceptance is shown by the long list of cases cited in Benjamin on Sales, section 41, in note. The case of the Boston & Maine Railroad Company v. Bartlett, 3 Cushing, 224, was the case of an offer to be accepted in a certain time, and the court decided that the contract might have been withdrawn any time before acceptance. In that case, however, the contract was accepted within the time limited. There is an exception in cases in which a consideration is paid for the offer of a contract, but I do not consider that this is such a case. Here the plaintiff company had a contract with the Atlantic Refining Company which expired in March, 1893, and desiring to obtain a supply of oil from the defendant company, conversations were had between some of the officers of the plaintiff company and M r. Mellon, acting on behalf of the defendant company, in which the officers of the plaintiff company stated how much oil they desired to have, and Mr. Mellon, for his company, agreeing to furnish it, and stating that it would be able to furnish a great deal more if required. The efforts on the part of the officers of the plaintiff company to obtain customers in France were efforts expended in their own behalf and for their own benefit in order to increase their business.</p> <p>lt was for their advantage that the officers visited France and made this expenditure of money. When the first of them came back, in July, 1893, he no doubt told Mr. Mellon the result of his visit, and upon those conversations Mr. Mellon made the offer of July 31, 1893. It states exactly the terms of the offer by Mr. Mellon’s company. If there ever was a case in which the written agreement of the parties can be said to contain all of the preliminary conversations or may be said to be based upon the preliminary conversations and to include the essential parts thereof, it seems to me that this is that kind of a case.</p> <p>I am of opinion, therefore, that the defendant company had the right to withdraw its offer of an option to the plaintiff company, and that it did withdraw it on September 25,1893, which was before the plaintiff company accepted the offer in writing.</p> <p>The plaintiff company seeks to hold the defendant to its contract by an alleged verbal acceptance made prior to September 25, and relies upon a line of cases in which, although written notices are inquired prior to bringing suit, yet verbal notices have been held to be a waiver of the written notices. But these cases concern simply the preliminaries to suit, and I do not believe any case can be found in which that law applies to so vital a matter as the formation of the contract upon which the suit is based. Here the defendant company expressly declared that the acceptance should be in writing, and, in my judgment, nothing else than a written acceptance was sufficient to bind the contract. This was done, no doubt, to avoid disputes of this kind by having the acceptance in writing.</p> <p>Upon the other point, that the contract was ultra vires on the part of the plaintiff company, I am not free from doubt. The defense is sometimes said to be an ungracious one, but nevertheless where it exists and is well founded in point of law it must be enforced. Perhaps if the contract had been carried out and the oil delivered, some reason might have been found to sustain an action for the price, but here the contract is not executed, and, even if accepted, is challenged at the outset before anything has been done under it. The cases cited on behalf of the defendant company throw great doubt on the right of the plaintiff company to enforce such a contract, for the reason that under its charter as a manufacturing company it is not allowed to engage in the business of buying and selling without doing some kind of manufacture upon the articles which it buys and sells.</p> <p>The motion for a nonsuit is sustained.</p> <p>The court subsequently refused to take off the nonsuit.</p> <p>Error assigned was refusing to take off the nonsuit.</p>

Appeal, No. 200, Jan. T., 1895, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1892, No. 802, on verdict for plaintiff. Trespass for personal injuries. At the trial it appeared that on October 11, 1890, plaintiff was injured while engaged in shifting cars in the yard of the Atlantic Refining Company, at Point Breeze, Philadelphia. He was a brakeman in the employ of defendant, and was one of a crew sent to the refining company’s yard to shift cars.

<p> Equity—Injunction—Road law—Repaving of streets. </p> <p>A bill in equity will lie in favor of an owner of property on a street to restrain the municipality from entering up liens for paving against the property, where the paving is not an original one.</p> <p> Road law—Streets—Paving—Repairs—Macadamizing. </p> <p>Although macadamizing is prima facie not a paving for a city street, yet it may be a paving if put down by the city in the first instance, or adopted subsequently as a pavement for the purpose of turning a road into a street.</p> <p>Where a city street was macadamized and assimilated with the rest of the city streets, and so recognized and treated by the municipality for many years before an asphalt pavement was laid, the latter is a repaving for which the abutting owners are not liable.</p>

<p> Promissory notes—Accounts—Question for jury. </p> <p>In an action upon a promissory note by a bank against the maker, it appeared that the payee of the note transferred it by indorsement to the bank, and the latter received from the maker an assignment of certain claims as collateral security. The note was a substitute for three other notes made by the maker to the same payee, and indorsed by him to the bank. The bank kept an account with the maker, in which it charged him with the note, and subsequently cx-edited him with certain amounts, the aggregate of which did not equal the face of the note. The bank also kept an account with the payee of the note, in which it chai’ged him with the amount of three notes which had matured, and ci'edited him on the same day with the substituted note. At the time of the trial the account of the payee showed a balance due the bank. Held, in the failure of the defendant to point out anything in the accounts between the payee and the bank, which was applicable as a payment on the note, that it was proper to giro binding instructions for the plaintiff.</p>

Appeal, No. 122, July T., 1894, by defendant, from judgment of C. P. Luzerne Co., May T., 1890, No. 250, on verdict for plaintiff. Trespass for injuries caused by the pollution of a stream from deposits of culm. Before Woodward, J. At the trial it appeared that from 1880 to 1890 defendant was the managing superintendent of coal mines at Highland, and from 1890 to 1894 was a member of the firm which operated the same mines.

<p>Appeal, No. 163, July T., 1894, by defendant, from judgment of C. P. Luzerne Co., June T., 1890, No. 13, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Woodward, J.</p> <p>At'the trial the evidence showed that on January 16, 1890," William Kitchen and Virgie Sutliff, the plaintiff, who after-wards married Kitchen, were driving in a two wheeled cart from Nanticoke to Fairmount. At about eleven o’clock in' the morning they came to a point in the road where a derrick was being worked in a quarry close to one side of the road. The horse became frightened, and Kitchen, leaving plaintiff in the cart, got out and attempted to lead the horse past the quarry. When opposite the derrick, the horse plunged to the left of the road, and down an unguarded embankment, landing with plaintiff, Kitchen and the cart upon a flat ear of the Delaware, Lackawanna & Western Railroad. Plaintiff was thrown violently out of the cart and seriously injured.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Dr. Bonham, a witness for plaintiff, was asked whether or not he considered that a dangerous place or otherwise.</p> <p>Objected to because (1) the witness is not competent to give an opinion on the subject, under his testimony he not having seen the place within three years of the time the accident happened—either one side or the other; (2) under the circumstances of this case it is not a subject of expert testimony.</p> <p>The Court: Plaintiff proposes to follow this testimony with other testimony showing that the condition of these premises v as the same at the time of the accident that it was when the witness knew them three years before the accident.</p> <p>Plaintiff’s counsel: Yes, sir, both for three years before and right along since.</p> <p>Objection overruled, evidence admitted, exception noted, bill sealed for defendant.</p> <p>Q. Whether or not you consider that a dangerous place or otherwise ? A. I would consider it a dangerous place. [12]</p> <p>Defendant proposed to show by the witness Harrison, that they had expended several thousand dollars there for the purpose of preparing this place for the shipment of stone—a legitimate business connected with their railroad.</p> <p>Objected to as immaterial.</p> <p>The Court: I can hardlj” see how it is pertinent to the issue.</p> <p>Defendant’s counsel: We propose to show by the witness that the company had expended several thousand dollars there in their work.</p> <p>The Court: How does that affect this case ?</p> <p>Defendant’s counsel: Only with reference to putting these, barriers.</p> <p>Objection sustained, exception noted, bill sealed for defendant. [18]</p> <p>Defendant offered to show that a ten mill tax upon the assessed valuation of the township in the jmar 1890, and for many years previous thereto, would have produced, if all collected, $650. Without deducting exonerations and ordinary losses, that a ten mill tax only produced about $550. For those years that the miles of road in the township are between fifty and sixty, that there are at least eight to ten miles similarly situated with this road, that is on a side hill, in close proximity with declivities, there being many miles of road along the river and along the various creeks, situated similarly to this. That to place barriers to keep skittish horses from running off similar places to this would cost, several hundred dollars—probably one, two or three thousand dollars—which is more than a reasonable or proper appropriation, and more than the township could reasonably bear. This to be taken in connection with the previous offer that they have been regularly levying a ten mill tax for general road purposes, a special tax of five to ten mills, and even higher, for road purposes, each year previous to 1890.</p> <p>Objected to as immaterial and irrelevant.</p> <p>The Court: In the absence of any evidence as to the expense of erecting a sufficient barrier at the point in question, or that any suitable sum of money has been spent by the township in erecting barriers at other places referred to, we don’t think this offer is competent. Objection sustained, exception noted, and bill sealed for defendant. [14]</p> <p>Defendant renewed the last offer, with the addition that the moneys so raised had all been expended for road purposes, that in 1890, the time of this accident, the township was in debt §500, at least, and that the roads were in only fairly passable condition ; that to have expended -the sum required to build barriers along all places similarly situated would incur the expense mentioned, and would be burdensome' for the township to bear.</p> <p>Objected to as immaterial and irrelevant.</p> <p>The Court: It appears in this case already that this stone quarry has been worked some fifteen years at this point, that the road had never been fenced or any barrier built by the township. We say now distinctly, that if the defendant can show that the township was too poor to put a barrier at this point, sufficient to make it safe, we will admit the testimony. But the offer to show that they could not fence all the danger,ous places in the township, not coupled with any proof that they have fenced any, is not competent.</p> <p>Objection sustained, exception noted, and bill sealed for defendant. [15]</p> <p>In addition to what had been already offered, the defendant offered to show that at the points that were considered by the supervisors as being most dangerous along the road, barriers have been placed.</p> <p>Objected to as immaterial and irrelevant.</p> <p>Objection sustained, exception noted, and bill sealed for defendant. [16]</p> <p>Plaintiff was asked this question: Q. You say your husband is doing nothing now? A. No, sir. Q. How long is it since he ceased to work ?</p> <p>Objected to (by defendant’s counsel) as immaterial.</p> <p>The Court: I think we will take it. Bill sealed at defendant’s request.</p> <p>Question (repeated) : How long has your husband been doing nothing? A. Has not had steady work since the first of October. He has worked three weeks since that time. [17]</p> <p>The court charged in part as follows :</p> <p>[Was the township negligent in failing to provide a fence or barrier at this point of the road leading from Hunlock Creek to Shickshinny ? This is a question of fact to be decided by the jury under the evidence in the case.] [1] It is the duty of township authorities to keep roads in good order and repair, so that they shall be reasonably and fairly safe for ordinary use by the people. It is the duty of supervisors of townships to be active in the performance of their obligations to the public. They are to go over their respective districts, and ascertain the condition of the roads and bridges, and are not to wait for accidents to occur, but they are to prevent them if possible. This duty of townships, of course, is not confined to that of providing a level or good roadway upon which vehicles can move, but it may include the obligation to maintain barriers, fences, or protective agencies at points along the roads where, from narrowness of the road itself or the existence of embankments or any other natural cause, there is a demand for more than ordinary provision for public safety.</p> <p>At the point in question in the township of Union, the Delaware, Lackawanna & Western R. R. have a quarry which has been worked for some fifteen years by means of a derrick and a drum. If by reason of the existence there of that quarry and this mechanism to work it, the road was rendered an unusually dangerous place likely to be the scene of disaster and accident, then it would be the duty of the supervisors having knowledge of this state of things to use reasonable care and diligence to prevent such accident. Now, some question has been made in the present ease as to what was the primary cause of the accident. I do not think that question is of controlling importance in the present case, while in other cases which are reported in the books it has been much discussed and considered of the last importance. In the present case it is not clearly established by the evidence what caused the horse to be frightened. That he was frightened is clearly shown. Whether his fright came from a noise made by the drum or derrick is not clearly established. Because while it is alleged on the part of some of the witnesses that this was the case, it is denied by others who were there that the derrick was in operation or that the drum was being used at the time. Again, if the accident was caused from the noise from the drum or the derrick, there is no evidence that these appliances were being used in any unusual or extraordinary manner on this day. [As we have said, this quarry had been worked for fifteen years, and the machinery had been practially the same during all that time. The supervisors, therefore, had full notice and knowledge of these facts, and if the road was rendered unsafe or dangerous by reason of the existence of this machinery at this point, then their duty to protect the road would follow, provided this increased the risk beyond the ordinary danger.] [5] On this subject, in order that I may he within the line of the adjudicated cases, I call your attention for a moment to a decision by our Supreme Court which seems to me to be pertinent. Speaking of the facts, -the Supreme Court say : “ The defendant owed a duty to the plaintiff as one of the public, to keep a reasonably safe road at the place where this accident happened. If that was not done, the omission was an act of negligence on the part of the defendant, and if in consequence of that negligence an injury was sustained by the plaintiff, the defendant is responsible in damages to the plaintiff. It is no answer to say that some one else was also guilty of another act of negligence, in consequence of which the plaintiff’s injury was suffered. If both the defendant and other parties were derelict, the plaintiff may proceed against either, though of course only one actual recovery of damages for the same injury could be permitted. Between the two alleged acts of negligence in the present ease there is no relation of proximity or remoteness in the sense in which the law regards that subject, so as to postpone the liability of one because of the liability of another, or because of the intervention of an intermediate agency Burrell Township v. Uncapher et al., 117 Pa. 362.</p> <p>If it were the duty of the township supervisors to make the road safe at this point, I am unable to see how that duty is affected in any way by the fact that the Delaware, Lackawanna & Western R. R. Co. had machinery there which would be interfered with. The supervisors were bound to make the road safe, no matter what the result was to the convenience of this company and its operations at the quarry.</p> <p>[Having made these general observations in regard to the character of negligence, its legal significance and the duty of township officers, we come to the next question in the case, which is also one of fact for you, namely : Did the negligence of this plaintiff concur in causing the accident and the injury complained of?] [7] Because, as we have already stated to you, if her negligence concurred, assisted in producing it—-if the accident was the result of the negligence both of the supervisors and of herself, then she cannot recover in this case. While the law requires that the loads of a township shall be kept in good order and repair, and made reasonably safe, it also requires that travelers upon township roads shall themselves use ordinary care and prudence to prevent accident.</p> <p>This brings us to the question, Was the plaintiff’s failure to get out of the cart when her companion did, negligence on her part, and did it concur in producing the accident? Of course, it is clear if she had gotten out of the cart, she would not have been injured in the manner that she was. [Was it her duty to get out? ] [10] In deciding that question, gentlemen, you are to look upon it as men of ordinary reason and common sense. If you believe, under all the circumstances of the case, that this woman, riding with her affianced lover, after-wards her husband, should in the exercise of ordinary care and prudence have gotten out of the cart when he got out and took the horse by the head, then she would be negligent in not doing so ; but if, on the other hand, you believe that having confidence in her companion, she trusted to his prudence and ability to manage this horse and did what the average woman would have done under the same circumstances, then she would not be negligent. It is for you as men of sense to say whether she was negligent or not in this conduct. If she was negligent, it being clear that the accident would not have occurred" if she' had gotten out, then it would be concurring negligence, and there could be no recovery by her in this case.</p> <p>Plaintiff’s point was as follows :</p> <p>1. If the jury believe that the road at the place of the accident was dangerous by reason of its proximity to the quarry and its machinery, the character of the opposite bank along the highway, and the railroad tracks, and that common prudence required extra precaution in the way of the erection of barriers or guard rails there along, to insure the safety of the traveling public, it was the duty of the defendant to have such guards or barriers, and if the accident to plaintiff was caused by such failure, without any contributory negligence on plaintiff’s part, the plaintiff is entitled to recover. Answer: That point we have substantially affirmed already in our general charge and we now affirm it specifically. [2]</p> <p>Defendant’s points were as follows :</p> <p>1. Under all the evidence in the case the verdict must be for the defendant. Answer : That point we decline to affirm. [11]</p> <p>2. The proximate cause of the injury complained of by the plaintiff being the fright of the horse attached to the cart in which she was riding, that being ah extraordinary circumstance, against the consequence of which the township defendant was not bound to take precautions, under the evidence in this case regarding the condition of the road at the point of the accident, the plaintiff cannot recover and the verdict must be for the defendant. Answer : That point we decline to affirm. [3]</p> <p>- 3. According to the plaintiff’s own testimony she was guilty of contributory negligence, as both she and her husband testify that they saw the cause of the fright of the horse some distance ahead of them, that the horse was frightened and stopped, the husband got out to lead the horse by the cause of the fright, she remaining in the cart. They therefore had full warning of their danger in abundant time to avoid it, but she did not do so by alighting and walking past the obstruction, a distance of but a few yards, and failing to take this timely precaution she cannot recover, and the verdict must be for the defendant. Answer: We decline to affirm that point, because the question is one of fact, as we have already said, for the jury to find from the evidence. [9]</p> <p>4. There being no obstruction within the bounds of the public highway at the point of the alleged accident, and the road at that point being of sufficient width and in good repair, as testified to by all the witnesses in the case, to render the township defendant liable in this action, notice that the quarry adjoining the highway at the point complained of was being worked in such a way as to render the road dangerous must be brought home to the township authorities. There is in this case no such notice to the township proved, either express or implied, from the circumstances of the case, and the verdict must be for the defendant. Answer : That point we decline to affirm. [4]</p> <p>5. Even if there were any danger of horses being scared at this point, the township defendant was not bound to guard against dangers of a fall over a wall situate twenty feet from the line of the road, upon the private property of the railroad company, which, in addition to being out of the highway, would be a serious interference with the use of their quarry, switch, and place for unloading stone, as the evidence shows such a barrier would have been in this case had one been placed there, and the verdict must be for the defendant. Answer: That point we decline to affirm. [6] ....</p> <p>7. If the jury believe that the plaintiff, having knowledge of the fright of the horse, and time to alight from the cart after she knew he was frightened, failed to do so, she cannot recover in this action. Answer : That point involves a question of fact for the jury, and in the absolute manner of its statement it cannot be affirmed. [8]</p> <p>Verdict for $4,000. On remittitur filed, judgment was entered for $3,000. Defendant appealed.</p> <p>Errors assigned were (12-17) rulings on evidence, quoting the bill of exceptions; (1—11) above instructions, quoting them.</p>

