Volume 172 — Pennsylvania State Reports

Appeal, No. 173, Oct. T., 1895, by defendants, from judgment of C. P. Jefferson Co., Feb. T., 1891, No. 71, on verdict for plaintiff. Ejectment for two tracts of land in Young township. Before Clark, J. The facts appear by the charge of the court, which was as follows: The parties to this suit are Edward J. Berwind, the plaintiff, and William C. Williams, the defendant.

Appeals, Nos. 238, 239 and 240, Oct. T., 1895, by Truman D. Collins, terre tenant, from judgment of C. P. Forest Co., Feb. T., 1893, Nos. 53, 54 and 58, tried by the court without a jury. Scire facias sur mortgage.

Appeal, No. 143, Oct. T., 1895, by defendants, from judgment of O. P. Jefferson Go., on verdict for plaintiffs. Ejectment for one hundred and forty-one acres of land in Eldred township. Before Mayer, P. J., of the 25th judicial district, specially presiding. The facts will be found in the opinion of the court overruling the motion for a new trial and in the opinion of the Supreme Court.

Appeal, No. 89, Oct. .T., 1895, by-plaintiff, from judgment of O. P. Armstrong Co., June T., 1894, No. 95, on verdict for defendants. Assumpsit on a bail bond. Before Rayburn, P. J. This was an action upon a recognizance alleged to have been taken and acknowledged before C. A. Scott, Esq., a justice of the peace, for the appearance of James Hickey to answer a criminal charge in the quarter sessions.

Appeal, No. 51, Oct. T., 1895, by defendant, from judgment of C. P. Armstrong Co., March T., 1892, No. 126, on verdict for plaintiff. Assumpsit on written agreement. Before Rayburn, P. J. At the trial it appeared that in May, 1889, plaintiff purchased from defendant one hundred shares of the capital stock of the Rolled Steel Carriage Wheel Company. He paid therefor the sum of 11,000, taking defendant’s receipt therefor.

Appeal, No. 11, Oct. T., 1895, by defendants, from order of C. P. Armstrong Co., Sept. T., 1891, No. 46, directing county auditors’ report to be filed, and allowing an appeal therefrom. Appeal from account of county auditors.

<p>Judgment — Confession of judgment — Partnership—Practice. C. P.</p> <p>The duty of the prothonotary in entering a judgment by confession on a warrant of attorney, under the act of February 21, 1806, is to enter it “against the person or persons who executed the same,” but this does not restrict him to the name or names appearing in full on the face of the warrant.</p> <p>Where a judgment note has been signed with a firm name which does not disclose the individual names of the partners, the plaintiff may file a formal declaration against the partnership by its title, naming the individual members, and judgment may be thus confessed and entered by the prothonotary in this form.</p> <p>Partnership — Powers of partners to sign firm name — Evidence.</p> <p>If one partner sign and seal an instrument in the firm name, with the assent of the other, the latter is as much bound as if he had signed and sealed it himself, and his assent can be proved by any of the usual modes of evidence.</p> <p>If a partner knows and assents to the signing of a judgment note in the firm name by his copartner, he is bound by it; and if he is ignorant of the giving of the note at the time, but he subsequently assents to it, he is also bound.</p> <p>Practice, C. P. — Trial—Jury—Request for instructions.</p> <p>Where the jury request further instructions, and the judge reads a portion of the testimony and gives some further instructions, and the jury state that their question is sufficiently answered, the party losing the verdict has no ground for complaint. If he thought the part of the testimony read was an inadequate response to the jury’s request he should have asked for the reading of such other part as he thought relevant and material.</p>

Appeal, No. 145, Oct. T., 1895, by plaintiff from order of C. P. Lawrence Co., June T., 1894, No. 808, making absolute a rule to open a judgment. Rule to open judgment. Before Miller, P. J., specially presiding.

Appeal, No. 101, Oct. T., 1895, by the School District of the Borough of Aliquippa, from order of C. P., Beaver Co. June T., 1894, No. 9, dismissing exceptions to auditor’s report. Exceptions to auditor’s report. The auditor, A. P. Marshall, Esq., reported as follows : It is admitted that the Aliquippa School District, until the creation of the borough of Aliquippa was a part of the Logsto wn Independent School District.

Appeal, No. 100, Oct. T., 1895, by-plaintiff, from judgment of C. P. Lawrence Co., Dec. T., 1892, No. 39, on case stated for defendants. 'Case stated to determine the validity of a municipal assessment for paving a street. The material portions of the case stated are as follows: 2.

Appeal, No. 241, Oct. T., 1895, by plaintiffs, from order of C. P. Beaver Co., Dec. T., 1890, No. 19, making absolute a rule to open judgment. Rule to open judgment. Before Wickham, P. J. From the record and the evidence it appeared that judgment was entered in June 1867, on a judgment note bearing the names of John H. Bigger and P. H. Stevenson, in the sum of $1,657.81.

<p>Insurance — Mutual companies — Receivers—Assessments.</p> <p>An order of court authorizing a receiver of a mutual insurance company to levy an assessment must be strictly followed, and the receiver cannot go beyond its terms.</p> <p>An order of court authorizing the receiver to levy an assessment “ equal in amount to all other assessments heretofore levied,” does not authorize the receiver to include in the assessment penalties for nonpayment of prior assessments.</p> <p>Receivers — Assessments—Defenses.</p> <p>Where a court of competent jurisdiction has appointed a receiver of a mutual insurance company and authorized him to levy an assessment, and he has sued a member of the association for such assessment, such member cannot set up as a defense objections to the incorporation and entry into business of the company, its failure to comply with the requirements of the insurance department, and the purposes and necessity of the assessment authorized by the court.</p> <p>While in such a case the order of the court is conclusive upon the validity and the amount of the assessment, it does not touch the liability of the defendant to pay, nor conclude him as to defenses upon individual grounds, and therefore an affidavit of defense is good which avers that defendant was never a member óf the company because his application for and acceptance of the policy were induced by fraud on the part of the company’s agent; that no equities in other parties have intervened which require him to be held; and that the losses for the payment of which assessments were levied occurred before defendant’s policy was taken out.</p>

<p>Appeal, No. 14, Oct. T., 1895, by defendant, from judgment of C. P. Washington Co., August Term, 1898, No. 73,' on verdict for plaintiffs.</p> <p>Assumpsit on a verbal contract. Before McIlvaine, P. J.</p> <p>At the trial it appeared that on June 1, 1882, plaintiffs and defendant, who were tenants in common of a lot of ground in Washington, Pennsylvania, executed a mortgage'to secure the purchase money of a store bought by defendant. Foreclosure proceedings were subsequently begun on the mortgage, and judgment entered on the scire facias. The parties interested in the lot then agreed to sell it at private sale, and apply the proceeds to the payment of the incumbrances upon the lot, The lot was sold for $1,600, and plaintiffs claimed that out of the money that was applied to the payment of the judgment on the scire facias $796.08 belonged to them. They introduced evidence which tended to show that defendant undertook and assumed to pay this sum.</p> <p>On this subject J. Clark McGill testified as follows :</p> <p>“ Q. What, if anything, did your brother say to you about going onto this mortgage and bond, or any risks that you ran ? A. Some, of the children objected to going on the bond and security there for him, and he said if we would go on there as security he would see we would never lose anything by it— both times that we went on. Q. Now, were your sisters present at that conversation ? A. Yes, sir. Q. Do you recollect who else was present? A. No; I remember the family was there ; that is, my sisters and my mother; we were all there together.”</p> <p>Anna M. Wilson testified to a famfiy meeting while the sale was being negotiated, which was in 1887, as follows : “Q. Now, what was said on that occasion by your brother J ames ? A. W ell, he said that the place would have to be sold, lie would have to let some one sell it for us, or else the sheriff would sell it, but he said he would make it all right with us after it was sold, he would pay back the shares that he had taken to pay his debt. Q. Did he say that to you ? A. He said it to all the family ; I was there.”</p> <p>Defendant’s points were as follows :</p> <p>1. The declaration in this case does not aver the making of any express promise by the defendant to pay the said plaintiffs jointly the aggregate amount that each might be required to contribute to the payment of the debts of the defendant; and the right to any recovery must rest upon the implied obligation of the defendant to indemnify each of the said plaintiffs for the amount that each severally might be required to pay for the said defendant, for which each has a separate action. No joint action can, however, be maintained, and the verdict of the jury in this case must be for the defendant. Answer: The binding instruction here asked for is refused. [1]</p> <p>2. Under the plaintiffs’ declaration no joint recovery can be had of the aggregate amount of money averred and claimed in the said declaration to belong to the said plaintiffs severally; and the verdict of the jury must be for the defendant. Answer: The binding instruction here asked for is refused. [2]</p> <p>3. There is no evidence in this case of any express contract made by the defendant with the plaintiffs to pay to the said plaintiffs jointly the aggregate sum to which they might be severally entitled, and the verdict of the jury must be for the defendant. Answer : The binding instruction here asked for is refused. [3]</p> <p>4. The fact that the plaintiffs were tenants in common of the property pledged to secure the defendant’s debt, and that the property pledged was afterwards sold by a conveyance in which all of the said plaintiffs joined, did not destroy the several right of each of the plaintiffs to his proportionate share of the proceeds of said sale, and the right of said plaintiffs to recover the amount contributed for the payment of the defendant’s debts is several and not joint, and no joint action can be supported by the plaintiffs against the defendant, and the verdict of the jury must be for the defendant. Answer: The binding instruction asked for is refused. [4]</p> <p>5. The uncontradicted evidence in the ease showing that the debt of J. Clark M’Gill, one of the plaintiffs, was paid out of the proceeds of the sale of the real estate, amounting to more than his distributive share of the purchase money, the action cannot be maintained by these joint plaintiffs, and the verdict of the jury must be for the defendant. Answer: The binding instruction asked for is refused. [5]</p> <p>6. Under all the evidence in the case the verdict of the jury must be for the defendant. Answer: Refused. [6J</p> <p>Verdict and judgment for plaintiffs for $796.03. Defendant appealed.</p> <p>Errors assigned, among others, were (1-6) above instructions, quoting them.</p>

Appeal, No. 122, Oct. T., 1895, by George M. Ralston et al., from decree of O. C. Washington Co., May T., 1894, No. 46, overruling exceptions to auditor’s report. Exceptions to auditor’s report. The facts appear by the opinion of McIlvaine, P. J., which was as follows : 1. Facts found and admitted. (a) George Ralston, Sr., late of this county, died November, 1842, testate.

<p>Appeal, No. 220, Oct. T., 1895, by plaintiffs, from order of C. P. No. 3, Allegheny Co., Aug. T., 1895, No. 55, making absolute a rule to set aside service of process.</p> <p>Rule to set aside service of process. Kennedy, P. J., filed the following opinion:</p> <p>The return of service of summons in this case is in the following words, viz: “Served May 20th, 1895, by delivering to Dr. T. J. Patterson, agent for The Commercial Travelers’ Mutual Accident Association of America, a true and attested copy of this writ and by making known to him the contents thereof.” The testimony taken on this rule shows conclusively that the person upon whom service of process was made, was in no sense the agent of the defendant company to receive such service. He was simply as his name in the return indicates the physicían or surgeon of the company, whose sole duty it was to examine members of the association who had been injured, when notified so to do, and make report of such examination to the company at its office in Utica, New York. We think the testimony also shows that the defendant was not actually doing business in this state.</p> <p>All applications for membership were sent direct to the company at Utica in the State of New York, from which place all policies were issued to members, no person here being authorized to accept such applications or receive or collect money thereon, or on any other account, for the company. Plaintiffs’ counsel, however, contends that the return here shows a service in conformity with the statutory direction and cannot be set aside on motion; that evidence is inadmissible to contradict the sheriff’s return; that if defendant is injured thereby his remedy is by action against the sheriff, and that if the defendant company is not suable in this court, the question can only be raised by a plea to its jurisdiction. In support of his position, and as controlling this case, he cites the Ben wood Iron Works v. Hutchinson & Bro., 101 Pa. 359. An examination of that case shows material differences between it and the present one. There was a service upon a proper officer of the company — and no appearance having been entered for the defendant, judgment by default was entered against it for want of appearance and affidavit of defense. The position of the plaintiffs in error was, that it was a foreign corporation, and that the court had no jurisdiction over it by reason of the fact that its officer upon whom service was made was found within the county where suit was brought. No testimony was taken and there was nothing to show that the contract or matter on which the action was founded was not suable in this court, and hence the Supreme Court said that a plea to the jurisdiction was the proper remedy in that case. In this case the service was upon one who was not an officer of the .company or in any sense its agent. The testimony clearly shows this, and it also tends to show that the matter on which the action was founded was not suable in this court, the business not being transacted in this state. The question raised 'here seems to be conclusively decided by the case of Hagerman et al. v. Empire Slate Company, 97 Pa. 534, wherein it was held that a return of service under the act of assembly of March 21, 1849, which omits to set forth the character of the agent served, is only prima facie evidence of a good service, and may be rebutted by proof to the contrary. The return of service in that case was in almost precisely the same words as in this, on motion of the defendants’ attorney a rule was granted to show cause why the return should not be set aside. Depositions were taken under this rule which showed conclusively that the person, upon whom service was made, was the agent for defendant company — and for this reason the service was sustained. It will be noted also that the subject-matter of the suit was actionable in this state, it being a scire facias sur mortgage upon property therein situated. That case establishes the principle, that a return of service which, as in the present case, does not set forth the character of the agent served, is presumably good, but may be inquired into, and that depositions may be taken on a motion to set aside the same, and if the presumption of a good service is conclusively rebutted it will be set aside. That principle covers the whole question involved in this case. We see no reason for declining to follow the direction given us in Hagerman v. Empire Slate Company, supra, in order to entertain this suit, and following that direction this rule must be made absolute and the service and return thereof in this case set aside. It is so ordered.</p> <p>Error assigned was above order.</p>

Appeal, No. 213, Oct. T., 1895, by-defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1895, No. 859, on demurrer for plaintiffs. Assumpsit on award of arbitrators. Before White, J. From the record it appeared that plaintiffs had paid the expense of constructing a sewer in the street on which their properties abutted. It was constructed by the borough in pursuance of the petition of the property holders, and paid for by assessments under the borough law.

<p>Appeal, No. 224, Oct. T., 1895, by plaintiff, from decree of C. P. No. 1, Allegheny Co., June T., 1895, No. 940, dissolving preliminary injunction.</p> <p>Bill in equity for an injunction to restrain defendants from persuading or enticing plaintiff’s employees to leave its employment.</p> <p>The record showed that a preliminary injunction was granted, and that subsequently on a motion to continue the injunction evidence was heard, and the ease argued. The court filed no statements of fact or conclusions of law, but simply entered the following decree:</p> <p>“And now July 6, 1895, this cause came on to be heard on motion to continue the preliminary injunction heretofore granted, and upon depositions in support thereof, and argument of counsel having been heard, upon consideration thereof, the said motion is refused, and it is ordered, adjudged and decreed that the injunction heretofore granted be, and is hereby dissolved.”</p> <p>Error assigned was above decree.</p>

<p>Ejectment — Equitable title — Evidence.</p> <p>A plaintiff in ejectment is not entitled to recover upon a sheriff’s deed following a sheriff’s sale of an alleged equitable title in his predecessor, where there is no evidence of a written agreement between the record owner under whom defendant claimed and plaintiff’s predecessor, or a verbal agreement of sale followed by payment of purchase money, and possession of the land and improvements thereon, but only evidence of a writing in the nature of an agreement to sell to plaintiff’s predecessor signed by the son of the record owner, who had no authority to make such sale, and who subsequently refunded the money paid to him and received back the writing, and where the defendant took possession and made valuable improvements under a purchase from the record owner, and the evidence is positive, clear and undisputed that the defendant never heard of plaintiffs’ claim at the time of his purchase, and there was nothing upon the lot or upon the records which suggested that any person had any interest in it which qualified his vendor’s title to it.</p>

Appeal, No. 242, Oct. T., 1895, by Matthias H. Henderson, executor of Branton H. Henderson, deceased, from decree of O. C. Mercer Co., Sept. T., 1891, No. 57 1-2, on case stated.

Appeal, No. 39, Jan. T., 1896, by-defendants, from judgment of C. P. No. 3, Phila. Co., March T., 1895, No. 1273, for plaintiff on petition for mandamus. Mitchell, J., dissents. Petition for mandamus. From the record it appeared that on February 21, 1893, John Taylor was elected receiver of taxes of the city of Philadelphia for a term of three years, commencing the first Monday of April, 1893. Taylor died on January 5, 1895.

Appeal, No. 191, Oct. T., 1895, No. 615, by defendant, from order of C. P. No. 3, Allegheny County, May T., 1895, No. 615, making absolute a rule for judgment for want of a sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense.

<p>Judgment — Husband and wife — Fraudulenteonfessionof judgment — Evidence.</p> <p>A husband who is solvent may make a valid gift to his wife, but the fact of the gift and every element necessary to sustain the claim of the married woman as against her husband’s creditors, must be established by clear and satisfactory evidence: Appeal of Hart, Lee & Co., 157 Pa. 200; Wilson et al. v. Silkman, 97 Pa. 509.</p> <p>In a proceeding to determine the validity of a judgment confessed by a defendant in an execution to his wife, the defendant testified that at the time of his marriage he owned certain stock, which after his marriage he gave to his wife; that a few months later she returned it to him; that he sold it for the sum for which judgment was confessed, and used the money for twelve years in his business without accounting on his part or claim on the part of his wife. The only corroborative proof was the testimony of defendant’s wife and mother-in-law, who testified as to the fact of the gift. They did not testify that the stock was anything more than a paper purporting to be such stock; they did not testify to the alleged sale of it by him, nor to the price obtained for it. The auditor found that the defendant’s testimony was unworthy of credit. Held, that the testimony of the other two witnesses was insufficient to corroborate the defendant upon any question relating to the sale of the stock or the price obtained for it, and that it was insufficient to sustain the validity of the judgment.</p>

<p>Appeal, No. 228, Jan. T., 1895, by plaintiff, from judgment of C. P. Lebanon Co., on verdict for defendants.</p> <p>Trespass for cutting down a fence across a lane. Before Meily, P. J.</p> <p>The facts appear by the charge of the court below, and the opinion of the Supreme Court.</p> <p>The court charged as follows:</p> <p>The action is an action of trespass to recover the sum of one dollar, as claimed by the plaintiff upon the stand, against the defendants, who cut down a gate or a fence across the lane which the plaintiff claims is upon his land, and which, as he alleges, the defendants had expressly agreed to maintain — that is, to maintain the lane at that point and to maintain the gate there, and upon the portion that he got from Bleistein says that they were to pay twenty-five cents a year, or keep it clear of briers.</p> <p>Now if- the contention of the plaintiff is correct, that is, if you believe the testimony given by Mr. Kurtz himself and by Mr. Bleistein — if you should believe upon the consideration of all the testimony that their theory is correct, then the plaintiff would be entitled to recover. [But the defendants deny that state of facts, and contend that they had a prescriptive right of way over certain portions of this land held by Bleistein and Kurtz, and that in consideration of giving up that prescriptive right of way, they gave them (the defendants) this straight portion from their house and barn out to the Lancaster road.] [1]</p> <p>[Now the further question will be, if you believe the defendants, whether that prescriptive right of way was acquired over uninclosed woodland, or inclosed woodland, if they had the prescriptive right of way.] [2]</p> <p>Now there is a difference between the two. Prior to the act of 1850, a continuance of uninterrupted enjoyment of a way across uninclosed woodland for a period of over twenty-one years was presumptive evidence of a granb; that is to say, an uninterrupted user for twenty-one years is the same as if a deed were held for it, but such way over uninclosed woodlan d must be affi rmatively proved. You must be satisfied that such a right exists —did exist for twenty-one years prior to the act of 1850 continuously and uninterruptedly, and further, you must be satisfied that it was substantially the same road from one end to the other; that is, you cannot establish a road with a variance of ten or twenty feet, or running anywhere over the timber land. It must be substantially the same road. It does not need to be precisely the same road, that is, confined to the same limits, but it must be practically the same road. In the course of time it would of course change imperceptibly and from time to time, by reason, you might say, of the weather or of other causes, but if it has retained substantially the same character, if it has not lost its identity as the same road substantially, that would be sufficient, and if that is established to your satisfaction, then of course a prescriptive right has been acquired to that way.</p> <p>[But if you should find that it was not uninclosed woodland, then it would only take twenty-one years of continuous adverse user to acquire that right.] [8] [If you believe that the defendants then gave up that prescriptive right of way in exchange for this portion of the lane that is now in dispute as I have stated, they would be entitled to a verdict.] [4] This is simply a question of fact for you to decide, as to which of the parties is correct. If you decide that the defendants expressly agreed with these parties, Bleistein and Kurtz, to keep up this lane and maintain a gate and pay twenty-five cents a year or keep it clear of briers, that of course would be an express contract, and regardless of anything else a man must be bound by his express contract. [But the defendants deny that; they deny the entire contention of the plaintiff, and affirm that they had rights there which they gave up in consideration of getting this lane.] [5]</p> <p>Now you must weigh the testimony. There is considerable testimony upon these points and it varies greatly, and that is because it covers a great many years. As a man grows older, of course his recollection fails like everything else.</p> <p>If you find that the plaintiff has established his case, if you believe his witnesses, then of course he is entitled to recover. If you believe the contention of the defendants here, why then they are entitled to your verdict in their favor. We will have to leave the case with you.</p> <p>Defendants’ points were as follows :</p> <p>1. That the act of April 25, 1850, as to the right of way by user through uninclosed woodland does not apply to this case if the jury believe that this woodland was and had been inclosed, during a period of eighteen years or more as testified to by Henry Kurtz and others, leaving an opening of about forty yards at the one corner thereof, and if the jury believe this fact that then their verdict must be for the defendants. Answer: Affirmed. [6]</p> <p>2. If the jury believe that the way of Henry Hoke through the lane of Kurtz had been used by Hoke for a period of twenty-one years uninterruptedly, the greater part of which was through inclosed farm land, the' terminals of said way being the same for the said period of time, then the jury must find for the defendants. Answer: Affirmed. [7]</p> <p>8. If the jury believe that John Bleistein, the predecessor in title to this plaintiff of the land upon which the trespass was committed, did, in exchange of Henry Hoke’s right to go over his land to the plank road, grant him a right of way from his house to the lane of plaintiff, then the verdict must be for defendants. Answer: Affirmed. [8]</p> <p>4. The act of 1850 does not apply to user of a way over any other than uninclosed woodland, and if the jury believe that the greater or a large part of this way passed through arable land through an open lane fenced on each side, for more than twenty-one years prior to the destruction or removal of the cross fence by defendants, then the prescriptive right over that part draws with it the right of way through plaintiff’s woodland inclosed or uninclosed, and the plaintiff cannot recover. Answer: Affirmed. [9]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were (1-9) above instructions, quoting them.</p>

