Volume 173 — Pennsylvania State Reports

Appeal, No. 150, Oct. T., 1895, by plaintiffs from decree of C. P. No. 3, Allegheny Co., February Term, 1892, No. 589, dismissing bill in equity. Bill in equity for a receiver and to compel certain of the defendants to repay to complainants moneys which were alleged to have been paid for stock upon the faith of representations made by defendants.

<p>Landlord and tenant — Distress—Lease—Sale of tenant's goods.</p> <p>A landlord who distrains for rent and sells the goods without having them appraised as required by law is a trespasser ab initio, and he is not protected under a clause of the lease by which the goods were granted and sold to him as security for the rent, with a further provision that for rent in arrears the lessor might seize the goods on or off the premises, and sell them on three days’ notice.</p> <p>In such a case the lease gave the landlord certain rights in addition to those given by law, but his legal rights and remedies were preserved, and when he undertook to proceed to collect the rent by distress, and sell upon the landlord’s warrant, he was bound to proceed in the manner prescribed by law.</p>

<p>Appeal, No. 153, October Term, 1895, by defendant, from judgment of C. P. No. 2, Allegheny County, Jan. T., 1894, No. 748, on verdict for plaintiff.</p> <p>Assumpsit on a policy of live stock insurance.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>Now, by one condition of the policy the insured was bound to give notice of any disease within twenty-four hours after the disease was It is alleged in this ease by the plaintiff that she did give that notice as soon as she discovered that there was anything serious the matter with the horse. There is evidence that the veterinary surgeon for the defendant company had attended these horses before, or, at least, one of them; and Dr. Carter says when complaint was made to Mr. Rankin, the secretary here, and Mr. Rankin told him to go out, he went out, on the 13th of November, and saw the horse. I think he stated that at that time there was a shoe on the horse’s foot and leather under it. He had' the smith sent for, the shoe was taken off, he examined the foot and discovered then it was in bad condition. He went back on the 15th, two days after that; and he was back again there on the 21st; and his assistant was there on the 18th and on the 24th. Now, there is evidence here that that disease may have existed for a week, or perhaps a couple of weeks, before the time Dr. Carter went up; and I think there is some evidence here that some man went to see it when there was no shoe on the foot (not representing the defendant company, though), and he had recommended, I think, a shoe, or testimony of the kind. He saw it afterwards, when it was in bad condition. Under that policy, whenever there was anything serious the matter with the horse, anything to indicate a serious disease or complaint, it would be the duty of the insured to give notice within twenty-four hours after that; and that is a question for you, under the evidence, whether there was such notice given. [Bear in mind, too, the fact that Dr. Carter, who went there on the 13th, and again on the 15th, and again on the 21st, does not testify to anything as complaining that sufficient notice had not been given them.] [6]</p> <p>The other question is about the right of the insurance company to cancel the policy. There is a provision that for. misrepresentation the insurance company had a right to cancel the policy, and, in a case of that kind, all the payments were forfeited. It is a very arbitrary power on the part of the insurance company, to cancel a policy without giving the insured notice of it. I do not say that it might not have power to do it; but I say it is an arbitrary power, and ought not to be exercised, I think, without giving the insured an opportunity of being heard.</p> <p>[The main question on that aspect of the case is, gentlemen: Was this policy canceled in good faith because of any false representations, or was it canceled in view of the certain death of the animal, in order to get clear of the policy? It is said that the misrepresentation was that in the application the plaintiff said that she had paid $275 for this horse. Was the company deceived by the misrepresentation, or was it a material matter in the case ? The plaintiff cannot write. She signed her mark to this application. The application, according to the testimony, was prepared by Mr. Gordon, and according to the evidence, Mr. Gordon was the agent of the defendant company at that time. According to her testimony he solicited from her, or spoke to her about getting an insurance from this company. Undoubtedly he talked with her about it; and she says that he came with this paper and got her to sign it. She signs a mark, and, presumably, could not read the paper; but the fair presumption is that it was read to her or explained to her, because a party ought not to put his name or a mark to a paper without knowing something about it. And yet it is for the jury to say, under all the evidence, whether she knowingly or intentionally made any false representations, or anything that did deceive, or was calculated to deceive, the defendant company.] [2] I apprehend that a statement upon some immaterial matter would be of no consequence. This, however, would be, perhaps, a material matter. And the jury will take into consideration, also, the inspector’s report — the report of Mr. Gordon himself. This paper is not only signed by her, but on the back of it is a statement by Gordon, signing himself there as inspector, and which is headed, “ Inspector’s Report; ” and it is on this paper that the insurance was issued; as much upon the statement of the inspector as upon any statement made by the plaintiff— perhaps more so. What is it? After naming the animal, and who owned it, and where: “Inspected, month of February, 17th day;” then it has the questions, in type or printed, and he answers:</p> <p>“Have you examined the above named animal? Yes.</p> <p>“ What is its age ? Six years.</p> <p>“ Color ? Bay.</p> <p>“ Are there any indications of disease of the eyes or legs ? No.</p> <p>“ Has it any discharge from the nostrils ? No.</p> <p>“ Has it heaves, ring bone, spavin, curb, contracted limbs ? No.</p> <p>“ Has it any unsoundness ? No.</p> <p>“ In your opinion, what is its cash value ? ” He answers, “1275.”</p> <p>After inspecting the animal, inspecting it as the agent of the defendant company, and as their agent, he certifies that the cash value of that horse at that time was $275. Now, there is something a little singular about this case, because he prepares the whole paper. In her application the estimated value is put at $267. That would appear to be her estimate of the value of the horse — $267. Still, he certifies the cash value was $275.</p> <p>Then there is the question: “What did you pay for the above described animal?” Answer: “$275.”</p> <p>[Now, gentlemen, you will take the report of that inspector in connection witb the statement of the plaintiff. It is not so material what she paid for the animal, as what the animal was worth at the time of the insurance. That is the material matter.] [8] Of course what was paid for the animal may be evidence as to its value; but the material matter is: What is the value of the animal at the time of the insurance ?</p> <p>[Now, we have the testimony on the part of Mr. Rankin, that he had learned that she only paid something like $90. When did he learn that ? I do not know that he said when he learned it.</p> <p>Now, an insurance company if it has learned that there has been a misrepresentation in the application, must take action immediately on it; not delay. Because, if it delays and still continues to get assessments, why it waives any misrepresentation.</p> <p>How long before tbis did he learn of tbat misrepresentation. If be bad learned it some time before, and still continued to receive installments, be could not, on tbe 23d of November, when be knew this borse was going to die, then make tbat a pretext for canceling tbe pobcy.] [4]</p> <p>And tbat comes to tbe question: Was tbat pobcy canceled in good faith at tbat time; or was it a mere pretext resorted to by tbe defendant company to get out of paying tbe pobcy?</p> <p>Defendant’s points are as fobows:</p> <p>1. That under tbe pobcy a suit cannot be maintained thereon in Allegheny county but only in Philadelphia county. Answer: Refused. [7]</p> <p>2. If tbe jury bebeve tbat tbe company was not notified within twenty-four hours of tbe disability of tbe animal, which resulted in bis death, tbe plaintiff cannot recover. Answer : Tbis is affirmed — with tbe quahfication tbat tbe notice must be given within twenty-four hours after discovering there was anything serious tbe matter with tbe borse. If tbe company accepted and acted upon a verbal notice it would be a waiver of a written notice. [5]</p> <p>3. If tbe jury find tbat tbe plaintiff misrepresented in her appbeation tbe amount paid for tbe borse insured tbe company bad tbe right to cancel tbe pobcy, and, having done so for tbat reason on November 23,1893, prior to tbe death of tbe borse, tbe plaintiff cannot recover. Answer: If plaintiff knowingly made a false statement or representation in her appbeation which was material to tbe risk, or which was calculated to deceive or mislead tbe company, tbe company would have a right immediately on discovering tbe misrepresentation to cancel tbe pobcy and be rebeved from liability. [1]</p> <p>Verdict and judgment for plaintiff for $213. Defendant appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p>

Appeal, No. 154, Oct. T., 1895, by plaintiffs, from judgment of C. P. No. 1, Allegheny County, March T., 1894, No. 733, on verdict for defendant. Assumpsit to recover the amount of an unpaid check.

<p>Appeal, No. 16, Oct. T., 1895, by-plaintiffs, from decree of C. P. No. 1, Allegheny Co., March T., 1891, No. 962, on bill in equity.</p> <p>Bill in equity for the cancellation of a lease.</p> <p>The case was referred to W. B. Rodgers, Esq., as master, who reported the facts to be as follows:</p> <p>FINDING OF FACTS.</p> <p>I. This is a bill filed by the Mercantile Library Hall Company against the Pittsburg Library Association, Jos. Home & Co., R. M. Gulick & Co., The Syria Temple, Jos. Albree, T. Brent Swearingen, Jas. F. Hudson and Wm. R. Thompson.</p> <p>The object of the bill was to set aside a perpetual lease made to the Library Association of the ground and building of the Hall Company, situate in this city, which lease was executed by Albree as president of the Hall Company, under the authority, real or pretended, of a resolution of the board of managers of that company. Albree, Hudson and Thompson were members of the board of managers of the Hall Company. Swearingen was president of the Library Association, and executed the lease for that company. Horne & Co., Gulick & Co. and the Syria Temple were tenants of portions of the building.</p> <p>II. On the 12th day of February, 1849, an act of assembly was approved (P. L. 59) incorporating the Young Men’s Mercantile Library and Mechanics’ Institute of the City of Pitts-burg ; the name was afterwards changed to that of the Pittsburg Library Association, and that corporation is the real defendant in this case, and will be referred to hereafter as the Library Association. The object of the corporation, as' stated in the act, was “ promoting and encouraging general information upon commerce, manufactures, and the mechanic and useful arts.”</p> <p>III. On the 18th day of March, 1859, an act of assembly was approved (P. L. 1860, p. 811) incorporating the Mercantile Library Hall Company, and that corporation is the plaintiff in this case, and will be referred to hereafter as the Hall Company. The object of the corporation, as stated in its act of incorporation, was to purchase land and erect thereon a suitable and commodious building for the use of the Library Association, the defendant, which budding, with the ground on which it should be located, was, when ready for use, to be perpetually leased to the Library Association on terms and conditions defined in part, at least, by the act.</p> <p>IY. On February 3, 1870 (P. L. 103), a supplement to the act incorporating the Hall Company was approved. Section 2 of the act provided that the Hall Company might lease the grounds and building to the Library Association on such terms and conditions as may be agreed upon between the respective corporations. Provided, that the rents and revenues received by the Library Association, in excess of the rent, taxes, interest, insurance and repairs shall be paid to the Hall Company to reimburse it for the cost of the ground and building, and provided, further, that if the Hall Company shall agree, the surplus, receipts and revenues, and the increase in dividends arising therefrom may be appropriated to the purchase of stock in the Hall Company. This act is stated in the bill, as a part of the charter of the Hall Company, and seems to have been accepted.</p> <p>V. The Hall Company erected a building as required by its act of incorporation, which building, from the time of its erection, has been occupied in part by the Library Association.</p> <p>No lease was made upon the completion of the building, as provided by the act of 1859. It seems that the Library Association considered that it would be injudicious for it at that time to assume the obligations upon it in case such lease should be executed.</p> <p>An agreement between the two corporations, dated March 10, 1871, was then prepared and executed by the officers of each, a copy of this agreement, marked exhibit A, is attached to defendant’s answer.</p> <p>By this agreement, the Library Association declared that as the net revenues of the building did not amount to a sum sufficient to pay taxes, repairs and interest on cost, and as there was in addition to the funded debt a considerable floating debt, it was therefore injudicious for it to assume the obligations of the lease, and therefore declined to do so, and on its part the Hall Company expressed its acquiescence in these views, and its willingness to retain possession for the purpose of better securing the final accomplishment of the design for the benefit of the Library Association.</p> <p>It was therefore agreed that the Hall Company should retain possession, for the benefit of the Library Association, for the term of ten years from January 15,1871, or until such further time as the floating debt of the company shall have been paid and the annual rents and revenues of the building, in excess of the expenses, shall reach six per cent per annum on the whole cost of the ground and building. The Hall Company was to keep an account of the receipts and expenditures, annually balance the accounts, and make no charge against the Library Association for any deficiency in the net amount of the revenues. There were also other provisions requiring the Hall Company to apply the revenues, in excess of expenses, to the payment of interest and the indebtedness of the company.</p> <p>The duty of the Hall Company was stated in general terms to “in all respects manage the property with a view to the earliest possible accomplishment of the object contemplated in the charter of the company.” This agreement was by its terms to be subject to ratification by the stockholders of the Hall Company, but that was never obtained nor asked. The Hall Company, however, continued in possession and control of the building, leasing that portion of the building not occupied by the Library Association, and receiving the rents.</p> <p>VI. The cost of the ground and building was $266,176.44, made up as follows :</p> <p>Construction account, .... $284,176 44</p> <p>Ground,....... 32,000 00</p> <p>Of the cost of the ground, $2,000 was paid in cash, and remainder was secured by a purchase money mortgage for $30,000, which is still unpaid. There was paid in on capital stock $104,142, and the remainder of the cost of the building was paid by loans, nearly all, if not all, of which was represented by mortgages.</p> <p>At the time of the making of the agreement there was a funded debt, including the purchase money mortgage, of $160,000, and at or about that date the bills payable account amounted to $19,000 or $20,000. There are two dates, January, 1877, and April, 1886, when there were no bills payable outstanding, although at others there were such bills outstanding. The only detailed statement from the books, as to receipts and expenses, is for the year 1889, and shows the receipts for rent to be $24,541, and the expenses, including interest on the mortgage indebtedness, $16,539.96, balance $8,001.04.</p> <p>VII. On January 2,1891, a meeting of the board of directors of the Library Association was held, at which a proposition to be made in behalf of that association to the Hall Company for a perpetual lease from the company to the association of the entire building was adopted. This proposition, after reciting that the Library Association was desirous of obtaining possession and control of the building, offered to take a perpetual lease, as of January 1,1891, of the building, and in consideration thereof pay all the taxes, insurance and necessary repairs, the interest on the mortgage indebtedness ($180,000) and also ($5,000) per annum towards the extinction of the first mortgage ($30,000), also an amount equal to four per cent per annum upon the par value of the stock of the Hall Company ($104,142), hut, until the extinguishment of the first mortgage, the four per cent payment to depend upon the revenues realized, that is, that payment was only to be made if realized, and only to the extent realized from the rents and revenues, after making the other specified payments, the rents and revenues, over and above the rent, taxes, interest, insurance and repairs, to be paid as provided in the act incorporating the Hall Company and its supplements. This proposition was presented to, and accepted by, the board of directors of the Hall Company on January 3, 1891, and, on the same day, the perpetual lease in controversy was executed by the president of both corporations and acknowledged. The lease followed the term of the proposition as given above, excepting in this, that it bound the the Hall Company to pay the $5,000 payment coming due, which, under the proposition and acceptance, should be paid by the Library Association. At a regular meeting of the stockholders of the Hall Company, held on the 5th of January, 1891, resolutions were adopted denying the authority of the board to authorize the making of the lease, and that of the president to make .it, and authorizing the new board, then elected, to take the necessary steps to cancel the lease. This bill was then filed.</p> <p>VIII. Prior to the time at which the hoards of the two corporations acted upon the proposition for lease, the officers of the Library Association were: T. Brent Swearingen, president; Jas. F. Hudson, Jos. Albree and Wm. R. Thompson, directors. The officers of the Hall Company were: Jos. Albree, president; L. H. Williams, treasurer; Wm. R. Thompson, secretary; Geo. I. Whitney, J. O. Brown, Henry Holdship and James F. Hudson, directors. There was a vacancy in the office of vice president, and one vacancy in the directorship in the latter company. The control of the affairs of the Hall Company was, by the bylaws, placed in the president, vice president, treasurer, secretary and five directors, and they, together, constituted “ the board •of managers.’’ They were all required to he stockholders, and five members, ah being notified, constituted a quorum.</p> <p>Hudson, Albree and Thompson were members of both hoards. Hudson was not a stockholder in the Hall Company, but had been duly elected as a director, and it seems to represent stock which the Library Association held in the Hall Company. Thompson owned certain certificates, bnt was not a stockholder of record.</p> <p>At a meeting of the directors of the Library Association at which the proposition to lease was adopted, and before its adoption, Hudson, Thompson and Albree resigned as members of the Library Association board.</p> <p>The meeting of the managers of the Hall Company, at which the proposition to lease was accepted, was a special one, and held January 8, 1891, on the last business day of the term for which that board had been elected, although it was at first contemplated to hold the meeting some days earlier, but a later date was fixed in order to allow Mr. Williams more time to-prepare his report as treasurer. The meeting was called by Thompson, the secretary; the notices were dated January 2, were in writing, and were mailed on the 2d to all the members.</p> <p>The object of the meeting, as stated in the notices, was to-hear the treasurer’s report, and transact any other business which might come before the board.</p> <p>The meeting was attended by Albree, Hudson, Thompson, Holdship and Williams, and they constituted a quorum. After reading the treasurer’s report the proposition to lease was presented, and after some discussion, participated in by Mr. Williams, it was put to vote, and adopted by the votes of Albree, Hudson, Thompson and Holdship; Mr. Williams protested against the meeting and declined to vote, but participated in the discussion.</p> <p>Notices of this meeting, as stated above, were mailed to all of the managers, but Whitney was at that time and for some-days previous, in New York, and did not have any personal knowledge of the meeting, prior to its being held, and would, if he had been present, have probably opposed the acceptance-of the proposition.</p> <p>The by-laws are silent as to the notice to be given to meetings of the managers, and there seems to have been no rule of practice on the subject, there being but few meetings held, and they were not fully attended, although so far as there was any practice on the subject, notices were sent by mail, a day or two prior to the meetings.</p> <p>The managers were all well known business men of this city, and the place of meeting was convenient and central. Whitney’s office was on Fourth avenue, and the notice of the meeting was received there.</p> <p>IX. There was no fraud on the part of Albree, Hudson, Thompson or Swearingen.</p> <p>The master recommended that the bill should be dismissed.</p> <p>Exceptions to the master’s report were overruled, and a decree entered dismissing the bill.</p> <p>Error assigned among others was decree dismissing the bill.</p>

<p>Appeal, No.. 162, Oct. T., 1895, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1894, No. 780, on verdict for plaintiff.</p> <p>Trespass for injuries caused by the widening and grading of a road. Before Collier, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[This case, as far as you are concerned, is brought down to a very narrow compass, and that is this: What damages, if any, has the plaintiff sustained by reason of this grading, which consisted mostly of filling, and which, it is alleged, put a piece of his property below grade ? That is the main question for you to determine, and it is an important one.] [2]</p> <p>There are some tolerably serious law problems in the case, but that is not the question for you. [The question for you is whether or not the plaintiff has really suffered any damages from this grading — not in the grading as the street was originally laid out, but by this widening.] [3]</p> <p>One set of witnesses testify that there was no damage; another set that there was from $200 damage, to what the plaintiff says, which, I believe, is the most, $1,000. Now, you ask this: From this evidence, after that improvement was made, would the property have sold for as much in the market as it would have sold for before ? If it would, then the property is not damaged ,• if it would bring less, why, then, whatever amount less it is worth in the market is what the plaintiff would be entitled to.</p> <p>You will not try the case by saying what the annoyance and inconvenience is. You cannot do that — that is, if you do do it, it would be illegal. I will read you again the rule in this case: [The measure of damages is the difference in the market value of the plaintiff’s property immediately before the grading was done and immediately afterwards, as affected by the improvement.] [4] Now, if it was worth no less immediately afterwards — if a man would come along, you or I or any of us, and see it widened and the grading done and willing to give more for it than before, and it would bring more in the market, or just as much — then there would be no damage; but if it would bring less, that amount you would give to the plaintiff.</p> <p>The plaintiff cannot recover for damages, if any, done to the plaintiff’s property in the original opening of the road. The claim is for damages done in the widening of the road and work done after that, and, therefore, in arriving at a verdict you must exclude any damages done in the opening of the road.</p> <p>[Now, gentlemen, you will take the case and use your good common sense and find a verdict in accordance with the evidence. You have nothing to do but what I told you.] [5] You need not bother about the parties, but simply determine whether or not the property would bring less in the market after that improvement than before it.</p> <p>Defendants’ point among others was as follows:</p> <p>2. Under the evidence the verdict must be for defendants. Answer: Refused. [1]</p> <p>Verdict and judgment for plaintiff for $300. Defendants appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

Appeal, No. 165, Oct. T., 1895, by defendants, from order of O. P. No. 1, Allegheny County,. March T., 1895, No. 280, mailing absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense. The case was originally begun before a justice of the peace.. On December 19, 1894, defendants appealed from the judgment of the justice.