<p>Constitutional law — Local legislation — Classification of cities—Act of June 2, 1881 —Constitution, art. 3, .sec. 52.</p> <p>The act oí June 2, 1881, P. L. 45, entitled “ An act to make taxes assessed upon real estate a first lien, and to provide for the collection of such taxes, and a remedy for false returns,” and excepting cities of the first, second and fourth classes, is unconstitutional, inasmuch as it violates art. 3, sec. 52, of the constitution, which provides that no local or special law shall be passed “authorizing the creation, extension or impairing of liens; ” “ creating officers or prescribing the powers and duties of officers in counties, cities, boroughs, townships, election or school districts ; ” “ regulating the affairs of counties, cities, townships, wards, boroughs or school districts.”</p> <p>Classification has been upheld for municipal purposes only. Legislation for a class of cities is only general and valid under our constitution when it relates to some municipal purpose. If it does not affect the exercise of some municipal power, or the number, character, powers and duties of the municipal officers, or the regulation of some subject within the appropriate range of municipal control, the legislation is local and unconstitutional. Per Williams, J.</p> <p> Taxation—Tax sale—Collector's return. </p> <p>Where a tax act provides that the collector’s return shall contain a statement “ of each kind of tax so returned, the names of the parties assessed with the same, the year when such taxes were assessed, a sufficient description by boundaries or otherwise of each separate lot or tract and about the quantity of the same, and the township or borough in which it is located,” a return which does not state the year when the taxes were assessed, nor give any description of the lot which it is sought to charge with their payment, is insufficient and will not support a tax sale.</p>

<p>Boroughs -— Ordinances — Making opening in streets — Negligence — Evidence—Custom and usage.</p> <p>Where a borough ordinance makes it unlawful “ to open, dig, or iu anyway disturb any street ” without a written permission from the street commissioner, a permit from the burgess to lay a drain will not authorize the person who receives the permit to open or dig in a street, although the evidence shows that it was the habit of the burgess and of his predecessor in office to issue permits to make such openings.</p> <p>No number of violations of a borough ordinance by a borough officer will nullify it, or constitute or establish a custom or usage which the law will recognize as of any validity.</p> <p>Where an opening is made in a street in pursuance of such a permit, the person making the opening is a trespasser, and if his work renders the street unsafe for ordinary travel, it is the duty of the borough authorities having actual or constructive notice of the dangerous condition created by him, to take proper measures to protect the public against it.</p>

Appeal, No. 274, Jan. T., 1895, by defendants, from judgment of C. P. Luzerne Co., May T., 1898, No. 129, on verdict for plaintiff. Assumpsit on the bond of a city treasurer. Before Lynch; J. The facts appear by the charge of the court of common pleas, and the opinion of the Supreme Court.

Appeal, No. 290, Jan. T., 1895, by the Kingston Coal Co. and William Jones, two of the defendants, from judgment of C. P. Luzerne Co., Oct. Term, 1891. No. 830, on verdict for plaintiff. Trespass to recover damages for the death of plaintiff’s son, caused by the alleged negligence of defendants. Before Lynch, J. At the trial it appeared that the boy, who was about nineteen years old, was employed ás a driver by the Kingston Coal Company.

<p>Appeal, No. 308, Jan. T., 1895, by defendant, from judgment of C. P., Luzerne Co., Dec. T., 1893, No. 163, on verdict for plaintiff.</p> <p>Assumpsit on a policy of fire insurance. Before Lynch, J.</p> <p>At the trial it appeared that plaintiff’s house was destroyed by fire on May 20, 1893. The policy required proof of loss to be made within sixty days. Actual proofs were not made until ninety-six days after the fire. There was evidence which tended to show that the company had waived the provision as to proof of loss. This evidence is sufficiently stated in the charge to the jury and in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>A contract of insurance is an agreement, for a consideration, to indemnify against loss, and the evidence of the contract is to he found in the policy of insurance. The insured house and all the loose or personal property contained therein was destroyed by fire on the night of the 20th of May, 1893. Shortly thereafter, according to the evidence of Mr. Carey and his wife, he notified Mr. Boone, from whom he said he received the policy and paid the money for the insurance, of the total loss, and a short time after that he met Mr. Paine, who, it is agreed, was the agent of the defendant company. I shall not attempt to go over what transpired between Mr. Carey and his wife on the one side and Mr. Paine upon the other. You will remember the evidence as to what, if anything, Mr. Paine stated was his purpose in coming to Kingston for the purpose of examining or adjusting this loss. What was said and done at the first meeting? There were throe meetings. [At the second it appears that at the request of Mr. Paine a schedule or list of articles destroyed by the fire, and their prices, or their value, at least, was made out and given to Mr. Paine, and he took it with him. That was the last meeting before the sixty days expired. At that meeting, according to the testimony of Mrs. Carey, she said: “ I gave him the list. I asked him if we had anything more to do there, and he said no, we could go home. He took the list.” That list of itself is not evidence as to the value of the property, or, in other words, the plaintiff could not make evidence for himself in that way as to the value of the property; it was only admitted in evidence by the court for the purpose of submitting the question to the jury whether it was evidence of a waiver—whether that conduct upon the part of the agent of the company was a waiver of the right which the company had to stand upon the terms of its policy.] [1]</p> <p>[What was said and done by Mr. Paine and by Mr. and Mrs. Carey at the two meetings before the sixty days had expired, and what was said and done by Mr. Paine and Mrs. Carey at the house when Mr. Paine visited the premises where they were living after the fire ? ] [2]</p> <p>In a contract of this character, like every other contract, both parties had the right to stand strictly and firmly upon the terms of the policy. The company had the right to require of Mr. Carey that he furnish proofs of loss within sixty days. That provision was put in the policy for the benefit of the company in order that they might examine into the circumstances and facts of the fire, and that they might protect themselves from fraud by the insured. [As stated by both gentlemen in this case, the question for you to ascertain from the preponderance of the credible evidence in this case is, Did the company, who had the right to stand upon the terms of its policy, waive that stipulation ?] [3] [If you believe the evidence in this case, you may find as a fact that the company did waive their right to stand upon this stipulation in the policy.] [4]</p> <p>Both parties to the contract should, according to law and fair dealing, be entirely frank and fair with each other. The insured has no right to deceive or perpetrate a fraud upon the company, nor the company to deceive the insured, or to lull him into false security by which he loses his right to recover.</p> <p>A waiver must be proved by clear and plain evidence. It is a question of intention upon the part of the company. But that intention may be gathered from the circumstances and acts of the authorized agents of the company or its officers. What, in this case, if anything, did the company or its officers do to lead Mr. Carey to believe that the statement, being a total list furnished by him, was not sufficient, or did the company or its agent, Mr Paine, act in such a manner as would lead a man of the character and the apparent intelligence of Mr. Carey to believe that the statement furnished by him was sufficient and that the company required no additional proofs of loss ? ] [5]</p> <p>[As argued by the counsel for the defense it is conceded that if the company’s agent had said they would pay the loss, that would have been enough; if they had denied liability, that would have been sufficient to put the man upon his guard, but that Mr. Paine stood mute. That will not do—</p> <p>Defendant’s counsel: “ I meant to be understood that if he denied liability it waived the furnishing of proofs of loss, and if he admitted liability it waived them.”</p> <p>The Court: Even stating it as the counsel does, the jury is entitled to judge of a man’s conduct as well as what he says. Whether the jury believes from Mr. Paine’s conduct in this matter the insured was led to believe the company had waived its right to stand upon its stipulation.] [6]</p> <p>It is conceded that no formal proofs of loss were furnished the company by Mr. Carey within the sixty-day limit named in the policy. So that the first question for you to pass upon is, did the company, by the conduct of its officers or agents authorized to act, waive their right to demand proof of loss ?</p> <p>[Shortly after the sixty days had expired, according to the evidence of both Mr. Carey and Mr. Paine, .the liability of the company was denied. It was said, in substance, that Mr. Carey was not the owner of the premises; that he was a trespasser on the lot. That was the reason given at that time for not paying the loss.</p> <p>In August, 1898, Messrs. McLean and Gibbons, attorneys for the plaintiff, sent a formal proof of loss to the company and, as appears, indorsed upon the back of the paper, which is produced here by the company; it was received on the 24th of August, one day after Mr. Gibbons stated he sent it. No reply was made until shortly before suit was brought against the company. Then, according to the evidence of Mr. Gibbons, Mr. Paine stated that the company did not recognize this proof of loss because it had been made too late, that is, after the sixty days set in the policy had expired.</p> <p>According to this evidence the company directly after the sixty days had expired denied its liability to pay Carey for the reason that Carey had no title to the property, and that was the only reason then given. The formal proofs of loss having been made out and sent to and received by the company after the sixty days, if the company intended to rely upon another defense, to wit: that the proofs of loss had not been furnished in time, it was their duty to say so. It would be nothing more than fair dealing between man and man, and they are bound to stand by it. It was their duty, if they intend to rely upon that defense, to so notify McLean and Gibbons. If you determine that they did receive that proof of loss and made no reply or made no objection to the proof until in October, you may conclude that they waived the right to require the proof of loss should be furnished in sixty days, and accepted the formal proof furnished even at that late date. The company cannot play fast and loose more than any other person.</p> <p>I do not say, and I do not wish you to understand me to say that the company waived its right to have the proof of loss filed within sixty days; that is a question for you to pass upon— whether upon the evidence submitted to you in this ease the company did so waive its right to insist upon this stipulation. If you find that the company did so waive its right then you may decide the case in favor of the plaintiff in so far as that branch of it is concerned.] [7]</p> <p>Verdict and judgment for plaintiff for $886.55. Defendant appealed.</p> <p>Errors assigned, among others, were (1—7) above instructions, quoting them.</p>

Appeal, No. 844, Jan. T., 1895, by J. Pemberton Ellis et al., from decree of Q. S. Montgomery Co., No. 128, Boroughs etc. records, incorporating the borough of Narberth. Petition for the incorporation of Narberth borough. The grand jury reported in favor of incorporation. The following exceptions were filed by appellants to the report of the grand jury. 1.

Appeal, No. 458, Jan. T., 1895, by-defendants, from decree of C. P. Luzerne Co., Oct. T., 1894, No. 14, on bill in equity. Held: within reasonable limitation, to authorize the legislature to determine and declare the classes to which the objects of legislation belong, and then to legislate for those classes.