<p>Taxation — Glassification—Municipalities—License or business tax — Act of May 23, 1889.</p> <p>Under clause 4, section 3, article 5, of the act of May 23, 1889, P. L. 287, giving to the councils of cities of the third class power to levy and collect for general revenue purposes a license tax not exceeding one hundred dollars upon merchants and others, councils may in the exercise of their discretion classify merchants or others according to the amount of taeir gross sales, and graduate the tax according to such sales.</p> <p>A license tax empowered to be levied and collected by virtue of the act of May 23, 1889, P. L. 287, is a tax in a general sense, and is not levied under the police power of the city.</p>

<p>Principal and agent — Landlord and tenant — Assignment of lease — Corporations.</p> <p>Where a lease is made through an agent of the landlord to an individual, solely for the purpose of securing the property until a corporation to which the lease is to be transferred be organized, and all of this is known to the agent of the landlord, the landlord cannot, after the organization o.f the corporation, the transfer of the lease and the possession of the property to the corporation, and the payment of the rent by it to the lessor for several years, hold the individual lessee liable for the rent under the lease. The principal cannot secure the benefit of the contract and repudiate the means by which its execution was induced. In such a case knowledge on the part of the agent employed by the lessor to rent the premises for him will be imputed to the lessor.</p> <p>It seems that in such a case, where the agent was to receive one quarter of the rent for effecting the lease, the fact that he was one of the incorporators of the company did not render the lease absolutely void, so as to prevent the lessor from recovering so much of the rent as he himself was to actually receive.</p>

<p>Appeal, No. 2, Jan. T., 1895, by Sarah E. Emerick, from order of O. C. Centre Co., dismissing exceptions to auditor’s report.</p> <p>Exceptions to the report of William Bryson, Esq., auditor to distribute the funds in the hands of Samuel A. Martin, trustee appointed by the court to make sale of the real estate of 'decedent for the payment of debts.</p> <p>The claims presented before the auditor were as follows, viz.:</p> <p>Note, Daniel Emerick in favor of John A. Schwartz, dated May 12, 1880, at one day after date, for $339, with interest, on which were indorsed the following payments: December 3, 1880, $14.52; April 27, 1881, $100, and June 11, 1881, $100. On February 12, 1890, Samuel A. Martin, trustee, paid the balance due upon this note, being $221, to John A. Schwartz at the request of John A. Emerick and Sarah A..Emerick, the administrators of decedent.</p> <p>Note, Daniel Emerick and B. F. Shaffer to David Dunkle, dated March 31, 1882, at one day after date, for $200, with interest. Nothing had been paid on account of this note in the lifetime of the decedent. Mr. Dunkle in the latter part of the year 1888, placed this note into the hands of a bank for collection, and on the 1st of January, 1889, at the request of John A. Emerick, one of the administrators, Mr. Martin, who afterwards became trustee, paid the amount then due on said note, being $258, to Mr. Dunkle. In March, 1888, Sarah E. Emerick paid to Mr. Martin on account of what he had paid to Mr. Dunkle, $100, being proceeds of rents from decedent’s real estate, and on March 31, 1888, he and John A. Emerick gave their note as administrators to Mr. Martin for $172, being the balance with interest.</p> <p>Probated account of Lyman Emerick for $192.25. This account was for work done on the farm, and $85.00 had been paid on account out of the personal estate.</p> <p>Probated account of Dr. J. H. Huston, for medical attendance, amount, $63.80.</p> <p>Probated account of Solomon Peck, amount, $108.45. This account was paid by Sarah E. Emerick by direction of John A. Emerick.</p> <p>Balance due Sarah E. Emerick, as shown by her account filed, and confirmed absolutely August 30, 1887, and as set out in the petition for order to sell real estate, $2,176.31. Mr. Martin paid Mrs. Emerick September 5,1891, $2,000 on account of this claim.</p> <p>The auditor concluded that all of the debts of decedent had ceased to be liens upon the fund in the hands of the accountant, under the provisions of the 24th section of the act of February 24,1834, and after deducting costs of audit distributed the entire fund to the widow and heirs, to which exceptions were filed.</p> <p>The court dismissed all the principal exceptions, and decreed distribution of the funds according to the report of the auditor, except $225, the proceeds of the first sale of decedent’s real estate, which sum was awarded to the creditors generally.</p> <p>The other material facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Decedents' estates — Lien of decedent's debts — Act of February 24, 1834.</p>

<p>[Marked to be reported.]</p> <p>Banks and banking — Depositors—Evidence—Question for jury.</p> <p>On the trial of an action against a bank, plaintiff testified that he sent a note, currency and checks to the bank inclosed in a letter, dated May 24, 1887, worded as follows: “Enclosed find note, currency $745, checks $640,” and that on May 25, he received from the bank a communication returning his letter and promissory note only, which communication was as follows: “ Note not endorsed by you. Endorse and return.” He testified that the currency and checks were received by the bank, and that it had refused to give him credit therefor. The bank denied that it had ever received currency or cheeks from plaintiff, or a letter on May 24, 1887, but averred that on May 14, 1887, it received a letter from plaintiff as follows : “ Gent. Enclosed find note; ” that the bank returned the note with the communication offered by plaintiff in evidence. The court submitted the whole case to the jury, reserving the question whether plaintiff was entitled to recover, inasmuch as he had made no demand on the bank prior to bringing the suit. The jury returned a verdict in favor of plaintiff ; the court subsequently entered judgment for the defendant on the point reserved non obstante veredicto. Held, reversing court below, that the verdict necessarily implied a finding by the jury of each and every material fact relied on by the plaintiff, included the main fact that the money and checks had been remitted to and received by the bank on or about May 24, 1887, and that no demand was necessary.</p> <p>Banks and banking — Depositors—Demand prior to suit.</p> <p>The general rule that no action can be maintained by a depositor against a bank until a formal demand has been made by him or waived by the-bank, does not apply to a case where the bank denies that any deposit had ever been made, and claims that the relation of depositor and depositee had never been created.</p> <p>In an action against a bank by a person claiming to be a depositor where the evidence shows that it would have been an utterly vain and useless thing for the plaintiff to have made a formal demand on the defendant before bringing suit, the plaintiff will not be required to show that he made such demand.</p>

<p>Negligence — Municipalities—Defective sideivalk.</p> <p>The Supreme Court will not reverse a judgment on a verdict in favor of the plaintiff in an action against a city to recover damages for personal injuries suffered by a fall on a defective sidewalk, where it appears that the city authorities knew of the defect, and .had refused to repair the sidewalk, and the court below properly submitted to the jury the evidence of plaintiff’s contributory negligence tending to show his knowledge of the condition of the sidewalk, his manner of passing over it on the night of the accident, and his acquaintance with other streets and sidewalks in the neighborhood.</p> <p>Evidence — Mortality tables — Damages—Negligence.</p> <p>Mortality tables are admissible in evidence in an action to recover damages for personal injuries, but the trial judge should instruct the jury that the value of such tables when applied to a particular case depends very much upon other matters, such as state of health, habits of life, liability to contract disease, social condition, etc.</p>

<p>Insurance — Mutual fire insurance — Misrepresentations by agent — Avoidance of contract.</p> <p>Where an agent of a mutual fire insurance company falsely represents to an applicant for insurance that the policy gave the insured the privilege of withdrawing at any time on paying his proportion of the losses, and the applicant accepts the policy, and places'it in his safe without reading it, and keeps it there for over a year, and in the meantime voluntarily pays two assessments, he cannot return the policy and demand its cancellation.</p> <p>A member of a mutual fire insurance company cannot avoid his policy on the ground that he was induced to make the contract by fraudulent misrepresentations by the agent of the company, where he has made no objection for over a year, has paid assessments, and in the meantime a large number of other persons have taken out policies.</p> <p>While his right to avoid the policy, if exercised within a reasonable time, is clear, he cannot, as to subsequent members, openly assume all the privileges and obligations of membership for more than a year, and then deny his liability to contribute, along with those who may have been induced to become members on the faith of his membership. Per Dean, J.</p> <p>Insurance — By-laws—Policy—Application.</p> <p>Trivial and immaterial variations between the by-laws, as printed on the policies, and those adopted by the company are not sufficient ground for excluding the policy as evidence in an action by a mutual insurance company to recover assessments.</p> <p>Insurance — Failure to print by-laws upon the policy — Act of May 11, 1881.</p> <p>Where a by-law adopted by a mutual insurance company, but omitted among the by-laws as printed upon the policy, restricts the right of assessment to a certain exact method specified in such by-law, and an assessment is made by the company in accordance with the method prescribed by the by-law, the omission of the by-law in the policy is fatal to the company’s right to recover the assessment.</p>

<p>[Marked to be reported.]</p> <p>Deeds — Mortgages—Recorder of deeds — Recording in wrong book.</p> <p>Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder.</p> <p>When the holder of an instrument to be recorded has left it with the recorder to be recorded, it is to be regarded as actually recorded from that time, whether it was actually recorded at that time or not, or whether it was recorded in the wrong book.</p> <p>A mortgage left at the recorder’s office to be recorded, but actually recorded in the deed book and indexed in the index of deeds, is sufficiently recorded to constitute a lien from the time it was left for record: Glading v. Frick, 88 Pa. 460, overruling Luch’s Appeal, 44 Pa. 519.</p> <p>The act of March 18, 1875, P. L. 32, directing that recorders shall prepare and keep two indexes of deeds and two of mortgages, direct and adsectum, does not contain any repeal of the prior legislation of the state-' relating to the recording of deeds and mortgages, and does not assume to create any new rule of constructive notice of recorded instruments, and in no way impairs the rule laid down in Glading v. Frick, 88 Pa. 460.</p> <p>Mortgage — Future advancements — Amount secured by mortgage.</p> <p>A mortgage by its terms was to secure only future advancements. The mortgagee had advanced a certain amount to the mortgagor before the mortgage was given. On the day the mortgage was executed the mortgagor gave to the mortgagee a note under seal for the amount of the prior advancements, payable in four years, which contained the clause: “Being a part of the amount secured by my deed, dated March 20, 1884.” Held, that the sum named in the note was a part of the indebtedness to secure which the mortgage was given.</p>

<p>Bridges — Turnpike companies — Highways—Act of April 10, 1862 — Acts of May 8, 1876, and April 14, 1863.</p> <p>Under section 5 of the act of April 10, 1862, P. L. 866, providing that should the county commissioners of Clarion county neglect and refuse to erect a bridge over the Clarion river at or near the point where the Susquehanna and Waterford Turnpike Road strikes said river, “ the company, aforesaid (The Clarion Turnpike & Bridge Co.) are hereby authorized to erect a toll bridge at its own expense and costs, and to have the exclusive control thereof, and to levy a toll on all persons and property passing over the same, not to exceed in amount that authorized to be collected on two sections of the turnpike, and on all footmen, not to exceed two cents for each and every passage; ” the authority in the turnpike company to construct and maintain a bridge at the point in question is a grant distinct and separate from the general powers to maintain and operate a turnpike road.</p> <p>In such a ease if proceedings are instituted under the act of May 8, 1876, P. L. 131, to free the bridge, the county acquires the bridge, but not a part of the turnpike, and by such acquisition it not only takes the structure and approaches, but a distinct and separable part of the company’s franchises.</p> <p>The Act of April 14, 1863, P. L. 429, relating to tolls of the Clarion Turnpike and Bridge Company, has reference to tolls on the turnpike road, and by no reasonable construction can it be made to include the bridge expressly authorized by section 5, of the act of April 10, 1862, P. L. 366, lor which a special rate of tolls is fixed.</p> <p>Bridges — Measure of Damages — Proceedings to free loll bridge.</p> <p>Where a bridge is taken by a county for public use under act of May 8, 1876, P. L. 131, the true measure of damages is just compensation for the loss suffered by plaintiff in consequence of the taking by defendant of plaintiff’s property, being the substructure, superstructure and approaches to the bridge, together with the franchise or right to take tolls, and the jury have no right to find less: Mifflin County Bridge v. Juniata County, 144 Pa. 374; Montgomery County v. Bridge Company, 110 Pa. 54, approved.</p> <p>In a proceeding to free a toll bridge owned by a turnpike company, it is immaterial, on the question of damages, that at times part of the net receipts were appropriated to keep up the turnpike road, as this in no way tended to depreciate the value of the bridge; that there were net earnings was important; what use was made of them was immaterial.</p> <p>It seems that even if the bridge were an inseparable part of the turnpike, and the whole should be treated as one corporate property, the part taken, i. e. the bridge, should be estimated at its true value, when compared with the whole.</p>

<p>Affidavit of defense — Contract—Performance.</p> <p>In an action to recover on a contract for furnishing and erecting machinery, it appeared that the contract specifically provided that “the said machinery, etc., including, and intending to include all things necessary and needful for the setting up and furnishing a complete apparatus for crushing, washing, conveying and drying sand to the full capacity herein guaranteed by the said first parties, the parties of the first part agree to furnish all the above machinery and send one man to put up in complete working order and start said machinery. And the said first parties further agree to guarantee said grinding and washing machinery when put up to have a capacity of eight tons per hour and the dryer to have a capacity of four tons per hour.” The defendant filed an affidavit of defense expressly denying that the contract was substantially performed, and averring that the “ mill, plant or machinery was not erected or constructed in accordanee with the terms of said contract, but in such an unworkmanlike and defective manner as to cause the defendant great loss and damage; ” that the same was ‘ ‘ so defectively constructed in workmanship and of such defective material as to render the said plant almost wholly useless for the purpose for which it was intended.” The affidavit of defense further specified wherein plaintiffs failed to comply with their contract, and averred “that without taking into consideration the injury defendant sustained by reason of the defective work done by the mill, owing to faulty material and construction, and failure of the plaintiffs to perform their contract, the defendant sustained damages to more than the amount alleged to be due on the original contract,” etc. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>Execution— Confessed judgment — Waiver of exemption — Duty ofprothonotary to inspect record — Testatum fl. fa. — Negligence.</p> <p>When the prothonotary is directed to issue a testatum fieri facias it is his duty to inspect the record of the plaintiffs judgment and see that the writ conforms thei’eto in every material particular. If he neglects to do so and in consequence thereof any part of the claim is lost, he is liable to respond in damages to the extent of the plaintiff’s loss.</p> <p>Where a judgment note contains a waiver of exemption, and the prothonotary in issuing an alias testatum fieri facias upon the judgment entered on the note, neglects to note in the writ such waiver, and the defendant claims the exemption, and nothing is made on the execution, the prothonetary is liable to the plaintiff for the loss.</p>

Appeal, No. 48, Oct. T., 1895, by defendants, from order of C. P. Greene Co., April T., 1894, No. 156, discharging rule to open judgment. Rule to open judgment entered upon a bond with warrant of attorney to confess judgment. Before Mestrezat, J. From the record it appeared that on December 20, 1898, G. M. Gump & Company sold to defendants a stock of goods.

<p>Appeal, No. 93, Oct. T., 1895, by plaintiff from order of C. P. Greene Co., Oct. T., 1894, No. 38, quashing writ of attachment execution.</p> <p>Buie to quash attachment-execution. Before Mestrezat, J.</p> <p>T. J. Steel had a claim against McKerrihan, which on July 13, 1893, he sent to the state of West Virginia and there issued an attachment for its collection, and attached in the hands of the Baltimore & Ohio Railroad Company, as garnishee, the wages due McKerrihan, who was an employee of the said company in Allegheny county, Pennsylvania. A judgment was recovered on the said attachment and the amount thereof paid to Steel, and deducted from the wages due McKerrihan from the company. On September 25,1893, McKerrihan brought an action against Steel before a justice of the peace, under the act of May 23, 1887, P. L. 164, entitled, “ An act to secure to laborers within this commonwealth the benefit of the exemption laws of this commonwealth, and to prevent assignment of claims for the purpose of securing their collection against laborers outside of this commonwealth.” An appeal was taken from the judgment of the justice, and the plaintiff recovered judgment on the appeal for $81.07, the amount of McKerrihan’s wages attached and collected in the state of W est Virginia by Steel. Subsequently, at No. 37, Oct. T., 1894, a judgment was entered in favor of Thomas J. Steel for the use of his wife Lizzie M. Steel against McKerrihan. On July 5, 1894, an attachment execution was issued on this judgment and Thomas J. Steel was made garnishee. Interrogatories were filed and Steel answered that McKerrihan had recovered a judgment against him at No. 431, Oct T., 1893, for the sum of $81.07 on June 18, 1894. On August 4, 1894, McKerrihan presented his petition setting forth the facts and asking the court to quash and set aside the said attachment at the costs of the plaintiff. The court quashed the attachment.</p> <p>Error assigned was above order.</p>

<p>Bes judicata — Accounts—Payments.</p> <p>In an action to recover a balance due upon mercantile transactions extending over a period of four years, it appeared that during this time three notes had been given by defendant to plaintiffs to apply on the account generally, not to cover specific items of charge, or to include the whole amount then due. The first two notes were paid. Payment of the third, which was a judgment note for two hundred and fifty dollars, was refused on the ground of want of consideration. On a feigned issue to determine the validity of the judgment entered upon this note, there was a verdict for plaintiffs for one hundred and twenty dollars. After the date of the third note defendant continued to purchase goods from plaintiffs. Plaintiffs sought to establish their claim in the present action by proof of the whole account from the beginning, conceding a credit of two hundred and fifty dollars, the amount of the third note, although one hundred and twenty dollars only had been paid upon it. Held, that neither party could retry the questions involved in the feigned issue, but as there could not have been a recovery at the trial of the feigned issue for charges in the account after the date of the note, there was no adjudication as to them, aud as to them plaintiffs were entitled to recover.</p> <p>Statute of limitations — Application of payments — Accounts.</p> <p>In an action to recover the balance upon a general account, it is competent for the plaintiffs to show that certain payments had been appropriated to the earlier items of the account.</p>

Appeal, No. 141, Oct. T., 1895, by plaintiff, from judgment of C. P. Jefferson Co., May T., 1891, No. 180, on verdict for defendant. Ejectment for four thousand four hundred and thirty-seven acres of land in Jefferson county. Before Mayer, P. J., of the 25th judicial district, specially presiding. The names of the parties as they appeared upon the record, were S. Davis Page v. Chandler P. Wainwright, Willis L. Bryant and W. A. Simpson.

Appeal, No. 133, Oct. T., 1895, bygaruishee, from judgment of C. P. Westmoreland Co., Aug. T., 1893, No. 877, in favor of plaintiff, on attachment execution. Case stated on attachment execution. From the case stated it appeared that in August term, 1893,' plaintiff recovered a judgment against Sumner F. Goslee, and issued an attachment execution thereon with notice to George Weddell, executor of Elijah McGrew, deceased.