<p>Insurance — Fire insurance — Location of moveable property — Construction of policy.</p> <p>As the object of a contract of insurance is indemnity against loss by fire, if the provisions of the contract are susceptible of two or more interpretations, that one should be adopted.that will make the contract effective for the protection of the insured.</p> <p>An insurance company issuing a policy upon a business plant, or any portion of it, is chargeable with knowledge of the customary methods of conducting the business in which the property insured is used.</p> <p>The circumstances surrounding the making of the contract and affecting the subject to which it relates form a sort of context that: may properly be resorted to for aid in determining the meaning of the words and provisions of the contract.</p> <p>A manufacturing plant consisted of two buildings, one a foundry and machine shop, the other a pattern shop. The buildings were close together. The nature of the business required the use of the patterns in the foundry and machine shop only. When they were not in use they were kept in the pattern shop for storage. A policy of insurance on the plant described the property as “ all situate corner of Fourth avenue and Martin street.” The patterns were described in the policy as being in the pattern shop, and in the printed part of the policy there was a statement that the undertaking was to insure the property real and personal described in it “ while located and contained as described herein and not elsewhere.” Some of the patterns which were in use were burnt in a fire which destroyed the machine shop but not the pattern shop. Held, the policy covered the patterns while they were in use in the foundry and machine shop.</p>

<p>Appeal, No. 180, Oct. T., 1895, by Frank T. Redman, from order of Q. S. Allegheny Co., March T., 1895, No. 2, directing new election for justice of the peace in the borough of Braddock.</p> <p>Petition for election contest.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The material portions of the disputed ballot, a copy of which was attached to the petition, was in form as follows:</p> <p>a cross 00 marked in the square at the right of the name</p> <p>OF EACH CANDIDATE, INSIDE THE LINE ENCLOSING THE COLUMN, ÍNMCATES TyOtFfOR EACH CANDIDATE THUS MARKED.</p> <p>IF A CROSS (N) BE MARKED WITHIN THE CIRCLE IT WILL BE EQUIVALENT TO A HARK OPPOSÍtFeVERX ÑAmNiÑIcHE COLUMN. THOSE WHO DO</p> <p>not desire^toNoteWstraight ticket must not mark a cross "within the circle at the head of the column.</p> <p> </p> <p>Errors assigned among others were (2) decree adjudging Frank T. Redman not duly elected; (8) in ordering a new election.</p>

<p>Appeal, No. 193, Oct. T., 1895, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1894, No. 518, on bill in equity.</p> <p>Bill in equity to rescind a contract for the sale of real estate.</p> <p>The case was heard on bill and answer, and the court entered a decree dismissing the bill, filing the following opinion:</p> <p>1. statement.</p> <p>The bill was filed to rescind a contract for the purchase of real estate, on the ground of misrepresentation and fraud practiced by the vendor on the vendees, and to require a return of the purchase money paid.</p> <p>By written agreement, dated February 1, 1893, Joseph M. Kelly agreed to sell to Charles Schwan, John C. Bole, Mattie E. Pierce, R. G. Kennedy and S. E. Pool, the seven eighths interest in a tract of land near Latrobe, in Westmoreland county, containing 152 acres, for the consideration of $118,125, to be paid, $1,000 cash; $7,875 on the 1st of March, 1893; $25,000 on the 1st of June, 1893; to. assume the payment of the seven eighths of a mortgage of $37,000, — the seven eighths being $32,375; the balance of purchase money to be secured by bond and mortgage, to be given June 1,1893, when the deed was to be delivered.</p> <p>The purchasers paid the $8,875, and transferred portions of their claim to the other parties plaintiff in this bill. It was then agreed by the plaintiffs and the defendant that they would organize a corporation, by the name of the North Latrobe Land Company, which was done. The deed was then made to the corporation and the corporation executed its bond and mortgage to Joseph M. Kelly for the balance of the purchase money, to wit, $70,788.28.</p> <p>The bill alleges that after the deed and mortgage were executed, the plaintiffs discovered the misrepresentations and fraud practiced by the defendant, but does not give the date of such discovery.</p> <p>These misrepresentations and fraud consist in statements of the value of the property; of certain negotiations by Kelly, by which roads and railroad advantages would be afforded, and other matters enhancing the value of the property and facilitating the sales of lots, etc., all of which, it is alleged, were false and fraudulent.</p> <p>After the plaintiffs discovered the alleged frauds -they tendered back to Joseph M. Kelly a deed for the land and demanded repayment of the purchase money paid, and that the deed and mortgage be canceled, which tender and demand were refused, but the date of said tender and demand is not given.</p> <p>The answer denies all the alleged misrepresentations and fraudulent acts or statements. It also sets up as a defense res ad judicata, — that all the questions raised by this bill were adjudicated by a judgment that Joseph M. Kelly obtained against the corporation on its mortgage.</p> <p>As this is a purely legal question, which may dispose of the whole case, I thought it better to hear and pass upon this question before proceeding to take testimony generally on the bill and answer.</p> <p>2. FINDINGS OF FACT.</p> <p>The corporation paid on account of the purchase, $10,460.88, and on improvements made on the property, $2,139.92.</p> <p>A scire facias was issued on the mortgage given by the corporation, April 18, 1894. It was not served, and an alias scire facias was issued May 23, 1894, and duly served on' the president of the corporation. No defense was interposed and judgment was entered June 19, 1894, for $75,247.93. On that judgment a levari facias rvas issued on the 19th of June, 1894, and in pursuance of that the sheriff of Westmoreland county sold the property on the 1st of September, 1894, to Joseph M. Kelly and J. W. Moore for |1,000, and this money was distributed to costs and the balance on the plaintiffs’ judgment.</p> <p>The bill was filed September 17, 1894, being seventeen days after the sheriff’s sale.</p> <p>The plaintiffs knew of the alleged false statements and representations before the judgment was obtained, and made no defense to the scire facias or any objection to the sheriff’s sale. The bill does not state the date when the plaintiffs found out the alleged false statements and misrepresentations, but during the argument it was admitted that it was before the judgment was obtained on the scire facias.</p> <p>It is stated in the bill that the property was not worth more than $46,500, as that was the price which the defendant, Kelly, paid for the property within a year prior to the sale to the plaintiffs.</p> <p>3. CONCLUSIONS OK LAW.</p> <p>The plaintiffs, individually, are not liable for any of the purchase money to Kelly. By arrangement with them and the defendant the deed was made to the corporation and the corporation gave its bond and mortgage to Kelly for the remaining purchase money. There is, therefore, no personal liability on the part of the plaintiffs for the payment of this purchase money.</p> <p>As members of the corporation (and from the bill they were all members of the corporation, and the corporation was also made a plaintiff), the plaintiffs here could have interposed a defense on the scire facias, and should have done so. If they were willing to retain the property at its actual value, and fraud had been practiced to secure a higher price, they could have defended on the ground of that fraud and reduced the price to the actual value of the property. Or, if they were unwilling to retain the property they could have defended on the scire facias, filing an affidavit setting forth all the facts, as stated in this bill, and at the same time have filed a bill in equity setting forth the facts and an offer to rescind, and upon such an affidavit filed the court of Westmoreland county would undoubtedly have stayed proceedings on the scire facias until the bill in equity was finally disposed of.</p> <p>Doing nothing, permitting judgment to be entered on the scire facias without interposing any defense, and permitting the property to be sold on that judgment without any objection or interposing any defense, it is now too late for the plaintiffs to raise the question set forth in this bill. The judgment on that scire facias is an adjudication that the whole amount of the mortgage was due, and the corporation, and, of course, these plaintiffs, as members of the corporation, had no defense.</p> <p>This is now an effort to get the common pleas of this county to undo all the preceedings in the court of common pleas of Westmoreland county — to set aside a judgment of that court and a sheriff’s sale in pursuance of that judgment. This cannot be done.</p> <p>That the plaintiffs could and should have defended on the scire facias, and failing to do so cannot set up the same matters in a bill, is a doctrine well settled in this state. It is only necessary to refer to Lewis v. Nenzel, 38 Pa. 222; Heneman v. Pile, 161 Pa. 599; Bierer v. Hurst, 162 Pa. 1. It is also the doctrine in other states: Burt v. Miller, 4 Gray, 114 (Mass.) ; Kelly v. Doulin, 70 Ill. 385; Barton v. Anderson, 104 Ill. 578.</p> <p>The plaintiffs, however, contend that they could not have defended on the scire facias without affirming the contract. This is a mistake. They could have affirmed the contract as to the purchase, and defended as to the fraudulent price; or they could have filed a defense repudiating the contract, because of the alleged fraud, offered to rescind and filed a bill for rescission; and if that had been done no doubt the court of Westmoreland county would have stayed proceedings on the scire facias until a decision of the bill in equity.</p> <p>I am of the opinion that a judgment on the scire facias and a sheriff’s sale thereon, before this bill was filed, was a judicial determination that the plaintiffs and the corporation owed the amount of the mortgage, and it is too late for the plaintiffs now to question the validity of the contract. It is res adjudicata of all the matter set up in this bill, and the bill should be dismissed.</p> <p>Let a decree be drawn accordingly.</p> <p>4. DECREE.</p> <p>This cause came on to be heard at January term, 1895, and by direction of the court arguments were heard upon the question of law raised in the answer, by way of plea in bar, as to whether the judgment and sheriff’s sale on the purchase money mortgage is res adjudicata and a bar to this suit in equity, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed, that the bill be dismissed at the cost of the complainants.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Equity — Trust and trustees — Evidence—■Tenants in common.</p> <p>On a bill in equity by a sister against the heirs at law of her deceased sister to compel a conveyance of one half interest in real estate which stood in the name of the deceased sister, a decree will be entered in favor of the plaintiff where the evidence shows that both sisters were jointly interested in a store from the proceeds of which the property in question was mainly paid for; that plaintiff contributed money to start the store, and also contributed towards the first payment on the land; that the deceased sister was business manager, making all purchases for the store, and paying ail bills; that plaintiff assisted in the store but had charge more particularly of household affairs; that the two sisters were never married, but lived together and appeared to have all things in common.</p>

<p>Statute of limitations — Adverse possession — Boundary fence.</p> <p>■ The maintenance of a line fenee between, owners of adjoining lands up to which each claims and occupies, is a concession by each owner of the open, adverse possession by the other of that which is on his side of such division fence, which, after twenty-one years will give title, though subsequent surveys may show that tlie fence was not exactly upon the survey line.</p> <p>In an action of ejectment to recover a narrow strip of land along a boundary line where there is evidence- that a division fence had been maintained by plaintiff and defendant for more than twenty-one years, it is error to restrict the jury merely to the question of the location of the original line between the lands as shown by the early surveys. The jury should be directed to inquire in the first' place whether the owners of the land on both sides of the fence line had not in effect agreed upon its location, built their division fence accordingly, and held and occupied respectively up to the fence as their common, boundary for more than twenty-one years before the bringing of the suit. If this fact is found for the defendant, he is entitled to a verdict regardless of the true location of the warrhnt line.</p>

Appeal, No. 200, Oct. T., 1895, by defendants, from judgment of C. P. No. 8, Allegheny Co., Feb. T., 1894, No. 406, on verdict for plaintiff. Assumpsit to recover damages for an alleged breach of an oil lease.

Appeal, No. 222, Oct. T., 1895, by defendants, from decree of C. P. No. 2, Allegheny Go., Jan. T., 1895, No. 820, on bill in equity. Bill in equity for an account and for a reconveyance of real estate. The case was heard on bill, answer and proofs, by Ewing, P. J., from whose opinion the facts appear. It is conceded that Mrs. Rich, the plaintiff, was in December, 1889, the owner of the tract of land, concerning which this contention arises.

Appeal, No. 206, Oct. T., 1895, by defendants, from decree of C. P. No. 1, Allegheny Co., March T., 1892, No. 669, on bill in equity. Bill in equity for an account. Held: to wit: On the first day of December, 1890, George F. Smith, assuming to own the said land, entered into a written agreement with J. G. Rolshouse, agreeing to sell the said land to Rolshouse for the sum of $8,500.

<p>Married women — •Sale of goods — Evidence—Question for jury.</p> <p>In an action against a married woman for goods sold and delivered where the defendant denies that she was engaged in the grocery business when the goods were sold and that she ever purchased any of them, and avers that they were sold to her husband and on his credit, and the evidence is conflicting, the case is for the jury, and a verdict and judgment for plaintiff will not be disturbed.</p> <p>Practice, S. G. — Defective assignments.</p> <p>Where a specific portion of a charge is assigned for error, a second assignment, which alleges error in charging the jury as follows and for specification thereof recites the entire charge bodily, including the paragraph complained of in the first assignment, such an assignment is as far from being specific as it can well be made. An assignment which alleges error “ in submitting the ease to the jury under the evidence ” is equally defective.</p>

<p>Appeal No. 211, Oct. T., 1895, by defendant, from judgment of C. P. Allegheny Co., Sept. T., 1895, No. 179, on case stated.</p> <p>Case stated to determine the validity of title to real estate.</p> <p>From the case stated it appeared that plaintiffs being all of the heirs at law of Sarah E. Drusadow, deceased, entered into an agreement with defendant for the sale of a lot of ground situate in the Fifth ward of the city of Allegheny for the sum of $1,500. Defendant refused to accept the deed when tendered, alleging that plaintiffs did not have a marketable title.</p> <p>On February 24, 1871, judgment was entered against Sarah E. Drusadow, wife of Rudolph Drusadow, the then owner of the lot. On June 2,1871, Sarah E. Drusadow died intestate, leaving to survive her the plaintiffs,'her heirs at law.</p> <p>The case stated continued as follows:</p> <p>On September 2, 1881, at No. 476, September term, 1881, a scire facias, to revive and continue the lien of judgment at No. 185, March term, 1871, aforesaid, was brought by said John R. Large against Frances Colenburg, administratrix of the estate of Sarah E. Drusadow, deceased, and Rudolph Drusadow, to the first Monday of September, 1881, which was served September 5,1881, on Frances Colenburg, administratrix, and returned nihil as to Rudolph Drusadow, and on September 19, 1881, judgment was entered against Sarah E. Drusadow’s estate, in default sec. reg. for $2,062.22.</p> <p>On November 7, 1881, a fi. fa. sur judgment at No. 476, September term, 1881, aforesaid, was issued by said John R. Large against said Frances Colenburg, administratrix of the estate of Sarah E. Drusadow, deceased, impleaded with Rudolph Drusadow, levy made November 7, 1881, on said real estate, and on December 8, 1881, inquisition and condemnation was had.</p> <p>On January 31, 1882, said John R. Large issued a vend. ex. at No. 98 March term, 1882, sur fi. fa. at No. 76, December term, 1881, against said Frances Colenburg, administratrix of the estate of Sarah E. Drusadow, deceased, impleaded with Rudolph Drusadow, and on March 6, 1882, said premises was sold by the sheriff of said Allegheny county to John F. Large for the sum of $1,000, and William McCallin, sheriff of said county, acknowledged a deed on the 17th day of June, 1882, to said John F. Large for said property; which said deed is of record in the prothonotary’s office in said county of Allegheny, in sheriff’s deed book, vol. 4, page 449.</p> <p>The plaintiffs now are, and have been, in possession of said premises since the death of said Sarah E. Drusadow, to wit: June 2, 1871.</p> <p>The court entered judgment in favor of plaintiffs on the case stated. Defendant appealed.</p> <p>Error assigned was entry of judgment for plaintiffs.</p>

<p>Appeal, No. 221, Oct. T., 1895, by defendants, from decree of C. P. No. 1, Allegheny Co., March T., 1894, No. 901, on bill in equity.</p> <p>Bill in equity for an account.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The case was heard by Collier, J., on bill, answer and proof, and the following decree was entered:</p> <p>And now, to wit, July 1, 1895, this cause came on to be heard, and it was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows :</p> <p>That the defendants, C. Y. Wheeler and The Sterling Steel Company, account jointly and severally to the plaintiff, James Todd, for the amount or sum of money due him as royalties for all steel made, sold and collected for by them, or either of them, since the month of March, 1890, under the name of “ Sterling Double Special Steel,” less such sums as have been paid to James Todd as royalties upon “Sterling Double Special Steel;” under the name of “ C. Y. Wheeler’s Choice; ” under the name of “C. Y. W.’s Choice;” under the name of “The Wheeler-Sterling Armor Piercing Projectiles,” and under the name of “Projectiles for cannon;” said royalties to be computed at the price or sum of one cent per pound for each and every pound of steel made, sold and collected for by the defendants, or either of them, or their agents, under said names or either of them.</p> <p>Frror assigned was decree as above.</p>

<p>Appeal No. 215, Oct. T., 1895, by plaintiffs, from order of C. P. No. 8, Allegheny Co., May T., 1895, No. 248, discharging rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit upon an agreement to sell real estate.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Plaintiffs averred in their statement that on May 2, 1893, defendant agreed in writing to purchase two lots of ground in the 23d ward of the city of Pittsburg for the sum of $20,000. They averred that they had tenderd to defendant a good and sufficient deed for the property and that they had kept and performed all the covenants of the agreement, but that defendant had refused to accept the deed or pay the purchase money. Defendant filed an affidavit of defense in which he averred as follows:</p> <p>By the terms of said contract plaintiffs covenanted and agreed to sell and convey, on or before June 1, 1893, to the defendant, by a good and sufficient deed in fee, clear of all incumbrances, two (2) certain lots of ground situate in the 23d ward of the city of Pittsburg, and at the time of the execution of said contract defendant paid to plaintiffs the sum of three hundred ($300) dollars on account of said contract. Defendant in making said contract was acting for the Second Avenue Traction Company, and his sole and only purpose in making the contract was to acquire said two (2) lots of ground as a site for a new power station for said company, the said property being particularly desired by said company because of its river front.</p> <p>That after said contract was made, and before the 1st of June, 1893, and while the title to said property was under examination, the defendant on the 19th of May, 1893, received from Johns McCleave, Esq., attorney for the Pittsburg & Connellsville Railroad Company, a corporation existing under the laws of the commonwealth of Pennsylvania, and having the power of eminent domain, a letter notifying the defendant that said railroad company — the said railroad company then and there having the legal right and power and authority so to do — had some time before that surveyed and adopted a location for a branch railroad across the said property, and that if defendant purchased it he would have to take it subject to the right of the Pittsburg & Connellsville Railroad Company to appropriate a right of way through said property for the branch railroad as located, and that the railroad company would undoubtedly build said branch railroad in the near future, and suggesting that the defendant before completing the purchase had better examine the location, then on file in the railroad company’s office, to see whether or not he (the defendant) could make profitable use of the property with the branch railroad constructed upon it as located, a true copy of which said letter is attached hereto, marked Exhibit “ B,” and made a part of this affidavit of defense.</p> <p>Acting upon the notice contained in the letter of Mr. McCleave, defendant, on the-day of May, 1893, called at the office of the Pittsburg & Connellsville Railroad Company and made an examination of the plan and location of said branch railroad on file in the office of the said company, a copy of which plan and location is hereto attached, marked Exhibit “ C,” and made a part of this affidavit of defense.</p> <p>The . Pittsburg & Connellsville Railroad Company, by its engineers and surveyors, entered upon said property, as the defendant is informed by some of the officials of said railroad company, believes and expects to be able to prove upon the trial of this cause, on or about the-day of---, A.D. 1892, and surveyed the location shown in said plan, Exhibit “ C,” and the work of these engineers and surveyors, together with drawings and profiles having been reported to the company, said location was formally adopted by the unanimous vote of the directors of the said railroad company on the 4th day of April, A. D. 1892, an extract from the minutes of said railroad company and a copy of the said resolution of its board of directors being hereto attached, marked Exhibit “ D,” and made part of this affidavit of defense.</p> <p>The construction of the said branch railroad across the property in the manner shown in the said location and plan would cut off the entire river front of said property, and practically destroy said property for the uses of a power station for the Second Avenue Traction Company.</p> <p>On or before the first day of June, 1893, but after the receipt by defendant of the letter (Exhibit “ B ”), and after the examination. by the defendant of the plan (Exhibit “ C ”) and copy of resolution marked Exhibit “D,” plaintiffs tendered defendant a deed and conveyance for the property, but defendant denies that the deed and conveyance was a good and sufficient deed and conveyance, “ clear of all incumbrances,” as called for in said agreement, but on the contrary, there was then and' there fastened upon said property a servitude by reason of the survey and appropriation by said railroad company, of the location aforesaid, and the defendant refused to accept said deed because of the survey and adoption of the said location across the property by said railroad company and the expressed determination of said railroad company to construct said branch railroad as shown in said plan in the near future.</p> <p>The defendant, being thus disappointed in his efforts to secure an incumbered title to these two lots of ground, afterwards purchased from the said plaintiffs another site for a power station for the Second Avenue Traction Company — very near to the two lots above described — and upon the property thus purchased the Second Avenue Traction Company has since constructed the power station which it originally desired and intended to erect upon the said two lots of ground first above described.</p> <p>The defendant denies that plaintiffs kept and performed all acts, covenants and agreements winch they were bound to keep under the contract aforesaid, and all averments contained in plaintiffs’ statement in conflict with the statements contained in this affidavit of defense are denied.</p> <p>In a supplemental affidavit of defense defendant averred as. follows:</p> <p>That after the survey and location by the Pittsburg & Connellsville Railroad Company of a branch railroad over and across the property referred to in the affidavit of defense filed, and after the adoption by the board of directors of said company of the location for said branch railroad as set forth in the affidavit of defense filed, that the Pittsburg & Connellsville' Railroad Company on the 6th of October, A. D., 1893, served the plaintiffs with the following notice, to wit:</p> <p>“ To Mrs. Anna B. Johnston, widow, Rarvey Childs, Jr., and' Wrn. R. Littleton, Rxeeutors and Trustees, and Mrs. Mary R. Sloan:</p> <p>“Sm; — Please take notice that the Pittsburgh and Connellsville Railroad Company will, on the 14th day of October,, A. D. 1898, present to the Court of Common Pleas No. 3, of Allegheny County, for filing therein the bond of said railroad company; dated the 25th day of September, A. D. 1893, with the Union Trust Company as sureties in the sum of ten thousand dollars, conditioned for the payment to you of such amount of damages as you may be entitled to receive for the entering of said company upon your lands in 23d ward, Pittsburgh, Allegheny County, Pa., and establishing and constructing a branch railroad thereon, which bond has been tendered to and refused by you.</p> <p>“ (Signed,) Pittsburgh & Connellsvillb Railroad Company,</p> <p>“ By A. H. Anderson,</p> <p>“ October 6, 1893. Agent.”</p> <p>And that afterwards, to wit, on the 14th of October, A. D. 1893, to November term, 1893, of the court of common pleas No. 3, of Allegheny county, a bond was filed by the said Pitts-burg & Connellsville Railroad Company, conditioned for the payment of such damages as might be sustained by the location and construction of said branch railroad.</p> <p>The court discharged the rule for judgment.</p> <p>Error assigned was above order.</p>

Appeal, No. 227, Oct. T., 1895, by garnishee from judgment of C. P. No. 1, Allegheny County, Dec. T., 1893, No. 768, on verdict for plaintiff. Attachment execution. Before Slagle, J. At the trial it appeared that in the early part of 1891, E. M■Hukill had organized the West Penn Gas Company, having a nominal capital of $275,000 of five thousand five hundred shares of the par value of $50.00 each. Mr. Hukill was the owner of all of this stock excepting four shares.