<p> Contract—Bailment—Bolling stock of railroad. </p> <p>By a resolution of the board of directors of a railroad company, the president was authorized to purchase certain rolling stock which was owned by a director and stockholder of the company, and was in use at the time by the company. The president and the owner subsequently entered into a written agreement for the lease of this rolling stock to the company for eight years, at an annual rental, with an option to purchase at a stipulated price at any time during the term; and if the purchase should be made, credit was to be given for the amount of rent paid on the purchase money. The lease was not recorded.</p> <p>The railroad company paid the owner rents at different dates which in the aggregate amounted to over half of the purchase money mentioned in the agreement, taking receipts therefor “ on account of lease for purchase of engine and ears.” After this a mortgage prior in date to the lease was foreclosed and a sale was decreed of the mortgaged property, including rolling stock. At the time of the sale notice was given of the lease of the rolling stock to the railroad company. The purchasers at the sale asserted title to the property and sold it to the defendant; the lessor replevied it; the defendant gave a claim property bond and retained possession.</p> <p>Held, that (1) the resolution of the board of directors and the written lease when read together constitute a bailment, and plaintiff’s title to the property was not divested by the sale under the mortgage ; (2) plaintiff could only recover money damages, and the measure of the damages was the value of the property as stipulated in the bailment contract, mitigated by the amount of rent already paid by defendant’s predecessors as shown by the receipts ; (3) the fact that defendant claimed on the trial that plaintiff’s title to the property was divested by the sale under the mortgage did not preclude it from proving the payments of rent in mitigation of damages ; (4) defendant having given notice to plaintiff before suit brought that it would neither pay the rental nor the purchase money, the plaintiff was not bound to wait until the expiration of the period within which the defendant might exercise the right of option, but he could bring suit at once.</p>

Appeal, No. 22, Jan. T., 1895, by plaintiff, from order of C. P. Blair Co., Oct. T., 1893, No. 51, distributing proceeds of sheriff’s sale of real estate. Exceptions to auditor’s report distributing proceeds of sheriff’s sale of real estate made on plaintiff’s, writ.

<p>Practice, O. P.—Service of process—Sheriff's return.</p> <p>In an action of assumpsit by a bank against its defaulting cashier, the sheriff’s return that a copy of the summons was left at defendant’s dwelling house with his wife, “ an adult member of defendant’s family, and that the defendant could not bo conveniently found,” will not be set aside at the instance of the wife upon a mere averment by her that defendant had left his home,'and had not told her where he was going, and that she believed by reason of the charges made against him “when he left it was to abandon his then place of residence, and that it was not his purpose to return to it.”</p> <p>Practice, G. P.—Statement—Act of May 25, 1887, P. L. 271.</p> <p>In an action of assumpsit by a bank against its defaulting cashier, the statement of claim is sufficient which avers that the defendant “ took for his own use out of the moneys of and belonging to the said bank ” the sum, etc., and that no part of the said sum “has ever been paid by the defendant to the plaintiff, and that the same is owing, unpaid and due from the defendant to the plaintiff.”</p> <p>In such a case copies of tickets or memoranda deposited by defendant in place of the money he took, although of themselves importing no liability on the part of defendant, may properly be annexed to the statement, and taken in connection with the averments of the statement are sufficient to put the defendant to an affidavit of defense.</p>

<p>Appeal, No. 78, Jan. T., 1895, by defendant, from judgment of O. & T., Clearfield Co., Dee. T., 1893, No. 82, on verdict for murder in the first degree.</p> <p>Indictment for murder. Before Gordon, P. J.</p> <p>At the trial the testimony was in effect that on the night of Nov. 21, 1893, Vincent Lucasovich was wounded by a pistol bullet, which entered his left breast about two inches below the heart, resulting in his death about 48 hours thereafter. He had been boarding in the house of William Losee, about a mile and a half or two miles west of Houtzdale. On the day he was shot he had come home from his work in the mines before noon, and after washing himself, without staying for dinner, he went to Houtzdale. From the testimony of William Losee and his wife, it appeared that he returned home about 10 p. m. He was admitted to the house by Mrs. Losee, and passing through the room of Losee and his wife he went up stairs to his own room, and apparently to bed. Losee and his wife then went to sleep. Mrs. Losee testified that she was awakened by a noise outside of the house about eleven o’clock. She heard some one cry “ William, William, William.” The deceased went out and subsequently returned. As he passed through the room of Losee and his wife on his return, it was noticed, according to their 'testimony, that he carried his arm close to his side. He-passed through their room and up to his own ’room. About five minutes thereafter they heard him crying with pain. ^ They went to his room and found him in great pain from the wound which afterwards caused his death. When they inquired about it he replied, “Didn’t you hear? My ‘ butty ’ shoot me.”</p> <p>About three hours later defendant was arrested by officer Kinney and taken before deceased at tbe house of William Losee. Kinney testified that he brought the defendant down to the house of William Losee and took him upstairs into the presence of deceased; that the defendant and deceased started to talk between themselves in the Slavish language, which witness did not understand, but that Losee who was present told him what they said.</p> <p>Kinney further testified: “ Q. Did you hear Lucasovich say anything in any language you could understand? A. Well the only thing I could understand—I understood it, 4 him shoot me.’ I understood that. Q. Lucasovich said that? A. Yes, sir; that was when he (meaning Mika) was on his two knees and denied it, ‘Him shoot me.’ Q. He said that in English? A. That is what I understood him to say.”</p> <p>After the conversation between the deceased and the prisoner at Losee’s house, the officer, Kinney, took the prisoner to Ploutzdale and put him in the lockup there. The officer then went to John B. McGrath, a justice of the peace in that borough, and the justice, together with the officer, a Polish priest, Rev. Segesmond Susczyinski, and Joseph Gdenic, a Polish schoolteacher, went to the house of Wm. Losee, where deceased was, and after the administration of the last rites of the Catholic church to deceased, his dying declaration was taken. The deceased was sworn. He told his story to Father Susczyinski who translated it into English to McGrath, who in turn reduced it to writing. The commonwealth offered the dying declaration as follows :</p> <p>“ Before me, a Justice of the Peace in and for said county, personally came Vincent Lucasovich, who after being duly sworn according to law, saitli as follows : My name is Vincent Lucasovich. I am 26 years old, past. I am sure that Frank Mika shot me. Last night about half past ton o’clock 1 was in the yard of Wm. Losee, near West Mosliannon, when I heard some one call out, ‘ William! William ! ’ several times. He was singing before he hallooed and I recognized the voice of Frank Mika. I said, ‘ Go home, and don’t make a noise here.’ He answered, ‘ I will go home, and you go home and go to bed with God.’ He spoke in Slavish, which I can understand; just then he shot me; I saw the fire. We had been in town drinking and he asked me if I had a revolver, an'd I showed him my revolver. He said, ‘ Do yon want the revolver back?’ I said, ‘ Yes.’ Then he said he wouldn’t give it to me, because I had no license to carry it, and he could bring the Constable and arrest me. I was afiaid and I left him have the revolver, and left him. I started home and Mika followed ; we stopped at Carter’s hotel. We met an English-speaking man with big moustache, the same who was here to-night—Albert Reeser— at the Swan hotel, and we went together to Carter’s. I didn’t see Mika after leaving Houtzdale until I saw him at the road when he shot me. Mika was about six yards from me, standing in the road when he shot me. About a week ago we had a little trouble in the Swan hotel, and Mika was going to shoot me. Albert Kacbka saw the revolver. I got away from him when I saw him take out the revolver and got away. The English people called a Constable. This was last Tbursdajr evening about six or seven o’clock. We made up friends and were all right to-day, the trouble we had was about the work. Mika worked with me. When we were in the hotel—Mrs. McMahon’s—to-day Mika said he would remember me. We had some words about the revolver. I make this statement with the belief that I am going to die.</p> <p>“ Vincent x Lttcasovich.”</p> <p>Defendant’s counsel make the following objections :</p> <p>1. The statement is incompetent and inadmissible as a whole.</p> <p>2. The following words: “We had been in town drinking and he asked me if I had a revolver, and I showed him my revolver. He said, ‘ Do you want the revolver back ? ’ I said, ‘ Yes.’ Then he said he wouldn’t give it to me, because I had no license to carry it, and he would bring the constable and arrest me. I was afraid and left him have the revolver and left him.”—And the statements in these words: “ About a week ago we had a little trouble in the Swan hotel, and Mika was going to shoot me. Albert Kacbka saw the revolver. I got away from him when I saw him take out the revolver, and got away. The English people called a consta,ble. This was last Thursday evening about six or seven o’clock. We "made up friends and were alb right to-day and the trouble we had was about the work. Mika worked with me. When we were at the hotel—Mrs. McMahon’s—to-day Mika said he would remember me. We had some words about the revolver”—are incompetent and inadmissible, because they relate to antecedent matters and are therefore no part of the facts immediately connected with the shooting and at a time too remote to make them admissible either as dying declarations or part of the res gestee.</p> <p>8. The defendant further objects to that portion of the written statement which is in these words, namely: “lam sure that IPrank Mika shot me. Last night about half past ten o’clock I was in the yard of William Losee, near West Moshannon, when I heard some one call, ‘ William ! William ! ’ several times. He was singing before he hallooed, and I recognized the voice of Frank Mika. I said, ‘ Go home and don’t make a noise here.’ He answered, ‘I will go home, and you go home and go to bed with God.’ He spoke in Slavish, which I can understand; just then he shot me. I saw the fire.”</p> <p>And tile further words, namely: “ I didn’t see Mika after leaving Houtzdalo until I saw him at the road when he shot me. Mika was about six yards from me standing in the road when he shot me,” when read with the testimony of John JB. McGrath, as to the reason and the means by which the deceased knew it was Mika who shot him, are but the expressions of an opinion and belief, and not a statement of facts, and therefore inadmissible.</p> <p>4. The defendant further objects that it does not sufficiently appear that the deceased had no further hope of recovery and was informed by the physician that he would die, or that the wound was necessarily mortal.</p> <p>The Court: Objection 1st overruled.</p> <p>Objection 2d sustained and evidence excluded.</p> <p>Objection 8d sustained so far as it refers to the words of the statement underscored, viz : “ I am sure that Frank Mika shot me,” and said testimony is excluded and overruled as to the balance.</p> <p>Objection 4th overruled, the deceased, having been informed that he would not recover, had given it as his opinion that he would not, and the court being convinced from the evidence that he had no hope of recovery.</p> <p>Bill sealed for defendant.</p> <p>The court charged the jury in part as follows :</p> <p>[So, then, if you are satisfied that the defendant did the killing, in order to reduce the grade of the offense to a lower grade of homicide than murder in the second degree, the burden is on the defendant, and to raise it to murder of the first degree the burden is on the commonwealth. . . .</p> <p>The commonwealth, of course, must satisfy you beyond a reasonable doubt that he did the killing, and when having done so, the burden of raising it to a higher degree of crime is upon the commonwealth and to reduce it to a lower grade of crime is upon the defendant.] [2] ...</p> <p>[While it is true these dying declarations were made when the accused was absent, and without the benefit of cross-examination to elicit testimony in his own behalf, and strictly speaking it is hearsay evidence, yet the law recognizes that as legitimate testimony, and it would seem that considering all of the circumstances, all hope of recovery gone, preparation for death made and all motives for falsehood taken away, if a man should be expected to confine himself strictly to the truth in what he had to say, it would be one situated as this dying man was. It was no time for anything but that which was solemn and serious, and the strongest evidence that the dying man so looked at it is the fact that he had received from the minister of his church, whose tenets taught him it was not fitting for a man to rush unanointed into the presence of his God, the last rites and benediction appropriate to such a solemn occasion.] [8] . . .</p> <p>[It is claimed, however, that there are contradictions in this declaration. All of these, gentlemen of the jury, you are to consider, but you must remember this in passing upon the question and in considering the credibility to be given to this item of evidence, that it is not pretended that this dying man’s whole testimony was reduced to writing; the evidence has convinced you, I have no doubt as it has me, that there was a great deal said there in that foreign language which failed to get through the interpreter and onto ’Squire McGrath’s written statement; the questions had to be asked him in his own mother tongue, a foreign language which the justice could not understand. He had to reply to the interpreter and the interpreter in turn to the justice. Now there is no pretense in this case that all of this man’s testimony was taken down, and if you find inconsistencies and contradictions in the testimony as thus reduced to writing, you must take into consideration that these inconsistencies may not have been in his testimony as given to the interpreter. The whole of his testimony may not be in this writing.] [4] . . .</p> <p>[Now it is true, gentlemen of the jury, that the evidence shows that the deceased, before consenting to go to that wedding insisted upon this defendant leaving his revolver at home. Just what he meant by that is for you, gentlemen of the jury, to conclude. Whether he felt he was afraid of his life does not appear in the testimony. All that we can know about this matter is inferences that can be drawn from the facts proven by these witnesses.] [5]</p> <p>[Well, now, gentlemen of the jury, that is a question for you, just how far you will consider this item of evidence. It is true that all of this conduct on the part of this man may have been feigned. If he were bent on murder, if he had malice in his heart and had intended deliberately and willfully to take the life of this man, he could have feigned all of these things, but, whether he did or not, and whether there is anything in the evidence to show that he- did, is a question for you. There is nothing here to show, gentlemen of the jury, that he acted in any other way than naturally, just as a man would under ordinary circumstances.] [6]</p> <p>[It is true it is not conclusive ; it was not impossible for this defendant, after passing this man’s house, to have returned again and shot the man. Whether he did or not, if that was the man who passed, in order to convict him you will have to believe that he did. There is no evidence in the cause upon that question, but it is important testimony for you to take into consideration.] [7]</p> <p>[And there is but a discrepancy in all of the testimony in the case of between five and ten minutes. . This defendant passed the house of William Losee, according to the testimony in the case,, not longer than between five and ten minutes, at least, before the shooting was done. So that he is upon the ground and it was possible for him to have been present at the time the shooting was done. Whether he was or not, gentlemen of the jury, is a question of fact for you.] [8]</p> <p>[Now, the defense (alibi) is entirety legitimate and proper. If the accused was not present when the offense was committed and had nothing to do with it, it could be the only defense which he could make. Yet, while casting no reflections upon the defense in this case, we deem it our duty to call your attenr tion to the fact established in capital cases, that the temptation is very great to resort to it as a shield or protection from, the consequences of crime.] [9]</p> <p>[Gentlemen of the jury, there is still another matter to which we desire to call your attention, and that is the fact that if you find from the testimony that this defendant is guilty, that he did the shooting, he having sworn that he did not, as a matter .of course you would have to conclude that his testimony was. false, and that he had perjured himself. Now, while we do not desire and do not wish to be considered as saying that he did perjure himself, or that he did not, because we have no such desire (and we speak of this matter in the interest of the defendant) if you find that he did do the killing, he having taken the position that he did not, he deprives himself of any explanation, which he otherwise could have made as to the circumstances under which the shooting was done, to reduce the offense either from murder in the first degree or from murder in the second degree. So that if you find, as I said, that he did the killing, you must take, into consideration that he is deprived of any explanation which he might have made.] [10] [And the fact that they may have been reconciled and become friends after that don’t take those threats out of the case, don’t remove those threats from your consideration, because if enmity existed between these men, and there was- malice in the heart of the defendant, even though they were reconciled for a time, that malice might crop out from his heart at any time, and you must take all these things into consideration in deciding whether or not this defendant is guilty.] [11]</p> <p>Defendant’s points, among others, were as follows:</p> <p>3. That the jury must acquit the prisoner unless the evidence of the facts proved are absolutely incompatible with his innocence and cannot be explained upon any other reasonable theory than that of his guilt. And if they find that the crime could have been committed by another, and the facts proved still be true, they must render a verdict of not guilty. Answer .* Gentlemen of the jury, as a statement of the law, that is correct, and we affirm the point. And yet the commonwealth is not bound to prove anything with absolute certainty. That degree of proof is not required in this case. Of course, if you find from the evidence, beyond a reasonable doubt, that the defendant is the man who did the shooting, it would follow from that that nobody else could have done it. But we do not want you to understand that by affirming this point we say to you that if you believe in the period of from five to ten minutes, as to which there is a question whether or not this defendant was on the ground, it was possible for somebody else to have shot the deceased, you must acquit him. That is not the intention of the point as I take it, and is not the law. There might be a possibility that such was the case, but you are to take into consideration all of the circumstances and facts in the case, and if from all the evidence you are convinced beyond a reasonable doubt that the defendant and nobody else did the shooting, then you convict him. . . .</p> <p>5. That if the jury find that the dying declarations in this case are inconsistent with and contradictory of each other, and arc also contradicted by the commonwealth’s own witnesses in a part thereof which relates to a material part of the commonwealth’s ease, then the entire statement must be disregarded and rejected by them in making up their verdict. Answer: That is a correct statement of the law, gentlemen of the jury. If the witness is contradicted in a material part of his testimony it must be disregarded. If false in one particular it may be in all. But from this it does not follow, if you find inconsistencies and contradictions in the statement, that you must reject it, for you must remember that the entire testimony of the witness may not have been reduced to writing, as I explained to you before. The credibility to be given to the testimony of the deceased, and the weight to be given to this statement, is entirely for the jury, but we say to you that any inconsistencies and contradictions which you find in the statement, and especially in material parts of it, and its being contradicted by other evidence in the cause, should be carefully considered by the jury in determining the weight to be given to it; and if you should find it to be such as to make the testimony unreliable, you should disregard and reject it in making up your verdict. The same tests are to be applied to this kind of evidence as are applied to a witness called and examined before you. If the testimony is inconsistent and contradicts itself in a material part of it, of course you must reject the testimony and throw it out of the case, if you find that to be the case.</p> <p>Verdict of guilty of murder of the second degree.</p> <p>JErrors assigned were, (1) admission of dying declaration; (2-11) above instructions, quoting them.</p>