<p>Promissory note — Form of — Consideration—Seal—Interest.</p> <p>A promissory note under seal was as follows: “ For value received five thousand dollars to pay A. M. or order five thousand dollars with interest at the rate of six per cent without defalcation or stay of execution.” Held (1) that the instrument imported an undertaking by the maker for value received to pay A. M. or order the sum mentioned in it; (2) that interest should be computed from the date of the note.</p> <p>Promissory notes. — Demand—Action.</p> <p>A promissory note which mentions no time of payment is due forthwith, and an action may be maintained against the maker without any demand.</p> <p>Practice, O. P. — Trial—Admission of evidence.</p> <p>Where a party opposing the admission of evidence enumerates his objections, all that are not enumerated are waived: Lovett’s Exrs. v. Mathews, 24 Pa. 330.</p> <p> Practice, S. G. </p> <p>After two trials of a case in the coui’t below without a suggestion in any form that the execution of the note in suit by the defendant’s intestate was not sufficiently proved, his representative has no standing to raise the question on appeal.</p>

<p>Affidavit of defense — Exception—Appeal—Act of April 18, 1874.</p> <p>To sustain an appeal from an order of the court below refusing to enter judgment for want of a sufficient affidavit of defense, an exception must be taken to the order as required by the act of April 18, 1874, P. L. 64.</p> <p>The act of April 18, 1874, P. L. 64, was intended to reach only clear eases of error in law, and the Supreme Court will not consider an appeal under the act where at most there is merely a doubt as to the correctness of the decision of the lower court.</p>

<p>Contract — Evidence—Relevancy of evidence.</p> <p>In an action by a partnership to recover the price of lumber, where defendant alleges that he did not buy the lumber from the plaintiff, but from another firm, and that the person who made the sale to him was a member of both firms, but had made the sale for the second firm in consideration of defendant’s releasing it from another contract, evidence relating to that contract, how far the same had been executed, and the state of accounts between defendant and the second firm are admissible for the purpose of showing circumstances tending to make the proposition advanced by the defendant more or less probable.</p> <p>In such cases much latitude must necessarily be allowed in the admission of corroborating testimony.</p>

Appeal, No. 190, Nov. T., 1895, by defendant, from order of C. P. Westmoreland Co., Nov. T., 1894, No. 69, refusing to strike off supplemental county auditors’ report, and judgment thereon. Held: That under the peculiar circumstances of the ease, the petitioner’s remedy, so far as the second report of the auditors, relating to his accounts for the year 1893 is concerned, was by appeal and not by motion to strike off the report.

<p>Appeal, No. 296, Oct. T., 1894, by defendants, from judgment of C. P. Armstrong Co., Sept. T., 1892, No. 71, on verdict for plaintiff.</p> <p>Trespass to recover damages for the pollution of a stream by the operation of a distillery. Before Rayburn, P. J.</p> <p>From the record it appeared that on June 5, 1893, the case came on for trial and a verdict was given in favor of the defendants. On January 20, 1894, the verdict was set aside and a new trial granted. On February 26, 1894, a motion was made to amend the praecipe, writ and statement by striking out the words “ doing business under the firm name of the Hileman Distilling Co.” On February 26, 1894, this amendment was allowed. [1, 2]</p> <p>At the trial when Joseph Hileman was on the stand he was asked this question: Q. After they began running that distillery what effect did it have upon the water in that run?</p> <p>Mr. Patton: We object to any evidence of any trespass committed by William Hileman and John Ott doing business as the Hileman Distilling Company, for the reason that this action is not brought against the company or partnership, but against William Hileman and John Ott as joint trespassers, and therefore no evidence can be admitted of any trespass committed by the partnership. I would ask Mr. McCain to make his offer.</p> <p>The Court: I think for the present we will permit the plaintiff to show what acts of trespass were committed by the defendants or either of them, and how committed, and seal a bill for the defendants. [3]</p> <p>Q. And what was the condition of the water there</p> <p>Mr. Patton: We object after June or before December.</p> <p>The Court: From December, ’91, to June, ’92.</p> <p>Mr. McCain: We propose to ask him up to the present date.</p> <p>Mr. Patton: We object to the witness testifying to any damage after the time Of bringing suit, to wit, the 27th of June, ’92.</p> <p>The Court: We will admit the testimony and seal a bill for the defendants.</p> <p>Mr. Patton : The offer is objected to, — first, because the act of the 2d of May, 1876, P. L. 95, does not apply to an action on the ease such as the present action ; and second, at the time the notice was given, to wit, 25th of January, 1894, the Hileman Distilling Company was then the defendant and the present defendants were not parties, and at no time have they had notice that the plaintiff would undertake to recover damages down to the time of the bringing of suit.</p> <p>The Court: The same ruling as above and bill sealed for the defendants. [7]</p> <p>The court charged in part as follows:</p> <p>[The defendants were in operation of this distillery jointly; they were the partners of a firm known as the Hileman Distilling Company. It has been contended that there could be no recovery here because they were not charged as a firm; that to is say, the summons and statement, declaration in the case, do not charge them as doing business as the Hileman Distilling Company. I am of the opinion that it was not necessary to charge them as doing business under the firm name which the evidence shows they had adopted. That it is enough if the action is brought against them jointly. They were, as the evidence shows, the members of this firm, and responsible for whatever was done in the ordinary conduct of the business of the concern, and if this injury was occasioned by their own acts or the acts of either of them, or by the acts of their agents or employees while in the conduct of the business of the firm, they are responsible for the consequences.] [4]</p> <p>Defendants’ points were among others as follows:</p> <p>2. That the declaration or statement as amended is against William Hileman and John Ott as joint trespassers, and there being no evidence in the case which shows a joint offense in which both the defendants were implicated, the verdict of the jury must be for the defendants. Answer: Refused. [5]</p> <p>8. That the declaration or statement as amended charges William Hileman and John Ott with committing the alleged trespass as joint trespassers, while the undisputed evidence is that, if any trespasses were committed, they were done by William Hileman and John Ott, copartners doing business as the Hileman Distilling Company; therefore the probata and allegata do not agree, and the verdict of the jury must be for the defendants. Answer: Refused. [6]</p> <p>Plaintiff’s point was as follows:</p> <p>1. If you find that the plaintiff was the owner and occupant of the premises upon which this trespass was committed and that, prior to the erection of this distillery by the defendants, the stream of water which runs through the plaintiff’s land was good, pure water and was used by him for farm and domestic purposes, but, by reason of the defendants’ running or permitting the still-slop or refuse from said distillery or hog pens to run into this water of the said stream, has been polluted so as to render it unfit for use and depriving the plaintiff of the enjoyment of it, he is entitled to your verdict in such an amount as would compensate him for the injury and damages sustained from December 16, 1891, to the present time. Answer : I have been asked by the plaintiff to instruct you as to certain questions law: I affirm the first, second, third and fourth points of the plaintiff, and say to you as requested, that if you find that the plaintiff was the owner and occupant of the premises upon which this trespass was committed, and that, prior to the erection of this distillery by the defendants, the stream of water which runs through the plaintiff’s land was good, pure water, and was used by him for farm and domestic purposes, but by reason of the defendants running or permitting the still-slop or refuse from said distillery or hog pens to run into this water of the said stream, has been polluted so as to render it unfit for use and depriving the plaintiff of the enjoyment of it, he is entitled to your verdict in such an amount as would compensate him for the injury and damages sustained from December 16, 1891, to the present time. [8]</p> <p>Verdict and judgment for plaintiff for 6J cents. Defendants appealed.</p> <p>Errors assigned were, (1, 2) allowance of amendment of the pleadings; (3-7) rulings on offers of evidence, quoting the bill of exceptions ; (4, 5, 6, 8) above instructions, quoting them.</p>

<p>[Marked to be reported.]</p> <p>Seed — Location of land — Parol evidence — Ejectment.</p> <p>Parol evidence is admissible to explain an ambiguity in a deed as to the location of ithe land intended to be conveyed.</p> <p>Vendor and vendee — Seed—Sescription—Location of land — Parol evidence — Question for jury.</p> <p>In an action of ejectment it appeared that R. was the owner of two adjoining tracts of land, one containing 128 acres, and the other containing 136 acres. By articles of agreement he sold to L. the tract of 128 acres, describing its boundaries by the names of the adjoining owners. Immediately after this description the agreement continued as follows: “The coal right in the northern hill, as far as to the centre, between the southern and northern boundary, vests in the purchaser, and he has the right to dig the coal as his property, and to make a road to the coal bank over the shortest and most passable route. R. has likewise the right of access to the coal over the shortest and most passable route that will cause the least damage, on the southern side, and if necessary to prospect for coal, and to open a coal mine on the said purchaser’s, L.’s property, but he is not allowed to take out coal over the middle.” The evidence of the scrivener who wrote the articles was in effect that the “ northern hill” was in the northern half of the 136 acres tract, and that by instructions of both parties he was directed to write the agreement so as to include the coal under the northern half of the 136 acres tract. Held, that the agreement.was not so vague and uncertain that it could not be interpreted, and that the question of the location of the coal was for the jury on all the evidence.</p> <p>Vendor and vendee — Articles of agreement — Recording articles — Notice.</p> <p>Where a purchaser of coal from an equitable owner by articles of agreement places the articles on record, the fact that the vendor subsequently takes a deed from the legal owner will not affect the rights of the vendee under the articles, and any one claining under the deed will be affected with notice of all that the articles contain.</p> <p>Seed — Separation of minerals from surface — Adverse possession.</p> <p>An owner of land who conveys the coal under his land to another cannot reacquire title to the coal by possession of the surface continued for any length of time. Such possession is neither hostile, visible, notorious, nor continuous, and is no possession of the coal at all.</p> <p>A purchaser of land under articles of agreement is not bound to take actual possession of it, in order to preserve his title.</p> <p>Vendor and vendee — Seed—Resulting trust — Act of April 22, 1856.</p> <p>Where a purchaser of coal under articles of agreement pays the whole amount of the purchase money, and places the articles on record, no resulting trust arises to which the act of April 22, 1856, P. L. 532, applies.</p> <p>Vendor and vendee — Deed —Equitable title — Estoppel.</p> <p>An equitable owner of two tracts of land by articles of agreement sold one tract in fee simple and the coal under a portion of the other tract. The articles constituted a present sale of the coal completed by the execution of the agreement, and required no further conveyance to perfect it. The purchaser recorded the articles, and subsequently the vendor procured the legal owner to make a deed to the purchaser of the tract sold in fee simple, and also took a deed to himself from the legal owner of the other tract without any reference being made in the deed of the sale of the coal. Held, (1) that the agreement was not merged in the deed of the tract under which the coal had been sold, and that the vendee’s right to the coal was not thereby forfeited; (2) that the vendee by the acceptance of the deed for the land which he had bought outright, did not estop the vendee from claiming the coal under the other tract.</p>

<p>Malicious prosecution — Probable cause.</p> <p>Probable cause is a reasonable ground of suspicion supported by eir-| cumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. The test is the prosecutor’s belief of the existence of probable cause at the time, based upon reasonable grounds. ,</p> <p>In an action for malicious prosecution probable cause is shown where it appears that defendant had placed his satchel on the seat of the passenger car in which he was riding, and without his knowledge it had been removed and carried away by plaintiff, who in explanation said that he thought it belonged to a friend, and that after failing to find the supposed owner at the station kept it instead of returning it to the car or the station agent, and carried it a mile or more into the country and gave it to a stranger who said that he would give it to the owner.</p>

<p>Appeal, No. 102, Oct. T., 1895, by James Wilson, from order of C. P. Beaver Co., Dec. T., 1894, No. 5, dismissing exceptions to auditor’s report.</p> <p>Exceptions to auditor’s report distributing fund raised by sheriff’s sale of real estate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were, (1) in finding as a matter of law that the mortgage of James Wilson was not discharged by the sale upon said judgment; (2) in not finding that said mortgage was payable out of the proceeds of sale after said mechanic’s claims; (3) in awarding any of the proceeds of said sale to George M. Hilliard, the judgment creditor.</p>

<p>Trespass for cutting timber — Evidence—Charge of Court — Boundaries.</p> <p>In an action of trespass for cutting timber where the defendants request the court to charge that as the line claimed by the plaintiffs gave them more land than their deed called for, and the defendants less land than their deed called for, this circumstance should have great weight in sustaining the latter’s contention that the line claimed by defendants was the true line between the parties, it is proper for the court to decline to say that great weight should be given to such a circumstance, and to instruct the jury that it should be accurately weighed in favor of the line claimed by the defendants, and that it, is for the jury to determine what weight should be afforded to it in connection with the other circumstances in the case.</p> <p>Trespass for cutting timber — Declarations.</p> <p>In an action of trespass for cutting timber, while any act or declaration of the plaintiffs opposed to and tending to discredit their contention on the trial is admissible and calculated to weaken their claim concerning the true location of their land, it cannot operate as a bar to their right to compensation for the timber cut by the defendants on plaintiffs’ land unless the defendants in cutting it were misled or influenced by such act or declaration.</p> <p>Evidence — Motion to withdraw evidence — Testimony partly, incompetent —Practice, C. P.</p> <p>Where a motion is made to withdraw evidence from the consideration of the jury, if a part of the testimony is incompetent, and a part of it competent, the motion must be confined to the objectionable part.</p> <p>The court is not bound to strike out evidence admitted without objection, when the fact upon which its exclusion is claimed was known to the opposite party when the evidence was given.</p>

<p>Equity — Practice—Notice—Equity rules — Appearance of defendants.</p> <p>It is no ground for dismissing a bill in equity because plaintiff’s solicitor used the old form of notice to appear, answer, etc., instead of the new form prescribed by the amended equity rules, where the record shows that all the defendants had voluntarily appeared, and without objection actively participated in all the proceedings.</p> <p>The sole purpose of the notice, required by the rule of court, is to compel appearance of the defendant, etc. When he appears voluntarily and answers without objection to the form, or even the absence of notice, all that was intended to be accomplished by formal notice in accordance with the rule has been secured as effectually as if he had appeared, filed a waiver of notice and submitted his answer: Cassidy v. Knapp, 167 Pa. 805, distinguished.</p>

Appeal, No. 185, Oct. T., 1895, by plaintiff, from decree of C. P. Beaver Co., June T., 1891, No. 1, on bill in equity. Bill in equity to restrain condemnation proceedings.

Appeal, No. 228, Oct. T., 1895, by-defendant, from judgment of C. P. Cambria Co., March T., 1894, No. 641, on verdict for plaintiff. Trespass to recover damages for death of plaintiff's husband. Before Bell, P. J. The facts appear by the opinion of the Supreme Court. The court submitted the case to the jury reserving the question whether the undisputed evidence in the case .showed contributory negligence on the part of the deceased. Veidict for plaintiff for $5,000.

Appeal, No. 113, October Term 1895, by defendant from judgment of C. P. Butler County, March T., 1895, No. 130, on verdict for plaintiff. Assumpsit for rent on an oil and gas lease.

Appeal, No. 62, Oct. T., 1895, by defendant, from judgment of C. P. Butler Co., Dec. T., 189-1, No. 1, on verdict for defendant. Sheriff’s interpleader to determine the ownership of stock and fixtures of a restaurant. Before Greer, P. J. At tbe trial it appeared that on July 26, 1894, J. H. Miller obtained a judgment against Annie E. Sink, and levied an execution upon the stock and fixtures of a restaurant in Mrs. Sink’s possession.

Appeal, No. 134, Oct. T., 1895, by defendants, from judgment of C. P. Butler Co., Dec. T., 1894, No. 59, on verdict for plaintiff. Assumpsit to recover commissions for sale of oil property. Before Greer, P. J. At the trial it appeared that plaintiff, a member of the bar, requested from defendants the privilege of offering for sale tbeir oil and gas property. Defendants agreed to permit him to sell it, and the price was fixed at $70,000.

<p>Lease — Oil and gas lease — Landlord, and tenant — Forfeiture—Waiver-Declarations — Question for jury.</p> <p>The lessor in an oil and gas lease will not be permitted to enforce a forfeiture of the lease for a delay of one day in the payment of rental, where by his acts and declarations he has lured the lessee into the belief that a forfeiture will not be enforced for so short a delay.</p> <p>Upon the evening of the last day upon which rent was to be paid under an oil and gas lease, the lessee went to the lessor’s house in the evening and roused the lessor from his. bed to make payment. The lessee testified : “ I says to him, I came up to pay this rental. And he says, What brought you here at this time of night. I said to him, I thought you would kick or something of that kind if I didn’t come. And he says, You ought to have known me better than that, to-morrow would have done as well, or something like that.” The second quarter was paid a few days before it was due. On the third day before the third quarter was due the lessor being at the lessee’s barn, the lessee asked him to wait until he could go to his house for the money to pay the rental. When the lessee returned from the house which was a short distance from the barn, the lessor had gone. The rent was tendered the day after it was due. The lessor then declared a forfeiture of the lease. Held, that the case was for the jury under proper instructions to determine whether the acts and declarations of the lessor were calculated to lead, and did lead the lessee into a day’s default, and whether by such acts and declarations he had not waived his right to forfeit the lease for the ground stated.</p>

Appeal, No. 123, Oct. T., 1895, by-defendant, from judgment of C. P. Butler County, Dec. T., 1892, No. 33, on verdict for plaintiff. Trespass for personal injuries. Before Longenecker, P. J., specially presiding. The facts appear by the opinion of the Supreme Court. The court charged in part as follows: [Now, that (changing the grade of pavements) was such an improvement as must have been anticipated by the borough authorities.

Appeal, No. 203, Oct. T., 1895, by-defendant, from judgment of O. P. Washington County, February T., 1891, No. 371, on verdict for plaintiff. Assumpsit to recover an alleged balance due for work as a blacksmith. Before McIlvaine, P. J. At the trial plaintiff supported his claim by the production of small passbooks which were in the possession of Mr. Neel for years, and were produced, by the executor, under notice.

Appeal, No. 205, October Term, 1895, by plaintiff, from judgment of C. P. Butler County, Dec. T., 1895, No. 71, on verdict for defendant. Assumpsit to recover royalties under an oil lease. Before Gbeeb, P. J. The caption of the case as it stood upon the record was as follows: C. J. D. Stroheeker, J. H. Latchaw, J. D. Stauffer, J. T. Johnson, W. A. Goehring, Householder and Jones, C. M. Root, S. M. Kidd, Geo.

<p>Appeal, No. 217, Oct. T., 1895, by plaintiffs, from judgment of C. P. Butler County, September Term, 1894, No. 1, on demurrer for defendants.</p> <p>Bill in equity for discovery and an account.</p> <p>The bill averred that plaintiffs and defendants were tenants in common of a lease for oil and gas purposes of six acres of land in Adams township. The bill further averred:</p> <p>That after the execution and delivery of said lease it was agreed by the plaintiffs and defendants that the same should be tested and developed, and plaintiffs were employed and engaged to drill two wells on said lease for the purpose of testing and developing the same at the rate of §1.00 per foot for the first well and §.90 for the second, the cost of which drilling was to be charged to, borne and paid by all the owners of said lease in proportion to their respective interests.</p> <p>In furtherance of the said purpose of testing and developing said lease it was agreed by the plaintiffs and defendants that the plaintiffs should furnish the wood rigs, casing, boilers, engines, connections, fittings and tools required for and to be used in the drilling of said wells, the cost of which was to be charged to, borne and paid by all the owners of said lease in proportion to their respective interests.</p> <p>In compliance with the agreements entered into between plaintiffs and defendants as set out in the two preceding paragraphs, plaintiffs proceeded to drill two oil wells and two water wells on said lease and completed the same at a cost of $3,500, and also furnished two wood rigs, about four thousand six hundred feet of casing, two boilers and two engines, connections, fittings and tools for and in said wells, the cost of which amounted to $2,000 more, which was paid for by plaintiffs.</p> <p>Said wells when completed began to produce oil in paying quantities, whereupon it was decided by plaintiffs and defendants to equip them for pumping and operate them as pumping wells, which having been done in the month of March or April, 1891, said wells have been pumped by the owners of said lease continuously to this date, in which time plaintiffs have laid out and expended for labor and expenses upon and about said lease and wells and for supplies and materials furnished to and for said wells, the sum of $7,900.</p> <p>That plaintiffs having laid out and expended the sum of about $14,000 for and about the development and operation of the property held by them in common with the defendants, five twelfths of which only is properly chargeable to and payable by them, the plaintiffs; there is and remains large sums of money due and owing on this account from them, the defendants, to plaintiffs, the amount of which the latter cannot now state with exactness.</p> <p>That since the months of March, April and September, 1891, when the work of pumping and operating said wells was commenced, defendants have laid out and expended various sums of money in paying for labor and expenses upon and about the same and for supplies and materials furnished to and for said wells, but how much money was thus expended and in what proportions by each of said defendants, plaintiffs are ignorant and cannot state for want of knowledge, except that it would be much less than the sums laid out and expended upon the joint account by plaintiffs, as described above.</p> <p>That upon an account taken of the expenditures and outlay by both plaintiffs and defendants upon the common property, the lease and wells aforesaid, defendants would be entitled to a credit for all legitimate and proper expenditures and outlay upon and about the common property; nevertheless plaintiffs aver and allege that after deducting all possible proper credits, there would remain a large balance or sum of money due from defendants to plaintiffs.</p> <p>That it is necessary that an account be taken between plaintiffs and defendants to show the true state of the accounts between them in respect to the common property aforesaid; that the plaintiffs have no knowledge or information as to the amount of the legitimate and proper expenditures and outlay made or expended by defendants upon and for the common property, and therefore they cannot give credit to defendants for the amount of said expenditures and outlay for want of such knowledge and information, and it is necessary that plaintiffs have discovery of the amount of money legitimately and properly laid out and expended by defendants for and about the common property aforesaid, in order that plaintiffs may ascertain the balance or sum of money due to them from defendants upon the joint account.</p> <p>That the defendants while not denying that there is a large sum of money due from them to plaintiffs upon the joint account in regard to the common property will not agree upon the amount thus due to plaintiffs or admit the same, and have failed and refused or neglected to pay said balance or sum of money or any part thereof to plaintiffs.</p> <p>That plaintiffs have made repeated efforts to have a settlement and adjustment of their joint accounts in regard to the common property with defendants, but all such efforts have failed through the neglect and refusal of some of the defendants to enter into any settlement with plaintiffs, and through the inability and failure of others of the defendants to agree with plaintiffs upon any settlement of the joint accounts between them from which the amount due from them to plaintiffs might be ascertained.</p> <p>Wherefore, the plaintiffs averring that they are without adequate remedy at law and that they are in need of equitable relief, pray your honorable court to order and decree,</p> <p>1. That each of the defendants be decreed to answer this bill and all matters therein contained.</p> <p>2. That an account be taken and ascertained under the direction of this court of all moneys due from defendants to plaintiffs upon the contract for the drilling of the two wells upon said lease and for all monej's laid out and' expended by plaintiffs for the wood rigs, casing, boilers and engines, connections, fittings and tools furnished by them for and used in the drilling of said well, as well as the sums laid out and expended by them for labor and expenses upon said wells and lease, and for supplies and materials furnished to and for the same.</p> <p>3. That under the same direction an account be taken and ascertained of moneys laid out and expended by the defendants for labor and expenses upon said lease and wells, including all supplies and materials furnished to and for the same by them.</p> <p>4. That upon the taking and ascertainment of said accounts the defendants be decreed to pay to the plaintiffs the sum or balance found to be due from them to plaintiffs thereon with interest.</p> <p>5. That the plaintiffs may have such other or further relief in the premises as the nature of the case and the circumstances of the same may require, and to this honorable court may seem meet, just and equitable.</p> <p>6. That the defendants be decreed to pay the costs of this proceeding.</p> <p>The defendants demurred to the bill on the ground that plaintiffs had a complete, full, adequate and convenient remedy at law under the act of May 6, 1891, P. L. 41.</p> <p>The court in an opinion by Greer, P. J., sustained the demurrer and dismissed the bill.</p> <p>Error assigned was above decree.</p>