<p>Negligence — Street railways — Infant—Contributory negligence — Speed of car.</p> <p>In an action to recover damages for injuries to a child by an electric car, the case is for the jury where plaintiff’s witnesses although contradicted, testify that the car was moving at an unusually high rate of speed, that the view of the whole street in front was unobstructed, that the child was seen by passengers in the car walking from the foot pavement to the track, and would have been seen by the motorman in time to stop the car, if he had not been looking at a house at the side of the street where a number of persons were assembled.</p> <p>In such a case the question of the parents’ contributory negligence in not properly protecting the child, is for the jury, where the evidence shows that the child was two years and eleven months old, that the mother had asked her brother, the child’s uncle, a boy fourteen years old, to go to a store on the opposite side of the street for a loaf of bread; that the child begged to go with him; that the mother carried the child across the street and left him on the pavement in care of his uncle; that the two children walked down the street together a short distance when the younger asked the older to get him a piece of ice from a wagon standing on the other side of the street; that the boy cautioning the child to remain where he was, ran across the street, got the ice and started to return when he noticed that the child was following him, and was then on the car track; that the car was at the distance of the width of two or three stores, and moved so rapidly that the child was struck before he could reach him; that the uncle of the child was a member of his sister’s family, and had frequently aided in taking care of the child.</p>

<p>Negligence — Street railways — Infant—Speed of oar.</p> <p>In an action by a boy two years eleven months old against a street railway company to recover damages for injuries sustained by being struck by an electric car, the case is for the jury, where the evidence tends to show that the ear was run at a very high rate of speed in a crowded part of the city, and that the motorman at the time of the accident was looking at persons assembled at the side of the street, and for that reason failed •to see the child in time to stop the car: Yingst v. Railway Co., 167 Pa. 438, distinguished.</p>

<p>Appeal No. 257, Oct. T., 1895, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1891, No. 687, staying alias habere facias possessionem.</p> <p>Ejectment for a lot of ground in the Eleventh ward of the city of Allegheny.</p> <p>The facts appear by the opinion of the court.</p> <p>Errors assigned were (1) striking off amendment; (2) in staying writ.</p>

<p>Contract — Construction of contract — Receipt.</p> <p>Plaintiff, an owner of land over which the defendant was about to construct an incline plane, wrote to the defendant that he desired that the trestles should be set so that their base should be no higher than the grade of a certain street, or at a rise of four or five feet to the hundred feet from the street grade. Defendant accepted the proposition with the modification that the east wall should be “of the height of the grade as it now is immediately west and next to the trestle.” On the same day that the proposition was accepted, plaintiff and defendant entered into an agreement in writing by which plaintiff agreed to do all the necessary excavation for defendant “ according to the directions and under the supervision of the engineer in charge of the construction of said incline.” Nothing was said in any of the papers as to any earth excavation. After the work was completed plaintiff gave to defendant a receipt “ in full settlement for all stone work and excavation ” furnished in connection with the construction of the incline plane. Nearly six years after the road was finished plaintiff brought suit against defendant to recover profits which he would have made by earth excavation if the trestles had been set at the level of the street mentioned in his proposition instead of upon the natural surface of the ground as they had been set in accordance with the instructions of the defendant’s engineer. Held, that plaintiff was not entitled to recover such profits.</p>

<p>Appeal, No. 199, Oct. T., 1895, by defendant, from judgment of C. P. No. 3, Allegheny County, May T., 1894, No. 464, on verdict for plaintiffs.</p> <p>Trespass for deceit. Before McClung, J.</p> <p>The pleadings and facts appear by the opinion of the Supreme Court.</p> <p>At the trial plaintiff offered in evidence the depositions of Bryce Gray and George A. Townley, taken on commission and filed in this case.</p> <p>To this offer, defendant objected as incompetent and irrelevant and not tending to sustain the allegation of deceit set forth in the statement.</p> <p>Objection overruled, and at the request of counsel for defendant exception noted and bill sealed. Counsel has pointed out to me the grounds of the objection and I think the matters referred to are competent evidence. [1]</p> <p>Under this offer, Geo. A. Townley testified as follows: “ When the defendant called on or about August 9, 1892, and made the purchase aforesaid, he told the witness that, although times had been bad, they were looking brighter, and that he, defendant, expected to do good business.” And Bryce Gray testified that the defendant stated on or about August 9, 1892, to him, that his financial condition had not changed for the worse since the day he made his written statement, in writing, “Exhibit A,” but rather had improved. By the plaintiff’s statement it was averred that on August 9, 1892, defendant made false and fraudulent representations to the plaintiff, to wit: That he had taken stock in the year 1891, and had on hand, in his store at Pittsburg, $18,675 worth of goods at New York cost, that he had cash on hand and in bank, $2,350; that he had good book 'accounts outstanding to the value of $12,350.75; that he owned real estate, unincumbered, in the-city of Pittsburg, county of Allegheny, worth $4,360; that he only owed for merchandise on open account, bills payable and borrowed money, the sum of $7,525; that there were no judgments against him; that he owed no debts for borrowed money to any one; and was under no liabilities as surety or guarantor for any one; and was not liable in any manner on accommodation paper, and knew of no claim against him that would affect his standing and financial condition in the foregoing statement.</p> <p>Mr. Blakeley: We first offer Weinburg Cloak Company v. D. Rosenthal, 201 December term, 1892. The action is brought September 29, 1892, an action on a book account, $146.75; contract, June 23, 1892; $1,278.38, August 6, 1892; $225, August 8, 1892. No judgment rendered in this one, but on the 5th of December, 1892, this suit settled and discontinued. Signed Cohen & Co., for plaintiff.</p> <p>Mr. Ferguson: We object to this particular offer, for the reason that it shows an indebtedness created apparently in due course of trade at or about the date at which the alleged fraudulent representation was made, and therefore does not tend to show the representation was untrue.</p> <p>The Court: Objection overruled. At the request of counsel for defendant, exception noted and bill sealed. [2]</p> <p>Mr. Blakeley: I offer the record and papers at 353 December term, 1892, J. S. Ellfutz & Co. v. D. Rosenthal, action brought October 15, 1892, on several items, two of which amounted to $94.00, of July 14, 1892; in which case judgment was taken in the sum of $766 on the 28th of December, 1892.</p> <p>Mr. Ferguson: Objected to as incompetent and irrelevant, particularly as $691 of it was not purchased until the 12th or 16th of September.</p> <p>The Court: Objection overruled. At the request of counsel for defendant, exception noted and bill sealed. It is only offered as to that which was purchased before. [3]</p> <p>Mr. Blakeley: I offer the record and papers at No. 502 of December term, 1892, case of Roth & Friedmand v. D. Rosenthal, the action brought November ,5,1892, on book account, the item dated June 2, 1892, $14.00; judgment entered for the whole amount in default of an appearance on December 3, 1892. The amount of the judgment is $1,103.09. I offer the whole judgment. A second charge was $1,082.</p> <p>Mr. Ferguson: We object generally to the judgments as incompetent and irrelevant, and specifically to any portion of the judgment based upon a debt contracted after the 9th of August, 1892, the date of the alleged false representation, as incompetent and irrelevant.</p> <p>The Court: It appearing that the defendant became insolvent at the latter end of September, 1892, and it appearing, inferentially, at least, that all his stock then on hand was absorbed in paying the indebtedness incurred by him after his return from New York, or incurred largely after his return from New York, we think that purchases of goods made before or about the time of these representations made will have some bearing in determining what his real financial condition was at that time, and hence will enable the jury to determine whether or not his statement sworn to as having been made on the 9th of August, 1892, if made, was true, or false. The objection is overruled. At the request of counsel for defendant exception noted and bill sealed. [4]</p> <p>Verdict and judgment for plaintiffs for $547.51. Defendant appealed.</p> <p>Errors' assigned were (1-4) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 263, Oct. T., 1895, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1898, No. 524, dismissing bill in equity. Bill in equity for partition. The bill was filed by the plaintiffs for a partition, claiming title as collateral heirs at law of Judith Pfeifer; that Judith Pfeifer died intestate, without issue, but having a husband, J. Martin Pfeifer, who is now deceased. The plaintiffs claimed to be tenants in common.

Appeal No. 249, Oct. T., 1895, by-George F. Dawson et al., from decree of O. C. Allegheny Go., Oct. T., 1894, No. 170, dismissing petition to compel executors to pay legacies. Petition to compel executors to pay legacies. The facts appear by tbe opinion of Hawkins, P. J., which was as follows: The question submitted in this case is whether or not certain contingent legacies given by Captain Patterson to his sisters, hereinafter recited, had become payable.

Appeal, No. 256, Oct. T., 1895, by J. F. Leech and Margaretta Park Leech, his wife, from decree of O. C. Allegheny Co., Dec. T., 1894, No. 79, dismissing exceptions to adjudication. Exceptions to adjudication. David E. Park, the testator, died on the 22d day of February, 1875, testate, leaving to survive him a widow, since deceased, and one daughter, Margaretta, the appellant, now the wife of J. F. Leech.

Appeal No. 259, Oct. T., 1895, by John Frazier, trading as Frazier Bros., from order of C. P. No. 3, Allegheny Co., Nov. T., 1893, No. 266, overruling exceptions to auditor’s report. Exceptions to auditor’s report. The facts appear by the opinion of the Supreme Court. Errors assigned were in overruling exceptions to auditor’s report.

Appeal, No. 132, Oct. T., 1895, by defendant, from order of C. P. No. 3, Allegheny Co., Nov. T., 1894, No. 462, making absolute a rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover $500 on a covenant in a lease. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 135, Oct. T., 1895, by defendants, from judgment of O. P. No; 1, Allegheny Co., March T., 1895, No. 131, for want of a sufficient affidavit of defense. Scire facias sur municipal lien. From the record it appeared that certain street improvements were made by the borough of Beltzhoover on Beltzhoover avenue, and the sum of §581.72 was assessed by viewers on the Beltzhoover family burying ground.

<p>Appeal, No. 128, Oct. T., 1895, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1893, No. 430, on verdict for plaintiff.</p> <p>Trespass for wrongful sale of plaintiff’s goods. Before Stowe, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant’s points, among others, were as follows:</p> <p>1. Under all the evidence the verdict should be for the defendant. Answer : This is refused. [1]</p> <p>If the court should refuse to charge as requested, then,</p> <p>3. If the jurv believe from the evidence that there was a large number of patterns held by the said Burt as trustee for the defendant, estimated to be worth $12,000, and in making the bill of sale for $5,000, as per Exhibit B, the plaintiff’s patterns were mistakenly included instead of other patterns, but were never delivered and are not claimed now by the vendee in the said bill of sale, the plaintiff is not injured and cannot recover in this action. Answer: Refused. [2]</p> <p>4. If the jury believe from the evidence that the plaintiff neglected to remove the patterns when they were released by the defendant’s decedent, and they became confused with the patterns held by Burt for the defendant’s decedent, the plaintiff himself by his own act occasioned the mistake and the defendant is not liable. Answer: Refused because there is not suffi cient evidence to raise this point. [3]</p> <p>5. If the jury believe from the evidence that the defendant’s decedent, by his attorney in fact, B. F. Jennings, on the 13th day of June, 1887, directed W. H. Burt to prepare a bill of sale of patterns in his possession belonging to said decedent, and that said Burt prepared a bill of sale marked Exhibit B, and by mistake, without the knowledge of saidB. F. Jennings, included in it the same patterns belonging to the plaintiff, and that the said B. F. Jennings had no list or description of plaintiff’s said patterns, and that the description of plaintiff’s said patterns in Exhibit No. 1 was not the same as in Exhibit A, and was recognizable by no one not familiar with the business, and in point of fact was not recognized by the said B. F. Jennings, and that the said Burt had in his possession far more than $6,000 of said decedent’s patterns, and that the said plaintiff did not look after his patterns, or notify said decedent or his attorney in fact, or the defendant personally, for several years thereafter, the defendant is not liable in this action.' Answer: Refused. [4]</p> <p>The court in the general charge used the following language: “ If that property was left in the custody of Mr. Jennings and being there, although he did not know that it was there, he undertook actually to sell it, intending to sell it, then this action can be maintained, because he has undertaken to sell, and he has sold property that did not belong to him, but belonged to the plaintiff in this case. Having done that, no demand was necessary to give the plaintiff a right of action, because demand is only evidence of conversion, but the sale itself was conversion.” [5]</p> <p>Verdict and judgment for plaintiff for $423.85. Defendant appealed.</p> <p>Errors assigned were, (1-5) above instructions, quoting them.</p>

Appeal, No. 214, Oct. T., 1895, by defendant, from decree of C.P. No. 2, Allegheny Co., July T., 1894, No. 416, on bill in equity. Bill in equity to declare void the satisfaction of a mortgage. From the record it appeared that the mortgage in question was dated October 21, 1889, and was given by Morris Stein to Mary Kapp. The satisfaction of the mortgage was dated April 23, 1894. Mary Kapp died on April 28, 1894, being seventy-two years of age.

Appeal, No. 142, Oct. T., 1895, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1894, No. 40, on verdict for plaintiff. Trespass for personal injuries. Before Magee, J. The facts appear by the opinion of the Supreme Court. Defendant presented, inter aha, the following points: 1. There, being no evidence in this case as to the cause of the accident, the verdict must be for the defendant. Answer: This is refused; I decline to say that. [4] 2.

<p>[Marked to he reported.]</p> <p>Mechanic's lien — Subcontractor—Principal and surety — Building contract — Covenant against Kens.</p> <p>A subcontractor who becomes a surety for the contractor to indemnify the owner against “all charges, claims, liens, mechanics’ liens, or any incumbrance or debt in the nature of a lien or charge of any kind whatsoever,” cannot file a lien where the building contract provides that before final settlement, the contractor shall furnish the owner “a release of liens properly signed and attested to by all parties that would have a legal right to file liens against said building.”</p> <p>In such a case, as the necessary legal effect of the subcontractor’s contract as a surety is that he will be bound to discharge a lien in his own favor the moment it is obtained, he must be held to have waived all right to file such a lien.</p> <p>A provision in a building contract that before final settlement the contractor shall furnish the owner “arelease of liens properly signed and attested to by all parties that would have a legal right to file liens against said building,” is not a covenant against liens, but a full recognition of the right to file liens by anybody having furnished labor or materials.</p>

Appeal, No. 262, October T., 1895, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March Term 1894, No. 882, on case stated in favor of defendants. Scire facias sur mechanic’s hen.

<p>Municipality — Glassification of cities.</p> <p>Tbe effect of the classification of cities must not be carried beyond its purpose as declared in tbe original classification law, and a law relating to any other subject though embracing all the cities of any given class, or of all the classes into which cities are divided is local and unconstitutional, if the subject be one upon which local and special legislation is forbidden.</p> <p>Constitutional law — School law — Local legislation — Glassification of cities. Acts of July 3, 1895, P. L. 588, and July 3, 3895, P. L. 603.</p> <p>If an act regulating the affairs of school districts either produces or may produce local results, it offends against art. 3, sec. 52, of the constitution of 1874, which forbids any attempt to regulate the affairs of school districts by local or special laws.</p> <p>The act of July 3, 1895, P. L. 588, entitled “ An act to establish and to regulate tbe affairs of school districts and sub-school districts in cities of the second class, and to repeal all local and special laws inconsistent therewith,” is a local and special law repugnant to art. 3, see. 52, of the constitution.</p> <p>The act of July 3, 1895, P. L. 603, entitled “An act repealing' an act entitled ‘ An act consolidating the wards of the city of Pittsburg for educational purposes, approved February 19, 1855,’ ” and also repealing an act entitled “An aet consolidating tbe wards of tbe city of Pittsburg for educational purposes, approved February 12, 1869,” is a local law within the meaning of art. 3, see. 55 of the constitution, which declares that such a law shall not “ be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be effected shall be situated.” The act not having been advertised in the city of Pittsburg is invalid.</p> <p>Assuming the general rule to be that notice will be presumed in the ab- . sence of any proof upon tbe subject, yet tbe presumption cannot prevail when it is a conceded fact in the case that no notice was given.</p> <p>While the legislature of 1895 might have repealed the act of February 12, 1874, P. L. 43, relating to the manner and form of publishing notices of local acts, as long as it did not do so, the citizens of a locality affected by a local aet had a right to rely upon the observance of the act of 1874.</p>

<p>Appeal, No. 273, Jan. T., 1895, by plaintiffs, from judgment of C. P. Delaware Co., June T., 1892, No. 109, on verdict for plaintiffs.</p> <p>Scire facias sur mortgage. Before Clayton, P. J.</p> <p>At the trial the parties agreed upon the following facts :</p> <p>1. That Dennis Kelly died July 21, 1864, leaving among other children one Mary Ott.</p> <p>2. That Mary Ott (sometimes mentioned as Mary T. Ott) had three children, Jacob Ott, Joseph A. C. Ott, and Jeremiah J. Ott.</p> <p>3. That Mary T. Ott died January 27, 1892, and was bom on the sixteenth day of February, A. D. 1811.</p> <p>4. That Joseph A. C. Ott intermarried with Mary E. T. Sullivan October 4, 1865, and died October 5, 1867, leaving a will dated November 28, 1866, and probated in Delaware county October 19, 1867, which provided, inter aha, as follows :—</p> <p>“ I give and bequeath unto my beloved wife Mary Elizabeth Theresa Ott all my estate, real and personal and mixed which I now have or hereafter may have, situated in Haverford Township or elsewhere, to hold to her my said wife, her heirs and assigns forever.”</p> <p>5. That at the time of the death of Joseph A. C. Ott his wife Mary E. T. Ott was • enceinte and afterwards gave birth to a child, Joseph A. Ott, who was not provided for in said will, and who died July-26, 1877, in his minority, intestate, unmarried and without issue.</p> <p>6. That Mary E. T. Ott afterwards intermarried with William F. Wilson, and died April 28, 1886, leaving a last will and testament, probated in Philadelphia county, wherein she appointed her husband, William F. Wilson, and brother, Hugh F. Sullivan, her lawful executors, and devised her entire estate to them.</p> <p>7. That William F. Wilson and Hugh F. Sullivan, executors of the last will and testament of Mary E. T. Wilson, by assignment dated the 30th day of January, A. D. 1889, and recorded March 4, 1890, assigned the mortgage for $5,000 declared upon in this suit to Martha J. Wilson “ as collateral security for the payment to the said Martha J. Wilson of a loan of $2,500 made by her.” No notice of the assignment was given to the mortgagor's.</p> <p>8. That Mary E. T. Ott (or Mary E. T. Wilson née Sullivan) was bom on tbe 2d day of September, A. D. 1847, and died on tbe 28th day of April, A. D. 1886.</p> <p>9. That at the time of tbe conveyance by Mary E. T. Ott to Jacob Ott and Jeremiab J. Ott, by deed dated January 18,1879, and recorded in Philadelphia county in Deed Book L. W., No. 1, p. 161, etc., tbe value of tbe fee simple interest of Joseph A. C. Ott in tbe premises therein described being tbe one undivided third thereof, was agreed by tbe parties to be $5,000. Tbe consideration for said conveyance stated as passmg to Mary E. T. Ott was tbe execution of the mortgage in suit.</p> <p>In addition to tbe facts above agreed upon it appeared that on January, 1879, Mary E. T. Ott and- Mary T. Ott executed a deed conveying tbe land to Jacob Ott and Jeremiab J. Ott for $5,000. In this deed it was recited that the said tract of land and premises became vested in Mary E. T. Ott in fee simple. On tbe same day that tbe deed was executed Jeremiab J. Ott and Jacob Ott, tbe grantees in tbe deed, executed a mortgage to Mary E. T. Ott for $5,000. Tbe land described in tbe mortgage was different from that described in tbe deed.</p> <p>Other facts appear by tbe opinion of the Supreme Court.</p> <p>Plaintiffs’ points were among others as follows :</p> <p>2. If tbe jury find from tbe evidence that Mary E. T. Ott only covenanted to convey all her right, title, and interest in tbe mill property, and tbe facts are open and fairly set forth in tbe deed of conveyance as to what that interest was, and tbe purchasers have not been ousted from tbe possession of tbe property conveyed, then there was no failure of tbe title, and tbe verdict of tbe jury must be for tbe whole amount of plaintiffs’ claim. Answer: I decline to so charge you. I decline to affirm tbe balance of these points. [1]</p> <p>3. If tbe jury believe that tbe parties to tbe deed and mortgage mentioned in this suit, in tbe execution of these papers acted in good faith, without any concealment of facts by Mary E. T. Ott, and without fraud, then this amounts to a mutual mistake in law, and inadequate or partial failure of consideration is no defense, and tbe verdict of tbe jury must be for tbe plaintiffs. Answer: Declined. [2]</p> <p>6. Under all tbe evidence in this case, if tbe jury believe there is nothing more in this case than an honest mistake in law as to the quantity of the estate owned by Mary E. T. Ott in the mill properly, without any fraud or deception practiced on the defendants, then the verdict of the jury must be for the plaintiffs for the whole amount of their claim. Answer: Declined. [3]</p> <p>7. Under all the evidence in this case the verdict of the jury must be for the plaintiffs for the full amount of their mortgage debts, interest, and costs. Answer: Declined. [4]</p> <p>9. Under all the facts and circumstances of this case the defendants have been guilty of laches in their failure to sooner call in question the validity of the mortgage sued upon. Answer : Declined. [5]</p> <p>10. The defense in this case is in effect an application to reform the mortgage contract in suit, and the defendants relieved from the payment of the amount thereof on the ground of a mistake in the quantity of the title recovered by them under a deed of the same date for which the defendants claim this mortgage was the consideration. As under the admitted facts the mistake was one of law and not of facts, and as the defendants have been guilty of laches in permitting the said mortgage to remain unquestioned for more than thirteen years, and in the meantime the plaintiff Martha J. Wilson became the bona fide holder for value of the same, the defendants cannot now be permitted to make their mistake of law a defense to this mortgage, and the verdict of the jury should be for the plaintiffs for the full amount of their claim. Answer : Declined. [6]</p> <p>The court charged in part as follows :</p> <p>[The plaintiffs’ attorney requested the court to direct the jury to allow attorney’s commission as stipulated in the mortgage. The court declined to do so.] [7]</p> <p>Verdict and judgment for plaintiffs for $2,368.76. Plaintiffs appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p>