<p>Appeal, No. 171, Jan. T\, 1895, by-plaintiff, from decree of C. P. Centre Co., Nov. T., 1893, No. 55, on bill in equity.</p> <p>Bill in equity for an injunction, and for specific performance. Before Fuest, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The prayers of the bill were as follows :</p> <p>First. That your honors grant a writ of injunction, preliminary until hearing and perpetual thereafter, restraining the Nittany Valley Railroad Company and the Valentine Iron Company, their and each of their officers, agents and employees from committing any act or acts in aid or encouragement of the organization or establishment of the Central Pennsylvania Railroad Company, or of the construction or completion of any line or lines of railroad owned, operated or controlled by the said The Central Pennsylvania Railroad Company or by any other company or person or persons within the territory embraced within the charter of the said The Central Pennsylvania Railroad Company, and generally from committing any act or acts in aid or encouragement in any manner of the construction of any line or lines of railroad competitive with the lines of railroad owned, operated and controlled by the Bald Eagle Valley Railroad Company and the Pennsylvania Railroad Company within the territory embraced within a certain agreement, dated the 22d day of March, A. D. 1887, and recorded in the office for the recording of deeds, etc., in and for the county of Centre, in the state of Pennsylvania, in miscellaneous book H, page 641, etc.; also further restraining J. W. Gephart, so long as lie remains president of the said The Valentine Iron Company, or in any manner connected therewith or pecuniarily interested therein, from acting as superintendent of construction of the said The Central Pennsylvania Railroad Company, and from acting in any other capacity in the employ of ox connected with said company or connected with the construction or completion of any line or lines of railroad owned, operated or controlled by the said The Central Pennsylvania Railroad Company, or by any other company or person or persons within the territory embraced within the charter of the said The Central Pennsylvania Railroad Company, and generally from committing any act or acts in aid or encouragement in any manner of the construction of any line or lines of railroad competitive with the lines of railroad owned, operated and controlled by the Bald Eagle Valley Railroad Company and the Penns3dvania Railroad Company within the territory embraced within the said agreement above mentioned, and also further restraining the said The Nittai^ Valley Railroad Company, the said The Valentine Iron Company, their and each of their officers, agents and emplo3>-ees, and the said J. W. Gephart from giving any traffic coming from or going to points upon the railroad of the said ■The Nittany Valley Railroad Company, or coming to or going from the property, mines and furnace owned and controlled or that ma3r be built and operated by the said The Valentine Iron Company, mentioned in the said agreement to the said The Central Pennsylvania Railroad Company, or to an3r other company, person, or persons than the said The Bald Eagle Valley Railroad and the said The Penns3Tlvania Railroad Company.</p> <p>Second. That your honors decree the specific performance of the above mentioned agreement by the defendants in this bill, especially ordering and directing that they, and each of them, shall give all the traffic coming from or going to points upon ■the railroad of the said The Nittany Valley Railroad Company, or coming to and going from the property, mines and furnace or furnaces mentioned in the first prayer of this bill to your orators, their successors and assigns, for transportation over the said The Bald Eagle Valley Railroad, and over the lines owned, operated and controlled by 3rour orators, in going to and coming from point of destination or shipment, so far as the said lines of your orators may be available therefor, so long as the covenants of the said agreement are observed and performed as heretofore and at present by your orators.</p> <p>Third. That your orators may have such further order and relief as the nature and circumstances of the case may require and as to your honorable court may seem meet.</p> <p>Defendants demurred to the bill on nine grounds which are fully stated in the opinion of the Supreme Court.</p> <p>The court sustained the demurrer and entered a decree dismissing the bill.</p> <p>Errors assigned were, (1) in holding that the Valentine Iron Company did not sustain either privity of contract or estate with the covenantors or covenantees in the traffic agreement of March 22, 1887, and that the plaintiffs were strangers in title to the land owned by the Valentine Iron Company; (2) in holding the covenant to give traffic contained in said agreement invalid for want of consideration, and in holding that good and valuable considerations did not exist; (8) in not holding that the twenty-sixth paragraph of the bill contains averments sufficiently setting forth such affirmance and ratification of said agreement by the above-named defendants, after the sheriff’s sale in said paragraph mentioned, as render said agreement binding upon said defendants, notwithstanding the fact that the mortgage in foreclosure of which said sheriff’s sale was had antedated said agreement; (4) in holding that said covenant to give traffic is not a covenant running with the land ; (5) in holding that said agreement offends against the constitution of Pennsylvania, article XVII., section 1; (6) in holding that said agreement offends against said constitution, article XVII., section 3 ; (7) in holding that said agreement offends against said constitution, article XVII., section 4; (8) in holding that said agreement is ultra vires ; (9) in holding that said agreement is void as against public policy and as favoring monopoly ; (10) in holding that said agreement is void as being in restraint of trade ; (11) in holding that said agreement is void ; (12) in holding, in view of the pleadings in this case, that said agreement was divested by the sheriff’s sale of the land in foreclosure of said mortgage ; (13) in holding in any event that the Nittany Valley Railroad Company is released from said agreement; (14) in sustaining the defendant’s demurrer and in dismissing the plaintiff’s bill with costs ; (15) in not granting the relief prayed for in the plaintiff’s bill (16) in not ordering the defendants to answer, inasmuch as the bill presented a case for the specific performance of a contract which was not otherwise the subject of adequate remedy at law.</p>

<p>Appeal No. 419, Jan. T., 1895, by defendant, from judgment of C. P. Blair Co., June T., 1893, Nos. 175 and 176, on verdict for plaintiffs.</p> <p>Ejectment for one sixth interest in a lot of ground on Mary street in Altoona. Before Barker, P. J., of the 47th district,, specially presiding.</p> <p>At the trial it appeared that Thomas Rice, of Altoona, died in 1866, leaving to survive him a widow and six children. In his will, dated the day before his death, he provided as follows : “ I will and bequeath all my real and personal property to my beloved wife, Mary, to have and to hold the same for her own proper use and behoof as long as she shall remain my widow, and if she should get married then she shall be only entitled to the one-third in said property, the balance, being two-thirds to iny youngest daughter Kate; if the said Kate should die then I will and bequeath the two-thirds to my son William, and if both should die then the residue remaining shall be equally divided among my remaining children under the rules and regulations and construction of the orphans’ court controlling all estates under will and intestate estates to be so divided as the judges of the orphans’ court shall decide according to law.”</p> <p>Mary Rice, the widow, did not remarry, and during her lifetime she conveyed part of the land, of which her husband died seized, to her son, Wm. Rice, the defendant in this suit, and another part to Kate Clohessey, a daughter, and both built houses on the lots purchased by them; after her death Mrs. In ally and Mrs. Redding, two of the children of Thomas Rice, brought ejectment against the parties above named, alleging that Mary Rice took but a life estate in her husband’s real estate under his will, and could not convey a fee to the purchasers ; the defendant contended that she took a fee.</p> <p>The court charged the jury in part as follows :</p> <p>[After carefully considering the terms of this will and the authorities bearing upon the construction of wills, we have concluded to say to you, as a matter of law in these cases, that she took only a life interest in the property ; and that, therefore, a person who purchased from her in her lifetime, as did this defendant, would take no title as against the other heirs of Thomas Rice.] [8] This is purely a question of law, with which you have nothing to do. The duty is incumbent upon us to construe this will, and, if we are in error in our construction of it, we can be reviewed in a higher court and the parties set right in the premises.</p> <p>Now, if that were all that there is in these cases, those parties would have no title whatever, and it would be your duty, under our instructions, to render verdicts for the plaintiffs; but the defendant says that, even supposing we are correct in our construction of this will, he was placed in his present position by the acts and conduct of these plaintiffs, and that it is now too late for them to say that the defendant has no title. In other words, he says that, by the conduct of Mrs. Redding and Mrs. Nally, either by their positive acts or by their silence, he was induced to buy this property and put valuable improvements thereon, and he, therefore, invokes what is known in law as an estoppel. He says that even though his title would not be good under the will of Thomas Rice, and even though the position of the plaintiffs is correct, that it is too late now for the plaintiffs to come here and assert themselves, because it was by their encouragement that they made these valuable improvements on this laud and that, therefore, they should not now be permitted to take advantage of their silence.</p> <p>[The Supreme Court have laid down, in precise language, the principles which govern such a ease as this. The general principle now is that where the conduct of a party has been such as to induce action by another he shall be precluded from after-wards asserting to the prejudice of that other the contrary of that which his conduct lias induced him to believe. The primary ground of determination is that it would be a fraud in a party to assert what bis previous conduct had denied, when, on the faith of that denial, others have acted. If the conduct of these plaintiffs was such as to induce action on the part of this defendant, they cannot now take advantage of the situation in which the others are placed and recover this land. You will observe that in this definition which we have given you, the conduct of the parties must have induced the other party to take action, and the law is, on questions of this kind, that unless there had been something in the conduct of the parties, on the faith of which the other party relies, he is not estopped from asserting the rights which the other party claims he lias waived by his conduct. Now, apply that principle to the case of William Rice. William Rice goes on the stand and testifies that when he bought this property he relied on the strength of liis mother’s title, and in plain and conclusive language asserts that this action was not induced by anything that the plaintiffs in this case did. As a plain and simple proposition of law it seems to us that that ends his case. If, when he went there and bought this property and built on it, he did so because he believed that his mother had a good title, and there was nothing in the acts or conduct of these parties that induced him to make these improvements, then there is nothing which would defeat their title to the land. We feel entirely clear as to this proposition, and, therefore, as to these cases in which William Rice is the defendant, we sustain the motion of the plaintiffs’ counsel and direct that you render verdicts in favor of the plaintiffs.] [4]</p> <p>Verdict and judgment for plaintiffs.</p> <p>Errors assigned, among others, were (3, 4) above instructions, quoting them.</p>

<p>Municipalities—Ordinances—Act of May 23, 1889, art. IV. sec. 3.</p> <p>The act of May 23, 1889, art. IV. sec. 3, P. L. 282, which provides that “ no bill shall be passed finally in either branch upon the same day on which it was introduced or reported,” applies with equal force to both branches of council, that in which a bill has been first introduced as well as the other branch to which it has been messaged or reported after it has been fully acted on by the former.</p> <p> Municipalities—Presumption as to validity of proceedings. </p> <p>The presumption in favor of the constitutional regularity of proceedings of the legislative department of the govermenl does not apply to the regularity and legality of the proceedings of municipal corporations.</p> <p> Municipal liens—Six months limitation—Question for jury. </p> <p>On a scire facias sur municipal lieu where the defendant claims that six months had expired from the completion of the work before the claim was filed, and the defendant offers evidence tending to show that the work done within the six months was in the nature of alteration or repairs of work that had been completed, and that it was not work necessary to complete the contract, the question as to whether the claim was filed in time is for the jury.</p>

Appeal, No. 142, July T., 1894, by Philadelphia, Harrisburg & Pittsburg R. R. Co., from order of Q. S. Cumberland Co., Road Docket No. 5, p. 180, setting aside an order vacating a road. Petition to set aside order vacating a road.