<p>Negligence — Contributory negligence — Accident in street — Choice of ways.</p> <p>Where a person has a choice of ways it is not negligence for him to choose one way whose dangerous condition he does not know, although he has knowledge by actual previous travel that the other way is safe.</p> <p>Negligence — Water company — Contributory negligence — Excavation in •streets — Running on cartway — Running to afire.</p> <p>A water company made an excavation in the cartway of a street to repair a water pipe. The repair was completed on the same day, but the excavation was not filled up.. The excavation was guarded by barrels, and planks placed on the top of the barrels, and extending to a dirt pile. On the evening of the second day after the excavation had been made, plaintiff in running to a fire struck one of the planks, which gave way, and plaintiff was precipitated into the excavation, suffering serious personal injuries. The nearest light to the excavation was a street lamp about sixty-one yards distant. The pavement opposite the excavation was being repaired, and was in bad condition, and this was known to plaintiff. Held, that the question oí defendant’s negligence and plaintiff’s contributory negligence was for the jury.</p>

Appeal, No. 170, Oct. T., 1895, by defendant, from judgment of O. P. Washington Co., May T., 1894, No. 192, on verdict for plaintiff. Trespass for injuries to surface as the result of removal of coal.

<p>Appeal, No. 78, Oct. T., 1895, by-defendant, from judgment of C. P. Washington Go., on verdict for .plaintiffs.</p> <p>Assumpsit on a contract for drilling an oil well. Before McIlvaine, P. J.</p> <p>At the trial it appeared that on April 1,1893, W. L. Mellon of Pittsburg contracted in writing with Samuel Galey to drill a well for oil or gas on a farm in Washington county. By the terms of the contract Galey was to furnish all tools, cables, etc., at his own expense and risk, and the fuel, labor and hauling required in completing the well, and case it dry of water. Mellon was to furnish wood, rig, casing, machinery and water, and pay 90 cents per foot for the drilling. On the same day the contract was made, Galey, in consideration of $180, made a parol assignment thereof to Smith Bros., the appellees, and Smith Bros., who were experienced contractors and drillers, did the work under the contract. Smith Bros, were not subcontractors. Defendant claimed that one of the wells drilled was defective, owing to the neglect or incapacity of Smith Bros.’ superintendent, and that Galey had no right to assign the contract to Smith Bros.</p> <p>Defendant’s points were as follows :</p> <p>1. That there is no privity of contract in this case between the use plaintiffs and the defendant arising out of any assignment, legal or equitable, of the contract made by Galey with Mellon, and the use plaintiffs are not entitled to recover, upon said contract, and the verdict of the jury must be for the defendant. Answer: Refused. [1]</p> <p>2. If the jury find from the evidence that the use plaintiffs in this case had no assignment of the contract made by Mellon with Galey for the drilling of McCarty No. 3, but that their contract was made with Galey alone and for a less price than Galey was to receive from Mellon, then their right of action for the work done in the drilling of said well is against Galey and not against Mellon, and the verdict of the jury must be for the defendant. Answer: Affirmed, unless there was an assignment of the amount due Galey by Mellon for drilling this well before this suit was brought; in that case the plaintiffs would be allowed to recover the amount admitted to be due by Mellon and for which Galey gave the plaintiffs his order on Mellon. [2]</p> <p>3. Even if the jury find that the contract between Mellon and Galey for the drilling of the well was assigned to Smith Bros., and that E. A. Culbertson, field superintendent, named in the contract, directed that the drilling of said well proceed after the discovery'of water in what is known as the “Big Injun” sand, and that he subsequently directed that the casing be drawn from said well and the well reamed as claimed by plaintiffs, still there can be no recovery by the plaintiffs for the work done on the first well or the materials lost therein, because according to theii* own testimony the mode of drilling said well in respect to bailing out water and the use of casing was under the control and direction of the said Culbertson, and was one of the incidents and conditions of the contract under which the plaintiffs undertook to drill said well. Answer: Affirmed. If the jury further find that Culbertson or Mellon, his principal, in giving said directions, in no way violated the express agreement of Melon as found in the written contract introduced into evidence as to furnishing the necessary casing. [3]</p> <p>4. That the contract made by Mellon with Galey was for the personal services of Galey in the drilling of McCarty No. 3, and was not assignable, and the fact that the use plaintiffs in this case drilled the said well under an arrangement made by them with Galey gives them no right of action upon the Galey contract against Mellon. Answer: Refused. [4]</p> <p>5. That under all the evidence in the case the verdict of the jury must be for the defendant. Answer: Refused. [5]</p> <p>6. Under all the evidence in the case the use plaintiffs are not entitled to recover for the drilling of the well abandoned by them, and the verdict of the jury cannot be for a greater sum than the balance due for the well completed by them in the oil sand. Answer: Refused. [6]</p> <p>Plaintiff’s point was, among others, as follows:</p> <p>If the jury believe from the evidence in the case that Smith Bros, were performing the work under the contract between Galey and Mellon, with the knowledge on Mellon’s part that Smith Bros, had succeeded to the rights of Galey under said contract, and that Mellon made no objection to the said Smith Bros, continuing and completing said work, this would amount to a ratification by Mellon of the assignment by Galey to Smith Bros, of the contract in question. Answer : Affirmed. [7]</p> <p>Verdict and judgment for plaintiffs for $3,227.68. Defendant appealed.</p> <p>Errors assigned were above instructions, quoting them.</p>

<p>Appeal, No. 223, Oct. T., 1895, by plaintiff, from judgment of C. P. Washington Co., on verdict for defendant.</p> <p>Trespass for personal injuries. Before McIlvaine, 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>Granting, now, that the travel on this country road was such that it was negligence on the part of the township in not erecting a guard or barrier between the ends of the two pieces of' fence along the west side of the bridge, as claimed by the plaintiff, the question then arises, was the failure to erect a barrier at the west side of the bridge the proximate cause of the injury suffered by the plaintiff. The facts bearing on this question and to which we have referred are, as we have said, undisputed, and this easts a duty on the court which we would much rather have had cast on the jury.</p> <p>While it is undoubtedly true as a general proposition that the question of proximate cause is for the jury, yet it has been repeatedly held that where there are no disputed facts the court must determine it. [In our opinion, the dropping of her hat by the plaintiff, the subsequent stop to regain it, and the backing of the horse in such a way as to drive the hind wheels of the buggy to and over the west edge of the bridge, was the proximate cause of the accident; the negligence of the township, if it was negligent in not putting up a barrier (granting that such a barrier would have withstood the force of a rapidly backing horse), was the remote cause of the accident.] [1]</p> <p>The negligent act of the township — not putting up a barrier —had no relation whatever, or in no way contributed to or superinduced the dropping of the hat, the stop after safely crossing the bridge, or the backing of the horse in the manner he did. [The act of the horse and the failure to put up a barrier did not concur in bringing about the injury; they were not causes operating together at the same time to bring about the accident. But they were distinct, successive and unrelated causes. The backing of the horse, after the stop to get the hat, was an independent, unrelated cause, without which the inflicting of the injury would not have happened. It was the first or proximate cause of the injury; the want of a barrier the second or remote cause.] [2] [The backing of the horse was the efficient and responsible cause of the infliction of the injury, with which the absence of a barrier was in no way related.] [3] [Had a barrier, such as would have relieved the township of the charge of negligence, been erected, the rapidity with which the horse was backing, and the force he was applying to the buggy, might have sent the buggy over the bridge. In other words, the accident was caused, brought about, set in motion, by the backing horse, independent of anything the township had done or left undone; and the erection of a guard rail would have at most only minimized the consequences of the accident.] [4] [It may be conceded that the absence of a guard rail made the consequences of the accident more serious, but as the absence of the guard rail did not bring about or help to bring about the first accident, to wit: the uncontrollable action of the horse, it was a remote and not a proximate cause of the plaintiff’s injury.] [5]</p> <p>Again, the township’s road commissioners were only required to provide against what might ordinarily happen in the ordinary use of this road, considering the number of .people that traveled upon it and the manner in which it was used. [The accident here was extraordinary in its character. It was not such an accident as under the circumstances might and ought to have been foreseen by tbe road commissioners.] [6] I can see how the want of a guard rail on a bridge like this would be the proximate cause of an accident. If a horse going upon this bridge would frighten at the narrowness of the bridge seeing the drop of six feet at either side, and the driver by reason of the surroundings would become nervous and unable to hold the horse, and he would jump or back over the side of the bridge, then the absence of a guard rail might be considered the proximate cause. The condition of the bridge would, in such a case, start the series of acts that would culminate in the final accident. In all the reported cases that we have been able to find where injury was done by going over an embankment or off a bridge, it appears that the omission of the municipality to do something it ought to have done brought about or started or helped to bring about or helped to start the accident, and did something more than aggravate the consequences of the first accident, brought about by some other independent cause.</p> <p>[Under the undisputed facts of this case the question — “Is the township liable ? ” is a question of law, and must be determined by the court, and we instruct you that it is not liable ; the proximate cause of the plaintiff’s injury was the unruly conduct of the horse ; and the township having done nothing either directly or indirectly that caused it to act in this way, it is not legally responsible for the consequences that followed as succeeding events in a series of accidents. We instruct you to return a verdict in favor of the defendant.] [7]</p> <p>The defendant has asked us to charge you as follows :</p> <p>1. Under the undisputed evidence of the case, the negligence of the township was not the proximate cause of the injury, and the plaintiff cannot recover. Answer: Affirmed. [8]</p> <p>2. Under all the evidence in the case the verdict should be for the defendant. Answer: Affirmed. [9]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1 — 9) above instructions, quoting them.</p>

<p>Appeal, No. 31, Oct. T., 1895, by defendant, from decree of C. P. Washington Co., No. 778, in equity.</p> <p>Bill in equity for an injunction to prevent defendant from interfering with a spring within the limits of plaintiff’s right of way.</p> <p>The case was referred to David Sterrett, Esq., as master, who reported that plaintiff was a corporation organized under the act of April 15, 1851, P. L., 690, and subject to the act of January 26, 1849, P. L. 10, entitled “An act regulating turnpike and plank road companies.” The plaintiff constructed its road from Washington to the village of Prosperity in the years 1853 and 1854. The master further reported the following facts:</p> <p>After the road was built and as early as 1869, a watering trough was put up on land now owned by W. W. Smith at north end of cut. A pipe was put in the drain and the water carried to the trough. The water was conducted part of the way in an open drain and the balance of the way in a pipe. Afterwards about the year 1883 the plaintiff made a contract with W. W. Smith, in pursuance of which he extended the pipe to the spring and conducted all the water from the spring. There was a tight reservoir made at the spring and covered over so as to exclude the surface water and carry all the spring water out of the cut. This the witnesses say was a good arrangement. It was a decided improvement in draining the road and keeping down the accumulation of ice in the winter season. The reservoir and pipe was within the appropriation and the pipe was in the bottom of the drain. The purpose of the company was to drain the road. The spring water was taken through the pipe and the drip from the rocks was carried off in the drain. The watering trough was continued and supplied with water. There was no watering trough for six miles beyond and it was an accommodation to the traveling public. The first watering trough was provided for by contributions from persons residing in the neighborhood but has been maintained under direction and control of the plaintiff.</p> <p>About the 12th of October, 1892, the defendant commenced to interfere with the reservoir and pipes which conveyed the water from the spring to the watering trough. He took a hatchet and broke the top off the basin that was used to conduct the spring water into the pipe. He was in control of the property of the heirs of Robert Boyd, deceased. He says his plan was to make a trough at the spring. He proposed to cut the rock back four feet and rest the trough on the rock and let all the water run into the trough. He says he claimed the water for the benefit of the land. He denied the right of the company to the water. He went there frequently and threatened to carry out his plan by using dynamite to blast away the rock and make a place for a watering trough at the spring, alleging that the water belonged to him and he could do what he pleased with it. The evidence shows that he acted under a claim of right and not from malice or illwill.</p> <p>The damage done to the highway by the defendant was but trifling and compensation for the injury already done to the plaintiff’s method of draining the cut is sufficiently made by the payment of a nominal sum.</p> <p>At a point about half a mile from Washington in crossing the summit of the hill a deep cut was made in constructing the road. It is about three hundred feet long, and in the middle or deepest part of the cut the walls on each side are about fifteen feet high. The cut is fourteen to sixteen feet in width in narrowest part. The line of the road at this place was surveyed and located and is now in its original location. When the cut was made it was found to be in a stratum of limestone, and under that a blue sandstone was found. For a good part of the way through the cut the roadbed, was solid rock. The walls at the sides have been changed somewhat by detrition but in the deeper part they are still nearly perpendicular. There is a rising grade through the cut to the southward, so that all drainage must be to the north or Washington end. At the time the cut was made the land belonged to James G. Strean. It subsequently became vested by conveyances in Robert Boyd, now deceased, and it is now the property of his heirs at law.</p> <p>At the time the road was made a spring of water was opened in the rock at west side of road in the deep cut and about equidistant from each end of the cut. The' water came out at western side of cut close to the drain. It was a good living spring of water. It was necessary to drain it to north end of cut. The surface of the land of the heirs of Robert Boyd upon which the spring is situate is higher than the road at north end of the cut. The spring cannot be conducted by natural drainage out of the cut to the land of Robert Boyd’s heirs off the line of plaintiff’s easement. The land on the east side of the cut is the property of the W ashington Cemetery Co. The land at the northern end of the cut upon which the watering trough is located is the property of W. W. Smith, but the watering trough is within the lines of the plaintiff’s appropriation and at the roadside. In addition to the water from the spring, water drips from crevices in the rocks, for the most part between the spring and the north end of the cut and from the walls on the west side of the cut. It was difficult to provide drains. The plaintiff had to cut drains in solid rock. Could not make drainage without blasting. Owing to the draft of air through the cut it was a very cold place in the winter season. The open drain would freeze full of ice, and the spring water from above would run across the road and freeze, making road sideling and interfere with maintaining the road in safe condition for travel. It sometimes made the road very dangerous, causing vehicles to slide against the opposite bank.</p> <p>The master recommended the granting of an injunction as prayed for by the bill.</p> <p>Exceptions to the master’s report were overruled in an opinion by McIlvaine, P. J., and a decree entered enjoining defendant from interfering with the spring.</p> <p>Error assigned, amongst others, was above decree.</p>

<p>[Marked to be reported.]</p> <p>Statutes — Repeal—Repugnancy—Acts of May 24,1878, and May. 16,1891 —Change of grade in borough.</p> <p>The act of May 24, 1878, P, L. 129, entitled “ An act for appointing viewers to assess damages where streets and alleys are changed in grades •orlocationinthe several boroughs of this commonwealth,” is not repealed by the act of May 16, 1891, P. L. 75.</p> <p>The act of May 24,1878; provides a remedy for the individual citizen in the single case of changing or altering grades, whereas the act of May 16, .1891, provides comprehensively for proceedings intended to be instituted by municipalities chiefly, in all cases of laying out, opening, widening and extending streets, alleys and lanes, and for the building of bridges, piers, abutments, sewers and other works, and for ascertaining in one proceeding all the damages suffered by all abutting owners affected by the particular improvement, and assessing upon all properties benefited the amounts of the benefit as a fund out of which to pay the damages.</p> <p>If the citizen desires to proceed on his own account and for the ascertainment of his own damages alone, he will proceed under the act of May 24,1878, which is especially adapted to his case, whereas if he wishes to embrace in his proceeding all the cases affected by the particular improvement, he will proceed under the act of May 16, 1891, P. L. 75.</p> <p>The enactment of the act of June 24, 1895, P. L. 248, as a supplement to the act of May 24, 1878, giving viewers mileage at the rate of ten cents per mile in addition to the pay of one dollar and fifty cents per day provided by the act of May 24,1878, shows that the legislature did not regard the act of May 24, 1878, as repealed by the act of May 16, 1891.</p> <p>Road law — Boroughs—Streets—Change of grade — Failure to agree with owner as to damages.</p> <p>Under the act of May 24, 1878, P. L. 129, relating to change of grade of streets in boroughs if there is an actual failure to agree with a land owner as to damages, from any cause, not necessarily as the result of an abortive attempt to agree, it is enough to justify a recovery. The mere absence of consent of the owner to the change, is of itself alone sufficient to enable a recovery.</p> <p>A petition under the act of May 24,1878, averring that the change of grade “ was made without the consent of the petitioner, and that no compensation for the injury inflicted upon his property by reason thereof, has been agreed upon by the said borough and the petitioner,” contains a sufficient averment to give the court full jurisdiction to entertain the petition.</p> <p>Road law — Streets—Change of grade — Shade trees — Damages.</p> <p>Where, in effecting a change of grade of street in a borough, it has been necessary to remove shade trees and a porch, the jury cannot allow any sum distinctly as damages either for the trees or porch, but in estimating the difference in market value of the whole property before the improvement and after it, they may take into account the condition of the property as it was with the trees and porch, and as it was without them, and then determine whether the market value of the whole property had been affected by the improvements.</p>

<p>Appeal, No. 92, Oct. T., 1895, by defendant, from judgment of C. P. Washington County, February Term, 1894, No. 79, on verdict for plaintiffs.</p>