<p>Appeal, No. 168, Oct. T., 1895, by defendants, from judgment of C. P. No. 3, Allegheny County, Aug. T., 1891, No. 168, on verdict for plaintiffs.</p> <p>Assumpsit for goods sold and delivered. Before Porter, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[There is, gentlemen, in the case, evidence, the weight of which, if it were of any avail, would be for you, that Mr. Rush made payments to Mr. Lantz after these cattle had passed into their possession. He claims that those payments were made because he bought the individual half for $3,500, and that there was no joint liability on his part with Lantz for the whole lot; that this was simply a transaction between him and the firm, and that he was afterwards told by Lantz that he, Lantz, had bought the other half. If that were the case, then, under such circumstances, it would be a good payment for Rush to pay Lantz, because he would not be paying him a part of a claim for which they were jointly liable. But if you find that the contract of sale was a joint one to Lantz and Rush for $7,000, entered into by them, that would put Lantz in such a position with regard to his other partners, and with regard to Rush, Rush having knowledge of the facts, as to make a payment by Rush, the man who was jointly hable with Lantz, for the whole amount, to Lantz, as not a proper credit upon the claim of the firm, because the circumstances would negative any authority to Lantz to act for his other partners in the firm generally with regard to this property.</p> <p>' If you find that the sale was to them jointly, then each of them would be hable for the whole amount; that is, together jointly hable for the whole amount, and payment by one to the other would not be a good payment as against the firm. If, therefore, gentlemen, under the evidence in this case, you find this sale to have been one made to these men upon their joint undertaking, we say to you that there is no evidence in the case which would warrant you in finding that the amount has been paid.] [1]</p> <p>[You simply, then, pass upon one question: Was this a sale to these defendants jointly? If it was, then the plaintiffs are entitled to a verdict of $7,000, with interest from the time the amount became due.] [2]</p> <p>[If at the time this sale was made there was an agreement among all of them that a certain sum should be credited, then that would have been a proper credit; in other words, if at the time they made this sale there was an agreement that the amount should be decreased or diminished by the amount of the bill which Rush held against them, then that would have been a proper credit. But, under the pleadings in this case, gentlemen, and the affidavits as filed, the feed bill is not to be considered by you. It is not properly set forth as an item of defense in the affidavits filed by the defendants.] [8]</p> <p>Defendants’ points were, among others, as follows :</p> <p>3. There being no evidence that a partnership existed between defendants, Rush and Lantz, in respect to said property, the present action cannot be maintained under the act of April 14, 1838, and the verdict must be for the defendants. Answer: This point is refused. [4]</p> <p>4. That under the pleadings and evidence in this ease the verdict must be for the defendants. Answer: This point is refused. There are questions of fact upon which the jury must pass. [5]</p> <p>Verdict and judgment for plaintiffs for $10,872.16. Defendants appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Evidence — Witness—Credibility of witness — Scire facias sur municipal lien.</p> <p>At the trial of a scire facias sur municipal lien, it appeared that the paving for which the lien had been filed was constructed by the use plaintiff under the supervision of the assistant commissioner of highways, and had been accepted by the city as well done according to the specifications. A witness for the defendants who was an agent of a municipal reform association testified to facts tending to show that the work had not been done according to specifications. On cross-examination the plaintiff was permitted under objection and exception to ask the witness whether he had not at another time made a false accusation of corruption as an officer, against the assistant commissioner in connection with the very work of which the pavement in front of defendants’ properly was a part: Held that the question was properly permitted as bearing upon the credibility of the witness, inasmuch as the jury might infer, if he had made such a charge, that his malice continued unabated, and that his testimony was prompted by hatred.</p> <p>When an oral offer of evidence is admitted, and the proof of it wholly fails, the natural tendency is to arouse prejudice against the party making the unfounded offer, and the adverse party has no reason to complain that the jury may have been prejudiced.</p>

Appeal, No. 218, Jan. T., 1895, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1898, No. 408, on verdict for plaintiff. Assumpsit to recover for the breach of an agreement to pay a portion of a promissory note. Before Jenkins, J. At the trial it appeared that on June 3,1892, plaintiff gave to defendant, his brother-in-law, a promissory note for $1,800 to be discounted for their mutual accommodation.

<p>Appeal, No. 328, Jan. T., 1895, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., March T., 1892, on verdict for defendant.</p> <p>Trespass against the sheriff to recover damages for failure to execute a writ of attachment. Before Arnold, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged as follows:</p> <p>“ You will find a verdict for the defendant, upon the ground that the act of assembly limits the right of action to five years from the date of the bond, and this action was brought five years and two weeks afterwards.”</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in directing verdict for defendant.</p>

Appeal, No. 325, Jan. T., 1895, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1894, No. 662, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit on a promissory note. Bulé for judgment for want of a sufficient affidavit of defense.

<p>Appeal by Carrie E. Frake, from decree of O. C. Phila. Co., April T., 1893, No. 230, dismissing appeal from register.</p> <p>Appeal from register of wills.</p> <p>The facts appear by the opinion of Ashman, J., which was as follows:</p> <p>The proposition that the testimony of each witness to a will must be in itself complete as to all tbe facts -which are essential to the due execution of the instrument, about which all the cases from Hock v. Hock, 6 S. & R. 47, down, with perhaps a single exception, hold but one opinion, was made the basis of this appeal. So far as the proofs submitted to the register were concerned, the proposition was fully complied with. Both of the subscribing witnesses declared that the testatrix affixed her mark to the instrument in their presence, and acknowledged the paper to be her will; and both declared that she was of sound and disposing memory. The will was prepared by counsel after instructions furnished by the testratrix; it was examined at her leisure and approved by her; and it was executed at a time and before witnesses named by herself. Seven months after the will had been admitted to probate an appeal was taken, and the allegation was made for the first time that the testatrix was mentally incompetent and had been unduly influenced to make her will. This allegation, however, was withdrawn, and the case was rested on the ground that she had not duly executed her will. To support this charge, one of the subscribing witnesses repudiated his former statement, and declared that he signed at the request of the counsel, who was also the other witness to the will, and that the testatrix was not present at such signing. Even if the case had stopped at this point, we are by no means satisfied that we could sustain the appeal, and reverse a decree of the register, which, with the evidence before him, he was bound to enter. No will can be said to be safe, if a subscribing witness may nullify it by declaring that he perjured himself before the register. The policy of the law (it was remarked in Ela v. Edwards, 16 Gray, p. 99) has been “ that no man’s will should be defeated through the want of memory on the part of the attesting witnesses,” or on account of their subsequent insanity or infamy (Hawes v. Humphrey, 9 Pick. 857). In this instance, the original testimony of the self-incriminated witness was corroborated by that of a member of the bar, whose integrity and candor are beyond suspicion. It is not fair to argue that the retraction of his story by the former witness left the proof of the will to rest upon the oath of his cowitness. As the record stands, the making of her mark by the testatrix was sworn to by two witnesses, who on this point sustained each other; and it is now denied by one witness, who is sustained in the denial by nobody. But the witness furnished another test of his noncredibility by contradicting his own testimony upon another point. He denied, as positively as he did the presence of the testatrix, that he had signed any paper at the register’s office. Yet he admitted that he had testified in that office to the execution of the will, and he was compelled to admit that the signature to the jurat made before the register appeared to be his own, as it indisputably was. The one denial, however, was not much more extraordinary than the other; for nothing could be less likely than the account which he proceeded to give of the circumstances attending the execution of the will, one of them being that the decedent, after sending for him to witness the paper, kept out of the way when he came in compliance with her request.</p> <p>If we concede, however, what we do not believe is the fact, that the later narrative of the witness is the true one, we still have ample reason for holding that the execution of the will was legally established. That the will was signed by the testatrix in the presence of one witness, is certain. The revised story of the other witness is, that some weeks before that date the testatrix told him that she intended to call upon him to attest her will, and that on the day of its execution she sent for Mm, saying that the will was ready and asking Mm to come over; that he immediately crossed over to her house, and was handed the will by the counsel who had already witnessed the signing by the testatrix; that he thereupon subscribed his own name to the paper, and that he knew when he signed it that it was the will of the testatrix. His testimony was supplemented by that of the person who carried the message, and who declared that the decedent sent her for Mr. Stokes, that he might witness her will, and a few moments before that gentleman arrived went into the room, where, as he Mmself said, he attested the instrument. The essential fact that the paper wMch was proved before the register was the identical writing wMch the testatrix had signed and the witness had attested was thus established by the mouths of two witnesses. We are clearly within the line of the decisions in maMng tMs assertion. In Carson’s Appeal, 59 Pa. 493, a will signed by the testator’s mark was proved by one subscribing witness. Another witness was called, who was unable to write, and who testified that he saw the testator execute a paper which he believed to be the one in question, but which he was unable to identify by any mark or peculiarity upon its face. His testimony was held to be sufficient. In Scott’s Estate, 147 Pa. 89, a letter of instructions had beep, dictated by the testator to a scrivener with the verbal declaration that if anything should happen it was to be proved as his will. The testator then told his son, whom he had previously sent for the scrivener, that he had signed his will. The son did not see the paper; but he was nevertheless held a competent witness to the fact of its publication as a will. The only objection to this species of testimony is that the witness states as a fact what is simply an opinion. But it is nevertheless true that a man’s conception of a fact is only his opinion as to its reality, or as is said in Best on Evidence, p. 596, it is “ an exercise of judgment.” Whether his reasons for the belief are good or indifferent, is a circumstance which goes to his credibility and not to his competency. The witness in the present' case, even assuming that he signed the paper in the absence of the testatrix, and without her acknowledgment that it was her act, had far more reason to identify it as her will, than the witness to the will in Carson’s Appeal, supra, or the witness to the codicil in that case, who assigned an absurd cause for recognizing the paper. The anomaly in the course which this appeal has been allowed to take is that through it a decision of the register, on its face entirely regular, is sought to be reversed upon evidence which was never heard by that officer, and which cannot accurately be described even as after-discovered. It should have been submitted to him upon a motion to vacate the probate of the will. Our examination of the testimony, however, has convinced us that the will was duly executed, and we therefore affirm the decree of the judge before whom the hearing was had, dismissing the appeal.</p> <p>Error assigned was in dismissing appeal.</p>

Appeal, No. 360, Jan. T., 1895, by defendant, from judgment of C. P. No. 4, Pbila. Co., Dee. T., 1891, No. 119, on verdict for plaintiff. Assumpsit to recover death benefits. The facts appear by the opinion of the court below. At the trial the court charged as follows : In this case you will find a verdict for the plaintiff. I will reserve the question of law for argument hereafter before the three judges.

<p>Mechanic's lien — Original construction — Wooden partition.</p> <p>A wooden partition eleven feet by eleven feet four inches erected for office purposes in a room in an old building is not a part of the original structure within the meaning of the mechanic’s lien law.</p> <p>A building was erected in 1878 to be used as a music hall. The building was subsequently leased, and the lease provided that improvements put upon the premises by the lessee should be left thereon upon the surrender of the premises. In 1887 plaintiff filed a mechanic’s lien against the building. The bill of particulars appended to the lien averred that plaintiff had contracted “to partition off by a wooden partition, eleven feet by eleven feet four inches from one of the rooms in the building, on the premises, two hundred and sixty feet northward from the north side of Columbia avenue, a space of the foregoing dimensions for office purposes.” At the trial of the scire facias the evidence as to the nature of the construction sustained the averment in the bill of particulars. The court charged that if the work done by the plaintiff was a part of the original building the verdict should be for the plaintiff. Held,, to be error, as the work lacked every mark of being part of the original structure.</p> <p>Mechanic's lien — Payment into court.</p> <p>Payment into court by the owner of a building of the amount of a mechanic’s lien, for the purpose of discharging the lien, is not an acknowledgment of the claimant’s right of action.</p>

<p>Pleading — Statement.</p> <p>Iu au action to recover the value of work done and materials furnished, the statement must contain an averment of the amount or sum that each item is reasonably worth, and it must aver that defendant agreed to pay it.</p> <p>Affidavit of defense — Action for work and materials.</p> <p>Plaintiff claimed for work and materials furnished in repairing defendant’s house, describing the house by street and number. The account attached to the statement showed entries beginning with October 8, 1892; but it nowhere averred that the prices set opposite the respective items of work done and materials supplied were either correct, just or reasonable, or that defendant agreed to pay said prices.</p> <p>Defendant’s affidavit of defense averred that “she has a just, full, true and legal defense to the whole of the plaintiff’s claim, “that on or about October 1, 1892, she made a verbal contract with plaintiff to do certain work upon her house, the same as described in the statement, for which she was to pay $35.00, that she does not owe the amount claimed by plaintiff, $116.44, but she is and always has been willing to pay the said sum of $35.00. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

Appeal, No. 14, July T., 1895, by defendants, from judgment of C. P. York Co., April T., 1892, No. 66, on verdict for plaintiffs. Assumpsit on the bond of a guardian. At the trial it appeared that on November 6, 1874, David Spahr was appointed guardian of Sarah Jane Shaffer by the orphans’ court of York county, and filed the bond whereon this action was brought in the sum of $4,000 with George Julius as surety.

Appeal, No. 318, Jan. T., 1895, by plaintiff, from order of O. P. No. 2, Phila. Co., March T., 1894, No. 769, making absolute a rule to open a judgment. Assumpsit for goods sold and delivered. From the record it appeared that on September, 6, 1894, the defendant filed his first affidavit of defense to the plaintiff’s statement, and on October, 13, having previously obtained the leave of the court, he filed a supplemental affidavit of defense.

Appeal, No. 380, Jan. T., 1896, by The River Front Railroad Company, from decree of C. P. No. 4, Pliila. Held: and on March 10,1886, Mr. Du Barry, the president of the River Front Railroad Company, wrote a letter to the attorney for petitioners, Mr. Lex, in which he stated “ that his company has, by virtue of its branching powers and the ordinance of the councils of the city of Philadelphia, approved June 23, 1884, entered upon the…

<p>Contract — Limited partnership association — Waiver.</p> <p>Defendant sold to plaintiff part of his interest in a limited partnership association, conditional that if plaintiff were not elected a member and manager of the company within sixty days, he should reassign said interest to .defendant, who should thereupon refund the purchase money. Plaintiff, with the consent of all parties in interest, at once assumed control of the company, and continued to manage all its affairs, except signing checks, for seven months after the date of the assignment. He was not formally elected a member or manager. A part of the purchase money was represented by a note for sixty days which was paid by plaintiff at maturity without objection. During the time that plaintiff managed the affairs of the company he received $25.00 per week for his services. Plaintiff subsequently made a reassignment of the interest to defendant, and brought suit to recover the purchase money on the ground that he liad not been elected a member and manager as provided by the agreement. Held, that the question whether plaintiff and the other members of the association had not waived a formal election, was for the jury.</p>

Appeal, No. 483, Jan. T., 1895, by defendants, from decree of C. P. No. 1, Phila. Co., March T., 1882, No. 373, dismissing exceptions to taxation of costs. Exceptions to taxation of costs in equity.

<p>Judgment — Issue to try validity of judgment — Oosts.</p> <p>An issue to try the validity of a judgment will not be granted at the instance of a subsequent judgment creditor where the petition for the issue merely avers that the judgment was fraudulent and collusive, but does not set forth any facts from which the inference of fraud can be drawn, and the only evidence in the case is that of the prior judgment creditor and the defendant, who both testify, when called as if for cross-examination, that the judgment was confessed for a loan.</p> <p>In such a ease it is proper to make absolute a rule on the petitioner for the issue to give security for the costs of an audit to distribute the fund in court.</p>

Appeal, No. 132, July T., 1895, by defendant, from judgment of C. P. No. 1, Philadelphia Co., December T., 1893, No. 1401, on verdict for plaintiff. Assumpsit for medical services rendered to defendant’s mother. Before Biddle, J. At the trial plaintiff’s evidence tended to show that defendant agreed to pay plaintiff for any medical services that he might render to defendant’s mother, and that defendant had paid some bills to plaintiff in pursuance of this agreement.

<p>Will — •“ Personal effects ” — Ejusdem generis — Construction of will.</p> <p>When a testator enumerates particular kinds of chattels and couples with them the word “ effects,” or equivalent words, the generality of his expression is to be restricted to such species of property as are ejusdem generis with the particular words.</p> <p>A bequest of “my jewelry, wearing apparel, and personal effects, except such of the same as are herein otherwise disposed of,” does not include furniture in the testator’s dwelling, where the excepted articles. “ otherwise disposed of” were associated with the person of the testator.</p>

Appeal, No. 139, July T., 1895, by defendant, from judgment of C. P. No. 1, Pbila. Co., March T., 1895, No. 296, for want of a sufficient affidavit of defense. Assumpsit on written agreement to recover the price of a partnership interest sold by plaintiff, one partner, to defendant, the other. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 445, July T., 1895, by The Omnibus Company General, one of the defendants, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 749, on verdict for plaintiff. Trespass for personal injuries.