<p>Appeal, No. 178, Jan. T., 1895, by Marie J. Hepburn and S. M. Hepburn, executors of S. Hepburn, Jr., deceased, from order of C. P. Cumberland Co., overruling exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report. Before Sadler, P. J.</p> <p>The names of the parties and the nature of the proceedings are ail appeal by Marie J. Hepburn and S. M. Hepburn, executors of S. Hepburn, Jr., a creditor of the assigned estate of P. A. Ahl & Brother, from the definitive decree of the court below, overruling exceptions filed to the report of the auditor appointed to award distribution of the assigned estate of P. A. Ahl & Brother, and confirming said report.</p> <p>P. A. Ahl and Daniel V. Ahl, individually, and trading as P. A. Ahl & Brother, made assignments for the benefit of creditors to E. W. Biddle and A. A. Thomson, who, after conducting the trusts for a number of years, were discharged upon their own petition, and Dr. J. H. Hauck and Asbury Derland were appointed by the court to succeed them. During their administration the estates were involved in a great deal of litigat-ion. In this litigation and administration of the trusts Samuel Hepburn, Jr., and the aforesaid E. W. Biddle acted as counsel for the assignees. They were paid a portion on account of their professional services. Messrs. Biddle and Thomson, in a fourth and partial account of their trust, took credit for a balance of $2,650 paid to S. Hepburn, Jr., Esq., in full for professional services. They also took credit for a balance of $2,650 paid to E. W. Biddle, Esq., in full for professional services. A note was appended to the account stating that these amounts had not been paid, and were not to be paid until the account should be confirmed, because of notice from the assignors not to pay them.</p> <p>The auditor, J. M. 'Weakley, Esq., reported that Samuel Hepburn, Esq., was employed by E. W. Biddle, Esq., and A. A. Thomson, the former assignees of P. A. Ahl & Brother in an equity suit in which the assignees were plaintiffs, and C. W. Ahl and T. W. Ahl, defendants ; that in the fourth partial account filed by these assignees a credit was claimed in these words: “S. Hepburn’s executors’ balance of fee in equity suit v. C. W. Ahl et al. $2,650.00 (not to be paid until confirmed by reason of notice from assignors) ; ” that to this account several exceptions were filed, one of them specifically to this item; that the account and exceptions were referred to an auditor, before whom the exceptants appeared and withdrew the exceptions ; that the auditor reported this to the court, recommending a decree to be entered confirming the account, whereupon the court of common pleas entered a decree that “ the auditor’s report is now confirmed, and a decree recommended by the auditor is entered as the decree of the court; ” that the balance found due the assignees by this decree of confirmation was $2,585.78 ; that the same assignees filed a fifth account of their trust, which was confirmed February 11, 1891; that in this they charge themselves with $7,523.78; that their first claim for credit is in these words:</p> <p>Balance due accountants on fourth account, confirmed, ....... $2,585.73</p> <p>Less amount still due S. Hepburn’s executors on account of fee of $2,650.00, allowed in said account ..... 1,800.00 $ 785.73</p> <p>The master reported that other credits not connected with this question were claimed and allowed, and a balance was found in the hands of the accountants of $135.23; that this fifth account was confirmed, and subsequently the former assignees were relieved of their trust and the present assignees appointed. On these facts the allowance of the present claim depends.</p> <p>The auditor was not satisfied that the confirmation of the fourth partial account of the assignees was a judicial finding that his trust owed Mr. Hepburn’s executors $2,650 ; was of the opinion that the confirmation made an apparent balance due the accountants of $2,585.73, which was made up of the credit claimed for Mr. Hepburn’s fee. That this had not the force of a judicial finding was very evident from the fact it was not claimed in the following account and had not been claimed since; that whatever may have been the reason for the arrangements of credits in the fourth account it was not acted upon by any of the parties interested, and was disregarded in the fifth account which followed it; that if the confirmation of the balance due the accountants in the fourth account was not an adjudication of that matter, it is not clear how it could be an adjudication of the credit item which produced the balance. The auditor disallowed the claim.</p> <p>Exceptions to the auditor’s report were overruled.</p> <p>Error assigned was in overruling exceptions to auditor’s report.</p>

<p>Appeal, No. 1, July T., 1895, by defendant, from judgment of C. P. Cumberland Co., May T., 1895, No. 151, in favor of plaintiffs, on case stated.</p> <p>Case stated to determine the distribution of the proceeds of sale of personalty by constable. Before Biddle, P. J.</p> <p>The case stated was as follows:</p> <p>Theodore Cornman, the defendant, obtained a judgment by confession against S. B. Kissell, for $8,700, with interest from February, 1890, which was entered in the court of common pleas of Cumberland county to 66 May term, 1895, on which a writ of fieri facias issued tó No. 8 May term, 1895, execution docket, and which was placed in the hands of the sheriff of Cumberland county on February 28, 1895, at ten o’clock and fifty minutes A. M., as appears by the sheriff’s indorsement on the said writ, and a levy by virtue of this writ was immediately made on the personal property of S. B. Kissell, contained in his place of business, No. 2 East High street, Carlisle, Pa.</p> <p>Broadhead & Co., one of the plaintiffs, obtained a judgment against S. B. Kissell before E. L. Shryock, a justice of the peace, February 19, 1895, for $110.50, on which an execution was issued to Frederick Hays, constable, February 25, 1895, at twelve o’clock, M. A levy was made at 12.15 p. M., of the same day, on the same property levied upon by the sheriff under Cornman’s execution.</p> <p>Leon Kahn, one of the above named plaintiffs, obtained a judgment against S. B. Kissell, before E. L. Shryock, justice of the peace, for $140.51, on February 6, 1895, on which an execution was issued and placed in the hands of Frederick Hays, constable, February 23, 1895, at 12 o’clock, M., and a levy was made under this execution on Kissell’s goods, at his store above named, at 12.15 P. M., of the same day.</p> <p>S. B. Kissell made a deed of voluntary assignment for the benefit of his creditors to Theodore Cornman, February 25,1895. Cornman accepted the trust and took possession of the storeroom, and had an oral agreement with the sheriff that he, Corn-man, should sell the goods and turn the proceeds over to the sheriff, to be applied to the execution issued on Corn man’s judgment, and Cornman has proceeded to sell the goods levied upon and turn over the proceeds to the sheriff. The sheriff has not closed the store nor advertised the property levied upon for sale, and has left Cornman in charge of the goods under the agreement.</p> <p>Frederick Hays, the constable, having charge of the plaintiffs’ executions, had advertised the goods levied upon for sale Thursday, March 14,1895, at 2 o’clock p. M. In consideration of this case stated and for the-purpose of avoiding litigation and loss of property the plaintiffs have withdrawn the executions in the hands of Frederick Hays. It is further agreed that the plaintiffs in this case stated shall not lose any rights in the distribution of the proceeds of the sale of the goods, and shall be entitled to the same rights as if sale had been made under the executions in the hands of the constable.</p> <p>Now if the court be of the-opinion on the facts above stated that the plaintiffs are entitled to be paid first out of the proceeds of the sale of the goods levied upon, if the sale had been made by the constable under the said executions, then judgment to be entered against the defendant in favor of Leon Kahn for $140.50, with interest from February 6, 1895, and with the costs ($5.49) of the execution in the hands of the constable; and in favor of William Broadhead & Sons for $110.50, with interest from February 19, 1895, and costs ($4.07) of the execution in the hands of the said constable; otherwise, judgment to be entered in favor of the defendant. The costs in this case to follow the judgment, and either party may appeal to the Supreme Court, as in other eases.</p> <p>The court entered judgment for plaintiffs on the case stated.</p> <p>Error assigned was in entering judgment as above.</p>

<p>Deed—Covenant—Effect of the words “ it is hereby agreed."</p> <p>The words in a deed, “ it is hereby agreed,” make of the words that follow a covenant.</p> <p> Deed—Mortgage—Covenant—Vendor and vendee. </p> <p>One purchasing under and subject to the payment of a mortgage given by his vendor, is a purchaser as between himself and Iris vendor of the entire estate, and is liable to pay the mortgage as part of the purchase money due from him.</p> <p>A deed was made “ under and subject to the lien ” of a mortgage. The deed further provided as follows: “ It is hereby agreed between the parties to this instrument that the said party of the second part accepts the title to the foregoing and described pieces and parcels of land and oil rights, subject to the payment of the mortgages herein mentioned; but does not assume the payment of the various outstanding notes given for the debts secured by said mortgages.” Held (1) that there was an implied covenant to indemnify arising from the “ under and subject to the payment of ” clause, and an express covenant in the stipulation beginning with the words “It is hereby agreed” to pay the mortgage debt to the.holder of the mortgage; (2) that an action could be brought in the name of the covenantee to the use of the party entitled to receive the money; (3) that the grantor having been compelled to pay money on the mortgage he could recover from his grantee the amount thus paid in an action of assumpsit upon the expressed covenant contained in the deed.</p> <p> Deed—Mortgage—Leasehold estate—Covenant to pay mortgage. </p> <p>Where a vendee takes a leasehold estate subject to the rents and to the lien of a mortgage by a stipulation in the deed, the effect of the stipulation is to make the land primarily liable for the payment of the mortgage money, and to require its value to be fairly applied without objection, and in good faith to that purpose.</p> <p>The legal impor-t of the “ under and subject to the lien of” clause in such a deed is that the vendee will discharge the lien of the incumbrance by payment, or in default thereof that the land shall remain liable therefor, and shall be as between himself and his vendor primarily liable to the extent of its actual value.</p> <p>If the mortgage money is more than the value of the land the vendor will be liable to his creditor for such surplus and will be without recourse to his vendee for the amount so paid, but if the vendee neglects or refuses to pay and the holder of the mortgage proceeds upon the bond or otherwise against the mortgagor, the implied covenant to indemnify him to the extent of the value of the land is broken and his vendee is liable to him upon it. The vendor, however, has no right of action against the vendee until he has been forced to pay the mortgage either in whole or in part.</p> <p>Vendor and, vendee—Mortgage—Covenant—Act of June 12, 1878, P. Jj. 205.</p> <p>The act of June 12, 1878, P. L. 205, providing that a grantee of land shall not be personally liable for a mortgage upon the land unless he expressly assumes such liability in writing, does not apply to an action by a vendor against his vendee for the breach of an expressed or implied covenant to pay a mox'tgage on the land.</p>

<p>Appeal, No. 275, Jan. T., 1895, by’ plaintiff’, from decree of C. P. Warren Co., Sept. T., 1894, No. 25, sustaining demurrer to bill in equity.</p> <p>Bill in equity to enforce covenants in a deed. Before Noyes, P. J. The bill set forth;</p> <p>1. That plaintiff was widow and executrix of A. R. Blood, deceased, who died December 1, 1891, testate, and that his estate was insolvent. That defendant was a corporation.</p> <p>2, 3, 4 and 5. That said Blood prior to May 18,1891, owned certain estates of freehold and leasehold in Warren county, Pa., one of which was situate in tract 557, Mead township, and known as the “557 property;” the other in tract No. 36, and known as “ Stone Hill property,” and that upon said estate said Blood was indebted for abalance of purchase money represented by negotiable notes which liad been secured by mortgages thereon.</p> <p>6. That upon the 18th of May, 1891, said Blood conveyed said estates of freehold and leasehold to the defendant by a separate deed for eaeh estate, containing covenants to assume and pay the said purchase money, which became binding upon defendant by its acceptance, and by reason whereof the defendant became liable to indemnify and save harmless the said Blood and the said plaintiff, as his executrix, against the payment of the balance of purchase money for said estates.</p> <p>7, 8 and 9. That defendant accepted said deeds subject to the covenants and took and retained possession of said lands, and received the proceeds and profits therefrom, but refused to pay the balance of purchase money due, and that the exact amount of purchase money due and unpaid was known to the defendant, but the plaintiff did not know with certainty.</p> <p>10. That the persons to whom said purchase money was owing and who held the said notes therefor were threatening suits against said estate to recover said sums which plaintiff could and should not pay, and defendant should pay, but refused.</p> <p>The bill prayed:</p> <p>1. Discovery as to balance due upon said purchase money mortgages.</p> <p>2. That when defendant disclosed the balance due on said mortgages that it be ordered and directed to pay the said balance and protect the said estate.</p> <p>8. General relief.</p> <p>The grounds of demurrer were:</p> <p>(1) That bill set forth no cause of complaint, (2) did not show any equity, (3) that the bill and exhibits showed the defendant was not liable, (4) that there was an adequate remedy at law.</p> <p>The court sustained the demurrer and dismissed the bill.</p> <p>Error assigned was decree of court as above.</p>

Appeal, No. 276, Jan T., 1895, by plaintiff, from order of C. P. Warren Co., Dec. T., 1894, No. 41, discharging a rule for judgment for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Before Notes, P. J. The facts appear in Blood v. Crew Levick Co., ante, p. 889 Error assigned was order discharging rule for judgment.

<p>Appeal, No. 311, Jan. T., 1895, by defendant, from judgment of C. P. McKean Co., Oct. T., 1891, No. 323, on verdict for plaintiff.</p> <p>Scire facias sur municipal lien. Before Olmsted, P. J., and Morrison, J.</p> <p>At the trial it appeared that an ordinance was passed on February 16, 1891, providing for the paving of Chestnut street, in the city of Bradford with brick. The ordinance was not passed by a two thirds vote of all the members of each branch uf councils, as required by the act of May 28, 1889, art. V. sec. 10, P. L. 288.</p> <p>Plaintiff gave evidence tending to show that in 1890, when ¡in ordinance was pending for paving the street with stone, the defendant joined others in presenting a petition in favor of paving the street with vitrified brick.</p> <p>Plaintiff’s points were as follows:</p> <p>,. 1. That the municipal claim and registry thereof in evidence is prim a facie evidence of what the claim contains, and unless disproved entitles plaintiff to a verdict. Answer: We affirm this point. [1] ....</p> <p>4. That the statutoiy prerequisites to the enactment of such ordinance are directory, and strict compliance therewith is not essential to the validity of the ordinance. Answer: This we affirm. [2]</p> <p>Defendant’s points were as follows:</p> <p>1. If the jury find that the ordinance passed by councils for the paving of the street aforesaid did not receive two-thirds of the votes of all the members elected to each of the branches of councils, then the city never acquired jurisdiction to pave the street in question at the expense of the owners of the property fronting thereon, and the verdict must be for the defendant. Answer: Affirmed, unless under the evidence the jury should find that the defendant is estopped from setting up such defense. [3] •</p> <p>3. The city .of Bradford having been chartered as a city of the fifth class under the provisions of the act of Maj' 28,1874, as amended by the act of April 11, 1876, creating five classes of cities, and the said act of April 11,1876, having been declared unconstitutional, the said city never had any legal existence as a citjq and the verdict must be for the defendant. Answer: We answer this point in the negative. [4] ....</p> <p>5. That the municipal authorities of the city of Bradford having declared that they were acting in pursuance of the concurrent resolution approved October 11, 1890, are bound by such declaration, and the verdict must be for the defendant. Answer: We answer this point, as drawn, in the negative. [5]</p> <p>6. If the “ city of Bradford ” is a city under the charter granted in 1878, it having been chartered as a city of the fifth class under the act of April 11, 1876, and the said act having been declared unconstitutional, it is not a city of the third class, and not having, by ordinance, adopted the act of May 23,1874, as required by the act of May 23,1889, no lien could be legally filed by said city under the provisions of the act of May 23, 1889. Answer: Wo answer this in the negative. [6]</p> <p>7. That under all the evidence in this case the verdict of the jury must be for the defendant. Answer: We answer this point in the negative. [7]</p> <p>8. That the evidence in this case is not sufficient to estop the defendant from setting up the invalidity of the proceedings in question, if in fact invalid. Answer: We decline to answer this point as requested, but answer it in the negative. [8]</p> <p>Verdict and judgment for plaintiff for $389.46. Defendant appealed.</p> <p>Errors assigned, among others, were (1-8) above instructions, quoting them.</p>

<p> Ejectment—Orphans' court sale—Laches. </p> <p>An orphans’ court sale for the payment of decedent’s debts having been adjudged necessary by the court making the order of sale, and being regular and bona fide, will not be set aside in an action of ejectment after a delay of sixteen years, when there is nothing more to defeat the sale than some conflicting and inconclusive testimony that the sale was not necessary because there were sufficient personal assets in the hands of the administrator to pay all the debts, and that the price which the land brought at the sale was less than its actual value.</p> <p>An orphans’ court sale for the payment of debts will not be set aside where the family entered into an agreement that the land should be sold and bought in by them, and where the plaintiff was a party to all the proceedings sought to be invalidated, and where she still continues to hold all the benefits which came to her out of the proceedings. She will be bound by the proceedings if they were bona fide, and she will not be permitted to assert her own fraud to attack them if they were fraudulent.</p>

Appeal, No. 60, Jan. T., 1895, by defendants, from decree of C. P. Fayette Co., No. 175, in equity. Bill in equity for an account. The case was referred to Thomas R. Wakefield as master, from whose report it appeared that on May 15, 1871, Elisha P. Gibbons, Samuel A. Wood and James A. Cromlow, entered into articles of copartnership for the purpose of carrying on the sawmill and planing mill business in Bridgeport borough.