<p>Appeal, No. 232, Oct. T., 1895, by defendant, from judgment of C. P. Butler Co., March T., 1895, No. 40.</p> <p>Assumpsit to recover for services rendered to defendant's intestate. Before Greer, P. J.</p> <p>At the trial it appeared that Mary Kauss, whose real name is'Mary Swager, had lived in decedent’s family from 1876, at which time she was six years old. It appeared that decedent had no children of his own, and that his wife was an invalid. Desiring a girl to raise, he agreed with Mrs. Swager to take Mary, and if the girl should remain with him until his death, that she should have all he had. On October 31, 1894, decedent was shot dead in his own house by two robbers. He died intestate leaving his wife to survive him.</p> <p>Plaintiff was called to the stand.</p> <p>Defendant’s counsel objects to the witness if it is proposed to prove anything in the lifetime of the decedent.</p> <p>The Court: She is competent to contradict any conversation she liad with any person, any conversation that took place in her hearing we will receive this, and give you the benefit of an exception. Bill sealed. [1]</p> <p>Q. The witness who left the stand a moment ago testified to a conversation he heard between yourself and old Mr. Kauss in regard to your going away when you were twenty-one years of age; just state in your own way what that conversation was, and who the witness was that was present, the name of the witness being Mr. Seor, who was present and heard this talk between you at Mr. Kauss’s ?</p> <p>Defendant’s counsel objects to the question on the ground of the incompetency of the witness, and the purpose of the question is to contradict statements or declarations of the decedent made to the witness, the plaintiff.</p> <p>The Court: We will receive it and give you the benefit of an exception. Bill sealed. [2]</p> <p>George Seor testified as follows. Q. Go on and tell what that conversation was ? A. Mr. Reiber: He said he was not present at this conversation, that he (Kauss) told him that Mr. Kauss told this gentlemen (witness) while Mary was present what was said. George Kauss said, “Mary, why don’t you go away ? You have no more right here, you are twenty-one years old.” And she always said she did not want to go away; she said she did not want to go away, that she wanted to stay with him. Q. Did that take place more than once, any conversation like that ? A. Several times. He said that she could go away and that she was free, that she was not compelled to stay there, and he said that different times.</p> <p>The Court: Was Mary present when he said that? A. Yes, sir, she was there working around and sometimes she was sitting there.</p> <p>[If Mr. Kauss and the mother made an agreement that she was to go and stay there and work there and continue there until Mr. Kauss’s death, if Mr. Kauss through negligence or without expecting to be called away, failed to turn it over, the law says he must give to Mary whatever her services are honestly worth.] [9]</p> <p>You have not a thing to do with the man over in the Fatherland; it don’t make any difference to you; you have nota thing to do with the widow; we have a duty to perform and if we undertake to reach outside to outside contracts we will get more on our hands than we can attend to and we will be doing something that our oaths do not require. If this is a debt of Mr. Kauss he must pay it and must pay it because it is a debt. This girl offers this proof, and the burden of proof is on her, the burden is on her to show that there was a contract of some kind by which she was to go to this man’s house and remain with him during his lifetime and perform and work according to that contract, and she must show that she did it and when she had done that then she had complied with her part and she can recover. What was the contract? Mr. Kauss is dead; death has closed his lips; they are sealed forever; he is not here and he cannot tell what the bargain was; the law seals this girl’s lips, therefore the proof must come outside of them. She puts on the stand her mother, who says this; I will read from her testimony: “ Q. Did you have any conversation afterwards with him about it? A. Yes, sir, after she was there a while he came down and got me at Harmony and when he was bringing me back he said if I would leave her with him until his death all he had should be hers, and what he had was hers. Q. Did he tell you what he had ? A. The farm and all he had. Q. Did you assent to this arrangement? A. Yes, sir.” [If what that lady says is true then there was a contract made on which this girl can recover unless she has in some way violated that contract.] [10] Is it true ? If it is not we cannot receive loose declarations to others to establish contracts; there was the proof of Mr. Kauffman and Mr. Dunbar as to statements the old man made to them within the few last years as regards this property. If the mother had not made this arrangement this testimony would not be proper, but it is proper to support and corroborate her statement, [and if you believe that this old gentleman told Mr. Kauffman and Mr. Marburger and Mr. Ripper and Mr. Mc-Niel and Mr. Dunbar that he was going to give this farm to Mary, it is strong corroborative evidence that he made the contract just as Mrs. Williams said he did; you have a right to take it for that purpose.] [11] I said a minute ago that Mary could not be a witness to testify to anything that occurred in the lifetime of the decedent because he cannot tell what occurred, neither does the law allow her to tell, but a latter act allows a party to testify or deny or explain a conversation that is alleged to have taken place between the witness and another party who is a competent witness to testify. [The defendant having put Mr. Seor on the stand to testify to a conversation he heard between Mary and Mr. Kauss relative to this contract, then the law allows Mary to come on the stand and tell her side of the conversation, but nothing else. When Mr. Seor testified then Mary became competent, and you heard her statement.] [12] Let me say if there was a contract between Mary and her mother and Mr. Kauss, as, Mrs. Williams says there was, and Mary went on and fulfilled her part and was performing her part of the contract and had done so for fifteen years, Mr. Kauss could not terminate it then after having received fifteen years of her work, but if Mary went away that was the end of it, but if Mary refused to go and stayed, the old man telling her to go would not terminate it, because you can easily see it would not be fair to receive the benefit of a contract for fifteen years and when he would not need her services much longer that he could terminate it and turn her out without anything, and if she was told to go, that would not terminate this contract unless Mary went away and gave it up.] [13] Mary had a right to say, “ I have a contract with you and I want my pay, and I cannot get it until you die, and I am going to stay with you until you die.” You heard what she said as regards to what the old man did say. Is that true ? If it is then she must recover in this case.] [14]</p> <p>The defendant in this case is an administrator; he is one of the best men in our county, and more than that he wants to do what is his duty, and so far as he is concerned he is doing exactly right. The next question, if you find there was such a contract, is how much are you going to give her. If he were worth a hundred thousand dollars she cannot get this property. She can only get what her services are worth, because the conveyance was not made to her in Mr. Kauss’s lifetime. What was it honestly worth? You are here to measure out justice between these parties; you know neither of them; you like the estate as well as Mary; you should not like one better than the other; it is for you to decide how much Mary ought to get; [Mary worked on the farm and in the house; she worked from the time she was six years old until she was twenty-five; part of the time she went to school. The time she was away learning to sew would not be a forfeiture of this contract on her part; she was given her services and you have a right to believe that she was learning to sew for the benefit of the family, to sew for Mrs. Kauss.] [15] [She had no right to anything for services until the old man’s death.] [16]</p> <p>What were her services worth, taking off the schooling she got, and books, and any medicine that there is any proof of, and clothing, — take it all off. [If she worked faithfully and honestly, what were her services worth to this old man and woman? On your oaths and consciences, on the spirit of honor and fairness, on the spirit of right and justice what ought she to get from this estate? ] [17] [You heard the testimony of some very good men in the county; you heard the testimony of Mr. Marburger and Mr. Kauffman and Mr. Ripper; are they right? You are not bound to their statements; ] [18] [you heard the statement of the old gentleman on the part of the defense; are old men as liberal as younger men ? Have they gotten down to the idea that our people have, as to wages ? Give that honest consideration and render such a verdict as will give this girl every dollar that is due her honestly.] [19] She got her clothing and [you have a right to consider this that she was not to get any money until his death; suppose she had got wages, would the interest in the long run amount to her clothing? Had she gotten her money every Saturday would it have come to what her clothing amounted to ? ] [20] [You cannot go over three thousand dollars; you only go as far as the sworn proof will justify you; come down to the proof and say how much her services are worth; take it up and render a verdict, and if you find for the plaintiff j'ou say, we find for the plaintiff so many dollars; I will not fix any amount; I would not suggest any amount; that is for you ; that is about what I have to say to you.] [21] As regards the statement of the limitation, it was suggested that you could not go back further than six years. The law is this, that a man must collect his debts within six years after they are due, and if he does not he cannot collect unless he shows some promise to pay it ; [this money would not be due Mary until the old man’s death. Suppose she had sued at the end of ten years she could not recover ; why, because the contract was that she was to be paid at his death; the time did not come until the old man breathed his last, and if she can collect anything she can collect all.] [22]</p> <p>Defendant’s point, among others, was as follows:</p> <p>4. There can be no recovery for any services rendered to the decedent that were not performed within the last six years prior to the bringing of suit. Answer: That is refused, because she could not sue to collect any time until after Mr. Kauss’s death. [5]</p> <p>Verdict and judgment for plaintiff, §3,000. Defendant appealed.</p> <p>JSrrors assigned were, (1, 2) ruling on evidence, quoting the bill of exceptions; (5, 8-22) above instructions, quoting them.</p>

<p>Appeal, No. 244, Oct. T., 1895, by defendant, from decree of C. P. Butler Co., June T., 1895, No. 2, on bill in equity.</p> <p>Bill in equity to restrain the collection of water rents and to compel a water company to supply better water.</p> <p>The bill averred that plaintiffs were citizens of the borough of Butler, and that the defendant was a corporation organized under the act of April 29, 1874, for the purpose of supplying the borough of Butler with pure water, and that the said corporation by its charter and ordinances of the borough had the exclusive right to furnish the supply of water to the citizens of the said borough. The bill further averred as follows:</p> <p>“4. That the said The Butler Water Company derives its supply of water as furnished by it to your orators and the citizens of the said borough of Butler solely and alone from the waters of the Connoquenessing creek, which waters are muddy, filthy, impure and unclean in character and quality, and insufficient and deficient in quantity to supply your orators and the citizens of the said borough with pure water.</p> <p>“ 5. That the said Connoquenessing creek does not furnish a full, sufficient and adequate supply of good, pure, clean and healthful water to your orators and the citizens of the said borough for fire, steam, sewage, and domestic purposes as furnished your orators by the said The Butler Water Company.</p> <p>“ 6. That the said borough of Butler, Pa., contains about ten thousand inhabitants and is built on and near the banks of the said Connoquenessing creek, which is the sole and only source from which the said The Butler Water Company seeks to supply your orators and the inhabitants of the said borough with water, the said creek being nothing more than the natural drainage sewer for the valley through which it flows and the watersheds adjacent thereto.</p> <p>“ 7. That the said Butler Water Company does not and has not furnished a sufficient supply of pure water for the use of the orators, citizens of the said borough, but on the contrary the supply of the water as furnished by the said The Butler Water Company is and has been insufficient, impure, filthy and absolutely unfit for use for domestic and other purposes.</p> <p>“ 8. That the pipes, reservoir and source of supply of said Butler Water Company are and have been for a long time in a dirty, muddy, filthy and impure condition.</p> <p>“ 9. That said Butler Water Company has not heretofore nor does it now properly filter the water furnished your orators and citizens of the said borough, either before pumping the same from the said creek into the reservoir or before passing the water from the said reservoir into the supply pipes or mains.</p> <p>“ 10. That the schedule of rates and charges or water rents assessed, charged and collected by the said The Butler Water Company for the water furnished by it to your orators and the citizens of the said borough who use the water so furnished has been and still is excessive, unfair, unjust, extortionate, oppressive, lacks uniformity and is unequal.</p> <p>“11. Wherefore your orators, alleging that they have no remedy at law, pray your Honor:</p> <p>“ A. To hear, inquire and determine as to the impurity and deficiency of the water supply as furnished your orators and citizens of the said borough of Butler by the said The Butler Water Company.</p> <p>“ B. To hear, inquire and determine as to the charges of the said The Butler Water Company for the water so furnished your orators.</p> <p>“ C. To make such order in the premises as may seem just and equitable and to compel the said corporation, The Butler Water Company, to correct the evils complained of by your orators.</p> <p>“ D. To decree that the charges of said Butler Water Company assessed and charged to each of your orators shall be decreased as to the said court majr seem just and equitable.</p> <p>“ E. That the said Butler Water Company, defendant, be decreed to pay the cost of this proceeding.</p> <p>“ F. For such other and further relief as your honor shall deem just and equitable and the nature of the case shall require.”</p> <p>The answer averred, inter alia, as follows:</p> <p>“4. We admit that the sole supply of water of the defendant company, as at present conducted, is the Connoquenessing creek, but we deny that the waters thereof are muddy, filthy, impure and unclean in character and quality or insufficient or deficient in quantity to supply the plaintiffs and citizens of the borough of Butler with pure water. We qualify this answer, however, by adding that about January last Russell & McNally commenced pumping salt water from an oil well operated by them upon the ground at their well, from whence it finds its way into the Connoquenessing creek, and have since continued to pump the same; that the Independent Gas Company have also commenced to pump salt water into the creek from a well operated by them, both under claims of right so to do. The salt water so pumped from these wells does or will render the waters of said creek impure, especially when the water is at a low stage; but for the purpose of preventing this impurity we have filed a bill in equity to March term, 1895, which is still pending.</p> <p>“ 6. We neither admit nor deny the sixth paragraph in plaintiffs’ bill, but if by use of the word ‘sewer’ it is intended to convey the idea that the water is contaminated and sewage is carried, then it is denied.</p> <p>“ 9. We deny the necessity of a filter, as the water furnished by us is pure, wholesome and fit for public and domestic use, as described in paragraph 4 hereof.</p> <p>“10. The rates, charges, or water rents assessed, charged and collected by us for water furnished to the plaintiffs and to the citizens of Butler are not excessive, unfair, unjust, extortionate, oppressive or unequal, and do not lack uniformity.”</p> <p>The evidence tended to show that the water supplied by defendant was unfit for domestic use and for steam purposes.</p> <p>Grebe, P. J., filed an opinion which was in part as follows:</p> <p>4. That the defendant company from the date of its organization to the present time has not wholly neglected, failed and refused to furnish to the inhabitants of the borough of Butler a sufficient supply of pure water as required by the provisions of the statute under which it is incorporated, as well as under its charter. The supply for nine months in the year has generally been sufficient and ordinarily good and pure, but during two or three months in the dry season of the year the supply has not been sufficient, nor has the water beén reasonably and ordinarily pure and wholesome. During the summers of 1893 and 1894 the supply was especially limited and the quality verj’- impure and unwholesome.</p> <p>5. That in the summer of 1893 grass and weeds were allowed to grow in the reservoir, which was unfenced, and in which dogs were permitted to swim and wash.</p> <p>6. That the cistern from which the water was pumped into the reservoir consisted of a round hole in the ground, walled around with stone, not close, which was permitted to fill with slime and filth, which cistern remained so for a long period of time.</p> <p>7. That the cistern from which the unfiltered water was pumped into the reservoir of the company in 1893 was permitted to remain in an unusual filthy condition, containing slime and large quantities of unwholesome and filthy matter; that within sixty feet of the said bistern was a hog pen, and within twenty or thirty feet was a stable with manure and other unwholesome matter surrounding it in a most filthy condition, and near it was a privy or water closet in a filthy and bad condition; all these things remaining on higher ground than the cistern, and at one time negligently suffered a dead horse to remain for several days in the upper end of the dam from which the water was pumped into the reservoir.</p> <p>• 8. That the said company, although notified and requested by the board of health to remove and repair the condition of things in the neighborhood of this cistern, neglected and refused to do so.</p> <p>9. That the water furnished by the said company to the inhabitants of the said borough of Butler is and has been from the date of its organization, at times, muddy, filthy, impure and unclean in character and quality, insufficient in quantity for the uses and purposes of the inhabitants of said borough.</p> <p>10. That in the late fall and winter season the water furnished by the said company was reasonably good and wholesome, yet was frequently muddy, but during the summer and early fall it was generally deficient in quantity and unclean and unwholesome in quality.</p> <p>11. That said defendant company was indifferent as to its duty and careless and negligent in its management of the business, and has almost entirely failed to comply with and carry out the purposes of its organization, in that it has not constructed and maintained a sufficient plant with the necessary appliances for said purpose.</p> <p>12. That the place and source from which the defendant company has been obtaining the water to supply the plaintiffs from its incorporation to the present time is, at times, muddy and filthy, and during two or three months of the year is impure and unfit for domestic and other purposes, and during which times it is insufficient in quantity.</p> <p>13. That a sufficient supply of pure water can be obtained from other sources than the Connoquenessing creek within a reasonable distance from the borough of Butler and at a reasonable cost and outlay, so as to make it practicable for said company to comply with the purposes of its organization.</p> <p>14. That before the erection of the waterworks at Butler the citizens of said borough were supplied by water from water wells and from the Connoquenessing creek, the water from the creek being used for washing purposes and the water from the wells for domestic uses, at which time the population of the said borough would not exceed three thousand people, whilst the present inhabitants number nearly ten thousand.</p> <p>15. That the deficiency in the quantity of water supply and its quality is the result of extreme drouth, failure of rain and indifference and negligence on the part of the defendant company in failing to store and husband the flow of water in the stream, so as to provide for dry seasons.</p> <p>16. That the defendant company lias not furnished the waters of the Connoquenessing creek fully and fairly to the extent of its flow, but has refused to filter and neglected to furnish the same as pure and clean as could have been done by cai’e, attention and a reasonable expenditure of money, and the said company has not made such reasonable and fair effort to obtain other pure supplies as could reasonably have been done by it.</p> <p>17. That the water furnished to the consumers for nine months in the year has been wholesome and fairly and reasonably pure, at times muddy and unclean, but during two or three months, the dry season, it was impure and unwholesome, sometimes so much so that it was accompanied with a foul stench to such an extent that it was almost sickening for persons to be in a bath room when it was drawn from the spigots.</p> <p>18. That the present impurities occasioned by the salt water which flows into Connoquenessing creek from oil wells drilled by parties along the banks of the creek, began in February and the flow therefrom yet continues, and the defendant company filed a bill in equity to restrain the parties drilling the wells from corrupting the waters with the salt water, which proceeding is pending and undisposed of.</p> <p>19. That the failure to furnish pure water in sufficient quantities has been wholly brought about by acts or negligence on part of the respondent. During the extreme dry weather in the summer months the stream becomes very low and filthy and the water impure and unfit for domestic uses, during which times the company wholly neglected to remedy its condition or produce water from other sources which were within its power and could have been done by a reasonable outlay of money.</p> <p>20. That the water furnished to the inhabitants of the borough of Butler was not at all times wholesome and ordinarily pure prior to the introduction of salt water into the Connoquenessing creek. No sickness has been traced to its use, while typhoid fever and other diseases have been traced to the use of well water, from dug wells.</p> <p>21. That a large proportion of the water furnished in the summer season is from the wash and sewerage of the roads, fields and country within the bounds of the watershed and is not of such quality as should be used for culinary and domestic purposes, especially when furnished without filtering.</p> <p>22. That of late years the average daily consumption of water by the inhabitants of Butler was over eight hundred thousand gallons.</p> <p>23. That about the first of February, 1895, persons drilling oil and gas wells on the watershed of the Connoquenessing creek have been emptying salt water into the said stream at the rate of from eight to ten thousand barrels a day up until the present time, and polluting the water to such an extent that it is entirely unfit for domestic use ; that it corrodes and eats the pipes through which it passes and can only be used for flushing the sewers of the borough, water closets, and for extinguishment of fires, and is not sufficient in quantity for these purposes ; during the nighttime it is turned off the hotels and houses and the water closets are suffered to remain without flushing until morning.</p> <p>24. The watershed of the Connoquenessing creek from which the water has been furnished by the water company to the people of Butler extends some nine or ten miles north and northeast of Butler borough and contains thirteen thousand, eight hundred and eighty (13,880) acres of land.</p> <p>25. That in addition to this, Bonniebrook, a stream coming from the east, empties into the Connoquenessing a little below its present dam and has a watershed containing five thousand one hundred (5,100) acres.</p> <p>26. That an estimate of the yearly waterfall at the rate of thirty-six inches per year on the watersheds of Connoquenessing and Bonniebrook will produce 19,549,728,000 gallons of water, or 53,560,898 gallons per day.</p> <p>27. Estimating that the waste by absorption, evaporation and leakage will amount to fifty per cent, or one half of this amount, 53,560,898 gallons per day, we have remaining a daily supply of 26,780,449 gallons, more than twenty-six times the amount of water at any time pumped into the reservoir daily.</p> <p>28. Estimating the population of Butler at 10,000 and allowing 150 gallons per day per capita for 365 days in the year, the amount of water required for a sufficient supply is 552,500,000 gallons per year or about 1,500.000 gallons per day.</p> <p>29. That the several watersheds of Connoquenessing creek and its tributaries, with a rainfall of thirty-two inches per year will furnish a sufficient supply of water for ten times the population of Butler as estimated, if properly handled and stored.</p> <p>30. That Butler is sixteen miles from the Allegheny river at Monterey and about eighteen or nineteen miles from Parker, and a water line with pumps, engines, etc., can be erected to either of these points at a cost of from one hundred and twenty-five to one hundred and fifty or seventy-five thousand dollars, which would not be unreasonable or impracticable, considering the size, growth and requirements of the borough of Butler. •</p> <p>31. That the defendant’s application for a charter, recorded in Charter Book No. 1, page 134, provides that “the business of said corporation is to be transacted in the borough of Butler, in the county of Butler and state of Pennsylvania.”</p> <p>32. That the directors and officers of the said defendant company did not transact all business of their said company at Butler borough, Butler county, Pa., as provided in their application for charter, but held frequent meetings of the directors at Kittanning, in Armstrong county, Pa., where important business of the company was transacted.</p> <p>33. That the important hooks of the company were not kept in Butler borough, Butler county, Pa., but were kept at Kit-tanning, Armstrong county, Pa., some forty miles away.</p> <p>34. That on the 8th day of July, 1895, the court of common pleas of Butler county, sitting in equity, made an interlocutory decree commanding and directing the said Butler Water Company, defendant, to provide, secure and furnish a sufficient supply of pure water to the plaintiffs in this case and the inhabitants of Butler borough on or before August 15, 1895.</p> <p>35. That the said water company and its directors, officers, superintendents and managers have willfully and negligently disregarded the mandates of the law under which the said company was organized and its charter granted, and. has failed and refused to at all times furnish a sufficient quantity of pure water —water that is wholesome and ordinarily pure, to the citizens of Butler, Butler county, Pa., and the plaintiffs in this case.</p> <p>36. That the said company, its officers, directors, etc., have utterly disregarded the order of the court made on the 8th of July, ordering and directing the furnishing and providing of a sufficient supply of pure water and have been guilty of contempt of court.</p> <p>37. That the said company, its officers, directors, superintendents, etc., have not, since the 8th of July, 1895, nor since the 15th of August, 1895, the time given to perform the order of court, made a reasonable effort to provide, furnish and supply the water as commanded to do, but have unnecessarily delayed the same and have been utterly regardless of the order of the court, the rights of the plaintiffs, the health and welfare of the 'citizens.</p> <p>88. That the inhabitants of the borough of Butler and the plaintiffs are suffering greatly for the want of a sufficient supply of pure and wholesome water, and there is great danger of sickness and disease disastrously spreading over the town. The people are compelled to use water for drinking and domestic and culi rary purposes from dug wells, which are unwholesome and dangerous to life and health and to which diphtheria and typhoid fever have been traced, and from drilled wells, the character of which is at least questionable. Some are being supplied by persons hauling with wagons and others are carrying from a long distance at great inconvenience.</p> <p>39. That all indulgences by the court, extensions of time and courtesies on the part of the plaintiffs in this bill have been disregarded and disrespected by this company defendant, and it becomes the important duty of the court to use such power as it may have in its hands to compel respect for the law and obedience to the order of court.</p> <p>CONCLUSIONS OF LAW.</p> <p>From a careful consideration of this case, I have reached the following conclusions of law, which seem to me to apply to the facts as found:</p> <p>1. The word “pure” in the act of 1874, under which this bill was filed, means ordinarily pure and wholesome water, and not absolutely and chemically pure.</p> <p>2. That the impurity and deficiency of the water complained of and shown by the testimony in this case are such evils as are contemplated by the act of 1874, and therefore this bill should be sustained.</p> <p>3. That the water furnished prior to the introduction of the salt water was not ordinarily pure and wholesome during the entire year, but during three months — the summer season — it was impure, unwholesome and unfit for domestic and culinary purposes, and the court has power, under the act of 1874, to make an order on the respondents to furnish pure water. The act legally construed relates to an evil within the power of the respondents to correct, and in this case the respondents have had, and still have it within their power to correct these evils, but they have willfully refused and failed to make such effort as they reasonably should have done under the circumstances and have shown a spirit of obstinacy which lacks liberality, enterprise and due regard for the health, comfort and safety of their patrons, these plaintiffs, and other citizens of the borough of Butler.</p> <p>4. That each of the plaintiffs in .this bill is entitled to the relief prayed for, to wit: a sufficient supply of pure water, and it is the duty of the respondents, under the act of the 29th of April, 1874, to furnish a sufficient supply of pure and wholesome water.</p> <p>Owing to the negligent conduct, the unnecessary and unreasonable delays, the willful disregard for law, the stubborn disobedience to the orders and decrees of court, the utter indifference and disregard for the health, comfort and absolutely necessary demands of the people on the part of the defendant company, it becomes the duty of the court to make such order in the premises as may seem just and equitable and compel this corporation to correct the evil so properly complained of by tbe plaintiffs. The respondents have been guilty of willful contempt of court, and have deliberately defied the laws of this commonwealth in regard to their duty under the act of assembly by which their corporation was created and their franchise granted. Stern measures on the part of the court are now imperative to spare the people of the borough of Butler from an epidemic and a disastrous future. Men who have this high power under the laws of our commonwealth, the right of eminent domain to enter upon, take and use the lands of others for the purposes of their business, must exhibit more enterprise, liberality and willingness to perform the duties which they have assumed toward their patrons and the public.</p> <p>The hearing in this case was commenced on the 6th of June. After two days’ work it was, on motion of the respondents, continued two weeks. It was again continued on their motion, and again put off at their asking. The court listened to arguments for two days, and the case closed on July 3, 1895. On the 8th of July an interlocutory decree or order was made and filed giving the defendants until August 15th to perform this important work. No active steps were taken in this direction until the latter part of July. No reasonable and practical effort was made toward correcting the evils complained of until within a short time of the expiration of the period given by the court.</p> <p>It now becomes the duty of this court to make an order and decree upon the Butler Water Company, defendant, its directors, officers, superintendents and managers to at all times from this day furnish pure water in sufficient quantities to supply the necessary demands and wants of the plaintiffs and other inhabitants of Butler who may desire to use the same, and to transact the business of said company at the borough of Butler, Butler county, Pa., according to the provisions in the application for their charter, and it is also ordered that from February 1, 1895, until pure water in a sufficient quantity is furnished as aforesaid, no rates or charges shall be made or collected of the patrons of said corporation, except for water furnished to extinguish fires, to flush the sewers of the borough, and to flush water closets in the public buildings, hotels and private houses, which shall be the present rates charged by the said company defendant, and. that the defendant company pay the costs in this proceeding.</p> <p>The court entered the following:</p> <p>And now, to wit, September 14, 1895, this case having been fully heard by the court, without reference to a master and the findings of fact, conclusions of law and opinion of court, filed, it is ordered, adjudged and decreed as follows:</p> <p>1. That the Butler Water Company, defendant, has willfully and negligently failed, refused and neglected to furnish the inhabitants of the borough of Butler, Pa., and the patrons of said company with a sufficient supply of pure (reasonably pure) water.</p> <p>2. That from February 1,1895, until pure (reasonably pure) water in sufficient quantity is furnished by the Butler Water Company to its patrons, no rates or charges shall be made or collected from consumers, except for water furnished to extinguish fires, to flush the sewers of the borough and to flush water closets in the public buildings, hotels and private houses, which shall be at the present rates charged by the defendant company.</p> <p>8. That the defendant company at once and forthwith secure and provide, and at all times furnish a sufficient supply of pure (reasonably pure) water to the inhabitants of the said borough of Butler, Pa., and patrons of the said defendant company.</p> <p>4. That the defendant company be, and are, hereby ordered and required to beep and maintain the principal office of said company within the said borough of Butler, Pa.</p> <p>5. That the defendant company pay the costs of these proceedings.</p> <p>Errors assigned among others were as to various findings of • facts, and the decree of the court as above.</p>