<p>Appeal, No. 112, Jan. T., 1895, by plaintiff, front decree of C. P. No. 2, Pbila. Co., Dec. T., 1892, No. 926, on biff in equity.</p> <p>Bill in equity to restrain tbe use of a wall as a party wall. The case was referred to Dimner Beeber, Esq., as master, who reported as follows:</p> <p>The dispute in this case is about an alley two feet ten inches wide, between properties numbered 220 and 222 South street, Philadelphia. It is agreed by both parties that the title to both of the above premises was in one Robert Coburn, by deed, dated April 4,1828, recorded in deed book G. W. R., No. 15, page 737.</p> <p>The plaintiff’s chain of title is as follows:</p> <p>Deed by Peter Williamson et al., executor of the last will of Robert Coburn, deceased, to Thomas Holt, dated IMarch 17,1870, recorded in deed book J. A. H., No. 31, page 91, etc.</p> <p>In this deed the language descriptive of the premises con • veyed is as follows :</p> <p>“ All the certain messuage or tenement, and lot or piece of ground situated on the south side of South street at the distance of 191 feet 9 inches west from Second street (now No. 222),. containing in front or breadth on said South street, 19 feet 3 inches, including the west half of a 2-foot-10-inches wide alley-on the east side thereof, and in length or depth southward, 81 feet, be the same in breadth or depth more or less; together with the right and free use of the aforesaid 2-foot-lO-inches wide alley, extending of that width the depth of 50 feet from South street, then narrowing from each side to a point at the distance of 53 feet from said street, as a passage way and water course, and to lay pipes therein for the introduction of the Schuylkill water, in common with the owners, tenants and occupants of the contiguous premises on the east, and also the right to build over the west half of said alley, leaving a clear headway of at least 8 feet in height'.”</p> <p>In the proceedings in court of common pleas No. 1, of Philadelphia county, of March term, 1876, No. 1057, the then sheriff, William Elliott, by deed poll dated June 10,1876, acknowledged the same day in open court and recorded in sheriff’s deed book, No. 46, page 576, conveyed the premises described in the same language as above set forth to Edward Holt. By deed of October 19, 1876, Edward Holt et ux. conveyed the premises described in the same language to Louis Myerhoff. By deed of June 19, 1883, Louis Myerhoff et ux. conveyed the premises, described in the same language, to Benjamin B. Abrahams, the plaintiff in the bill.</p> <p>The defendants’ chain of title is as follows:</p> <p>Deed by Peter Williamson et al., executors of the last will of Robert Coburn, deceased, to Mary Briscoe, dated March 17, 1870, for “all that certain messuage or tenement and lot or piece of ground situate on the south side of South street, at the distance of about 172 feet 6 inches west from Second street (now 220), containing in front or breadth on said South street 19 feet 3 inches, including the east half of a 2-foot-l0-inches wide alley on the west side thereof, and in length or depth, thence southward 81 feet, be the same more or less in breadth or depth; together with the right and free use of the aforesaid 2-foot-10-inches wide alley, extending of that width the depth of 50 feet from South street, then narrowing from each side to a point at the depth of 53 feet from said street, as a passage way and watercourse, and to lay pipes therein for the introduction of Schuylkill water in common with the owners, tenants and occupants of the contiguous premises on the west; and also the right to build over the east half of said alley, leaving a clear headway of at least 8 feet in height.”</p> <p>By deed of February 2, 1876, Thomas Holt et al., executors of the last will of Mary Lees (formerly Briscoe), conveyed the premises described in the same language to William Briscoe. By deed of January 2, 1888, William Briscoe et ux. conveyed the premises in question to Abraham M. Frechie. In this deed the description of the premises conveyed is as follows :</p> <p>“ All that certain lot or piece of ground with the buildings and improvements thereon erected, situate on the south side of South street, bounded and described according to a recent survey thereof, made on the 14th day of November, A. D. 1882, by Thomas Daly, Esq., surveyor and regulator of the First district, as follows : “ Beginning at a point in the lines of said South street, side of South street at the distance of 172 feet 6 inches westward, from the west side of Second street, thence southward at right angles with said South street, along the line of Charles Carr, 80 feet 2 inches, to ground now or late of Thomas Drake, thence by same westward, parallel with said South street, 19 feet 2 inches, to ground of Louis Meyerhoff, thence by same northward 37 feet 2 inches, thence still by same northwestward 1 foot 7 inches, and one-half of an inch to the centre of an abandoned alley way, thence by said centre line northward 42 feet to the south side of said South street, and thence by same eastward 20 feet, 3|- inches to the place of beginning.”</p> <p>By deed of January 15, 1892, Abraham M. Frechie et ux. conveyed the premises, described as in the last above mentioned deed, to Myer Alsberg, one of the defendants in the bill.</p> <p>On the 12th day of March, 1877, William Briscoe, who then owned No. 220 South street, and Louis Meyerhoff, who then owned No. 222 South street, executed a written agreement, in which, after reciting the title of each to his own lot, it was agreed as follows:</p> <p>“Now this indenture witnesseth, that the said William Briscoe and Louis Meyerhoff, in consideration of the premises and of the sum of one dollar, lawful money to each of them, by the other, well and truly paid at the time of the execution hereof, the receipt whereof is hereby acloaowledged, have and each of them hath, and by these presents do and each of them doth, covenant, promise and agree to and with the other, his heirs and assigns, that the said hereinbefore mentioned alley shall be closed and vacated, to the same force and effect as if the said alley had never been laid out and opened, and that the boundary line between the ground of the said William Briscoe and Louis Meyerhoff, for the depth of 41 feet from the said South street, shall be the centre of said alley, as the same is now laid out and opened and about to be vacated, and that from the said depth of 41 feet from the said South street the ground of the said Louis Meyerhoff shall be of the full width of 19 feet 3 inches, notwithstanding any variation of said alley from the regular lines, as the same may have been laid out and opened on the said ground used by the said William Briscoe.” On the same day the same parties executed another agreement in writing as follows:</p> <p>“ Whereas the said Louis Meyerhoff is the owner of the premises No. 222 South street, and the said William Briscoe is the owner of premises No. 220 South street,</p> <p>“ And whereas, there has been between the said premises a certain alley 2 foot 10 inches front, and 53 feet deep from said South street, and which said alley by a certain agreement this day made and executed, has been closed and vacated,</p> <p>“And whereas, said Louis Meyerhoff is about erecting a building on his said lot,</p> <p>“Now this agreement witnesseth, that the said Louis Meyerhoff hereby covenants and agrees that in erecting and building that he will leave open the said alley of the said width of two feet ten inches to the height of at least eight feet from the level of the pavement until such time as the lease of tenant of premises No. 220 South street shall expire, which will be about the 20th day of November, 1880, at which time the said Louis Meyerhoff is to be at liberty to build up his east wall from the centre of said alley, and the said William Briscoe is to be at liberty to use the whole of the said east party wall without any charge therefor.”</p> <p>Both these agreements were acknowledged on the day of their date before the same notary public and were recorded on the same date, to wit, on March 28, 1878. A short time before these two agreements were made Meyerhoff had a survey made when he discovered that the whole of the alley was located on his ground. He then went to Briscoe and the first agreement was made. Briscoe says that at this time Hyland, who was his tenant of 220 South street, agreed to this, but when Hyland was asked to give up possession of the alley which he enjoyed under the lease, he refused. The second agreement was then executed and Briscoe than gave Meyerhoff $200 for the whole of the party wall. Meyerhoff then built, or improved, his property, in doing which he left the two-foot ten inches wide alley as it had been up to the joists of the second floor. These joists he extended across the alley and some inches into the wall of Briscoe’s property. From these joists upward to the roof Meyerhoff built the eastern wall of his house exactly over the middle of the alley. He also about this time erected a new dividing fence between his property and Briscoe’s, and in all probability the new fence extended southward on a line with the western wall of Briscoe’s property. Prior to this the old fence extended southward from the middle of the alley. The new fence, however, did not extend the whole length of the lot on a line which gave Meyerhoff full nineteen feet three inches breadth to his property, for the evidence shows that defendant’s privy extended over the plaintiff’s property about six inches.</p> <p>In this condition premises No. 222 were conveyed to Benjamin B. Abrahams, the plaintiff, on June 19, 1883. Some four or five years afterwards plaintiff built a new foundation in the alley and built upon it his first story eastern wall exactly under this second and third story eastern wall as erected by Meyerhoff, which was over the middle of the alley.</p> <p>Early in the year 1893 defendant began to improve his property, and in doing so was about to use plaintiff’s eastern wall as a party wall, when plaintiff filed the bill to restrain him from so doing.</p> <p>The correct decision of this case can be reached only by the proper interpretation of the two agreements of March 12, 1877. The plaintiff contends that the parties did not intend that Meyerhoff was to give up any part of the frontage of his property, whilst the defendants contend that it was the intention of the parties that Meyerhoff was to build his new eastern wall on the center of the alley, and that this should be the eastern boundary fine of Meyerhoff’s property to the depth of forty-one feet. from South street. The meaning of the two contracts or agreements seems very plain to the master, and the testimony before him, taken as a whole, only confirms his views. When Meyerhoff concluded to improve his property he had a survey made, when he discovered, as he says, that the whole of the alley was •on his ground. He also knew at that time that Briscoe or his tenants claimed the right to use the alley and exercised that right in having access to the property on the east. The language of the deeds from Coburn, who was the common ancestor in the title of both parties, as weE as that of all the deeds of the parties between Coburn and each of them, shows that every■one thought that the alley was half of Briscoe’s and half of Meyerhoff’s property, for they all describe the alley as extending fifty feet from South street two feet ten inches wide and “ then narrowing from each side to a point at the distance of fifty-three feet from said street.” This is further confirmed by the fact that at the time Meyerhoff had his survey made, preparatory to beginning his improvements, the old fence extended from this point to the alley southward to the end of both plots. With this knowledge he went to Briscoe, and the first agreement, vacating the alley, was made under the impression that Hyland, the tenant, agreed to the vacation of the alley. After it was made it was discovered that the then tenant Hyland would not agree to the vacation of the alley, so the second agreement as to the manner of building over the alley was made. The first agreement, after reciting the title of each of the parties to their lots, witnesses that each promises and agrees with the other, his heirs and assigns, “ That the said hereinbefore mentioned alley shall be closed and vacated, to the same force and effect as if the said alley had never been laid out and opened, and that the boundary line between the ground of the .said William Briscoe and Louis Meyerhoff for the depth of forty-one feet from said South street shall be the centre of said .alley as the same is now laid out and opened and about to be vacated; and that from the said depth of forty-one feet from the said South street, the ground of the said Louis Meyerhoff, •shaE be of the full width of said nineteen feet three inches, notwithstanding any variations of said alley from the regular lines, as the same may have been laid out and opened on the said ground used by the said Briscoe.” It does not seem possible to doubt what is meant by the above language. It plainly ■says that hereafter it is agreed that the “ boundary line between the ground of the said William Briscoe and Louis Meyerhoff for the depth of forty-one feet from said South street shall be the centre of said alley, as the same is now laid out and opened.” If when this agreement was made Meyerhoff had discovered that the whole of this alley was on his ground, then he must certainly have understood that for the depth of forty-one feet from South street he was giving up to Briscoe one half of it, for he was agreeing that the boundary line between him and Briscoe should be the center of the alley for forty-one feet from South street. That this is evident appears from the immediately following clause of the agreement, wherein he stipulates that from the depth of forty-one feet from said South street his ground shall be of the full width of said nineteen feet three inches. He was giving up half the alley for forty-one feet from South street, and he was getting the whole of the rest of the alley, which was about twelve feet longer, and also getting his lot widened to the full width of nineteen feet three inches.</p> <p>The meaning of the second agreement is equally plain. It explains why Meyerhoff did not immediately build up his east wall from the center of the alley to the second story, and it also confirms the view that the first agreement intended that the wall huilt over the center of the alley was to be the eastern boundary line of his property for forty-one feet from South street, for he expressly calls it an east party wall. It also shows that Briscoe was to have the right “ to use the whole of the said east party wall without any charge therefor.”</p> <p>There is another feature of the case, however, which the master has to consider. When the testimony closed and the final arguments were made it appeared that the privy of defendant Alsberg extended six inches over onto the rear of plaintiff’s premises. The master is of the opinion that this is in violation of the agreement of March 12, 1877, and decides to enter a decree directing this to be removed, and any and all other obstructions, if any, that interfere with the right of plaintiff to have his lot, beginning at a point forty-one feet from South street, measure in width nineteen feet three inches from that point to the end of his lot.</p> <p>Upon the question of the costs of the suit the master is of the opinion that it would be just and proper to divide them equally between plaintiff and defendant Alsberg.</p> <p>He therefore recommends the entry of a decree, to be prepared and submitted by counsel to him for approval, declaring and fixing first, the boundaries of plaintiff’s property, as the master has interpreted the contracts of March 12,1877; second, directing the removal of any and all obstructions that prevent plaintiff from having the full width of nineteen feet three inches of lot from a point forty-one feet south from South street to the end of his lot; third, directing the costs to be paid by the plaintiff and defendant in equal proportions.</p> <p>Exceptions to the master’s report were dismissed by the court, and a decree entered in accordance with the master’s recommendation.</p> <p>Error assigned was above decree.</p>

<p>Appeal, No. 42, July T., 1895, by plaintiff;, from judgment of C. P. No. 1, Phila. Co., March. T., 1895, No. 293, for defendant on demurrer.</p> <p>Assumpsit on a contract of guaranty.</p> <p>Plaintiff in its statement averred that it had sold goods to the Penn Elevator Engineering Company under two written contracts, and that there was due to it upon these contracts $1,329.60. The statement of claim continued as follows :</p> <p>Tbe plaintiff avers that at tbe times tbe said contracts were made, to wit: On January 18,1894, and February 27,1894, the said David S. Cann and George E. Saul, copartners, trading as Cann & Saul, who are the defendants in this suit, promised and agreed with the plaintiff that the plaintiff should have its account for the goods which were to be sold to the Penn Elevator Engineering Company under the above-mentioned contract guaranteed by the said Cann & Saul to the extent of $1,000 on the first-mentioned contract and $1,500 on the last mentioned contract, and that they, the said Cann & Saul, would ship on demand to the said Putnam Machine Company, steel and files to the amount of the said $2,500, and thus protect the plaintiff from any loss which it might suffer by reason of the insolvency or failure of the said Penn Elevator Engineering Company. The said David S. Cann and George E. Saul were both stockholders of the said Penn Elevator Engineering Company, and the said Saul was a director, and the said Cann was the treasurer of the said company, and it was a part of the consideration for the promise and agreement above set forth, that the plaintiff was to ship the goods mentioned to the said corporation in which the said Cann and Saul were heavily interested.</p> <p>The plaintiff avers that acting upon the promises and agreements of the said defendants, it shipped the goods above mentioned to the Penn Elevator Engineering Company, and that its account for the same amounted to $4,671.44.</p> <p>Afterwards the said Cann & Saul shipped to the plaintiff, upon their contract above mentioned, goods to the amount of $1,170.40.</p> <p>That afterwards the said Penn Elevator Engineering Company became insolvent, and the plaintiff obtained a judgment against them for $3,630, on December 18, 1894, in C. C. P. No. 3, December term, 1894, No. 333, and issued an execution upon the said judgment, but could realize nothing upon the same, as the assets of the Penn Elevator Engineering Company were absorbed at sheriff’s sale upon a prior judgment entered against them.</p> <p>The plaintiff avers that it has made demand upon the defendants to deliver to it steel and files for the balance of $1,329.60 due under their contract, and has sent them written orders for the goods agreed upon, but the defendants have failed and refused to ship it any goods, or to pay the claim, and the plaintiff has therefore suffered damages to the amount of $1,329.60.</p> <p>Defendants demurred to plaintiff’s statement on the ground that the agreement referred to in the statement was a contract of guaranty, not in writing, and void under the act of April 26, 1865, P. L. 309. The court entered judgment for defendants upon the demurrer.</p> <p>Error assigned was entry of judgment as above.</p>

Appeal, No. 159, July T., 1895, by defendant, from order of C. P. No. 3, Pbila. Co., March T., 1894, No. 82, discharging rule upon plaintiff to satisfy judgment. Rule on plaintiff to satisfy judgment on payment of amount of verdict with interest to date, and without costs. The court discharged the rule; defendant appealed. The facts appear by the opinion of the Supreme Court. Error assigned was order discharging rule.

Appeal, No. 138, July T., 1895, by plaintiff, from judgment in C. P. No. 4, Phila. Co., Sept. T., 1892, No. 105, of nonsuit. Assumpsit to recover tbe value of goods from a common carrier on an alleged breach of contract. Before Thayer, P. J. At the trial it appeared that on June 11, 1892, plaintiff delivered a lot of pineapples, less than a carload, to defendant to transport from Philadelphia to Altoona.

<p>Rule to show cause why attachment for contempt should not be awarded against defendants on appeal No. 83, Jan. T., 1896, by plaintiffs, from decree of C. P. Union County, December Term, 1895, No. 1, dissolving a preliminary injunction.</p> <p>Bill in equity to restrain the removal of the tracks of a short line railroad.</p> <p>Rule to show cause why a special supersedeas should not be granted.</p> <p>Rule for an attachment for contempt and for an order of restitution.</p> <p>The facts appear by the opinion of the Supreme Court.</p>

Appeal, No. 184, July T., 1895, by defendant, from judgment of C. P. No. 4, Philadelphia County, June T., 1892, No. 452, on verdict for plaintiff. Sheriff’s interpleader. Before Telayeb, P. J. The facts are stated in the previous report of this case, 166 Pa. 554.

for special allowance of an appeal from judgment of Superior Court on Appeal No. 11, Nov. T., 1895, by defendant and intervener, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1894, No. 926, on case stated, in favor of plaintiff. Reported in 1 Pennsylvania Superior Court Reports, 4. Petition for special allowance of appeal from judgment of the Superior Court. Filed January 6, 1896.

Appeal, No. 395, Jan. T., 1895, by defendant, from judgment of C. R. No. 3, Philadelphia Co., Sept. T., 1893, No. 359, on verdict for plaintiff. Assumpsit on a stock subscription. At the trial it appeared that the suit was brought upon a. subscription for twenty shares of the capital stock of the Cooperative Real Estate Company, at $50.00 per share. In the application for the charter, defendant appeared as subscribing for twenty shares.

Appeal No. 456, Jan. T., 1895, by tbe Real Estate Title Insurance & Trust Company, one of tbe defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1890, No. 135, M. L. D., on verdict for plaintiff. Scire facias sur mechanic’s lien. The case was tried without a jury under the act of April 22, 1874.

Appeal, No. 98, July T., 1895, by defendant, from judgment of C. P. No. 8, Philadelphia Co., Sept. T., 1893, No. 151, on verdict for plaintiff. Foreign attachment. The facts appear by the opinion of the Supreme Court. Verdict and judgment for plaintiff. Defendant appealed. Error assigned was in directing verdict for plaintiff.