<p> Landlord and tenant—Lease—Holding over—Tenant at sufferance. </p> <p>Where a lease expires at a fixed date the tenant holding over is strictly a tenant at sufferance, though the lessor has the option to treat him either as a trespasser or as a tenant from year to year.</p> <p> Landlord and tenant—Tenant at sufferance—Rent—Use and occupation. </p> <p>A tenant at sufferance is liable in assumpsit for use and occupation for the interval between the termination of the lease and the election of the lessor to treat him as a trespasser.</p> <p>In ascertaining the amount due in an action to recover rent for water against a tenant at sufferance, the question is what could plaintiffs reasonably and probably have got for the use of the water from other parties had the defendants given up possession at the end of their lease; not what it would cost defendants to get a supply elsewhere, or what loss they would suffer if they failed to get a supply.</p> <p>In such a ease it is competent for plaintiff to show that the sum named for the lease was not the entire consideration, hut it is error to submit to the .jury testimony which at the utmost established merely an incidental advantage to the landlord from having an active tannery in operation near his store, and the direction of custom by the lessees to his store.</p>

Appeal, No. 11, July T., 1895, by defendants, from judgment of C. P. Bedford Co., Sept. T., 1893, No. 280, on verdict for plaintiff. Assumpsit on award of arbitrator. Before Gordon, P. J., specially presiding.

<p> Execution—Levy—Description of land—Parol evidence. </p> <p>Where it is claimed that a levy includes two tracts of land not adjoining, but used as one farm, evidence dehors the levy showing adjoiners, boundaries and quantity is admissible, not to contradict, but to explain the ambiguity, and to show that both tracts were intended to be included, and were included in the description.</p> <p>A mistake in a levy describing two tracts of land as being situated in the same township when in fact they were in different townships, will not affect the validity of the sale, if it appeal's that no one was misled by the mistake.</p>

<p>Appeal No. 231, Jan. T., 1894, by plaintiff, from order of C. P. Lancaster Co., Jan. T., 1894, No. 46, making absolute rule to strike off stay of execution.</p> <p>Rule to strike off stay of execution. Before Brubaker, J.</p> <p>From the record it appeared that Frank Mettfett obtained judgment against D. C. Mohn, and on December 20, 1893, issued execution thereon.</p> <p>Mohn was the lessee of the Stevens House, a hotel in the city of Lancaster, and Mettfett was his surety for the payment of rent. On the 29th day of December the personal property of defendant which might have been the subject of a levy under said execution was transferred to the Lancaster Hotel Company by Mohn, with the consent of Mettfett, and it was then agreed between Mettfett and Mohn that the writ should be staid. On December 30, certain claims for wages were filed with the sheriff, and by direction of counsel for the respective claimants, the sheriff made a levy upon the personal property which had been transferred to the Lancaster Hotel Company. Whereupon the same day the following indorsement was made upon the writ: “ December 30, 1893. J. Hay Brown, of Brown & Hensel, attorneys for plaintiff, ordered the within writ to be staid.” Subsequently P. J. Reilly and other labor claimants obtained a rule to show cause why said indorsement on the writ should not be stricken off and the sheriff proceed to sell the property for the claims of the labor claimants.</p> <p>The court made the rule absolute.</p> <p>Error assigned was above order.</p>

Appeal, No. 81, Jan. T., 1895, by defendant from judgment of C. P. Lancaster Co., June T., 1893, No. 17, on verdict for plaintiff. Assumpsit on a promissory note. Before Livingston, P. J. At the trial it appeared, that on May 16, 1893, plaintiff brought suit against defendant, the surviving partner of the late firm of Rhodes & Henning, on a note for $3,500, dated January 13, 1890, payable sixty days after date to the order of C. B. Herr, and indorsed by Herr.

Appeal, No. 128, Jan. T., 1895, by George Witmer, from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report. Exceptions to auditor’s report.

Appeal, No. 347, Jan. T., 1895, by I. N. S. Will, from decree of O. C. Lancaster Co., Jan. T., 1895, No. 22, sustaining exceptions to auditor’s report. Exceptions to auditor’s report. The auditor, William Leaman, Esq., reported in part, as follows : I. N. S. Will, late clerk of orphans’ court, presented bill for costs in proceedings for sale of real estate, consisting of eighty purparts, $240.

Appeal, No. 441, Jan. T., 1895, by plaintiff, from judgment of C. P. York Co., Jan. T., 1892, No. 67, on verdict for defendants. Assumpsit for wages.

<p>Appeal, No. 488, Jan. T., 1895, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1893, No. 148, on verdict for plaintiff.</p> <p>Appeal from award of viewers. Before Brubaker, J.</p> <p>At the trial plaintiff when on the stand, after having stated that before the widening the land was worth four thousand dollars, and after the widening it was worth hut thirty-two hundred and twenty-five dollars, was asked this question:</p> <p>Q. How do you know that? Upon what do you báse that judgment that it was worth $4,000, before the street was widened and only $3,225, afterwards?</p> <p>Objected to by tlie defendant’s counsel. Objection overruled and bill sealed for defendant.</p> <p>A. I bad sold the property to Mr. Carpenter for $4,000.</p> <p>The defendant’s counsel object, unless he will say he knew Mr. Carpenter was not buying it for a specific purpose.</p> <p>By the witness: I know, because I had sold it to Mr. Carpenter, or contracted for it for $4,000, and he said he would take it.</p> <p>By the Court: When had you sold it? Was that before the improvements were made ?</p> <p>A. That was before it was cut down, before the improvements were made by the borough; but afterwards he said he couldn’t take it, because they had taken too much ground; it wouldn’t do for the purpose he wanted it.</p> <p>Q. He wouldn’t take the property? A. He wouldn’t take the property; afterwards I sold it to Hiram Nessinger for $3,225. [1]</p> <p>The court charged in part as follows :</p> <p>There has been some other testimony offered on the part of the plaintiff in this case, which you have heard discussed, and that is that he had sold this property to a man named Carpenter for—I think it was $4,000. Now, if this story is true as stated by him, it would be evidence of the actual selling price of the property before the change was made, evidence for you to consider in connection with all the other testimony that has been given to you upon the stand. [2]</p> <p>Defendant’s point was as follows :</p> <p>There is no proof of a valid sale of the property to Carpenter. Arisioer: I don’t know that I exactly understand this point. In order to make a sale binding, so as to get a deed for the property, it must be in writing under the statute of frauds. The law does this wisely for the purpose of preventing parties ' from perjuring themselves ; and therefore, under the statute of frauds, the contract must be in writing. There are oral as well as written contracts for the sale of real property, though a party may or may not carry them out; but when it comes to the delivery of the deed, the vendor is not obliged to do it, and the vendee is supposed to take it, unless he has taken possession of the property under said oral sale. If this plaintiff made a bona fide sale of this property; if it be true, as he said, that Mr. Carpenter had entered into an oral contract for the sale of the property, then it is for you to consider with the other evidence in the case as to the value of the property. The question is whether you will believe it. If you do not believe it then you do not take it into consideration. If jmu do believe it you may take it into consideration with all the evidence that has been submitted in this case when you come to consider the value of this property. [3]</p> <p>Verdict and judgment for plaintiff for $500. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2, 3) above instructions, quoting them.</p>

Appeal, No. 489, Jan. T., 1895, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1893, No. 149, on verdict for plaintiff. Appeal from award of viewers.

Appeal, No. 67, July T., 1895, by plaintiff, from judgment of C. P. Lancaster Co., Jan T., 1892, No. 60, for plaintiff on case stated. Case stated to determine the validity of constable’s bill of costs.

Appeal, No. 68 July T., 1895, by plaintiff, from judgment of C. P. Lancaster Co., Trust Book No. 15, p. 372, on verdict for defendants on case stated. Case stated to determine the right of Marcus Kuhlman to the office of county assessor.

Appeal, No. 45, July T., 1895, by defendant, from judgment of O. and T. Luzerne Co., Nov. T., 1894, No. 208, on verdict of guilty of murder of the first de- Indictment for murder.

<p> Liquor laws—Wholesale license—Refusal of license. </p> <p>The Supreme Court will not reverse an order refusing a wholesale liquor license where the judge of the quarter session states on the record “ License refused, as in the opinion of the court the same is not necessary for the accommodation of the public,” and no irregularity in the proceedings is alleged, and it may be fairly implied from the specifications of error that the case was heard at the proper time upon the petitions filed.</p>

Appeal, No. 61, July T., 1895, by defendant, from judgment of C. P. Northumberland County, Sept. T., 1888, No. 72, on verdict for plaintiff. Trespass to recover damages for injuries to plaintiff’s wife and his furniture. Before Lyons, P. J., of the 41st judicial district, specially presiding. At the trial it appeared that the injuries for which damages were claimed were caused by an explosion of blasting powder on a car.

Appeal, No. 12, May T., 1895, by plaintiff, from judgment of C. P. Dauphin Co., March T., 1891, No. 7, on quo warranto in favor of defendant. Quo warranto to show cause why defendant’s business should not be closed.

Appeal No. 24, May Term, 1895, by.plaintiff, from judgment of C. P., Dauphin County, March Term, 1895, No. 92, on verdict for defendant. Sheriff’s interpleader to determine ownership of a printing press. Before Simonton, P. J. At the trial it appeared that the Goss Printing Press Company, entered into a contract with W. F. Jordan to build a printing press for Jordan on the latter’s premises.

<p> Ejectment—Deed—Delivery—Evidence. </p> <p>A deed to the plaintiff by his father is properly admissible in evidence in an action of ejectment, where it has been proved that it was properly executed and delivered by the father in his lifetime to a friend, with words indicating an intent to convey the land to his son, and that after the father’s death the person having the custody of the deed gave it to his attorney,1 who delivered it to plaintiff.</p> <p>Where the grantor delivers a deed to a third person with absolute direction to hold until the grantor’s death, and then to deliver the deed to the grantee, who is grantor’s son, a delivery to the son by the custodian of the deed after the grantor’s death will pass title to the son.</p> <p>Practice, S. 0.—Assignments of error—Evidence.</p> <p>An assignment of error to the exclusion of testimony will not be considered where the assignment fails to set forth the offer, the objections thereto, and the ruling of the court thereon.</p>

Appeal, No. 102, Jan. T., 1893, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1894, No. 737, on verdict for plaintiff. Trespass to recover damages for injuries to a dwelling house alleged to have been caused by the construction of a sewer. Before Arnold, J. At the trial it appeared that in 1893 the city constructed a main sewer upon Nineteenth street opposite to plaintiff’s house.

Appeal, No. 47, July T., 1895, by defendant, from judgment of C. P. York Co., Dec. T., 1881, on verdict for plaintiff. Debt on building contract. Before Bittenger, J. At the trial it appeared that on May 28,1876, plaintiff agreed in writing to do the grading for a portion of defendant’s railroad.

Appeal No. 6, May T., 1895, by defendant, from judgment of C. P. Dauphin Co., No. 20, Commonwealth Docket, ordering a mandamus and directing judgment to be entered in favor of plaintiff. Mandamus to compel the secretary of the commonwealth to prepare ballots of a particular kind.

<p>Appeal, No. 57, Oct. T., 1895, by-plaintiff, from judgment of C. P. Venango Co., entering non-suit.</p> <p>Trespass for personal injuries. Before Taylor, P. J. The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was entry of nonsuit.</p>

<p>Appeals—Act of May 9, 1889.</p> <p>The act of May 9, 1889, sec. 2, P. L. 158, providing that “ the record on any appeal perfected in the court from which the appeal may be taken, may be filed in the Supreme Court without requiring a writ of certiorari,” refers to appeals from the orphans’ court, appeals in equity, and appeals from decrees distributing money, and does not refer to eases which before the act of 1889 would have required a writ of error.</p> <p>Appeals—Superior Court—Jurisdiction—Act of June 24, 1895.</p> <p>Where an appeal was taken from a judgment on a verdict, prior to the passage of the act of June 24, 1895, P. L. 212, creating the Superior Court, but a certiorari was not issued from the Supreme Court and filed in the court below until after the passage of the act, and the case involves an amount under $1,000, the Supreme Court lias no jurisdiction, as no effective appeal was taken until after the creation of the Superior Court. In such a case the record will be remitted to the Superior Court at the costs of appellant.</p>

Appeal, No. 204, Oct. T., 1895, by defendant, from judgment of C. P. Armstrong Co., March T., 1892, No. 344, on verdict for plaintiff. Trespass for personal injuries. Before Rayburn, P. J. The facts appear by the opinion of the Supremo Court.

Appeal, No. 189, Oct. T., 1895, by plaintiff, from decree of C. P. Beaver Co., June T., 1894, No. 6, on bill in equity. Held: that the strip so reserved was dedicated to public use, and that after the sale of lots the act of making this dedication assumed the character of a contract and could not be-abrogated by congress or its grantee.