<p>[Marked to be reported.]</p> <p>Water Companies — Public use.</p> <p>The furnishing of water to the public is like the furnishing of light and heat, a public use.</p> <p>Eminent domain — Visiiorial powers — Water company — Parties.</p> <p>To enable it to discharge its duties to the public a water company is clothed with the right of eminent domain; and to secure to the public faithful service, it is subject to the visitorial powers of the state.</p> <p>The commonwealth was regularly on the record in this case as a party plaintiff, and it was error to dismiss the bill without considering the questions raised on her behalf.</p> <p>These questions were three in number: First, To what extent does the public use served by the Water Company place it on higher ground than that of a private person or corporation serving a private use ? Second, Does a city with its thousands of inhabitants, and its duty to protect them in the enjoyment of the necessaries of life and the preservation of health, stand on no higher ground than a private citizen so far as the protection of its water supply from pollution is concerned P Third, May not the commonwealth rightfully interfere in such a case in the exercise of its police power ?</p>

<p>Appeal, No. 139, Oct. T., 1895, by defendant, from judgment of C. P. No. 2, Allegheny Co., April Term, 1894, No. 725, on verdict for plaintiff.</p> <p>Trespass for alleged wrongful ejection of plaintiff from a street ear. Before Magee, J.</p> <p>At the trial it appeared that plaintiff wbile riding on a street car of defendant on March 7, 1894, refused the conductor’s request to enter the car where there was room, and persisted in riding on the platform. A rule of the company forbade passengers to stand on the platform when there was room inside the car. Other facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[Now in this case there is no special damage done. The only thing that has been of any harm to him are some little bruises, of which he does not complain especially, any more than saying that he was bruised about the shoulders and was kicked about the legs, things which did not permanently or seriously injure him or cause him to suffer any pain beyond the pain of the blow at the time; and the other ground of complaint that he had a wrong done to him in the disgrace, whatever it might amount to, in being ejected from a car in which he had thought he had, or perhaps under the evidence in this case, in which he had a right to continue his trip. These are the two questions. Now the ordinary rule with reference to damages is, that merely compensatory damages should be awarded, — that is what will make the man whole for any injury he may have sustained. That is the ordinary rule, and applies to the ordinary case. Where there has been any specially outrageous, or unnecessary and unreasonable force used, then it may come to a question of vindictive damages, — damages he can obtain as a solace to the injuries to his feelings, and as a reason why more care should be used in exercise of power or authority by men who have the position of conductor or the employees on a railway car.</p> <p>Now, I don’t think I need to say anything more on the subject. There are rights in the public in traveling, and there are rights in the company in providing reasonable rules, and if they violate the rights of others, they do a wrong, and are liable to damages, but the compensation must be considered with reference entirely to the damage that has been sustained; what it would be if it is of a vindictive character, or such reasonable damages as a jury would fix for an injury which has been done.] [1]</p> <p>Defendant’s point was as follows:</p> <p>1. Under all the evidence in this case, the verdict should be for the defendant. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $870.88. Defendant appealed.</p> <p>JUrrors assigned were (1, 2) above instructions, quoting them.</p>

<p>Appeal, No. 212, Oct. T., 1895, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 686, on verdict for plaintiff.</p> <p>Trespass for personal injuries. Before Magee, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>A witness for defendant was asked this question: Q. Had he before the accident made a practice of attempting to jump out of the elevator before the elevator came to a full stop ?</p> <p>By Mr. McQuistion : What is the purpose of the question?</p> <p>By Mr. Potter: To show his carelessness in this matter, and to show that he was warned against this very thing.</p> <p>Objected to as incompetent and irrelevant for any purpose in this issue. The question is, what did he do at the time of the accident; and whatever may have taken place prior thereto is wholly irrelevant to the matter now in issue.</p> <p>Objection sustained. Exception. Bill sealed for defendant. [1]</p> <p>Defendant’s point, among others was as follows :</p> <p>3. Under the pleadings and all the evidence in this case the verdict should be for the defendant. Answer: This point is refused. [2]</p> <p>Verdict and judgment for plaintiff for $6,000. Defendant appealed.</p> <p>Errors assigned were, (1) ruling on evidence, quoting the bill of exceptions; (2) answer to point as above; (3) portion of charge relating to measure of damages, quoted in the opinion of the Supreme Court.</p>

Appeal, No. 208, Oct. T., 1895, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1892, No. 510, on bill in equity. Bill in equity to prevent the obstruction of a street.

<p>Appeal, No. 167, Oct. T., 1895, by defendants, from judgment of C. P. No. 3, Allegheny Co., May T., 1894, No. 396, on verdict for plaintiffs.</p> <p>Assumpsit to enforce personal liability of agents of a foreign insurance company which had not complied with the insurance laws. Before McClung, J.</p> <p>The facts appear by the opinion.</p> <p>At the trial plaintiffs offered in evidence the following averments of their statement not denied by the affidavit of defense:</p> <p>2. “ That on December 15,1893, proofs of loss as required by and in accordance with the terms of said policy were duly delivered, personally, to the firm of Rinard & Williams, at their office in Braddock, Pa.”</p> <p>Mr. Hudson: We say it is true that on December 15, 1893, an envelope containing papers was handed to Williams, but nothing said about it containing proof of loss, or that it was for the said Westmoreland Insurance Company, or had any connection whatever with said loss by fire, and the defendants had been in the habit of keeping papers for plaintiffs in the safe, and put them in the safe for safe keeping, etc., (reading at length from' affidavit of defense, as follows), “ and did not learn until long afterwards that they were claimed as proof of loss for said insurance company, and had plaintiffs told defendants at the time said papers were handed them that they referred to the Westmoreland Insurance Company, the defendants would not have taken them from plaintiffs; defendants have no knowledge about the terms of said policy, and therefore neither affirm nor deny that notice was given in accordance therewith; and defendants have no knowledge of any proofs sent to said company or to E. J. Werner, agent of said company, by the plaintiffs, but defendants deny that they sent any proofs to said company, or to E. J. Werner, agent for said company.”</p> <p>The Court: That is not a denial under the rule of court. Objection overruled and bill sealed for defendant. [1]</p> <p>Mr. Yost: 3. “ That said defendants were at the time of the issuing of the said policy, and still are, partners doing business under the firm name of Rinard & Williams, and engaged in the insurance business as agents of insurance companies.”</p> <p>The Court: (Referring to the ruling on the second offer-above.) We think that at least the admission should go in as prima facie evidence or evidence of the fact of the papers being delivered. We do not pass upon the question as to whether defendants would be entitled to make an explanation of the matter.</p> <p>Plaintiff offered deposition of Gale Sherman.</p> <p>Second interrogatory: What knowledge, if any, have you of the town of Colonial Beach, Virginia ? State, if you can, its location, population and distance from the nearest railroad. Answer: Have known the town for the last six years, it is located on the Potomac river sixty-eight miles below Washington, D. C., in Westmoreland County, Va. The population is about one thousand in the summer and in the winter about one hundred — about forty miles from the nearest R. R. station, Fredericksburg, Va.</p> <p>Mr. Hudson: We object to the second interrogatory as irrelevant and immaterial.</p> <p>The Court: Objection overruled and bill sealed for defendant. [2]</p> <p>Third interrogatory: What knowledge, if any, had you in the month of March, 1893, of the people and of the companies doing business at Colonial Beach, Virginia ? State your means of knowledge. Answer: I knew all the people of Colonial Beach by living among them and associating with them there ; were no incorporated companies doing business in Colonial Beach at that time.</p> <p>Mr. Hudson: Objected to as before.</p> <p>Mr. Yost: I propose to prove the existence of this company outside of Pennsylvania, and also that he knew of the company and was the agent of it, and received the proofs of loss later on to be offered in evidence.</p> <p>Mr. Hudson: Objected to as before.</p> <p>The Court: Objection overruled and bill sealed for defendants. [3]</p> <p>Objections to similar testimony were overruled by the court [4-12],</p> <p>When W. Y. Williams was on the stand he was asked this question: Q. You had at least two other policies from Werner & Company, had you? A. Which two, outside of this one? Q. Yes.</p> <p>Objected to unless they connect it with the Westmoreland Insurance Company; what other business they had with Werner & Company might be through other companies they represented and that did business in this state.</p> <p>Mr. Yost: The purpose is this: The witness has stated that he cannot recollect furnishing this application to Werner & Company. I am examining him for the purpose of finding out whether he had any other dealings with them, by virtue of which he placed other policies with them, from which they could have got this description. I want to find out whether he furnished the description for this Westmoreland policy.</p> <p>By the Court: Objection overruled and bill sealed for the defendants. [13]</p> <p>The court charged in part as follows:</p> <p>[Your minds will, therefore, be concentrated upon the single point in the case. The language of the act is : “ The agent of any insurance company of any other state or government who does not comply with the laws of this commonwealth shall be personally liable on all contracts of insurance made by or through him, directly or indirectly, for or on behalf of any such company.” This was an insurance company of the State of Virginia — of another state — an insurance company that had not complied with the laws of Pennsylvania. It is not denied here that the policy of insurance passed through the hands of the defendants. They also admit that the premium was paid to them by the plaintiffs by their check, and that they deducted the ordinary commission which agents take and forwarded the balance to the general agent of this company. This act of assembly does not make simply the general agents of the company liable; it makes the party who acts for the company in the particular transaction liable. It is not necessary, in order to find against the defendants here, that you should find that they had been agents of this company in other transactions. If you find that they were the agents of that company in this particular transaction, that they were the agents by or through whom this contract was had, then they would be liable.] [14]</p> <p>Verdict and judgment for plaintiffs for §1,048. Defendants appealed.</p> <p>Errors assigned were, (1-13) rulings on evidence, quoting the bill of exceptions; (14) instructions as above, quoting them ; (15) that the verdict was against the evidence.</p>

<p>Appeal, No. 181, Oot. T., 1895, by-defendant, from judgment of C. P.No. 2, Allegheny Co., Oct. T., 1893, No. 600, on verdict for plaintiff.</p> <p>Trespass to recover damages for injuries caused by the laying of gas pipes within the lines of an unopened street. Before Magee, J.</p> <p>At the trial it appeared that on August 18, 1884, Andrew Patterson conveyed to John Reaman a tract of land described as follows:</p> <p>“ Beginning on the W’ly side of Zulema St. at the corner pin between Lot No. 53 and Lot No. 54 and running thence S. W’ly by the line of Zulema St. 20 ft. to the corner of Hamilton St.; thence by the N. line of Hamilton St. 200 ft., more or less, to the line of laud of the heirs of Samuel McKee; thence N’ly by said line of McKee heirs 200 ft., more or less, to the line of Brooks St.; thence E’ly by Brooks St. 24'ft. to the line of Lot No. 38; thence by the line of Lot No. 38 S’ly 95 ft.; thence E’ly by the rear line Lot No. 38 20 ft.; thence S’ly by the E. line of Lot No. 55 50 ft., more or less, to the line of Lot No. 54; thence by the E. line of Lot No. 54 53 ft. to the place of beginning.</p> <p>“ Excepting and reserving therefrom and from this conveyance all that part of the above described property lying within the lines of Bates St. as laid out in the Plan of the City of Pittsburg.”</p> <p>Reaman conveyed the land to various parties who subdivided and sold it as town lots fronting on Bates street. The owners of these lots graded the street and used it as a public street for five or six years. In' 1888 defendant laid its pipe line within the lines of the street.</p> <p>C. F. McMahon, a witness for plaintiff, was asked this question : Q. Mr. McMahon, what., in your opinion, would be the worth of the use of this property for a pipe line ?</p> <p>Objected to as incompetent and irrelevent.</p> <p>By Mr. Lemon: The yearly worth for the use of this property as a pipe line ?</p> <p>Objected to.</p> <p>By the Court: It is the use of this property while the trespass continues.</p> <p>Objection overruled. Exception, and bill sealed.</p> <p>By Mr. Lemon: Q. What would you consider to be the yearly worth of this property if used for a pipe line ? A. I expect. it would be worth the interest on the money. [7]</p> <p>Frank Murray, a witness for plaintiff, was asked this question : Q. Mr. Murray, will you tell the jury what would be the fair worth of the use, for the yearly use of that property for pipe line purposes from the year 1888 until September, 1893?</p> <p>Objected to as incompetent and irrelevant.</p> <p>Objection overruled. Exception, and bill sealed. [8]</p> <p>Plaintiff’s points were as follows.</p> <p>1. That under all the evidence the defendant was a trespasser on said premises. Answer: This point is affirmed. There are three ways by which land may become a public street or highway:</p> <p>1st. By the city taking and appropriating land for use as a public street or highway in the mode provided by law for that purpose.</p> <p>2d. By dedication or appropriation of realty by the owner to the use of the public and the adoption thereof by the public.</p> <p>3d. By prescription, that is a right which a possessor of land, or the public acquires by reason of his adverse possession during a period usually of twenty years, and rests upon the presumption of a grant, which by lapse of time has been lost.</p> <p>By none of these means has the use of the land as a public highway been acquired or opened to defendant’s use. [1]</p> <p>2. If entitled to recover plaintiff can recover the worth of the use of the property during the period so occupied by the defendant. Answer: This point is affirmed. Taking into consideration in ascertaining the “worth of the use,” that the entry or trespass complained of was on the site of a lawfully located but unopened street — the extent and character of the use made of the land — the conditions of land and its availability as a means of enjoyment or as a source of profit, and the extent of the defendant’s interference therewith. [2]</p> <p>3. That under all the evidence the defendant was a trespasser, and must pay a reasonable amount for the use of the property during the period so occupied by it, as damages, and the location of the proposed street cannot affect the amount of such damage. Answer: This point I decline to affirm as stated. I am willing to say that under the evidence the defendant is a trespasser, and that the plaintiff is entitled to at least nominal damages; and that he is entitled to such further damages as may be a reasonable compensation for the trespass committed in view of all the circumstances and evidence submitted for your consideration. [3]</p> <p>4. That the plaintiff is entitled to recover in addition to nominal damages whatever damages shall appear proper to the jury, from the evidence, as compensation for the unlawful use and possession of said premises by the defendant for its pipe line. Answer: This point is affirmed. [4]</p> <p>Defendant’s points were as follows:</p> <p>1. Under all the evidence in the case the verdict should be for the defendant. Answer: This point is refused. [5]</p> <p>2. If the court refuses to charge, as requested in the defendant’s first point, then counsel for defendant asks the court to say to the jury that if they find from the evidence that Andrew Patterson, by his deed offered in evidence, recognized Bates street as a street, and that the same, viz: the land included in the lines of Bates street, has been used by Patterson’s grantees and the pnblic as a street since Patterson sold the land, as shown by his deed, then the verdict should be for the defendant. Answer: This point is refused. The facts set forth are to be taken into consideration in estimating damages, but I do not regard the Patterson deed as a dedication of the land for public use, nor as intended as to such of the laud within the lines of Bates street. The deed does give, I think, under the law to the grantees, the use of that portion of the land for travel and as a right of way over the same, but the defendant company does not stand in that relation to the property. [6]</p> <p>The court charged in part as follows :</p> <p>What was the use of the land in this way by the defendant, under the circumstances, reasonably and actually worth to the plaintiff by way of compensation for the wrong done ? The measure of damages is not to be estimated in my judgment upon the basis of the most advantageous terms for the trespasser; when the entry and continued use is wrongful he is not entitled to the same consideration to be accorded to one whose entry is lawful, and the use a matter of contract, expressed or implied. An implied contract is where it is not discussed, and there can be contracts of that kind. . You 'can let a man go into your house, and the implied contract is that he is to pay what it is worth; and where that is the case it is a different state of affairs than where your rights are invaded, and parties under such circumstances are not entitled to the same consideration to be accorded to those who enter of right.</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Errors assigned were, (1-6,) above instructions, quoting them; (7, 8) rulings pn evidence, quoting the bill of exceptions.</p>

Appeal, No. 121, Oct. T., 1895, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1894, No. 203, on verdict for plaintiff. Assumpsit on a policy of accident insurance. Before Porter, J. At the trial, it appeared that the plaintiff was injured on May 7, 1892, while assisting his hired man to move a log of wood. The policy under which he was insured in defendant’s company required notice of the injury to be sent to the company within ten days of the accident.