<p>Appeal, No. 60, July T., 1895, by defendant, from judgment of C. P. No. 8, Philadelphia Co., June T., 1894, No. 50, on verdict for plaintiff.</p> <p>Assumpsit on a promissory note.</p> <p>Plaintiff’s statement was as follows:</p> <p>This is an action of assumpsit brought by the plaintiff against the defendant to recover the amount of a promissory note made by the defendant and one J. K. Miles, to the order of the plaintiff, a copy of which is as follows:</p> <p>“$1407. Yabdley, Pa., November 25th, 1890.</p> <p>“ One clay after date either of us promise to pay to the order of Howard M. Griffee $1407, with interest at six per cent., payable first day of January and July, payable at the Yardley National Bank. Value received.</p> <p>(Signed) “ J. K. Miles,</p> <p>(Signed) “ G. W. Gbiepee.”</p> <p>At the time the said note was given the said J. K. Miles and G. W. Griffee were engaged together in business as partners in the city of Philadelphia, under the firm name of J. K. Miles & Co., and sometimes they used as a firm name the Union Export Trading Company. The said note was given for money loaned to the said firm.</p> <p>In addition to the moneys included in the said note, plaintiff, on November 26, 1890, at the request of the said firm, paid for them the sum of $118.65 to the Franklin Printing Company, and on January 2,1891, at the like request of the said firm, paid the sum of $35.00 to one Francis J. Parody. That on December 2, 1891, the said John K. Miles gave to the plaintiff a judgment note for the money so as aforesaid loaned to the said firm, to which note the said John K. Miles signed the firm names of Union Export Trading Company and J. K. Miles & Co. A copy of the said note is as follows:</p> <p>“ $1750. Philadelphia, December 2d, 1891.</p> <p>“ On demand after date we promise to pay to the order of Howard M. Griffee $1750 without defalcation, value received, with interest. And further, we do hereby authorize and empower any attorney of any court of record of Pennsylvania or elsewhere to appear for and to enter judgment against us for the above sum, with or without declaration, with costs of suit, release of errors, without stay of execution, and with five per cent added for collecting fees; and we also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same, and authorize the prothonotary to enter upon the fi. fa. our said voluntary condemnation, and we further agree that said estate .may be sold on a fi. fa., and we do hereby waive and release all relief from any and all appraisement, stay, or exemption laws of any state, now in force, or hereafter to be passed.</p> <p>“Union Export Trading Co., [l. s.]</p> <p>“ J. K. Miles & Co. [l. s.]</p> <p>“ Witness:</p> <p>“ Geo. R. Jefferson,</p> <p>“ C. Percy Buck.”</p> <p>That the plaintiff caused judgment to be entered on the said note in common pleas No. 4 of Philadelphia county to September term, 1891, No. 963, and caused execution to be issued thereon, but the sheriff returned the writ nulla bona.</p> <p>At the trial defendant’s own evidence tended to show that he was not a partner of J. K. Miles, but that Howard M. Griffee, plaintiff, was Miles’s partner. He testified that he was a mere employee of J. K. Miles and the plaintiff.</p> <p>He offered to prove that in January or February, 1891, J. K. Miles made an agreement with the defendant, whereby he (J. K. Miles) assumed all liabilities and indebtedness incurred by the business; that said agreement was made with the knowledge and assent of the plaintiff here, Howard M. Griffee, who still had it in his possession, and that the plaintiff assured the defendant that he,' the defendant, was released from all liability on the promissory note sued upon; and he offered to prove this agreement by means of parol evidence, having shown that the agreement was not in his possession, but was given to the plaintiff, and having notified the counsel for the plaintiff to produce such agreement, which the counsel for the plaintiff had not done, and having also subpoenaed the plaintiff to bring the paper, which said plaintiff had not done.</p> <p>Which was objected to by the counsel for the plaintiff, the objection sustained by the court and bill sealed for the defendant. [11]</p> <p>Plaintiff denied that he was a partner and testified positively that defendant was the partner, and Miles testified to the same effect.</p> <p>Defendant presented the following points:</p> <p>1. The acceptance by the plaintiff of the judgment note for $1,750, dated Philadelphia, December 2, 1891, signed “ Union Export Trading Company, J. K. Miles & Co.,” is a satisfaction of the original debt sued upon, and your verdict must be for the defendant. Answer: I refuse that proposition. [1]</p> <p>2. The acceptance of the judgment note for $1,750, dated December 2, 1891, signed “ Union Export Trading Company, J. K. Miles & Co.,” is evidence from which the jury may infer that it was accepted as payment of the debt sued upon, and if they believe it was accepted in payment, their verdict must be for the defendant. Answer: Under the evidence in this case I refuse that point also. [2]</p> <p>3. Judgment having been entered against J. K. Miles, trading as J. K. Miles & Co. and the Union Export Trading Company, on the judgment note for $1,750, dated December 2,1891, signed “ The Union Export Trading Company, J. K. Miles & Co.,” the plaintiff is estopped from alleging that the defendant is still a partner and liable under this suit, and your verdict must be for the defendant. Answer: Under the evidence in this ease I refuse that point also. [3]</p> <p>4. Judgment having been entered against J. K. Miles, trading as J. K. Miles & Co. and the Union Export Trading Company, on the judgment note for $1,750, dated December 2,1891, signed “The Union Export Trading'Company, J. K. Miles & Co.,” said judgment is a bar to a judgment against the present defendant for the same cause of action, and your verdict must be for the defendant. Answer: That point I refuse. [4]</p> <p>5. As the firm, against one of the members of which this suit is brought, was doing business in this commonwealth and in this county, the present action was therefore not a proper case for the issuance of the foreign attachment, and your verdict must be for the defendant. Answer : That is a point under a decision which has already been made in this controversy by this court, and I refuse it. [5]</p> <p>6. The plaintiff must prove affirmatively that the defendant ■ was a member of the firm of J. K. Miles & Co. and the Union Export Trading Company. In default of this plaintiff cannot recover. Answer: I affirm that point.</p> <p>7. In order to recover the amounts of money alleged to have been paid by the plaintiff on account of the defendant firm, plaintiff must prove that such sums were paid at the request of the defendant. Answer: Under the evidence in this case I refuse that point. [6]</p> <p>8. A judgment having been entered by judgment note dated December 2, 1891, for 11,750, signed “ J. K. Miles & Co.,” and “Union Export Trading Company,” before the plaintiff can recover in this action against the defendant he must show affirmatively that said defendant refused to confess a judgment. Answer: That point I refuse also. [7]</p> <p>9. If the jury believe that the plaintiff was a member of the firm of J. K. Miles & Co., or the Union Export Trading Company, then in the absence of any evidence to show that the accounts of said firm have been settled and a balance struck, the plaintiff cannot recover, and your verdict must be for the defendant. Answer: Under the evidence in this case I refuse that point also. [8]</p> <p>10. If the jury believe that the plaintiff knew at the time he entered judgment against John K. Miles, trading as J. K. Miles & Co. and Union Export Trading Company, that George W. Griffee was also a member of said firm, and failed'to name him as a party defendant or to show by the record that he refused to confess judgment, such omission is fatal, and he cannot recover in this case. Answer: I refuse that point. [9]</p> <p>12. Under all the evidence your verdict must be for the defendant. Answer : I refuse that. [10]</p> <p>Verdict and judgment for plaintiff for $1,765.75. Defendant appealed.</p> <p>Errors assigned were (1-10) above instructions, quoting them; (11) ruling on evidence, quoting the bill of exceptions.</p>

<p>Wills — Tnist and trustees — Perpetuities.</p> <p>A will creating a trust for two of testator’s grandchildren and then providing for a limitation over “inease either of my said grandchildren shall happen to die, whether in my lifetime or after my death, without leaving any child or the issue of any deceased child living at their death, or if leaving such child or issue, all of them shall die under the age of twenty-one years without issue,” does not violate the rule against perpetuities, inasmuch as the contingencies must happen, if at all, within twenty-one years after the end of a life which was in being at the death of the testator.</p>

<p>Contract — Time essence of contract.</p> <p>In an action to recover the contract price of packing a large quantity' of tea, the defendants claimed that it was agreed that the goods should be packed ready for shipment in about two weeks, but that plaintiff had not delivered them for over a month afterwards, and that in consequence of this delay defendants were subjected to loss from salary paid salesman and by customers countermanding their orders. Plaintiff testified that he had stated to defendants that the work would take about two weeks, but that he was not aware that there was any great and vital necessity for having it ready at that particular time, and that the defendants delayed him in his work. Held, that it was for the jury to determine the facts under the conflicting evidence whether time was of the essence of the contract, and also whether defendants by their action delayed the plaintiff’s work.</p>

Appeal, No. 204, July T., 1895, by defendant, from judgment of C. P. No. 1, Philadelphia County, June T., 1893, No. 12, on verdict for plaintiff. Foreign attachment in assumpsit for breach of contract to deliver cotton yarn. Before Biddle, J. At the trial plaintiff claimed that in October, 1892, it purchased from defendant, through Leiper Brothers, forty thousand pounds of cotton yarn at fourteen cents per pound.

Appeal, No. 164, July T., 1895, by George Clark et al., from decree of O. C. Phila. Co., Oct. T., 1894, No. 250, dismissing exceptions to adjudication. Exceptions to adjudication. Tbe auditing judge, Hanna, P. J., found tbe facts to be as follows: From tbe evidence presented, decedent entertained liberal views upon the subject of the connubial relation.

<p>Taxation — Exemption—•Purely public charity — Home for deaconesses.</p> <p>A home for deaconesses belonging to the Woman’s Home Missionary Society of the Philadelphia Conference of the Methodist Episcopal Church is a purely public charity, and it is exempt from taxation where it appears that the building is used as a residence for the deaconesses who receive, store and distribute, without- compensation to themselves, food, clothing and money to the needy poor; give free instruction to children; maintain a public library and a lunch room, where they sell light meals to poor working girls at a rate less than the cost of furnishing them, and conduct daily public worship of a nonsectarian character; and where it also appears that the whole building is used for a public charity, and that no part of it is rented out for revenue.</p> <p>Practice, 8. 0. — Assignments of error — Exceptions.</p> <p>■ An assignment of error that the court “ erred in dismissing respondents’ exceptions ” to a report of a referee, without quoting the exceptions violates Rule XH., which requires that “ each error relied on must be specified particularly and by itself.”</p>

Appeal, No. 137, July T., 1895, by Harry F. F. Bordley et al., from order of C. P. No. 1, Phila. Co., March T.,1894, No. , dismissing exceptions to auditor’s report. Exceptions to auditor’s report, distributing the funds of the assigned estate of the Order of Tonti.

<p>Appeal, No. 191, Jan. T., 1896, by Alonzo Beatty et al., from order of C. P. No. 1, Phila. Co., March T., 1894, No. , dismissing exceptions to auditor’s report.</p> <p>Exceptions were filed that the auditor erred,—</p> <p>1. In finding that the holders of the so-called matured certificates were only entitled to prorate with the other certificate holders in the distribution on the basis of the amount paid in. [1]</p> <p>2. In admitting to participation in the distribution certificate holders who had received in sick benefits an amount equal to or greater than the amount of the dividend awarded. [2]</p> <p>3. In awarding to the certificate holders, who had received in sick benefits an amount less than the dividend awarded, a dividend on the balance of the amount paid in by them. [3]</p> <p>The court dismissed the exceptions.</p> <p>Errors assigned were, (1-3) in dismissing exceptions to auditor’s report.</p>

Appeal No. 66, July T., 1895, by defendant, from judgment of C. P. No. 1, Philadelphia County, March T., 1893, No. 809, on verdict for plaintiff. Trespass for personal injuries. Before Bbégy, J. The facts appear by the opinion of the Supreme Court. Defendant’s points were among others as follows: 9. There is no evidence of negligence on the part of the defendant or his son. Answer : I refuse. [1] 10. There is evidence of contributory negligence upon the part of the plaintiff.

Appeal, No. 209, Oct. T., 1895, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1898, No. 452, on verdict for defendants. Ejectment for a strip of land about fourteen feet wide and four hundred feet long in Jefferson township. Before Ewing, P. J. The facts appear by the charge of the court and the opinion of the Supreme Court.

<p>Appeal, No. 245, Oct. T., 1895, by Yetta Greenboum, from decree of G. P. No. 1, Allegheny Co., June T., 1893, No. 395, distributing a fund raised at a receiver’s sale.</p> <p>Exceptions to auditor’s report.</p> <p>The ease was referred to William M. Watson, Esq., who reported the facts to be as follows:</p> <p>The facts relevant and material to a distribution to creditors of the fund of $7,613.10 now in the hands of L. J. Adler, receiver of the Parisian Cloak and Suit Company, are as follows :</p> <p>In 1891 the firm of I. Jonas and Company, then doing a cloak and suit business in the city of Chicago, Illinois, was composed of Isador Jonas, Newman Kujavsld and William Greenboum. In May, 1891, the members of that firm, with Thomas H. McCruden, of Pittsburg, formed a partnership called the Parisian Cloak and Suit Company, which was to be located, and actually was located, in Pittsburg, Pennsylvania, and in September, 1891, opened up the business of selling at retail, cloaks and suits, at the corner of Penn avenue and Sixth street. In accordance with the requirements of the partnership articles, Thomas H. McCruden then resided in Pittsburg, and continued to reside there until the appointment of said receiver in May, 1893. By the partnership articles forming this firm it was agreed, in substance, to buy not less than two thirds of all its cloaks from I. Jonas and Company of Chicago, and its partnership existence was to continue until December 31, 1893.</p> <p>In October, 1891, William Greenboum died and his interest in the Parisian Cloak and Suit Company remained in the firm until September, 1892, when it was purchased by Mrs. Estelle G. Sommers, who thereupon became a member of that firm. Mrs. Sommers, in November, 1892, also purchased the interest of Mr. Greenboum in the firm of I. Jonas and Company, and she thereupon became a member of that firm. No other change took place in either instance, and the two firms continued their relations the same as before William Greenboum’s death.</p> <p>At Chicago, Illinois, on April 15,1893, the Parisian Cloak and Suit Company made three promissory notes, of which the following are copies:</p> <p>“$6,773.01 Chicago, Ills., April 15th, 1893.</p> <p>“ Three months after date we promise to pay to the order of I. Jonas and Company sixty-seven hundred seventy-three 01-100 dollars payable at our store with seven per centum interest.</p> <p>“ Value received,</p> <p>“ (Signed) Parisian Cloak and Suit Company.</p> <p>“$8,730.86 Chicago, Ills., April 15th, 1893.</p> <p>“ Four months after date we promise to pay to the order of I. Jonas and Company thirty-seven hundred and thirty 86-100 dollars payable at our store with seven per centum interest.</p> <p>“Yalue received.</p> <p>“ (Signed) Parisian Cloak and Shit Company.</p> <p>“ $5,664.52 Chicago, Ills., April 15th, 1893.</p> <p>“ Three months after date we promise to pay to the order of I. Jonas and Company fifty-six hundred and sixty-four 52-100 dollars — at—-with interest at the rate of seven per centum per annum. Yalue received.</p> <p>“ (Signed) Parisian Cloak and Shit Company.”</p> <p>All of these three notes are attached to the deposition of Mrs. Greenboum, were all drawn up on April 15, 1893, by Newman Kujavski in Chicago, and on April 17, 1893, were all delivered personally to Mrs. Yetta Greenboum in Chicago, with the indorsement of I. Jonas and Company on each note, and since then indorsed by Mrs. Greenboum for their identification in this case. They were given to her by I. Jonas & Company for moneys which she had theretofore loaned that firm at four or five different times, in all amounting to $15,450 and interest. The Parisian Cloak and Suit Company on April 15, 1893, owed I. Jonas and Company twenty-four thousand four hundred seventy-seven 17-100 dollars ($24,477.17) for goods bought in their business.</p> <p>In order to have a clearer understanding of the matter it will be well to insert here a copy of Mrs. Greenboum’s deposition taken in California on May 21, 1894, as follows. Mrs. Greenboum testifies :</p> <p>My full name is Yetta Greenboum. My age is fifty-eight years and eleven months. I will be fifty-nine years old on the 25th of May, 1894. My residence is in this place, Soledad, Monterey county, state of California. I have no occupation.</p> <p>I. Jonas and Company were then and have ever since been owing me $16,168.39. No part of that has ever been paid.</p> <p>On April 17,1893, in settlement of my claim but not in payment of it, I. Jonas and Company gave me three notes made by the Parisian Cloak and Suit Company payable to the order of I. Jonas and Company which I attach to these answers, and for the purpose of identification have put my name on each of them.</p> <p>These notes, as I said, were all given me April the seventeenth, 1893.</p> <p>Nothing has ever been paid on account of any of these three notes by either the Parisian Cloak and Suit Company or I. Jonas and Company, or by any one else; to me or to any one for me.</p> <p>I don’t think of anything else.</p> <p>In answer to cross-interrogatories Mrs. Greenboum testifies :</p> <p>I have lived in this place, Soledad, for the last eleven years, excepting that some time in the month of June, 1892,1 moved to Chicago, Illinois, where I stayed until August, 1893, when I moved back here. Before I lived here I lived in Watson-ville, California, about fifteen years. My name is Yetta Greenboum. I was born on the 26th day of May, 1836. I am a widow. My husband’s name was William Greenboum.</p> <p>My claim against I. Jonas and Company was entirely for moneys which I loaned them from time to time. On February 6, 1892, I loaned them $7,600; on January 24, 1893, $1,500; on January 30, 1893, $2,000; on February 7, 1893, $1,750 ; on February 14,1893, $2,700. This makes a total of $15,450, which with interest amounted to $16,168.39 on the 15th of April, 1893. This money has never been paid back. They gave me these notes on the 17th day of April, 1893, at their store at 146, 148 State street, Chicago, Illinois. Newman Kujavski, I. Jonas and myself were present at the time. Nothing took place at the time, except that Mr. Jonas handed me the notes, and said that they hadn’t the money to pay me just then, but that they would give me these notes, and that I would have no trouble to discount them if I wanted to raise the money on them; that the notes were good and would surely be paid when due ; that is all that happened or was said. I asked them frequently before that for payment; then I asked them for a note. They said they would see about it; finally they gave me those three notes.</p> <p>I am the mother-in-law of Isador Jonas, and also the mother of Estelle G. Sommers. I am not related to any other members of either the Parisian Cloak and Suit Company or I. Jonas and Company. My husband was at one time a member of both firms. He died October 31, 1891. His interest was left in the business in Pittsburg until about the 16th day of September, 1892, when it was sold to my daughter, Estelle G. Sommers, and the estate’s interest in the Chicago business remained there until about the 12th day of November, 1892, when my daughter bought out that interest also. I don’t know of my own knowledge who the members of either the firm of the Parisian Cloak and Suit Company and of I. J onas and Company were after that, excepting that I do know that my daughter, Estelle G. Sommers, and my son-in-law, I. Jonas, were members of both firms. I understood that Newman Kujavski was also a members of both firms, and that Thomas H. McCruden was not a member of I. Jonas and Company, but only of the Parisian Cloak and Suit Company.</p> <p>These three notes were just received by me from my Chicago lawyers, Messrs. Lowenhaupt and Samuels, by registered mail. They were left with them for collection when I left Chicago. 'There was no agreement or understanding between I. Jonas and Company, or any of its members, and myself with reference to these notes, excepting, as I have already said, they were given to me ha settlement of my claim against them and for no other reason. These notes are original and not renewal notes. While I have no exact knowledge as to what the Parisian Cloak and Suit Company got from I. J onas and Company when I got these notes, still I know that the Parisian Cloak and Suit Company were always buying goods from I. Jonas and Company and were always owing them a good deal. Although nothing was said about it, I suppose that the Parisian Cloak and Suit Company had given these notes to I. Jonas and Company for moneys which they were owing them. At any rate I accepted the notes in good faith, and, so far as I know, I. Jonas and Company received them in good faith from the Parisiaia Cloak and Suit Company. I was not present when these notes were signed, and do not know, of my own knowledge, where they were signed. The signatures and indorsements on these notes are in the handwriting of Mr. Kujavski. I know that, by the partnership agreement, he had the right to sign notes for both firms. I know that by the partnership agreement of the Parisian Cloak and Suit Company, Mr. McCruden did not have the right to sign notes for the firm.</p> <p>I say emphatically that there never has been any arrangements or understanding, secret or otherwise, between myself and any person whatsoever, that these notes were given to me for any purpose other than I have already said, or that anybody was to have any interest in them outside of myself. I loaned these moneys to I. Jonas and Company, as I have already said, and they are now honestly due me. I was not and could not have been directed by any one not to tell any secret arrangement about these matters, as there was no such arrangement. This money was part of what my husband left me.</p> <p>The fund now about to be distributed arises wholly from the sale of the personal property of the Parisian Cloak and Suit Company, and Mrs. Greenboum claims, as a creditor of that firm, to share in that fund equally with its other creditors.</p> <p>The auditor citing, Backus v. Murphy, 39 Pa. 397; Story on Partnership, par. 360; Ex parte Kendall, 17 Yesey, 526; Lindley on Partnership, 4; Daniel on Neg. Inst. par. 639; Royer v. Keystone Nat. Bank, 83 Pa. 248; Smith v. Philbrick, 10 Gray, 252; Oxnard v. Yarnum, 111 Pa. 193; 1 Daniel on Neg. Inst, par. 1171, decided that Mrs. Greenboum should be postponed to the other creditors of the Parisian Cloak and Suit Company.</p> <p>Exceptions to the auditor’s report were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report,</p>

Appeal, No. 448, Jan. T., 1895, by-defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1894, No. 703, on verdict for plaintiff. Stebbett, C. J., and Dean, J., dissent. Appeal from judgment of magistrate to recover penalty for an obstruction of a farm crossing under act of April 12, 1851, P. L. 518.