<p>Appeal, No. 188, Oct. T., 1895, by plaintiff, from decree of C. P. Beaver Co., June T., 1894, No. 5, on bill in equity.</p> <p>Bill in equity for an injunction to restrain interference with an alley.</p> <p>The facts appear by the case of Commonwealth ex rel. v. Beaver Borough, ante, p. 542.</p> <p>• Ewing, P. J., specially presiding, filed the following opinion :</p> <p>The opinion and finding of facts this day filed in the case of the commonwealth of Pennsylvania against the same defendants are adopted fur this case so far as applicable, and this renders it unnecessary to repeat the conclusions of fact or of law therein set forth.</p> <p>The plaintiff is specially interested as owner of lots abutting on the alleys on which changes of sidewalk, curb and driveway were being made and in contemplation. He was entitled to notice and a hearing, and not having had lilis, he can maintain his bill, taking advantage of fatal irregularities in the enactment of the resolution, under which the changes are in contemplation.</p> <p>An injunction should issue, restraining the defendants from further proceedings to change the location of curb, sidewalk and driveway on the alleys in question, under the authority of the resolution of May 24, 1898.</p> <p>As to the public squares, we are unable to see any action of the corporate officers in relation thereto in which the complainant is specially interested or otherwise requiring the court to interfere.</p> <p>The costs should be paid by the borough of Beaver.</p> <p>jError assigned was decree of court.</p>

<p>The term of an oil and gas lease was for “three years, or as much longer thereafter as oil or gas might be found in paying quantities, with the right in the said lessee to enter upon said promises at any time for the purpose of mining ” etc. The lease also provided that the lessee had “ the right to remove at any time all machinery, oil well supplies or appurtenances of any kind belonging to the said lessee.” The well never produced oil or gas in paying quantities. Held, that after the expiration of four years from the date of the termination of the lease, and live years and six months after the well had been completed and found to bo of no use, the lessee could not eater to remove the casings from the well.</p> <p>Appeal, No. 183, Oct. T., 1895, by defendants, from judgment of O. P. Washington Co., Nov. T., 1892, No. 401, on case stated.</p> <p>Case stated to determine the right to remove casings from oil wells.</p> <p>The facts appear by the opinion of the lower court by Mc-Ilvaine, P. J., which was-as follows:</p> <p>On the 27th day of October, 1892, Samuel M. Shellar was the owner in fee and was in possession of a tract of laud situated in Buffalo township containing 255 acres more or less. On that day the defendants entered upon said tract of land against the will and without the consent of the owner Samuel M. Shellar, for the purpose of taking casing out of a hole that had been drilled for oil and gas in the spring of 1887, and of removing other fixtures which had been used in drilling this well which produced neither oil nor gas in paying quantities. The casing and fixtures at the time the well was drilled belonged to the defendants. Samuel M. Shellar, claiming that this entry upon his land for the purpose indicated was unlawful, brought an action of trespass against the defendant on the day of , 1893. He having died before that action was tried, his heirs and the defendants have agreed upon the facts and have submitted them in the nature of a special verdict for the opinion of the court.</p> <p>On November 11, 1885, Samuel M. Shellar executed and delivered to J. B. Akin a lease of this 255 acres for oil and gas purposes ; the term was for “ three years or as much longer thereafter as oil or gas might be found in paying quantities with the right in the said lessee to enter upon said premises at any time for the purpose of mining,” etc. The lease also provided that the lessee had “ the right to remove at any time any and all machinery, oil well supplies or appurtenances of any kind belonging to the said lessee.”</p> <p>The lessee and those who claimed under him entered under said lease upon this tract of land and drilled a well, completing it in April, 1887. The well produced neither oil nor gas in paying quantities, and the lessee and his assigns ceased operations on the premises. The engine and boiler used in drilling the well was taken away, but the casing in the well and other fixtures were left and remained on tlie premises and were there on the said 27th day of October, 1892, when the defendants entered to remove them'. The question for determination is, Were the defendants trespassers ? Had they a right to remove the fixtures connected with and used in drilling this well which was completed and abandoned as worthless in April, 1887?</p> <p>The term was for three years from November, 1885, or as much longer as gas or oil is found in paying quantities—that is, as much longer as gas or oil is found in paying quantities, if found before the expiration of the three years: Western Penn. Gas Co. v. George, 161 Pa. 47.</p> <p>There was no oil or gas found in paying quantities, therefore this lease expired on the 11th day of November, 1888, nearly four years before the defendants undertook to remove the fixtures which they left behind when they ceased operations, ando from the time they ceased operations at this well until the expiration of the lease, over eighteen months interval.</p> <p>I do not think that there can be any doubt that the casing in an oil or gas well, the derrick and other appliances used in drilling and operating it are trade fixtures, and can be removed by tlie owner or lessee-during the term of the lease. On the other hand I think there can be no doubt that they are such fixtures that they become tlie property of the land owner if not removed by the lessee during the term, or at least within a reasonable time after its expiration. These two propositions are both, of course, subject to modification by the agreement of the parties. Are they modified in this case? because, if they are not, then the defendants had no right to enter upon the plaintiffs’ land for the purpose of removing tlie fixtures in question. The lease provides that the lessee shall have “ the right to remove at any time any or all machinery,” etc. It is claimed that the words at “ any time,” must be given their fullest meaning, and that the defendants’ right to remove fixtures by agreement of the lessor was unlimited as to time; and that although their entry to remove the .casing was made four years after the lease expired and five years and six months after the well was completed and found to be of no use as an oil or gas well, yet their entry and purpose were lawful as they had the right to remove any or all fixtures at any time.</p> <p>We think that this was not the intention of the parties as gathered from the language of the lease. The lease was for a fixed period to be extended to an indefinite period, and the extension to depend upon what the future might develop. [The right to enter at any time and the right to remove machinery at any time was predicated of that part of the term that was uncertain, that is, after three years the lessee had the right at any time to enter and drill additional wells, if oil or gas was being produced in paying quantities;] [l] and had the right, although the three years had passed, to remove the machinery and fixtures after or when the well would cease to produce oil or gas in paying quantities.</p> <p>If this construction is correct then the rule of law as to removal o£ fixtures would be as in eases where the tenancy is uncertain in duration, as when it depends upon a contingency, and that is, that the removal must be made within a reasonable time; or in other words the law in such cases allows the tenant a reasonable time for the removal of fixtures. Here the lessees, if oil or gas had been found in paying quantities, would have had a reasonable time within which to draw their casing and remove their derricks after it had become apparent that the operation of the wells was no longer profitable, let this he soon or long after the expiration of the three years ; [at any time when they thought it would no longer pay to operate their wells which had been producing oil or gas in paying quantities they had a rig-ht to remove the fixtures connected with such wells.] [2]</p> <p>Under the facts as we have them in this case, however, operations ceased on this lease in April, 1887; a dry hole was found, nothing was done between .the completion of this well and tlie time when the lease expired in November, 1888, and after that [four years are allowed to expire before an attempt to remove these fixtures was made. In our- opinion this was too late.] [3] If, under the words “ at any time,” the lessee could take four .years after the expiration of the lease to remove his fixtures, he could as well take twenty years. [To say that the lessor could prevent this by giving notice that the fixtures must be moved within a certain time is to read something into the contract that is not there.] [4]</p> <p>[And now, February 5, 1895, judgment is entered upon the facts agreed upon by the parties hereto in the nature of a special verdict in favor of the plaintiffs and against the defendants for six and one fourth cents and costs.] [5]</p> <p>From this judgment defendants appealed.</p> <p>Errors assigned were (1-5) portions of opinion of the court, quoting them.</p>

<p> Practice, C. P.—Striking out testimony—Trial. </p> <p>Where a trial judge at the request of defendant immediately strikes out improper and irrelevant testimony, elicited by the plaintiff’s cross-examination of defendant, he cannot be convicted of error for not instructing the jury to disregard the testimony entirely, when he has not been requested to give such instruction.</p> <p> Evidence—Secondary evidence—Bill for goods sold. </p> <p>Secondary evidence of the contents of a bill for goods sold is inadmissible whore it appears that the bill is in existence, but has not been produced at the trial.</p>

<p>Appeal, No. 300, Jan. T., 189-5,. by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 1314, on verdict for defendant.</p> <p>Assumpsit on a contract in writing. Before Finletter, P. J.</p> <p>The contract upon which suit was brought was as follows:</p> <p>“ The publishers are not bound by any agreement other than that expressed on the face of this contract.</p> <p>“ Philadelphia, August 7th, 1893.</p> <p>“ Hollowell & Co., Publishers, 125 South Third Street:</p> <p>“ No verbal agreement recognized.</p> <p>“ Insert my advertisement in the National Theatre Pro-gramme to occupy space of one inch, D. C. 4th page, for forty open weeks, for which I agree to pay two dollars each week, payable every four weeks on presentation of this contract.</p> <p>“ Commencing August 12th, 1893.</p> <p>“ Name, Henry Lierz,</p> <p>“Address, 413-415 N. Tenth Street.</p> <p>“ No agent is authorized to make eollections on account of this contract.”</p> <p>The execution of the contract was admitted, but defendant testified that when he was called upon by plaintiff’s agent, Mr. Hart, for the purpose of procuring the contract, Hart said that he was the “boss” of the programme, and that if defendant would give him the said contract he would, every week, give the defendant two tickets for the theater, and send him copies of the programme, and that he could change his advertisement whenever he wanted to.</p> <p>The court charged as follows:</p> <p>The contract between the parties in this case is in writing and, therefore, binding and conclusive upon both parties, and neither plaintiff nor defendant has a right to offer evidence to change or annul a contract that is in writing.</p> <p>[The defense in this case that is set up is this, that at the time the contract was entered into there were such representations made by the agent as to induce the defendant to believe that he was the one—that he was the contracting party. Well, of course, if that is so, anything that he said at that time would be binding upon his principal.] [1] In other words, [if he said and did that which made the defendant believe and understand and act upon the idea that he was the party interested—that he was the principal—his principal is responsible for that. On no other condition than that would evidence be permitted to contradict that contract;] [2] so that if you come to the conclusion that the agent did not fraudulently represent himself as the principal, you need inquire no further, because the evidence •which has been introduced in relation to that ought not and imust not affect this contract.</p> <p>On the other hand, [if you should find that the defendant believed the agent to be the principal in the transaction, then, of course, you have a right to consider the evidence which has been offered upon that subject relating to this contract.] [3] [At that time, if there were representations which made certain conditions, and they were not carried out, then, of course, the defendant had a right to rescind the contract, and to give notice that he would not require the advertisement to be inserted any longer.] [4]</p> <p>It is veiy important, however, in considering the whole case, that you should consider whether the defendant acted upon what he says was his belief, and that is that the agent was the principal in this transaction. If in any way, by letter, by conversation, or in any other way, he recognized the principal as principal and the agent only as agent, then, of course, your verdict should be for the plaintiff.</p> <p>Verdict axxd judgment for defendant. Plaixxtiff appealed.</p> <p>Errors assigned were (1—4) above instructions, quoting them.</p>

<p> Negligence—Railroads—Master and servant—Appliances. </p> <p>An employer is not liable for a personal injuiy to an employee alleged to have been caused by the use of a particular appliance, where it appears that the particular appliance in question was one of several different kinds, all in common use at the time of the accident.</p> <p>An employer is not an insurer of the safety of his employees. When the employee undertakes hazardous duties he assumes the risk incident to their discharge from open and obvious causes, the dangerous character of which he has had opportunity to ascertain. An employer is not bound to furnish for his workmen the safest machinery, nor provide the best methods for its operation, in order to save himself from responsibility from accidents resulting from its use. The unbending test of negligence in methods, machinery and appliances is the ordiuary usage of the business.</p> <p>In an action by a brakeman against a railroad company to recover damages for personal injuries, plaintiff is not entitled to recover where it appears that the accident occurred while he was uncoupling an ordinary box freight car from the tender of the engine; that there were two iron steps, a brake and a wheel upon the middle of the end of the ear towards the tender, but no ladder, steps or hand-holds at or near the corners of the car; that cars of this description were in common use, and that there was no one standax’d of appliances for the use of bx'akemen in common use; that plaintiff after pulling out the coupling pin stood on the narx-ow ledge at the end of the car, with his back against the car; that he let go his hold of the ix-on step attached to the middle of the end of the car, stepped to the right side of the car, gave the signal to the engineer by moving his hand up and down beyond the side of the car; then, that in endeavoring to return to the iron step, he took one step towards it, and was taking the second, when he lost his balance aixd fell off the car, the wheel passing over his leg and crushing it.</p>

Appeal, No. 233, Jan. T., 1895, by defendant, from order of C. P. Erie Co., May T., 1883, No. 184, discharging rule to stay writ of fieri facias. Rule to stay writ of fieri facias.

Appeal, No. 3, July T., 1895, by plaintiff, from judgment of C. P. Erie Co., September Term, 1891, No. 245, entering nonsuit. Scire facias sur municipal lien.

Appeal, No. 4, July T., 1895, by plaintiffs, from judgment of C. P. McKean Co., June T., 1892, No. 858, on verdict for defendant. Assumpsit by the indorsees of an instrument in writing against the maker. Before Morrison, J. At the trial plaintiffs’ counsel offered in evidence the note in suit dated Kane, Pa., March 5, 1891, for $250, signed Kinzua Hemlock R. It. Co., by Thomas L. Kane, President, due July 1, 1891, with interest at 6 per cent per annum added.

Appeal, No. 372, Jan. T., 1895, by plaintiff, from judgment of C. P. McKean Co., Oct. T., 1892, No. 189, entering compulsory nonsuit. Trespass for personal injuries. Before Morrison, J. The substance of plaintiff’s ease, as stated in the opinion of the court refusing to take off nonsuit, was as follows : The plaintiff’s case is in substance as follows : His wife was engaged with her brother in business in Altoona, Pa.