<p>Appeal, No. 97, Oct. T., 1895, by defendant, from judgment of C. P. No. 1, Allegheny Oo., Dec. T., 1893, No. 89, on verdict for plaintiffs.</p> <p>Trespass to recover damages for subsidence of surface caused by alleged negligent mining. Before Slagle, J.</p> <p>At the trial when J. S. Yankirk, a witness for defendant, and a mining engineer, was on the stand he was asked these questions:</p> <p>Q. How mu eh of the coal do you take out? A. We endeavor to take it all. Q. Is that regarded as good or bad mining?</p> <p>Objected to.</p> <p>By the Court: You can show what was actually done?</p> <p>By Mr. Petty: Q. Was the mining skillfully done ?</p> <p>Objected to.</p> <p>By the Court: Objection sustained and bill sealed for defendant. [2]</p> <p>Q. What was the depth of the surface and the condition of the rock over the coal ?</p> <p>Objected to as incompetent and irrelevant.</p> <p>By the Court: He has described that in a general way, and has a right to fortify it. You had better ask for the purpose.</p> <p>By Mr. Ferguson: What is the purpose ?</p> <p>By Mr. Petty: The purpose is (1) to show that the surface over this particular piece of coal was light and the rock was rotten or broken, and that it would be impossible to take out 'the coal from under it without doing some injury to the surface, or to take it out properly without injuring the surface; and (2) to show that the condition of the roof was such as to let the water through without all the coal being taken out.</p> <p>Counsel for the plaintiffs, disclaiming any intention to ask for punitive damages, object to the offer; 1st, as incompetent and irrelevant; 2d, that as to the second purpose an offer of the description made is not necessary to bring into evidence facts relating to that purpose.</p> <p>By Mr. Petty: We are satisfied to have the offer overruled as to the water.</p> <p>By the Court: The objection is sustained and bill sealed for defendant. [8]</p> <p>Counsel for defendant offer to prove by the witness on the stand, Vankirk, and other witnesses :</p> <p>First. That the coal in question, under the Robertson farm, was mined according to the approved methods of mining always practiced throughout the bituminous coal region, and approved by the best and most experienced mining engineers.</p> <p>Second. That the method of mining aforesaid consisted in mining out all the coal except under buildings when the surface is light, which permits the overlying strata to fall equably to a lower level, and preserves, as much as possible, the original contour of the surface without material damage thereto.</p> <p>Third. That the coal, when the surface is light as in this case, cannot be mined by any known method of mining without doing some injury to the surface.</p> <p>This is offered for the purpose of showing that the coal in this case was taken without negligence and in the manner contemplated by the vendors at the time the title thereto was conveyed, and that the owners of the coal, having a right to remove and take away all the coal, are not responsible for damage, direct or consequential, when the coal was mined without negligence.</p> <p>And, in connection with this offer, to show title of defendant, and the right to remove the coal in question, we offer deed of Thomas Weddle, etc.</p> <p>By Mr. Ferguson : It is conceded that under the present decisions of this state the deeds offered do not give the right to mine out all the coal, as they do not relieve the defendant company by express covenant from supporting the surface.</p> <p>By Mr. Petty : Yes, it is admitted that the deeds offered do not relieve the defendant company by express covenant from supporting the surface.</p> <p>By Mr. Ferguson: It is objected to as incompetent and irrelevant.</p> <p>By the Court: The objection is sustained, and bill sealed for the defendant. [4]</p> <p>The court charged in part as follows :</p> <p>[The owner of the coal though he has a right to take it out must support the surface above .... this is a duty devolving upon the owner of the coal who takes it out by virtue of the relations between the two parties, and therefore if the coal is taken out, and the surface is injured in any way by reason of taking the coal out, the defendants are bound to make that injury good. ... It does not make any difference whether the mining is done in the ordinary and usual way of mining coal, or whether there is negligence in the mining of the coal. It is an absolute right that the plaintiffs have to have their surface supported, and if that support is interfered with, intentionally, negligently or otherwise, the plaintiffs are entitled to recover. And .... therefore, in this case the plaintiffs are entitled tc recover whatever injury they have shown to have been done to their lands.] [5]</p> <p>Defendant’s point among others was as follows:</p> <p>That where conveyance is made by the owner of both land and surface of all the coal underlying said surface, the right to remove all of said coal, without negligence, is implied by the terms of such grant, and neither the grantee of the coal, nor his successors in title, are liable in damages, direct or consequential, resulting from the removal of such coal according to skillful and approved methods, to the owner of the surface, or his successors in title. Answer: Refused. [1]</p> <p>Verdict and judgment for plaintiffs for $1,850. Defendant appealed.</p> <p>Frrors assigned were, (1,5) above instructions, quoting them; <j2-4) rulings on evidence, quoting the bills of exceptions.</p>

Appeal, No. 16, Oct. T., 1895, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1894, No. 33, discharging rule to strike off appeal from justice of the peace. Appeal from justice of the peace. The material portion of the transcript is as follows: Parties appear. Action for a settlement on book account for work and labor done.

Appeal, No. 24, Oct. T., 1895,- by plaintiffs, from decree of C. P. No. 1, Allegheny County, Dec. T., 1890, No. 124, on bill in equity. Bill in equity to declare void an assignment of a secret recipe for the manufacture of Dr. J. Hostetter’s Stomach Bitters alleged to have been made by Jacob Hostetter to David Hostetfcer on February 17, 1858. The bill alleged that at the time the assignment was made Dr. Jacob Hostetter was an imbecile.

<p>Appeal, No. 30, Oct. T., 1895, by defendant, from judgment of C. P. No. 3, Allegheny County, Aug. T., 1892, No. 306, on verdict for plaintiff.</p> <p>Assumpsit to recover the value of oil claimed by plaintiff. Before McClung, J.</p> <p>At the trial it appeared that the defendant is a corporation engaged in the business of transporting and storing oil for the public by means of pipe lines and tanks. In the course of its business it received for transportation and storage from a certain piece of land at McDonald, in Washington county, known as the Juvenal Deschamps lot, during the months of April and May, 1892, certain quantities of oil, amounting in the aggregate to over 4000 barrels, being oil which had been produced from said premises through an oil well drilled thereon.</p> <p>The plaintiff claimed that a part of this oil, that is, 234.87 barrels, belonged to him, and demanded it from defendant. The defendant, however, had been notified by P. C. Friend, receiver of the Liberty Oil Company, Limited, that this oil belonged to the Liberty Oil Company, Limited, and said receiver had demanded the delivery thereof to himself. Upon receipt of this notice and demand, the defendant placed this oil in its disputed oil account, in order that it might be held until an investigation could be made, and the defendant could ascertain to whom delivery should be made. Upon investigating the matter, the defendant was satisfied that at the time the oil was produced and received by the defendant, the premises were in the possession of the receiver and refused to deliver to plaintiff, and did deliver to the receiver.</p> <p>The evidence relating to the possession of the land is quoted at length in the opinion of the Supreme Court.</p> <p>Defendant’s points were as follows :</p> <p>1. That under all the evidence, the verdict must be for the defendant. Answer: This is refused. [1]</p> <p>2. If the court refuse to charge as above requested, then it is respectfully requested to charge: That if the jury find from the evidence that P. C. Friend, receiver, was in the actual possession of the interest in the leasehold premises from which the oil in question was produced, under claim of title during the time said oil was produced, and so notified the defendant, the verdict must be for the defendant. Answer: This is affirmed. You will recollect, in connection with that affirmance, the evidence to rebut that claim of exclusive possession which I have suggested to you in the fact that it is alleged that this pipe line, still acting as the agent of the plaintiff, was to a certain extent already in possession, or was in possession for the purpose of carrying off this oil. [2]</p> <p>Verdict and judgment for plaintiff for fl49.18. Defendant appealed.</p> <p>^Errors assigned, among others, were (1, 2) above instructions, quoting them.</p>

<p>Deeds — Execution by several parlies — Condition of signing.</p> <p>The rule that a grantor cannot set up any intent or condition different from that appearing on the face of the deed unless declared at the time of execution, does not apply to a ease where several parties are to join in a deed and it is an essential part of the agreement that all should join, and the consideration for the conveyance is single so that without the joint action of all the consideration will fail as to each.</p> <p>Deed — Delivery—Several grantors.</p> <p>Where several parties agree to join in a deed, and the deed as prepared calls for execution by the several parties for a single consideration which will not be effectual to any unless all join, there is no presumption that the deed is to be delivered in its incomplete state after only one party has signed.</p> <p>The devisees in remainder under the will agreed to execute a quit claim deed of their interests to the life tenants. A deed was prepared calling for execution by all the parties, and it was understood and agreed by all that it should not be operative unless executed by all. One of the remaindermen refused to sign. A second after signing drew his pen through his signature. A third at signing said he would not be bound unless all signed. One of the life tenants stated that she would contest the will unless all the remaindermen signed. Nothing further was done with this deed. About ten days afterwards a second deed was prepared which also failed of its object and was never delivered. Held, (1) that the failure to obtain all of the signatures rendered the first deed inoperative as to those who had signed it; (2) that the fact that the deed was handed to counsel for the grantees did not constitute a delivery; (8) that the first deed was abandoned before delivery; (4) that the fact of the failure of the second deed could not revive the first deed which was functus officio.</p> <p>In the above case one of the parties who signed the first deed was not a party either complainant or defendant to the bill in equity filed to cancel the deed, nor did she take any part in the litigation. Held that it was not necessary that she should be a party, in as much as the result of the litigation did not affect her. If she chose to let the deed stand as a voluntary conveyance of her estate, the rights of the other parties were in no way affected by such action on her part.</p>

<p>[Marked to be reported.]</p> <p>Boad law — Streets—Borough—Change of grade — Acts of March 24, 1878, and May 16, 1891.</p> <p>The act of March 24,1878, P. L. 129, in so far as it relates to the assessment of damages for change of grade in a borough, Í3 not repealed by the act of May 16, 1891, P. L. 75.</p> <p>Where a petition for the appointment of viewers to assess damages for injuries caused by change of grade of a street in a borough avers that the borough authorities failed to agree with the petitioner as to damages, the court will not set aside the viewers’ report on an affidavit by the burgess that he had forgotten to give the notice of the meeting of viewers to the clerk of council, or to the borough solicitor, and that the borough was not represented before the viewers. In such a case the Supreme Court cannot consider the affidavit of the burgess, and if it could, the ground alleged for setting aside the report is not sufficient.</p> <p>Road law — Change of grade — Appeals—Act of June 13, 1874.</p> <p>Under the act of June 13, 1874, P. L. 283, which gives an appeal to the common pleas in all cases of the assessment of damages for property taken, injured or destroyed, and directs that such appeal should be taken “within thirty days from the ascertainment of the damages, or the filing a report thereof in court,” the time within which the appeal must be filed is thirty days from the filing of the report.</p> <p>The filing of exceptions to the report of viewers has nothing to do with, the right of appeal. That right can only be exercised according to the terms in which it is given. The hearing of the exceptions can go on and be completed before the case is actually tried and if the exceptions are decided favorably to the appellant so as to defeat the proceeding, no trial will be necessary. If otherwise the trial can then proceed. There was therefore no inconsistency in filing exceptions to the report of the viewers and at the same time entering an appeal to the common pleas under the act of June 13, 1874, P. L, 283.</p>

Appeal, No. 65, Oct. T., 1895, by defendant, from order of C. P. No. 3, Allegheny Co., August Term, 1894, No. 484, dismissing exceptions to report of viewers, and refusing to allow defendant an appeal.

Appeal, No. 68, Oct. T., 1895, by defendant, from order of C. P. No. 3, Allegheny Co., August Term, 1894, No. 487, dismissing exceptions to report of viewers, and refusing to allow defendant an appeal.

<p>Appeal, No. 95, Oct. T., 1895, by defendants, from judgment of C. P. No. 2, Allegheny County, Oct. T., 1895, No. 653, on verdict for plaintiffs.</p> <p>Assumpsit on a policy of fire insurance. Before Ewing, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiffs for $2,679.25. Defendants appealed.</p> <p>Error assigned among others, was answer to defendants’ second point, quoted in the opinion of the Supreme Court.</p>

<p>Mechanics' lions — Building contract — Evidence—Stipulations against Kens.</p> <p>Where a contractor builds two blocks of houses under two separate contracts, the first of which contains a stipulation against liens, and the second does not, and a mechanic’s lien is filed by a material man against the houses built under the second contract, the court will not construe the stipulation against liens in the first contract where there is no evidence whatever to show that the provisions of the first contract against liens were extended to, and governed the second contract.</p> <p>Mechanics' liens — Material—Presumption—Evidence.</p> <p>. Where the plaintiff in a mechanic’s lien case has complied with all the provisions of the statute relating to the lien which he claims, it is presumed that the materials were furnished, or the work was done on the credit of the building, and the burden is upon the defendants to show that this was not the ease.</p> <p>Evidence that the material was not used in the buildings, and that it was charged to the contractor, is properly admissible to overcome the presumption that the material was furnished on the credit of the building.</p> <p>Practice, 8. C. — Assignment of error — Exception—Evidence.</p> <p>An assignment of error to the admission of papers will not be considered where the record shows that there was no exception taken, bill sealed, or objection made to the admission of the evidence at the trial.</p>