<p>Appeal, No. 155, July T., 1895, by plaintiff, from decree of C. P. No. 3, Pbila. County, June T., 1893, No. 1153, dismissing bill in equity.</p> <p>Bill in equity to compel tbe surrender of two promissory notes.</p> <p>Tbe plaintiff in bis bill averred tbat prior to February 14, 1893, be bad been engaged in stock gamblmg through and with Laughlin and McManus; tbat on that day be bad delivered to defendant, Laughlin, a certain note dated Chicago, January 1, 1890, by Oscar S. Bass, to bis order, promising to pay, on or before nine years thereafter, tbe sum of $29,134.92 with interest yearly, which was secured by a certain deed of trust of real estate in Cook county, Illinois; that said note had been delivered as security for payment of the sum of $10,000 loaned to him by Laughlin for the purpose of stock gambling; that at the same time Laughlin & McManus were carrying stocks for him in gambling operations, which subsequently they sold, causing an apparent balance of $20,893.19 against him in their accounts; and that a receiver had been afterwards appointed for said firm. He further averred he had been informed that David H. Lane, who, without consideration and illegally, had come into possession of said Bass note, was holding the same as collateral security. He prayed an injunction against the negotiation of said note, and a decree that the same should be delivered up to him, together with the note for $10,000 which he had given Laughlin.</p> <p>Laughlin and McManus filed separate answers, in which they admitted the delivery of the note; denied that the operations they had conducted for the complainant were in the nature of stock gambling; averred that their transactions were legitimate dealings in stocks to be delivered. They also averred that in addition to the $10,000 due Laughlin, a balance of $20,393.19 was due to them by the complainant upon stock operations; that they were entitled to hold the note as collateral to secure this balance; and that McManus had delivered the Bass note to Lane for the sum of $29,134.92, “ paid to them in cash by said David H. Lane, who had no knowledge of the claim set forth in the bill filed."</p> <p>Lane filed an answer, in which he averred ignorance of all the facts set forth by complainant in his bill concerning the nature of his transactions with Laughlin & McManus, and of any of the facts alleged to have occurred antecedently to the delivery to him of said Bass note. He set up his purchase from the firm of said note for the sum of $29,134.92, which he averred he had paid to them in cash.</p> <p>The Bass note above referred to was as follows :</p> <p>$29,134.92. Chicago, January 1, 1890.</p> <p>On or before three years after date, for value received, I promise to pay to the order of. Lewis Albertson the principal sum of twenty-nine thousand one hundred and thirty-four & Y¡yS Dollars, with interest thereon at the rate of six per cent. per annum, payable yearly, to wit: on the first day of January in each year, until said principal sum is fully paid. Both principal and interest are payable at the First National Bank of Chicago.</p> <p>The several installments of interest aforesaid, for said period are further evidenced by three interest notes or coupons of even date herewith.</p> <p>The payment of this Note is secured by Deed of Trust of even date herewith, on real estate in Cook County, Illinois.</p> <p>Oscar S. Bass.</p> <p>The case was referred to Charles Biddle, Esq., as master, who reported in favor of the respondents both in the matter of the bona fides of Lane’s purchase and the character of the operations between appellant and the firm. He reported a decree dismissing the bill. Numerous exceptions were filed in the court below which, after argument, were dismissed. A decree dismissing the bill was duly entered.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Error assigned, among others, was decree dismissing bill.</p>

<p>Appeal, No. 106, July T., 1895, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1894, No. 421, for want of a sufficient affidavit of defense.</p> <p>Assumpsit to recover amount of mercantile tax.</p> <p>The affidavit of defense was as follows:</p> <p>The defendant is a corporation organized under the laws of the state of New Jersey for the purpose of manufacturing and selling tobacco in its various manufactured forms and cigarettes. The said defendent has no domicile in the city and county of Philadelphia or elsewhere in the state of Pennsylvania, and no office therein. In the prosecution of its business the' said defendant employs agents, who under its direction solicit in the city and county of Philadelphia, state of Pennsylvania, and elsewhere in said state, orders for tobaccos manufactured by said defendant outside of said state, by going personally to residents and citizens of said state, and sometimes exhibiting samples of said tobacco. Upon receiving orders for said tobaccos, tbe agents of tbe said defendant forward the same to it at New York in the state of New York, or to its other factories situated at the city of Richmond in the state of Virginia, at the city of Durham in the state of North Carolina, at the city of Louisville in the state of Kentucky, or at the city of Rochester in the state of New York, where the said tobaccos are made, and from these various places of manufacture (none of which is within the state of Pennsylvania) shipped by the said defendant to the purchaser in the state of Pennsylvania by railroad, freight and express, and the price of said tobaccos is collected and forwarded by the express companies or by the agents, or remitted by the persons receiving said goods in the state of Pennsylvania to said defendant at New York in the state of New York, or to its various branch establishments above mentioned, none of which is situated in the state of Pennsylvania. The defendant also consigns cigarettes from some of its various establishments above named, situated outside the state of Pennsylvania, to various commission merchants, wholesale grocers, and tobacconists in the state of Pennsylvania. In this manner the defendant has been engaged in conducting its business in the city and county of Philadelphia and state of Pennsylvania during the year last past, and upon the basis of the business so transacted by it the tax for which suit is here brought was assessed.</p> <p>Defendant explicitly denies that it has transacted or is now engaged in any business in the state of Pennsylvania other than as above specified. It does not appear from the statement filed in pursuance of what act of assembly of the commonwealth of Pennsylvania said tax is assessed, nor by virtue of what acts of said commonwealth it is alleged that defendant thereupon became hable to pay to the treasurer of the county of Philadelphia for the use of the commonwealth of Pennsylvania the sum of $100, and for the use of the city of Philadelphia a fee of fifty cents for issuing “ said license.” But defendant avers, and respectfully submits to the judgment of the court, that if there be any acts of assembly of said commonwealth which subject this defendant to the payment of a fee for license to carry on business in the maimer above set forth as the same has been and is being carried on by said defendant, that the same are unconstitutional and void and of no effect, as contravening article 1, section 8, of the constitution of the United States, reserving to Congress the right to regulate commerce among the several states. Defendant explicitly avers that the business heretofore carried on by it, and now carried on by it in the city and county of Philadelphia, state of Pennsylvania, as above set forth, is commerce, and that if any act of assembly of said commonwealth prohibits it except upon conditions, it attempts to regulate commerce between New York and Pennsylvania, and is unconstitutional. Defendant explicitly denies that it is indebted to the treasurer of the county of Philadelphia for the use of the commonwealth of Pennsylvania in the sum of $100, or in any sum whatsoever, or to the said treasurer for the use of the city of Philadelphia in the sum of fifty cents or in any sum whatever.</p> <p>The court made absolute a rule for judgment taken by plaintiff for want of a sufficient affidavit of defense.</p> <p>Error assigned was above order.</p>

<p>Appeal, No. 163, Oct. T., 1895, by defendant, from decree of C. P. Armstrong Co., June T., 1889, No. 51, on bill in equity.</p> <p>Bill in equity for an account and to declare void a deed of assignment for benefit of creditors.</p> <p>The case was referred to H. L. Golden, Esq., as master, who reported tbe facts to be as follows:</p> <p>1. On June 14,1884, and for some time prior thereto, Mr. M. L. Williams, the plaintiff, was and had been engaged in the mercantile business in Kittanning, Pa., and while carrying on said business had become involved and indebted to a considerable extent for goods purchased for said business. When suits were brought against him prior to said June 14, 1884, he pleaded “infancy” to certain claims, and thereupon Jas. A. Reed and A. D. Sharp, partners as Reed, Beatty & Co., creditors of said Williams, proceeded against him by warrant of arrest under the act of assembly of July 12, 1842, entitled “ An act to abolish imprisonment for debt, and to punish fraudulent debtors,” P. L. page 339. The fraud alleged was that said Williams “ had falsely, and with intent to defraud the plaintiffs, represented before he purchased the goods that he was a person of full age, and having received said goods upon such false and fraudulent representations, now refuses to pay for said goods on the ground that he is a minor, and therefore not responsible for the same.” In this proceeding a warrant of arrest against the said Williams was duly issued by the Hon. James B. Neale, president judge of Armstrong county, on May 27, 1884, and Williams was arrested on the same day. The hearing in <the matter was postponed until June 16, 1884, and the defendant ordered to give bail for his appearance in the sum of $400, which bail was duly given. On June 13, 1884, Williams filed an affidavit of defense wherein he says that the statements of the plaintiff in the petition in the proceeding just referred to “ are wholly false and untrue, except as much thereof as states the amount of defendant’s indebtedness, which is correct; which indebtedness was incurred in the usual course of business without any fraud or falsehood either in fact or intention; and that this deponent has never yet entered any plea of minority to the suit mentioned in the said complaint, and this deponent further avers that he has the right to plead minority and the same would be no reason for the proceeding in this case. And he therefore prays that the whole proceeding may be dismissed at the costs of the complainants.”</p> <p>2. On June 14, 1884, the said Williams, while in debt and under arrest as aforesaid, executed and delivered to It. B. Ivory, Esq., his attorney in the proceedings just mentioned, a deed of assignment which will be found attached as exhibit “A” to the bill in this ease, and is in the form of a deed of general and voluntary assignment for the benefit of creditors. This deed was duly recorded in the office of recorder of deeds for Armstrong county within thirty days after the execution thereof, appraisers were duly appointed on the petition of said assignee on June 16, 1884, and appraisement made and returned to the proper court on June 26, 1884, and bond was duly given by said assignee in double the amount of the appraised value of the estate of said Williams. The assignee took charge of the personal property of said Williams, or a great portion of it at least, under said deed, converted it into money and also received certain money from accounts due said assignor. The appraised value of the estate according to the appraisement list aforesaid was $1,163.55. On August 9, 1884, a supplemental appraisement list was filed showing good accounts due said Williams to the amount of $360.16.</p> <p>3. Upon making the deed of assignment aforesaid M. L. Williams was discharged by the Hon. James B. Neale, judge of the court of common pleas, in the proceeding by warrant of arrest before mentioned.</p> <p>4. At the time Williams executed and delivered said assignment he was under the age of twenty-one years, and this fact was known to the said R. B. Ivory, Esq.</p> <p>5. The said R. B. Ivory, Esq., has never filed an account as assignee aforesaid nor in any way settled his trust so far as the evidence shows.</p> <p>6. The said assignee, a short time prior to September, 1884, filed a bill in equity against said Williams to compel tbe delivery of certain securities held by said Williams. Tbe bill was filed at No. 251 September term, 1884, and to it said Williams filed an answer. Neither the bill nor answer have been offered in evidence.</p> <p>7. The said Williams, a short time after the filing of the bill aforesaid, brought suit against said Ivory to recover the value of the goods and property of the said Williams received by the said Ivory under the deed of assignment before mentioned, but the action or rather the trial thereof was postponed on the ground that the court had already taken jurisdiction of the subject-matter thereof by the equity proceeding at No. 251 September term, 1884. The record of said action brought by said Williams has not been offered in evidence, but the .bill in the case before the master alleges the above stated facts, and the answer of the defendant admits their truth.</p> <p>8. On March 19, 1889, the present bill was filed at No. 51 June term, 1889. It is termed a cross bill and yet is filed at a separate number and term from the bill referred to therein as being the original bill. On January 8, 1892, the answer was filed. It is termed an original answer although it is perfectly clear that it was filed as an answer to the bill at No. 51 June term, 1889, and has been so treated by all parties.</p> <p>The master recommended a decree in favor of the plaintiff.</p> <p>Exceptions to the master’s report were dismissed by the court and the following decree entered:</p> <p>And now April 1, 1895, the report of the master having been confirmed it is further ordered, adjudged and decreed that the deed of assignment, dated June 14, 1884, from M. L. Williams to R. B. Ivory and recorded in Armstrong county, deed book vol. 61, page 549, is void and of no effect; that said deed be surrendered for cancellation, and the record thereof be canceled, and that the same be marked by the recorder of deeds of Armstrong county canceled, and made null and void as per this decree.</p> <p>It is further ordered that said R. B. Ivory state and file an account for all money and property received by him under said deed of assignment, and it is further ordered and decreed that the said M. L. Williams pay one half the costs of this proceeding and the said R. B. Ivory the other half of said costs, including a fee of $100 to the master, H. L. Golden, Esq. The account of the said It. B. Ivory for all moneys and property-received and had by him under said deed of assignment to be filed with the master on or before May 1, 1895.</p> <p>Errors assigned were, (1) in dismissing defendant’s demurrer; (2-18) in dismissing exceptions to master’s report; (19) in entering above decree, quoting it.</p>

<p>Appeal, No. 248, Oct. T., 1895, by plaintiffs, from, judgment of C. P. Cambria Co., March T., 1895, No. 136, for defendants on facts admitted.</p> <p>Ejectment to recover coal and other minerals underlying a tract of unseated land. Before Miller, P. J., of the 35th judicial district, specially presiding.</p> <p>The case was tried by the court without a jury under an agree •ment in which the facts were admitted.</p> <p>The “Admission of Facts” filed by the parties was as fol lows:</p> <p>For the purposes of this suit it is admitted that the land described as 255 acres, 158 perches, situate in Susquehanna township, Cambria county, Pa., for the coal and minerals in which land this suit has been brought, is part of a larger tract of land, warranted and surveyed in the name of George Eddy, for-which a patent dated May 10, A. D. 1794, was granted by the commonwealth of Pennsylvania to James C. Fisher, enrolled in patent book No. 21, page 220. That by sundry conveyances, the title to said land became vested on December 14, 1872, in fee simple, in Edward A. Irvin.</p> <p>That by sundry subsequent sales and conveyances made on or before the 5th day of November, 1883, all the title and ownership of said piece of land was on the 5th day of November, 1883, vested in fee simple in Patrick & Anthony Flynn.</p> <p>That on the 5th day of November, 1883, the said Patrick & Anthony Flynn, with their wives, executed two deeds, viz: the one deed to George W. Jose for the said land, excepting and reserving, however, all the coal and minerals, with right of ingress, egress and regress to take the same as appears in said deed recorded in Cambria county, Pa., in deed book 50, page 789. The other deed of same date to H. B. Powell and J. F. Powell for the undivided one half part of all the minerals of every kind in said tract of land of 255 acres and 158 perches, as the same appears in said deed recorded in Cambria county in deed book No. 51, page 554. To which deeds or records thereof reference is hereby made for more full information as to the contents thereof.</p> <p>That November 26,1883, the said George W. Jose, conveyed in fee simple to John Lantzy (the present defendant) the said land as it had been conveyed to said Jose from said Patrick & Anthony Flynn, excepting therefrom all the minerals reserved by said P. & A. Flynn in their deed to said Jose; see said deed recorded May 26, 1884, in Cambria county in deed book 52, page 99, etc., to which reference is hereby made for more full information as to the contents thereof.</p> <p>June 10,1884, treasurer’s sale for unseated taxes of the years 1882 and 1883 was made to John Lantzy of this land for tax- and cost 143.54. Said tax and sale appear on the treasurer’s book among lands of Susquehanna township as follows:</p> <p>Joseph M. Miller. yeah. val. oo. koad, school.</p> <p>Acres 242, James Thompson 1882. $484. 1.26. 6.29. 1.26</p> <p>“ 242, “ “ 1883. 484. 1.26. 4.84. 1.2G</p> <p>Sold June 10, 1884, for tax and costs $43.54.</p> <p>J. A. K., Tbeas.</p> <p>November 24, 1888, by deed recorded January 17,1889, in deed book 66, page 361, salé of coal in said land was made by said John Lantzy to Blubaker Coal Co., consideration $2,857. The said Coal Co. having such notice of the title as the records show and taking security from Lantzy to indemnify them against loss by reason of failure or defect in his title. By deed dated 1894, December 10, and acknowledged December 14 and 18, 1894, conveyance was made from P. & A. Flynn and their wives to H. B. and J. F. Powell for their remaining undivided one half part of all the minerals in said land as by reference to said deed will appear.</p> <p>December 20, 1894, after the delivery of the last mentioned deed, this ejectment suit, No. 186, March term, 1895, was brought by H. B. and J. F. Powell v. John Lantzy and the Blubaker Coal Co. for the coal and minerals in said land.</p> <p>It is further agreed that the deeds and records herein referred to, be regarded as evidence in the case with the same force and effect as if attached to this paper and made part of it; thereby to show more fully and accurately the contents of said deeds and records Bo far as they are material to the questions arising in this suit. The said land being unseated and the above recited deeds having been made for valuable consideration.</p> <p>It is further agreed by the parties to dispense with a trial by jury in this case and to submit the decision of the case to the court having jurisdiction thereof, and that said court shall hear and determine the same; and that the judgment thereon shall be subject to a writ of error or appeal to the Supreme Court, as in other cases.</p> <p>The court entered judgment for defendants.</p> <p>Error assigned, among others, was entry of judgment as above.</p>

<p>Appeal, No. 309, Jan. T., 1895, by defendant, from judgment of C. P. No. 2, Philadelphia County, March T., 1893, No. , on verdict for plaintiff.</p> <p>Trespass for personal injuries.</p> <p>At the trial it appeared that on January 8,1891, plaintiff fell into a coal hole in the front sidewalk of the premises No. 509 Spruce street in the city of Philadelphia, and sustained serious injuries.</p> <p>The condition of the sidewalk is described in the opinion of the Supreme Court.</p> <p>Defendant’s points were among others as follows:</p> <p>3. If the jury find that the cause of the accident was the tenant’s neglect to properly secure the cover of the coal hole, then the tenant was primarily guilty of neglect, and the jury must find for the city in this case, unless the testimony shows them that some notice was given to the city of a continuing or habitual neglect on the part of the tenant to keep the cover secured. Answer: Refused. [8]</p> <p>4. If. you find that the city did not have notice, actual or implied, of the defective condition of the coal hole, it was not bound to examine it in order to ascertain what its condition was, and you cannot find that the city did have implied notice if its condition could not have been seen except by making a physical examination — by removing the cover and looking for defects, — this, in the absence of notice, the city was not required to do. Answer: I cannot affirm that point absolutely. I would rather leave it to you as a question to determine from the testimony as you find it, how far the city of Philadelphia’s attention was called or should have been called to the condition of that grating. [3]</p> <p>5. The city was not bound to seek for defects. If any existed, unless it had actual notice, it was only required to observe those which could be seen by inspectors passing along the pavement in an ordinarily careful manner, and if you find that the defect in the coal hole was hidden and such as not to attract the attention of persons passing along the sidewalk in an ordinarily careful manner, the city is not liable for the injury sustained by plaintiff, and your verdict should be for the defendant. Answer: Refused. [4]</p> <p>The court charged in part as follows :</p> <p>[The next question for you to determine is, whether or not the city of Philadelphia was negligent. That is not proved by the plaintiff simply proving that she stepped on tins grating and the grating tilted and she went down. That does not of itself make out a case of negligence against the city of Philadelphia. If the action were against the occupant of the premises, or perhaps against the owner, that might, of itself be sufficient evidence of negligence, but that is not true with regard to the city of Philadelphia. The city of Philadelphia is bound to provide highways ordinarily safe, and the pavement is as necessary to the highway as the cartway. In other words, the city of Philadelphia is bound to furnish ordinarily safe streets. When the street is ordinarily safe, in order to hold the city of Philadelphia liable for any defects which subsequently occur, the city must have either actual notice of the defect, or else the defect must have been of such a character and of sufficiently long standing as the city must be presumed to have had notice.] [5]</p> <p>[You understand in a case against the city you must go one step further than you would with regard to a case against the occupant of the premises. You must find that the city had notice of the defective condition, or that it lasted so long that the city would be presumed to have had notice, because the city is bound to take ordinary care with regard to its highways.] [6]</p> <p>[As I said before, the mere fact of the existence of the defect is not evidence of negligence of itself in a case against the city, but the plaintiff must go one step further and- must prove either notice of the defect, or that the defect had existed so long that the city would know it, or should know it.] [7]</p> <p>Verdict for plaintiff for $6,000. Judgment was entered for $4,500, a remittitur having been filed for the amount of the verdict in excess of that sum. Defendant appealed.</p> <p>Krrors assigned among others were (3-8) above instructions, ■quoting them.</p>

<p>Principal and agent — Representations made by agent — Sale—Rescission of contract.</p> <p>If an agent obtains possession of the property of another for his principal by making a stipulation or condition which he was not authorized to make, the principal must either return the property or be subject to the condition upon which it was parted with by the fomier owner.</p> <p>Where goods are obtained through the false representations of an agent, the seller has a right to rescind the contract and take the goods from the purchaser, whether the agent of the purchaser had authority to make the representations or not.</p> <p>Sale — Rescission of sale — Replevin—False representation of purchaser's agent — Fraud—Evidence.</p> <p>In an action of replevin to recover goods sold on credit to defendant by plaintiff upon the strength of certain false representations alleged to have been made by defendant’s agent to plaintiff, it is proper to admit evidence that the defendant took the goods, and took the credit; that defendant’s agent had an interest in the profits of defendant’s business; that the statements made by the agent with defendant’s authority were false; and that the purchases made were beyond the ordinary demands of defendant’s business.</p>