<p>Divorce—Cruel and barbarous treatment of husband by wife—Act of May 8, 1854.</p> <p>Under the act of May 8, 1854, P. L. 644, a divorce may be granted to a husband where his wife has by cruel and barbarous treatment of him rendered his condition intolerable or life burdensome, although such treatment may not have endangered his life.</p> <p> Divorce—Gruel and barbarous treatment by wife—Evidence—Question for jury. </p> <p>On the trial of a libel for divorce by a husband, where the libellant alleges cruel and barbarous treatment by his wife, it is incompetent to ask the husband what was the effect of his wife’s treatment, so far as it related to his ability to attend to business. In such a case it is for the jury, and not for the libellant to say whether his condition was rendered intolerable, and Ms life burdensome by the treatment he received from his wife.</p> <p>In determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife towards her husband during the period of the alleged treatment should be considered, and evidence descriptive of it should be received.</p>

<p>Appeal, No. 384, Jan. T., 1895, by defendant, from judgment of C. P. Union Co., May T., 1891, No. 173, on verdict for plaintiff.</p> <p>Assumpsit on a bond of suretyship. Before McClure, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>The plaintiff in this case has brought an action against Harvey Frantz to recover on a contract of suretyship on a lease executed the 6th of January, 1890, by J. I. Meek and John J. Bieber & Co., Bieber & Co. agreeing to lease a certain storeroom from Meek, and Harvey Frantz subsequently signed and sealed a contract of suretyship on the back of this lease. It seems the rent due the first of April, 1891, was ninety dollars, and for that this suit was brought. [The defendant has sought to avoid the payment of this money by evidence that at the time the lease was executed by Bieber false representations were made to him by Meek as to the contents of the paper. The evidence of this is not sufficient in our judgment to warrant a chancellor to reform the instrument. It is denied by O. W. Meek and J. I. Meek and supported by the testimony of the paper and by Harry Dark. The plaintiff having the instrument itself and these two witnesses, the evidence on the part of the defendant is not sufficient to reform the instrument.] [1] [The same rule applies to the signature as to Frantz and the guarantee. The testimony of all the witnesses was that he signed this without any false representations as to its contents. It is a man’s duty when he signs a paper to read it if he can, and if he cannot to have it read to him. If he does not do that he is guilty of negligence. Of course, if there was sufficient evidence to show that fraud had been perpetrated upon him, we would allow this case to go before you; but we do not think there is sufficient for it,] [2] and [we therefore direct a verdict for the plaintiff for ninety dollars, with interest from the 1st of April, 1891.] [3]</p> <p>2. If, the jury believe from the evidence that the lease between the plaintiff and John J. Bieber & Co., was executed at the scboolhouse in the absence of the defendant, and that the plaintiff subsequently procured the defendant to sign the obligation sued on, without a consideration, plaintiff cannot recover. Answer: This point is refused. [4]</p> <p>3. That if the jury believe that the plaintiff procured the signature of the defendant to the paper as guarantor or surety for John J. Bieber & Co., after the latter had signed the lease, by the false representation that John J. Bieber & Co., the principal obligors, had requested that the defendant should go bail, that this absolves the defendant from the contract and plaintiff cannot recover, but the verdict must be for the defendant. Answer: We do not affirm this point. It makes no difference in our judgment whether he was requested to go on by his brother-in-law or not. He went on voluntarily. [5]</p> <p>Verdict and judgment for plaintiff for $100.55.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

Appeal, No. 285, Oct. T., 1894, by plaintiff, from judgment of O. P. Venango Co., entering non-suit. Trespass for damages for false return by tax collector. Before Taylor., P. J. At the trial it appeared that plaintiff was the owner of a farm which she had leased to Samuel Smail under an agreement that as a part of the rent Smail would pay the taxes assessed upon the lands during the term.

<p>Appeal, No. 172, Oct. T.,1895, by-Charles C. McLain, administrator, from order of C. P. Westmoreland Co., Nov. T., 1885, No. 60, sustaining exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report in a contest between two judgment creditors of defendant.</p> <p>The facts appear by the opinion of the court, Doty, J., which was as follows:</p> <p>An auditor was appointed on January 5, 1886, “ to hear the parties and their proofs, and report the facts, with his opinion.” The auditor made report, which was referred back December 28, 1888, “ to find the facts.” The report finding .the facts was not filed in court until January 2, 1894, or about eight years after the appointment. There has been no undue haste about this case thus far.</p> <p>About twenty exceptions have been filed to the report. It will not be necessary, however, to consider all these exceptions, as the matter seems to be controlled by one or two well-settled principles. The following facts are pertinent:</p> <p>I-. The judgment of J. S. McCartney, in trust for the Tarenturn Bank, v. A. Y. Kipp, was entered August 6, 1875, in the common pleas of this county.</p> <p>2. This judgment was assigned to Charles Lockhart on May 21, 1879. The judgment was revived at No. 87, August term, 1880, and to No. 921, May term, 1885.</p> <p>3. The judgment of Charles C. McLain v. A. V. Kipp et al. was entered in this court June 3, 1876. On November 16, 1885, the administrator of plaintiff was substituted on the record.</p> <p>4. Fi. fa. was issued September 21, 1885, on the McCartney judgment, and by virtue thereof certain real estate of defendant was taken in execution and sold by the sheriff November 14, 1885.</p> <p>5. The purchaser was Charles Lockhart, the use plaintiff in said judgment. The price was $6,450. The sheriff made special return that “ it appearing from the record that the said Charles Lockhart, as a lien creditor, is entitled to receive the sum of $5,954,1 have taken his receipt for that amount, and the balance of said purchase money I have ready as commanded.”</p> <p>6. The attorn ejrs for the McLain judgment filed exceptions to the special return. The allegation was that the sheriff erred in taking the receipt of the purchaser for $5,954.45, “for the reason that said judgment, according to the information and belief of exceptants, has been fully paid.”</p> <p>7. The auditor awarded the fund to the McLain judgment.</p> <p>The contest is therefore between two judgment creditors of A. Y. Kipp. The fund is insufficient to pay both. There is no allegation of collusion on either side. The defendant was undoubtedly indebted on both obligations. The judgments were given for full and valuable considerations. The McCartney judgment is the first lien. It was entered August 6, 1875, while the other judgment did not become a lien until June 3, 1876. As the record stands, the money was properly appropriated to the McCartney judgment. The exception alleges, however, that the judgment was fully paid. Thus a distinct issue is raised. The burden is clearly upon the exceptant. He affirms that the judgment is paid. Whether this is the fact is to be determined only from the evidence which has been introduced. Before examining the evidence it is necessary to pass upon the competency of some of the witnesses. The learned auditor excluded the testimony of A. V. Kipp and Charles Lockhart, so far as they testified to matters occurring in the lifetime of C. C. McLain. If we get the facts clearly in' mind it will not be so difficult to apply the principles of law.</p> <p>The contest is for the fund arising from the sale of the real estate of A. V. Kipp. The contest is between two judgment creditors of the defendant. The one creditor, C. C. McLain, is dead. His administrator was substituted of record • before the exceptions were filed to the special return. The other creditor, Charles Lockhart, is the assignee of the McCartney judgment. The real contest, therefore, is between the administrator of C. C. McLain, the plaintiff, in one judgment, and Charles Lockhart, the use plaintiff, in the other judgment.</p> <p>We think the auditor erred in excluding the testimony of Kipp. He had. no interest in the result of the proceeding. The whole question was between the two judgment creditors. Even before the act of 1869, the defendant in an execution was a competent witness in a contest between judgment creditors over a distribution of the proceeds of a sheriff’s sale of his property: Smith v. Wagenseller, 21 Pa. 491.' The act of 1869, as held in numerous .cases, disqualified no one who was competent as a witness before its passage.</p> <p>The averment is that the first lien judgment was fully paid. How is this fact in the light of the evidence ? After a careful examination of the evidence, we fail to find any statement that will lead to the conclusion that the judgment was in fact paid. There is no evidence tending to show that it was paid by the defendant, Kipp. For the exceptant three witnesses are called, viz : Dr. J. S. McCartney, Robert Mitchell and John F. Humes. Dr. McCartney testifies: “ Lockhart paid me the first money on account of this judgment, February 8th, 1876. Paid by note for $5,000. . . . He paid balance 22d May, 1879. I, at that time, assigned balance of judgment to him by power of attorney. . . . Mr. Kipp, not to my knowledge, ever paid our bank any part of the $7,787 judgment.” It is true, this witness makes inconsistent, if not contradictory, statements. His testimony is thus weakened, if not destroyed. He is a witness called by exceptant, and it will not do to simply cull out the statements of the.witness which are favorable to the party calling him, and exclude the other parts of his testimony. On the question of payment, there is little testimony besides. The witness, Mitchell, testifies simply to a declaration of one Ellis, “ who was a director in the First National.” McCartney testifies that Ellis was not a director, but taking the declaration for what it is worth, and as coming from one in authority to speak, it does not show payment, nor, as we view it, tend to show payment. The declarations were that the “ bank had gotten its money,” and an alleged declaration of McCartney, “ that the bank had gotten all their money from Kipp and had not lost a dollar by him.”</p> <p>No statement was made as to how the bank had gotten the money. Such statement is not inconsistent with the contention of Lockhart and it fails to show payment.</p> <p>The third witness, Humes, “ knew nothing about the indebtedness except as he (I) learned it from the president of the bank.”</p> <p>Without regard to the testimony of Kipp, the exceptant, upon whom is the burden, has failed to show that the judgment is fully paid, nor does the auditor find as a fact that the judgment was paid. The weight of the evidence clearly shows that it was not paid by the defendant, Kipp. The exceptant therefore clearly fails to establish the fact of payment.</p> <p>Nor is there any allegation of collusion between Kipp and the plaintiff in the McCartney judgment. At least no such averment was made in the exceptions, nor any such ground urged at any stage of the proceedings. It is alleged, however, that the debt covered by the first judgment was extinguished by novation. This is not the ground originally laid in the exceptions to the special return; but how is the fact? Novation is a substitution of a new debt for an old one, or of a new debtor instead of a former one. It is recognized in the law as a mode for the extinguishment of a debt. It must clearly appear, however, that a substitution was in fact intended; and that where another person becomes a debtor, instead of a former debtor, that he was so accepted by the creditor, who thereupon discharged the first debtor. In other words, it must be shown that the parties in interest assented to the extinguishment of the old debt.</p> <p>The allegation is that the debt was extinguished by novation. The particular facts averred to establish a novation we shall refer to presently. Novation is not to be presumed. It must be established by evidence. The burden, too, is upon the except-ant to establish what he alleges in this regard. In the absence of proof of a special agreement, the mere acceptance of the security of a third person is deemed a conditional payment, or the receipt of collateral security: Hunter v. Moul, 98 Pa. 18 ; League v. Waring, 85 Pa. 244.</p> <p>The acceptance of a new security for an existing debt does not operate as a payment unless so intended by the parties : Appeal of Kremmerer, 102 Pa. 558.</p> <p>To the same effect is Weakly v. Bell et al., 9 Watts, 280, in which case the authorities are reviewed.</p> <p>In what does the alleged novation consist? Kipp was indebted to the National Bank of Tarentum in the sum of $17,737. This indebtedness was secured by a mortgage of $10,000 on land in Armstrong county and by the McCartney judgment, in this county, in the sum of $7,737. The capital of the bank was only $50,000, and under the national banking act it was not permitted to loan so much to one individual. After notice from the bank examiner, the following securities were received by the bank, viz:</p> <p>Note of John Munball & Co., dated Feb. 8,</p> <p>1876, at four months, for . . . . $5,000 00</p> <p>Note, May 1, 1876, at sixty days, for . 5,000 00</p> <p>“ “ “ “ “ “ . 4,000 00</p> <p>“ “ “ “ “ “ . 3,737 00</p> <p>Or, a total of ... $17,737 00</p> <p>On all these notes Kipp was either maker or indorser. In this connection the learned auditor says : “ On May 1, 1876, the change in security is consummated; Kipp, the defendant in said judgment, on February 8 and on May 1,1876, presumptively, at the reqirest of the bank, presented commercial paper, of which he was the owner, and negotiated, or, in other words, sold the same to the bank, the consideration therefor being the indebtedness secured by the Armstrong county mortgage, and the above judgment in this county, and the discounting of the said paper in the regular way and accepting of same by the bank was, so far as the bank was concerned, an extinguishment of the old debt. A clear novation; the old security was in violation of law and it was supplied by another.” But it does not follow that the acceptance of the new paper was an extinguishment of the old debt. The authorities already cited hold the very reverse. New paper of the debtor and paper of third persons accepted for a pre-existing debt, in the absence of a special agreement, are regarded simply as conditional payment or collateral security. There can be no novation unless it was the intention of the parties to substitute the new security for the old and thereby extinguish the old debt.</p> <p>The evidence, direct as well as circumstantial, goes to show that there was no agreement for the extinguishment of the judgment in Westmoreland county. Kipp never paid any part of the judgment. His own testimony is to this effect and it is uncontradieted; Lockhart, the use plaintiff, paid $2,500 on June 7, 1876, and the like sum of $2,500 September 11, 1876 ; the judgment was never satisfied, but on the other hand was twice revived by amicable confession of judgment. From the time of the acceptance of the securities until the sale by the sheriff there was nothing done by either the plaintiff or th.e defendant in the judgment to indicate an intention on their part to extinguish the old debt. Nor do we discover evidence of any special agreement looking in that direction. No party to the arrangement testifies that any such contract was made. The books of the bank and the testimony of Humes, the cashier, show the acceptance of the securities, but fail to show that the judgment was to be satisfied and the old debt extinguished. Nor is there any other testimony which tends to show an intention of the parties to surrender and extinguish the old debt at the time of the acceptance of the new securities. On the other hand, there is evidence to show the purchase of the judgment by Lockhart.</p> <p>The indebtedness of Kipp was originally to the Taren turn bank, which was converted into the First National Bank of Tarentum, and by such conversion the assets and business of the old bank passed to the new institution. We have already noticed the fact that the indebtedness of Kipp exceeded the credit which the National Bank was permitted to extend to any one individual. Kipp, however, was not in a position to complain of this. The securities which he had given were not therefore invalid. In Winton v. Little, 94 Pa. 64, the doctrine was laid down: “ That real estate security taken by a national bank for present or future advances is valid.” In Stevens v. Monongahela National Bank, 88 Pa. 157, it is pointed out that any violation of section 5200 of the Revised Statutes can only be determined by suit brought by the comptroller of the cur-z’ency in the proper court of the United States.</p> <p>It is important to keep in mind that this is a contest between two judgment creditors, and to remember that judgment creditors have no higher1 equity than the debtor himself. They are bound by the act of the debtor. As was said by Gibson, C. J., in Cover v. Black, 1 Barr, 493, a judgment creditor “ stands on the foot of his debtor.” It is plain that the debtor has no equity here, nor does he claim any. The debt was not extinguished as to him until he paid the debt, and there is no evidence to show that he paid any part of the debt embraced in the Westmoreland judgment. The learned auditor relied on the case of Moorhead v. Duncan, 1 Norris, 488. But in Shrews-bury Saving Institution’s Appeal, 94 Pa. 309, it is made plain that that and similar eases have no application. There is nothing to show that the subsequent judgment creditor has any equity other than the debtor would have. He was not misled, so far as the evidence goes, in any way before the indebtedness was incurred.</p> <p>Mitchell v. Coombs, 96 Pa. 430; Anderson v. Neff, 11 S. & R. 208, and Peirce v. Black, 105 Pa. 342, are also cited to sustain the auditor. These cases undoubtedly establish that a mortgage or judgment once paid cannot be kept alive as against subsequent lien creditors. But the cases do not apply to the facts of this case. The McCartney judgment, which was the first lien, was never paid by the defendant. Nor was it extinguished by novation, for the reasons already pointed out. The learned auditor erred in his deductions from the evidence. There is no conflict in the testimony as to the fact of payment or as to the question of novation.</p> <p>Exception was also filed to the special return to the allowance of the attorney’s commission. But according to the view adopted, the exceptant was not prejudiced by such allowance and is not in a condition to complain. If disallowed the fund would be awarded to the judgment which is the first lien.</p> <p>And now, April 15, 1895, for the reasons above given the exceptions to the special return are dismissed, at the cost of the exceptant, and the special return is now confirmed absolutely.</p> <p>Errors assigned were in sustaining exceptions to auditor’s report.</p>