<p>Appeal, No. 99, Oct. T., 1895, by plaintiff from decree of C. P. No. 1, Allegheny County, March Term, 1892, No. 136, on bill in equity.</p> <p>Bill in equity to compel a transfer of stock.</p> <p>The case was referred to William H. McClung, Esq., as master, who found the facts to be as follows:</p> <p>1st. That the defendant corporation, The Rochester Tumbler Company, is a manufacturing corporation organized under the provision of an act of assembly of the commonwealth of Pennsylvania, entitled “An act to provide for the incorporation and regulation of certain corporations,” approved the 29th day of April, 1874, and the several supplements thereto, by charter bearing date the 15th day of August, 1884. That H. C. Fry has been president of this corporation from the date of organization to the present time; that Jesse H. Lippincott was the secretary and treasurer thereof from the date of incorporation until the 1st day of May, 1891; and that the board of directors thereof, during the period of time hereinafter particularly referred to — from October, 1890, until May, 1891, was composed of 'H. C. Fry, Jesse H. Lippincott, S. M. Kane and S. H. Moulds.</p> <p>2d. That section 7 of the act of assembly under which the defendant corporation is organized, provides that:</p> <p>“ The directors of such corporation shall procure certificates or evidence of stock, and shall deliver them signed by the president, countersigned by the treasurer, and sealed with the common seal of the corporation, to each person or party entitled to receive the same, according to the number of shares by him, her, or them respectively held, which certificates or evidences of stock shall be transferable at the pleasure of the holder, in person or by attorney duly authorized, as the by-laws may prescribe, subject, however, to all payments due, or to become d ue thereon; and the assignee or party to whom the same shall have been so transferred, shall be a member of said corporation, and have and enjoy all the immunities, privileges and franchises, and be subject to all the liabilities, conditions and penalties incident thereto, in the same manner as the original subscriber or holder would have been, but no certificates shall be transferred so long as the holder thereof is indebted to said company, unless the board of directors shall consent thereto.”</p> <p>3d. That the Rochester Tumbler Company thus organized issued (inter alia) to Jesse H. Lippincott three hundred shares of its capital stock, representing a par value of $30,000, in three certificates numbered 10,11 and 12, each for one hundred shares in the form following:</p> <p>The Rochester Tumbler Company.</p> <p>Incorporated August 15th, 1884. State of Pennsylvania.</p> <p>No. 10 100 shares.</p> <p>This is to certify, that Jesse H. Lippincott is entitled to one hundred shares in the capital stock of The Rochester Tumbler Company. Transferable personally or by attorney on the books of the company and surrender of this certificate. Witness the seal of the company and the signature of the president and treasurer at Pittsburgh this 13th day of December, 1884.</p> <p>Henry C. Fry, [seal]</p> <p>Jesse H. Lippincott, President.</p> <p>Treasurer.</p> <p>4th. That upon the 8th day of September, 1888, Jesse H. Lippincott, the owner of the three hundred shares of stock represented by these three certificates Nos. 10, 11 and 12, by indorsements thereon, absolute in form, and with powers of attorney in blank annexed, authorizing transfers upon the books of the company, assigned and delivered the same to The National Bank of the Republic, the plaintiff, as collateral security for the payment of $30,000 then advanced by the plaintiff bank to him on a demand note, which recited the pledge of the stock and contained a power of sale to be exercised in the event of a default in the payment of the note.</p> <p>5th. That Jesse H. Lippincott afterwards became insolvent, and upon the 2d day of May, 1891, made an assignment for the benefit of his creditors to Frederick S. Wait. Upon demand made, neither Mr. Lippincott nor his assignee paid the note, and pursuant to authority conferred in the written pledge, the plaintiff bank on the 15th day of December, 1891, after advertisement and notice to Mr. Lippincott and his assignee, exposed the stock at public sale, and itself became the purchaser thereof for $3,000.</p> <p>6th. That at some date between the 15th and the 29th days of December, 1891, the National Bank of the Republic offered to surrender to the defendant corporation the certificates of stock, Nos. 10, 11 and 12, and demanded permission to transfer the three hundred shares of stock represented thereby upon the books of the defendant corporation; and that this offer and demand when made, was refused by the officers and directors of the defendant company. That while the foregoing is the formal demand upon which the plaintiff relies, it nevertheless incidentally appears that at some uncertain date in the early part of the year 1891, prior, however, to the 3d day of March of that year, a previous demand had been made and refused; and that this demand conveyed the first notice to the defendant corporation that the stock had been pledged to the plaintiff bank.</p> <p>7th. That upon the 1st day of May, 1891, Jesse H. Lippincott, who at that date was retired from the office of treasurer of the Rochester Tumbler Company, was indebted to that company in the sum of one hundred and fifty-seven thousand one hundred and sixty-three and yj0 dollars ($157,163.87) ; an indebtedness which has continued without credit or abatement to the present time. That this indebtedness arose by reason of fraudulent overdrafts by Jesse H. Lippincott upon his individual account with the Rochester Tumbler Company; that these overdrafts were made from time to time during a period of several years prior to May 1, 1891, by checks drawn upon the funds of the Rochester Tumbler Company', in many and perhaps the majority of instances, for the purpose of taking up negotiable paper, which he had previously issued by fraud, as the treasurer of said company, and had procured to be discounted by various banks, applying the proceeds thereof to his own individual purposes.</p> <p>8th. That Jesse H. Lippincott, as the treasurer of the Rochester Tumbler Company, had entire and exclusive charge and control of the finances of the company, and that the books of the company were kept under his sole supervision and direction. That no account accessible to the company was kept of the paper fraudulently issued by him; and while it is impossible to ascertain with certainty when its issue began or the exact amount outstanding at any particular date prior to the date of May 1, 1891, it does appear that fraudulent paper was negotiated by him as early as March 21, T890, and that fictitious methods were employed by him as early as June 28,1887, for the purpose of concealing the extent of the overdrafts upon his account.</p> <p>9th. That it cannot be found as a fact from the evidence, that any other officer of the Rochester Tumbler Company was cognizant of the overdrafts by Mr. Lippincott, or of the fact that Mr. Lippincott had made fraudulent use of the name and credit of the company, prior to the middle of the month of November, 1890. But it does appear that at or about that date, H. C. Fry, president of the company, became aware of the improper use of the name of the company by Mr. Lippincott, who at the time represented such use to be but temporary and for an inconsiderable amount. This discovery by Mr. Fry was, within a few weeks thereafter, followed by the knowledge that Mr. Lippincott had largely overdrawn his account, and that he had, for his own individual benefit, pledged the credit of the company upon obligations aggregating a large sum of money. But having confidence in Mr. Lippincott and relying upon promises that the paper of the company would be speedily retired and the overdrafts made good, Mr. Fry partially complied with Mr. Lippincott’s request, and but sparingly imparted the information he had gathered to the remaining members of the board of directors, in the latter part of the month of December, 1890. The information then given, to directors Kane and Moulds, was to the effect that Mr. Lippincott’s account was largely overdrawn. The knowledge that fraudulent use of the name of the corporation had been made, does not clearly appear to have been communicated until after January 1, 1891. That while Mr. Fry, as president of the company, may have participated as early as December 11, 1890, in the renewal of paper fraudulently issued by Mr. Lippincott, and then in the hands of bona fide holders, there is not sufficient evidence to show that he knowingly consented to an increase of Mr. Lippincott’s indebtedness. That, by the 1st day of January, 1891, Mr. Fry had sufficient knowledge to inform him not only that Mr. Lippincott was entirely untrustworthy in his statements in regard to the extent of his indebtedness to the company, but was both needy and corrupt to a degree that would lead him into further speculations, is beyond doubt.</p> <p>10th. That upon November 15,1890, Jesse H. Lippincott had overdrawn his account with the Rochester Tumbler Company, in cash, to the extent of $64,405.47; and that he had, in addition to this indebtedness, pledged the credit of the company upon negotiable paper fraudulently issued by him, and at that date outstanding in the hands of bona fide holders, in notes upon which the company appeared as the maker, for an amount not less than $47,000, and in drafts upon which the company appeared as the drawer, and upon which the acceptances were, by way of accommodation, for an amount not less than $3,750. That is to say, that upon November 15, 1890, Jesse H. Lippincott was indebted to the Rochester Tumbler Company, on account of overdrafts and on account of negotiable paper fraudulently issued by him, but binding upon the company and subsequently redeemed and paid by it, in the sum of at least $115,155.47,</p> <p>11th. That upon January 1, 1891, Jesse H. Lippincott had overdrawn his account with the Rochester Tumbler Company, in cash, to the extent of $69,403.59, and that he had, in addition to this indebtedness, pledged the credit of the company upon negotiable paper, fraudulently issued by him and at that date outstanding in the hands of bona fide holders, in notes upon which the company appeared as the maker, for an amount not less than $50,000, and in drafts upon which the company appeared as the drawer and upon which the acceptances were, by way of accommodation, for an amount not less than $17,900. That is to say, that upon January 1,1891, Jesse H. Lippincott was indebted to the Rochester Tumbler Company, for overdrafts and on account of negotiable paper fraudulently issued by him but binding upon the company, and subsequently redeemed and paid by it, in the sum of at least $127,303.59.</p> <p>12th. For the purpose of showing with the exactness required in a decree, the condition of accounts between Jesse H. Lippincott and the Rochester Tumbler Company, at the time the company first became aware of the fact that the plaintiff bank was pledgee of the stock in controversy, it has become necessary for the master to fix upon this date left uncertain under finding No. 6, and incapable of definite ascertainment under the evidence in the case. This notice, under the evidence, could not have been given earlier than January 1, 1891, nor later than March 3 of the same 3'ear. As at either date the indebtedness, which was constantly increasing, was admittedly far in excess of the value of the stock, the question of the particular date within the period mentioned becomes comparatively immaterial. The master has fixed upon January 1, 1891, as that date, although in view of the fact that the burden of proof is probably on the plaintiff compa^q the later date might with greater propriety have been selected.</p> <p>In a supplemental report the master found as follows :</p> <p>The 1st and 2d exceptions filed by the National Bank of the Republic allege error in the seventh finding of fact, which is to the effect that upon the 1st day of May, 1891, Jesse H. Lippincott was indebted upon all accounts to the Rochester Tumbler Company in the sum of $157,163.37, and that this indebtedness has continued to the present time without credits or abatement. These exceptions are well taken; and the seventh finding of fact is now modified to the extent of allowing two credits thereon for dividends declared upon the four hundred shares of stock in the Rochester Tumbler Company, standing in the name of Jesse H. Lippincott. These dividends are still in the keeping of the Rochester Tumbler Company and should be credited as of their appropriate dates; one dividend of $8,000 on the day of October, 1891; the other for a like sum of $8,000 on the day of October, 1892.</p> <p>The allowance of these credits, however, aggregating $16,000 with interest, in no respect changes the amount of the indebtedness for which the Rochester Tumbler Company is entitled to a lien upon the stock of Jesse H. Lippincott. The lien found to exist, according to the theory of the master’s report, was for the sum of $127,303.59 with interest; being the indebtedness of Jesse H. Lippincott as it stood upon the 1st day of January, 1891. A lien for the increase of indebtedness accruing after the 1st day of January, 1891, amounting to $19,759.78, was denied. The $16,000 "of dividends is properly credited upon this $19,759.78 as the indebtedness for which the creditor holds the least security.</p> <p>The National Bank of the Republic by its 8th exception complains of the failure to find that Jesse H. Lippincott is the owner of one hundred shares of the capital stock of the Rochester Tumbler Company in addition to the three hundred shares involved in this controversy. The master’s attention had not been previously directed to this additional stock, and he now finds the facts with reference thereto as follows :</p> <p>In the 3d paragraph of the cross bill filed by the Rochester Tumbler Company it is averred: “ That the said Lippincott appears as a stockholder upon the books of your orator, credited thereupon with 400 shares of its capital stock of the par value of $100.00 per share. Certificates Nos. 10, 11 arid 12 each for 100 shares of said stock were issued to said Lippincott and it is claimed by said National Bank of the Republic, were pledged to it by the said Lippincott as collateral security,” etc.</p> <p>This additional one hundred shares of stock was in no way made a part of the subject-matter of the cross bill, nor was any order or decree of the court prayed for making any disposition thereof. The sole and only allusion to this additional stock throughout the entire proceedings in this case is contained in the casual averment of the cross bill above recited.</p> <p>It was the privilege of the National Bank of the Republic upon notice given by the cross bill of the existence of this stock to so mold the proceedings as to bring the stock within the grasp of the decree in this case. If the stock was of sufficient value to advantage the bank by having the court direct that it should be first compelled to respond to the lien of Mr. Lippincott’s indebtedness, that fact could have been proven by the bank, as well as all other circumstances necessary to determine the actual status of the stock. Instead of attempting to base an equity upon such proceeding, it has elected to ignore the fact of the existence of this stock, and virtually refused to consider it as an element in the controversy until it is too late, without serious delay, to bring it within the scope of the present decree.</p> <p>Examined in this light the request of the 9th exception to the master’s report, that the decree first direct the sale of the one hundred shares of stock not plfedged to the National Bank of the Republic, seems to be ill founded. Equity in the distribution of funds among creditors is, for the most part in this state, worked out, not by allowing the junior creditor or claimant to interfere with the execution process of the senior creditor, but by means of subrogation after payment or tender of payment in full of the senior creditor’s claim. • If the right of marshaling securities by permitting interference on the part of a junior claimant is ever admissible, it is under exceptional and extreme circumstances. It is an equitable right of the most delicate nature and can be called into exercise only upon affirmative proof of an equity in the junior claimant that is clear, distinct and imperative. It is never allowed as a mere experiment. It must appear, beyond doubt, that its exercise will bring substantial advantage to the junior without injuring or dehtying the senior creditor. As in the case of subrogation, which is never permitted until the senior creditor’s claim has been paid in full, so in the exercise of this extraordinary equitable right, it is never granted unless the security which the junior claimant seeks to have first applied to the senior creditor’s claim is clearly shown to be ample for the satisfaction of that claim. This proof of the sufficiency of the one hundred shares of stock, the National Bank of the Republic has not produced. The master is unable to suppress the observation that, in all fairness, the consideration of the question arising out of the exceptions directed to the matter of this additional stock should not have been forced upon him. The candor of all concerned in the case will compel the admission that if the indebtedness of Jesse H. Lippincott to the Rochester Tumbler Company is a lien upon his stock, the sale of twice four hundred shares in the most favorable market would perhaps not fully discharge the indebtedness.</p> <p>The master recommended a decree in favor of defendant.</p> <p>Exceptions to the master's report were overruled, and the following decree was entered:</p> <p>That the Rochester Tumbler Company, by virtue of the general corporation laws of the commonwealth of Pennsylvania under which said company was organized, has a lien upon the stock of said company, standing upon its books in the name of Jesse H. Lippincott for the indebtedness of said Lippincott to said company. That said indebtedness upon January 1, 1891, was at least $127,308.59. That upon payment by the National Bank of the Republic of this amount, with interest from January 1, 1891, to the Rochester Tumbler Company, the said company shall permit the transfer of the said three hundred shares of stock to the said bank. If the said bank shall not within ninety days from the date hereof make such payment, the said Rochester Tumbler Company shall have the right to have said stock sold at public sale for the purpose of paying said indebtedness, and may apply to this court for an order directing the manner of sale. The costs of this proceeding, including a master’s fee of $1,000, shall be paid by the National Bank of the Republic and the Rochester Tumbler Company in equal proportions.</p> <p>Error assigned, among others, was above decree, quoting it.</p>

<p>Principal and surety — Subrogation—Partial payment — Equity.</p> <p>Subrogation rests upon purely equitable grounds, and will not be enforced against superior equities. Unless the surety pays the debt in full he is not entitled to subrogation, and until this is done the creditor will be left in full possession and control of the debt and the remedies for its enforcement.</p> <p>The settlement of an account between a surety and the debtor fixes the amount of the liability of the latter and the extent of the right to indemnity, but it does not affect the right of subrogation, which is never allowed. to the prejudice and injury of the creditor.</p> <p>PracUce, G. P. — Practice, S. G. — Exception to commissioner's report— Assignment of error.</p> <p>Where an answer is filed to a petition for subrogation denying that the debt has been paid in full, and the case is referred to a commissioner who reports in favor of subrogation without noticing the averment of the answer, and the report is sustained by the court without taking into consideration the averment of the answer, and the omission is made the subject of an exception to the report and also of an assignment of error, the Supreme Court is bound to consider the question, although its importance may have been an afterthought.</p>

Appeal, No. 115, Oct. T., 1895, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1893, No. 62, on verdict for plaintiff. Assumpsit to collect a municipal tax on pipes laid in a street. At the trial .it appeared that defendant was a natural gas company organized under the act of May 27, 1885, P. L. 29.

<p>Limited partnership associations under act of June 2, 1874 — Sufficiency of schedule.</p> <p>Where an existing business is the basis of a limited partnership association under the act of June 2, 1874, P. L. 271, the law does not require in the schedule minute specification of details that may change from day to day. Certainty to a fair business intent is the safe practical criterion.</p> <p>Where the articles of association under a limited partnership association under the act of June 2, 1874, set forth the names of the persons contributing property, and the amount contributed by each, and an itemized statement of the property contributed is attached to the articles, there is a sufficient compliance with the statute, although the itemized statement of property is not signed by the parties.</p>

<p>Common carriers — Negligence—Fire—Remote and proximate cause.</p> <p>Common carriers are answerable for the ordinary and proximate consequence of their negligence, and not for those that are remote and extraordinary; and this liability includes all those consequences which may have arisen from the neglect to make provision for those damages which ordinary skill and foresight is bound to anticipate.</p> <p>In determining what is proximate, the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.</p> <p>A freight car loaded with twine, which arrived in the evening, was run by the defendant railroad company on a track in the company’s yard to a point three feet from an alley, to be ready for unloading in the morning. During the night a fire broke out in a building across the alley. The building did not belong to the defendant, and it had no control over the cause of the fire. The car caught fire and the contents of the car and the car itself were partially destroyed. The whole would have been burned if the company’s employee had not immediately after the five broke out run the car out of reach of the flames, and put out the fire. The evidence showed that the car door was open for a space of about ten inches at the time the fire broke out, and probably through this opening sparks from the burning building set fire to the twine. The bill of lading provided that the carrier should not be liable for loss by fire. Held, that under the undisputed evidence it was for the court to say as a matter of law that the defendant company was not guilty of any negligence which was the proximate cause of the loss.</p>

<p>Appeal, No. 137, Oct. T., 1895, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1894, No. 165, on verdict for plaintiffs.</p> <p>Scire facias sur mechanic’s lien. Pleas were non assumpsit, set-off, payment with leave, etc. Before Stowe, P. J.</p> <p>At the trial counsel for plaintiff offered in evidence the record of mechanic’s lien filed at No. 15, March term, 1898.</p> <p>Objected to as incompetent for the following reasons:</p> <p>First. The lien on its face shows it was filed December 31, 1892; there is no date or item given at the time of the completion of the contract, as appears upon the face of the lien. The last credit- as given upon the face of the lien is payment of money on the 31st of July, $100. The face of the lien shows a payment in excess of the contract price.</p> <p>Second. On the bill of extras attached to the lien for which this lien is filed, it is for the extras alone; there is not a solitary date or time given from the beginning of the bill to the close at what time any of the work was done or any of the material furnished, in all about eighteen or twenty items of extra work, contrary to the requirements of law which require a specific statement of the dates and times when the work was done, particularly with reference to a bill of extras.</p> <p>By the Court: The objections are overruled and bill sealed for defendant.</p> <p>Verdict and judgment for plaintiffs for $950. Defendant appealed.</p> <p>-Error assigned was ruling on evidence as above, quoting the bill of exceptions.</p>

<p>Appeal, No. 140, Oct. T., 1895, by defendant, from judgment of O. P. No. 2, Allegheny Co., Jan. T., 1894, No. 524, on verdict for plaintiff.</p> <p>Replevin to recover a stock of store goods. Before Ma-gee, J.</p> <p>At the trial it appeared that on November 14, 1893, plaintiff and defendant entered into an agreement, by which defendant, in consideration of a conveyance of certain real estate to him by plaintiff, was to transfer and assign to plaintiff the stock of goods in his store at Braddock. The real estate was valued at $9,100, and it was stipulated that if the appraisement of the goods did not amount to this sum, defendant was to pay to plaintiff the difference in cash. The appraisement amounted to $6,887.41. The appraisement was completed on November 18. The evidence as to whether an actual delivery was made by defendant to plaintiff was conflicting.</p> <p>The facts relied on by plaintiff as to the delivery of possession were as follows:</p> <p>a. There was, during the taking of the appraisement on Friday, a sale made amounting to about fifteen cents. The cash was brought to Rauwolf and he inquired whether it was for goods already inventoried or not, and being told that it was, directed that it be given to Glass, and on Saturday there was another small transaction of the same character.</p> <p>b. About the time of the conclusion of the appraisement there was a conversation among those present as to at whose risk the stock would be in case of fire. The opinion was expressed that it would be Glass’, and it was alleged, although Rauwolf denied it, that he expressed the same opinion.</p> <p>e. Two insurance policies oii the stock were on Saturday evening assigned to Glass in Braddock. (This was, as Rauwolf says, in anticipation of closing the contract and with the understanding that they were to be retransferred if the trade fell through.)</p> <p>d. Glass obtained one of the two sets of keys of the store when it was closed Saturday evening. (Rauwolf claims that he did not know that Glass had them, but supposed that the boy who generally closed the store had them that night.)</p> <p>The defendant contended and offered evidence to show that plaintiff had fraudulently misrepresented the value- of his real estate.</p> <p>Plaintiff’s points were among others as follows:</p> <p>2. That if the jury find that there was no misrepresentation on the part of the plaintiff as to the value, character or situation of the lands to be conveyed by him to the defendant the written agreement of November 14, 1898, in evidence, is the contract between the parties and binding upon both. Answer : This point is affirmed. [1]</p> <p>3. If the juiy believe that, in pursuance and in performance of the contract between plaintiff and defendant, dated November 14,1893, the stock of goods in dispute in this case was duly appraised and a valuation placed thereon by the defendant and Mr. Anderson, acting as the plaintiff’s appraiser, which valuation was completed on November 18, 1893, and that upon the latter date, after the valuation had been completed, the key to the storeroom containing the property in dispute was delivered by the defendant to the plaintiff, or that said key was taken into the possession of the plaintiff with the knowledge and consent of the defendant, and that the defendant assigned and delivered to the plaintiff the policies of insurance upon said property, and allowed and directed the plaintiff to receive the proceeds of sale of an article of said property after it had been appraised, then the right of possession and ownership of the property in dispute legally passed to the plaintiff on November 18,1893, although the defendant had not then received any part of the consideration which plaintiff was to give him for said property; and thereafter the defendant had no legal ownership in or right of possession of the property in dispute, and was legally estopped from any right to interfere with the plaintiff’s possession and use of said property. Ansioer: This point is affirmed. [2]</p> <p>4. If the jury find that the ownership and right of possession of the property in dispute passed from the defendant to the plaintiff on November 18, 1893, and that the defendant on November 20 or 21, 1893, repossessed himself of said property without the consent of the plaintiff, and has ever since deprived the plaintiff of the possession and use of said property, then the verdict should be for the plaintiff for a sum equal to the value of said property at the date when defendant repossessed himself of the same, together with damages for the unlawful detention thereof by the defendant. Answer: This point is affirmed. [3]</p> <p>5. The ordinary rule for the measure of damages to be allowed for the unlawful detention of property in actions of replevin for the same is six per cent interest per annum on the value of said property from the date of its unlawful taking to the date of the verdict; but whenever the unlawful taking of property is attended with outrage, oppression and vindictiveness on the part of the defendant, the jury may allow additional damages to the plaintiff as punishment of the defendant for such outrage, oppression or vindictiveness. Answer: This point is affirmed. [4]</p> <p>6. That when a written contract plainly expresses the intent of the parties without any uncertainty and indicates thus the whole engagement without any uncertainty, it cannot be contradicted or varied by parol evidence, except where there was fraud, accident or mistake in the creation of the instrument itself, and the evidence of either of these must be clear, precise and indubitable, and such as would satisfy a chancellor that the contract should be set aside on the hearing of a bill for that purpose. Answer: This point is affirmed. [5]</p> <p>Defendant’s points were among others as follows:</p> <p>(1) Unless the defendant, on Saturday evening, November 18, 1893, voluntarily delivered to the plaintiff the absolute and unconditional possession of the stock of goods in controversy, without any fraud, trick or artifice practiced upon him by the plaintiff, then this suit is in effect a proceeding to enforce specific performance of the contract of November 14, 1893. [In such case, the time for delivery of possession under the contract not having arrived, the plaintiff was not in a position to claim he had a lawful right to delivery of possession on that Saturday evening.] And if the jury find that the defendant’s execution of the said contract was induced by representations of the plaintiff as to the values of the real estate to be conveyed by it, or as to material matters involving such values, which representations were false in fact, whether the defendant knew their falsity or not, he had no lawful right to possession on the following Monday or Tuesday, when the deeds were tendered as alleged by the plaintiff. Answer: This point is affirmed, that portion of the point which I have inclosed in brackets having been omitted therefrom. [6]</p> <p>The court erred in omitting to affirm the following portion of defendant’s first point: “ In such case, the time for delivery of possession under the contract not having arrived, the plaintiff was not in a position to claim he had a lawful right to delivery of possession on that Saturday evening.” [7]</p> <p>6. A man has a legal right to refuse to perform a contract for the purchase of real estate, if in good faith he believes he has been dealt with unfairly or with false representations as to matters material, leaving himself of course responsible for damages for his refusal, in a proper suit at law; and if the jury find that under the evidence in this case, nothing more has been established than such a refusal by the defendant to perform the contract in evidence, believing in good faith that he was being overreached and deceived in the negotiations which led to his execution of it, then the plaintiff’s cause of action has been misconceived, he cannot recover in this suit, and the verdict should be for the defendant. Answer: This point I decline to affirm. [8]</p> <p>2. The plaintiff’s case, as he has presented it, must stand or fall upon his alleged possession acquired on Saturday evening, November 18, 1893. It is shown by plaintiff’s witness, Mr. Prescott, the notary, that the deeds for the real estate for the conveyance of which the stock of goods in controversy was the consideration, were not executed and acknowledged and ready for delivery until Monday, November 20, 1893; therefore, if the jury so find, the plaintiff had no lawful right to take possession of the goods on that Saturday evening, unless such possession was then voluntarily delivered to him by the defendant, the defendant at the time intending to pass title thereto to the plaintiff, and waiving the delivery of the deeds until the following Monday. 'Answer: This point is affirmed.</p> <p>3. If the jury find that the deeds for the real estate to be conveyed by the plaintiff to the defendant, under the contract of November 14, 1893, were not executed and acknowledged and ready for delivery until Monday, November 20, 1893, and that' the defendant, on Saturday 18, 1893, did not voluntarily deliver to the plaintiff the possession of the stock of goods, intending thereby at the time to pass title thereto absolutely and unconditionally to the plaintiff, waiving the delivery of the deeds until the following Monday, the plaintiff cannot recover, and the verdict should be for the defendant. Answer : This point is affirmed.</p> <p>4. If the jury should find that the deeds for the real estate to be conveyed under the contract, were not executed and acknowledged and ready for delivery until Monday, November 20, 1898, and that on Saturday evening, November 18, 1893, the plaintiff obtained possession of the stock of goods from the defendant, and such possession was obtained by fraud, trick or artifice, then such possession obtained on Saturday evening, and held, on Monday and Tuesday, when the deeds were tendered as alleged, count for nothing; the defendant had the right to repossess himself of the stock, and the verdict should be for the defendant. Answer: This point affirmed.</p> <p>Verdict and judgment for plaintiff for $7,335.09. Defendant appealed.</p> <p>Errors assigned, among others, were (1-8) above instructions quoting them.</p>