<p>Appeal, No. 396, Jan. T., 1895, by Harry W. Stevenson, one of tbe defendants, from decree of C. P. No. 2, Phila. Co., Sept. T., 1890,-No. 480, in favor of' plaintiff on bill in equity.</p> <p>Bill in equity for the dissolution of a partnership and an account.</p> <p>The case was referred to Henry D. Paxson, Esq., as master, who reported in part as follows :</p> <p>Upon September 21, 1890, the plaintiff and defendants entered into a written agreement (a copy of which is a part of the bill filed) to form a partnership under the name of the Commonwealth Construction Company, for the purpose of constructing waterworks at Mayfield, Ky.</p> <p>The principal provisions of this agreement haying reference to the present suit were:</p> <p>The capital of the concern shall consist of $11,000, at par, of Bridgeport Water Company stock, which is to be contributed by Fullaway, Stevenson and Middleton, and the sum of $5,000 in cash, to be contributed by said Magilton.</p> <p>The profits and losses are to be shared equally by the partners, each being entitled to one fourth of the profits and to be liable to one fourth of the losses : Provided, however, that the said Magilton shall in no event be put to a loss more than $1,250, and that the balance shall be made up and paid to him in case of greater loss by the other partners.</p> <p>Although Magilton did not in one payment contribute quite $5,000, yet he was not superseded as treasurer but continued, with the approval of the partners, to act as such, providing from time to time the funds to meet the bills as approved by the- partners at meetings held in Philadelphia for that purpose. The bills paid by him for the purposes of the partnership, as appears by vouchers produced in evidence, amounted to $4,670, and since the present bill was filed the plaintiff advanced $100 to the receiver for his expenses in visiting the scene of the works.</p> <p>That no books of the company were kept, except the treasurer’s cash account, and no statements passed between the partners. There were no receipts and no revenue of the partnership, and the plaintiff was not reimbursed for any part of the capital contributed by him.</p> <p>That of the partners Middleton was relied upon to oversee the practical construction of the works upon the grounds at Mayfield, although Stevenson had for a few days visited May-field and made a contract for materials,, while Fullaway took no active part other than attending the meetings of the partnership and approving bills.</p> <p>That the works and affairs of the partnership proved a total failure and there were disagreements and disputes between the partners.</p> <p>That on February, 1891, the receiver visited the town of Mayfield, Ky., where he found the works incomplete and in a dilapidated condition, and after some effort and correspondence was unable to find a purchaser, the effects being practically worthless.</p> <p>There are several instances showing that Magilton did not make payments promptly and that the credit of the concern was in disrepute. It was necessary, in order to raise money by bonding the works of the company, to have an amended ordinance passed by the town council of Mayfield, Ky. In this the company failed, the testimony of the defendants shows, because it was in poor credit, attributed by them solely to the tardiness of Magilton. The defendants, however, have never contributed the Bridgeport Water stock, or funds in lieu of it or generally; and in fact one of them, Middleton, applied (although with Magilton’s consent) some of the money the latter had contributed for the payment of his board bills while at Mayfield.</p> <p>By the defendants’ total failure to contribute, their fellow partner who was also treasurer might well have been exonerated latterly, if not at the outset, from the payment of any funds on account of the enterprise, and the master does not attach any importance in the defendants’ favor to the fact that the stock was worthless, and that even if delivered it might not have materially aided, for Magilton by such failure to deliver would materially lack faith and pause to consider an enterprise which depended principally upon those by whom it had been promoted, and who had not complied with what he properly considered an important element of their agreement, when they had not made amends or offered to do so by the contribution oi capital and were drafting upon him to the extent of $4,670. The master therefore, in face of all the facts, cannot lay upon the shoulders of Magilton the sole blame for the unsuccessful result, and is of opinion that the most that could be charged against him would be to say that the failure was due to all of the partners, affected by unfortunate circumstances perhaps over ■which they had no control and which figure in many other similar ventures.</p> <p>That on September 18, 1890, in consequence of the differ enees and disputes alluded to, the plaintiff addressed the following letter to the defendants, copy of which is annexed to the bill, to wit:</p> <p>“It is evident that the affairs of the Commonwealth Construction Company should be wound up.</p> <p>“ You have not made the contribution to the capital which was provided for in the contract, and disputes have arisen as to the management of the business.</p> <p>“You have declined to give me charge of the capital of the firm according to the agreement, and withhold its assets.</p> <p>“ I therefore call upon you to submit the matters at variance between us to arbitration under the terms of our agreement, and name as arbitrator on my behalf Mr. P. F. Kernan, 436 Walnut street, Philadelphia.</p> <p>“ Please give me, before Monday next, the name of the person selected by you.”</p> <p>That the defendants did not accede to the proposition to submit the disputes to arbitration and the bill was filed.</p> <p>Upon the facts as found the master would report his following</p> <p>CONCLUSIONS OK LAW.</p> <p>1. That the plaintiff was justified in filing his bill in court, inasmuch as the defendants had declined to accept the offer of the plaintiff to submit their differences to an arbitration, in accordance with the terms of the agreement, and paid no attention to the plaintiff’s request, is evident, and was not denied upon argument. That the courts were open for suitors in such cases needs no citation of authority.</p> <p>2. That a dissolution of the partnership should be decreed as prayed, since it cannot be carried on for the benefit of the parties according to the original intention, and because the enterprise is found to be impracticable. This was conceded.</p> <p>3. That where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best but the only evidence of their agreement: Martin v. Berens, 67 Pa. 459; Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 525; Jackson v. Payne, 114 Pa. 67: English’s Appeal, 119 Pa. 533; and that this rule should especially hold in partnership articles (Cochran v. Perry, 8 W. & S. 262), which are supposed to be entered into with some degree of solemnity and to be. a perpetual guide during possible dissensions, whatever may be the result, and therefore in accordance with the terms of the contract and because of the views hereinbefore expressed, the master holds an account should be stated and that, whereas, in acccordance with the terms of the partnership agreement, Magilton “ shall in no event be put to a loss more than $1,250, and the balance shall be made up and paid to him in case of greater loss by the other partners,” the amount contributed by the plaintiff being the sum of . $4,670 00</p> <p>Adding to which the amount advanced by him to the receiver of....... 100 00</p> <p>$4,770 00</p> <p>From which, deducting the amount which it was agreed should represent the maximum loss of the plaintiff of....... 1,250 00</p> <p>Leaving a balance of .... $3,520 00</p> <p>which should be paid by the defendants to the plaintiff, and that they should be held to be jointly and severally liable to the full payment of the same, together with the costs of the cause, including a suitable allowance for the services of the receiver.</p> <p>Exceptions to the master’s report were overruled by the court, no opinion being filed.</p> <p>Error assigned was in overruling exceptions to master’s report.</p>

<p>Appeal, No. 430, Jan. T., 1894, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1894, No. 138, for want of a sufficient affidavit of defense.</p> <p>Mitchell, J., dissents.</p> <p>Assumpsit on a draft. Before Pennyp acker and Sulzberger, JJ.</p> <p>Plaintiffs’ statement was as follows:</p> <p>The plaintiffs claim to recover in this suit from the defendant the sum of $1,990, with interest from the 20th day of March, 1891, upon the following cause of action:</p> <p>1. Plaintiffs aver that at the close of business hours on the 19th day of March, 1891, they mailed at Washington, D. C., a letter to the Keystone National Bank, of which John Hayes was then cashier, inclosing therein for collection a draft, of which the following is a copy:</p> <p>“ The Anglo-Cajaeornia Bank, Limited, No.38,886,</p> <p>“ San Francisco, March 13th, 1891.</p> <p>“ Pay to the order of Charles Early ($1,990) nineteen hundred and ninety dollars.</p> <p>“ P. N. Lithbnthal, Manager.</p> <p>“ F. E. Beck, Accountant.</p> <p>“ The Fourth Street National Bank, Philadelphia.”</p> <p>Indorsed: “ Charles Early.” “ Pay to the order of Jno. Hayes, Cashier, for a/e Crane, Parris & Co., Washington, D. C.” Also stamped upon the back of the draft, “ Received payment through 31 the Clearing House.” And plaintiffs specifically aver that at the time the letter inclosing said draft was mailed they were not aware of the insolvency of said Keystone National Bank; that they were not indebted to said Keystone National Bank in any sum whatsoever, nor have they been so indebted at any time since ; that no advances were made by said Keystone National Bank on account of said draft,, nor did plaintiffs draw against said Keystone National Bank on account of the proceeds thereof, nor had said Keystone National Bank any beneficial interest therein; but, on the contrary, said draft was sent to and held by it solely for the purpose of collecting the same for plaintiffs, to whom only it belonged.</p> <p>2. Plaintiffs are informed and believe, and therefore aver, that the Clearing House Association of the City of Philadelphia is an association of national banks of that city, having a central office therein, whereat the exchanges between said banks are effected daily, and the course of business adopted by agreement of the members thereof and usually and constantly carried on is substantially as follows:</p> <p>At or about 8:30 o’clock A. M. of each day each national bank member thereof sends by its runner or agent to said clearing house all checks and drafts received by it since the last clearance, drawn upon any other bank, member of said association, or which clears through it, and receives in return all cheeks and drafts drawn upon it deposited with any other bank member of said clearing house, or which clears through it, and which said checks and drafts are then and there delivered to the runners or agents of the respective banks upon which the same are drawn, inclosed in sealed envelopes, upon the promise and agreement of said banks respectively that they will at or before 12 o’clock of that day pay to said clearing house association in cash the difference between the amount of the checks and drafts so deposited by it and the amount of the checks and drafts so drawn upon it as aforesaid, and at that time and out of the moneys so received said clearing house association pays in cash to the banks found to be creditors upon the clearances the sum which is so found to be due them thereon.</p> <p>8. Plaintiffs are informed and believe, and therefore aver, that on the morning of the 20th of March, 1891, said Keystone National Bank made up as usual for exchange in clearance at the clearing house, of which it was a member, packages of exchanges on other banks amounting in the aggregate to $70,005.46, among which packages was one containing exchanges drawn on the Fourth Street National Bank, the defendant herein, amounting in the aggregate to $3,728.70, one of which was a draft for $1,990, a copy of which is set forth in the first paragraph of this statement. These sealed envelopes or packages were duly delivered to the runners of the banks on which they were drawn in the manner usual at such clearances, and the runners of said Keystone National Bank received from the runners of other banks sealed envelopes containing exchanges drawn against said Keystone National Bank, among which was a package presented by the runner of the Fourth Street National Bank (also a member of said clearing house association), containing exchanges drawn against said Keystone National Bank, amounting in the aggregate to $3,862.94. That upon the settlement of exchanges then and there made (which clearance took place at half after eight o’clock in the morning of said day) there appeared a balance of $47,029.75 on that morning’s exchanges against the Keystone National Bank, andabalance of $126,347.60 against said Fourth Street National Bank. The runners of each bank, except the Keystone, present at said clearance, so soon as the same was made, returned to their respective banks, carrying with them the envelopes or packages so received by each, and one Edward A. McKinley, who represented the Fourth Street National Bank as settling clerk at the clearing house that morning, brought back to said bank, inter alia, the envelope received from the runner of the Keystone National Bank containing drafts drawn upon it aggregating $3,728 as aforesaid, and including said draft of $1,990 referred to in paragraph 1 of this statement. The settling clerk of the Keystone National Bank, however, after receiving from the other banks the packages containing exchanges aggregating $117,035.21, did not return with them to his bank, but left them in the custody of the manager of the clearing house association until said Keystone National Bank should pay the sum of $40,728.75, in which amount it was debtor on the morning’s clearance. (The reason such, packages were left by the Keystone National Bank in the custody of the clearing house manager was this : Under article XVII. of the clearing house rules, all banks were required to deposit collateral security for the payment of their daily balances, but in December, 1890, the Keystone National Bank requested that all security held under this article for the payment of its daily balances should be transferred to what was known as the loan certificate account, so that the Keystone National Bank could receive further advances upon this security. After this date the security for the payment of the daily balances due at the morning exchange was an agreement of the Keystone National Bank that its messenger, after receiving the packages from the creditor banks, should leave these packages with the clearing house manager as security that the debtor balance due on that settlement should be paid by the Keystone National Bank in cash before twelve o’clock on that day, and this agreement was acted on daily from the date it was made until the suspension of the bank.} The proceedings above narrated were completed about half after nine o’clock in the morning of the day mentioned, and after the several runners had returned to their respective banks and delivered the respective packages so received by them, word was received at the clearing house, to wit, about half after ten on said morning, that said Keystone National Bank was closed by William P. Drew, examiner of national banks, duly appointed and acting therein by virtue of the authority of the order of the comptroller of the currency of the United States, duly issued and pursuant to the statutes in such case made and provided. Whereupon this is what took place: The manager of the clearing house notified the several banks which had presented exchanges aggregating $117,085.21 against the Keystone National Bank that the same had not been delivered over to the Keystone National Bank, but were in the custody of the clearing house, and requesting them to at once take back the same and substitute cash for the credits which had been given them at the morning clearance on account thereof. This the banks all did at about eleven o’clock that morning, and the Fourth Street National Bank paid in cash to the manager of the clearing house $3,862.94-, and received from him checks and drafts aggregating that amount, which the Fourth Street National Bank had presented against the Keys tone National Bank at the morning clearance as aforesaid. This left the Keystone National Bank a creditor bank in the sum of #70,005.46, made up in part, as hereinbefore set forth, of said draft of #1,990 described in paragraph 1 of this statement, as all the drafts which had been presented against it were withdrawn and received back again by the banks so presenting them. This was the status of affairs at half after eleven o’clock in the morning of March 20, 1891. The Fourth Street National Bank having thus received said draft for #1,990, afterwards, with knowledge of the insolvency of said Keystone National Bank, and with knowledge that the plaintiffs herein were the true owners of said draft and that the Keystone National Bank had held it merely for collection, charged the amount thereof against the Anglo-California Bank, Limited, but instead of paying the same to the plaintiffs herein, as of right it should have done, handed over said #1,990 to the manager of the clearing house; that is to say, at noon of that day, the said Fourth Street National Bank paid in cash to the manager of the clearing house #126,347.60, the difference between the exchanges it had presented that morning against other members of the clearing house, exclusive of the Keystone National Bank (credit being-taken for the cash substituted for exchanges presented against said Keystone National Bank and subsequently withdrawn), and all checks presented by other banks at said clearance against said Fourth Street National Bank, including the checks presented by the Keystone National Bank, among which was said draft for #1,990, and by such act it at that time paid into the hands of the manager of the clearing house the amount of said draft. Other debtor banks made like settlements. The result of the transactions above narrated was that there was left in the hands of the manager of the clearing house, after payment of the balances due creditor banks other than the Keystone, the sum of #70,005.46, made up in part of said draft of #1,990 so paid to him by said Fourth Street National Bank after knowledge of the insolvency of the said Keystone National Bank, which sum was appropriated by him on account of certain antecedent indebtedness of said Keystone National Bank to said clearing house. These proceedings were not in accordance with the rules of the clearing house, a copy of which is hereto annexed and made part hereof, and even if said rules had so provided, the rights of plaintiffs could not be injuriously affected thereby.</p> <p>4. Plaintiffs aver that the indorsement upon said draft for $1,990 destroyed its negotiability except for purposes of collection, and gave notice to the Fourth Street National Bank that it was tire property of Crane, Parris & Co. and that the Keystone National Bank had no title thereto, but was constituted an agent for its collection. That the Fourth Street National Bank had notice at or about ten o’clock on the morning of March 20, 1891, that the Keystone National Bank was closed by order of the Comptroller of the Currency, and was civilly dead as far as the right to exercise the functions of a bank are concerned, and that its authority to collect said draft of $1,990 was thereby revoked. That subsequent thereto said Fourth Street National Bank charged up the amount of said draft against the Anglo-California Bank, Limited, the drawer thereof, and from that moment held said sum of $1,990 for the use of Crane, Parris & Co. the plaintiffs herein. That its subsequent payment of that sum to the manager of the clearing house in the manner hereinbefore stated was without authority of the plaintiffs herein, and was no acquittance of the debt. That said Fourth Street National Bank, although requested so to do, has refused to pay over to the plaintiffs herein the amount of said draft, wherefore plaintiffs claim that said defendant is justly indebted etc.</p> <p>The affidavit of defense was as follows :</p> <p>Richard H. Rushton, being duly sworn according to law, deposes and says : I am the cashier of the Fourth Street National Bank. The statement filed by the plaintiffs is incorrect in some particulars, and the true nature of the transaction was as follows: The clerics of the respective banks constituting the Philadelphia Clearing House met in the morning of the 20th day of March, 1891, at half-past eight o’clock. The exchange clerk of this defendant took with him envelopes containing the checks and drafts drawn upon the other banks belonging to the clearing house and received in exchange envelopes containing the checks and drafts held by other banks upon the Fourth Street National Bank. The aggregate of the checks and drafts payable and receivable having been footed up, a statement of account was thereupon prepared, showing the separate items of the checks and bills payable and receivable, payable to or by each of the other banks, and the balance was then struck, which thereupon became an absolute obligation by or to those banks, by or to the clearing house association. The relations of this bank to the clearing house association, as the result of the exchange of checks or bills payable or receivable, were fixed and settled at the time when such exchange took place, and the balance with the clearing house on that day, which amounted to $126,347.60 against the Fourth Street National Bank, became thereupon a fixed liability to the clearing house, and was paid and settled in the course of the morning. The exchange clerk brought back to the bank the receipts for packages delivered to the exchange clerks of the other banks, together with the packages delivered to him by the clerks of the other banks, and the packages brought back by him were delivered to the paying teller or his assistant, and compared with the accounts of each depositor, and then by him turned over to the general bookkeeper, and charged against the proper accounts.</p> <p>The package of the Keystone National Bank upon that morning included the draft of the plaintiffs, but as between this defendant and the Keystone National Bank all of the drafts or checks received from the Keystone National Bank were paid when the exchange of packages took place in the clearing house, and the settlement was stated with this bank by the clearinghouse, which thereupon became obligations as between the clearing house and this defendant, in which the Keystone National Bank no longer had any further interest. So absolutely is this the case, that even if the account upon which any one of the checks or drafts had been drawn had proved, upon inspection, to be overdrawn, the remedy of this defendant would have been to send such draft or check to the Keystone National Bank, and not to the clearing house. This defendant therefore avers that the draft sent to the Keystone National Bank for collection was in fact paid by this defendant in the morning settlement, which occurred before the announcement of the failure of the Keystone National Bank.</p> <p>This defendant further says that the statement of what occurred after the closing of the Keystone Bank by the bank examiner is not entirely accurate. The amount of $3,862.94, paid by the Fourth Street National bank to the manager of the clearing house, had nothing to do with the draft of the plaintiffs, but as the checks and drafts handed in by the Fourth Street National Bank had been accepted as cash it became necessary to make them good so soon as it was learned that the Keystone Bank had failed. The draft of the plaintiffs for $1,990 had been received in the morning clearing, at half-past eight o’clock, and, as already stated, had been paid for, as between the bank and the clearing house, at the time it was received, and it had been examined by the paying teller or his assistant, and the account, having been found good, had been charged up to the account of the Anglo-California Bank, Limited, probably by ten o’clock, but certainly before the failure of the Keystone National Bank had been learned. It is not correct to say, however, that the amount was handed over to the clearing house after it had been thus charged up, because, as already stated, the settlement was effected when the packages were exchanged, and the subsequent payment of $126,847.60, being the balance of the exchanges to and against the Fourth Street Bank, was the balance shown at the morning clearing, in which the draft of the plaintiffs had been counted as cash, and so far as the draft of the plaintiffs was concerned, nothing was paid by the Fourth Street National Bank on account thereof, after the knowledge of the insolvency of the Keystone Bank. In other words, the Fourth Street Bank on that day received credit in the morning exchange for all the checks and drafts presented by it as so much cash, and was charged with all the checks and drafts delivered to it, including that of the plaintiffs, as so much cash. The balance of $126,347.60 was the balance then appearing. By the failure of the Keystone Bank the checks and drafts handed in by the Fourth Street Bank, and which had been accepted as cash, proved worthless, and thereupon the Fourth Street Bank made them good. In effect, therefore, the transaction, was the same as if, at half-past eight on that morning, the Fourth Street Bank had received payment in cash of all the checks and drafts presented by it, including those drawn upon the Keystone National Bank, and had then paid to the manager of the clearing house, in cash, the amount of all the checks and drafts drawn against the Fourth Street Bank. Instead of the passing of the money, the amounts receivable were credited against the amounts payable, and the balance became immediately payable in cash. Subsequently, upon the failure of the Keystone Bank, the amounts receivable, aggregating $8,862.94, were taken up and made good.</p> <p>This defendant submits, therefore, that in the regular course of business, without notice, and before the insolvency of the Keystone Bank, it accepted and paid to the clearing house association, as the authorized agent of the Keystone National Bank, the amount of the plaintiff’s draft, and is, therefore, not now liable to repay the same.</p> <p>The court in an opinion by Sulzberger, J., entered judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was above order.</p>

Appeal, No. 71, July T., 1896, by defendant, from judgment of C. P. No. 8, Pliila. Co., June T., 1894, No. 616, on verdict for plaintiffs. Assumpsit to recover money paid under an alleged mistake ■of fact. The facts appear by the opinion of the Supreme Court. The court gave binding instructions for plaintiffs. Verdict and judgment for plaintiffs for $57.70. Defendant .appealed. JError assigned was above instruction.

Appeal, No. 143, July T., 1895, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1895, No. 279, for want of a sufficient affidavit of defense. Assumpsit for goods sold and delivered. Plaintiffs in their statement claimed to recover $806.13 on the following account: Owen McKenna, To George McKay and Co., Dr. 1894.' Nov. 5. 11600 Vit. Repressed B. E. Brick, at yard . $208.80 6. 4000 “ “ “ “ “ “ “ . . 72.00 (Car P. R. R..10298.) 8. 16500 Vit.

<p>Appeal, No. 95, July Term, 1895, by plaintiff, from judgment of C. P. No. 1, Phila. County, June T., 1898, No. 383, on verdict for defendant.</p> <p>Appeal from assessment of mercantile tax appraisers. Before Bbbgy, J.</p> <p>Tbe facte appear by tbe opinion of tbe Supreme Court.</p> <p>Tbe court gave binding instructions in favor of tbe defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was above instructions.</p>

<p>[Marked to be reported.]</p> <p>Pleading — Practice, G. P. — Evidence.</p> <p>In an action of trespass plaintiff averred in his statement of claim that defendant had wrongfully and fraudulently induced him to part with and ■deliver certain goods to defendant, at a certain price; and had induced him to accept defendant’s check therefor by falsely and fraudulently representing that said check was as good as cash; that there was at that time sufficient funds in bank to pay it, and that it would be paid by the bank. Plaintiff further averred in his statement that defendant, after obtaining possession of the goods, converted them to his own use and fraudulently ■stopped payment of the check. Held, (1) that the deceit in obtaining the goods was the fundamental element in the light to recover, and therefore •the whole transaction in the course of which the goods were obtained was the real subject of the controversy; (2) that evidence was therefore necessarily admissible as to all the facts of the transaction to determine the •merits of the controversy; (3) that plaintiff could not recover unless he showed fraud or deceit, inasmuch as the plaintiff’s statement contained no ■ claim for goods sold and delivered.</p> <p>Evidence — Contradiction of witness.</p> <p>An offer in the trial of a civil cause to show that in prior criminal proceedings plaintiff swore to statements which were false, without speci■fying any particular statement that was alleged to be false, is inadmissible.</p> <p>Evidence — Deceit—Worthless check.</p> <p>In an action in the nature of deceit to recover damages for the obtaining of goods by means of an alleged worthless check, the defendant may ■prove that when he gave the check he had money in the bank to meet it.</p> <p>Evidence — Deceit—Stopping payment of check — Intent.</p> <p>In an action of trespass in the nature of deceit to recover damages for the loss of goods obtained from plaintiff by fraud where the plaintiff alleges that he was induced to surrender the goods on the representation that the check for their payment was good and would be paid, and plaintiff alleges that after he surrendered the goods defendant stopped payment of the check, it is proper to permit the defendant to testify that when he gave the check he had no other intent than that it should be paid, and it is ■also proper to permit him to show that he stopped payment under advice ■ of counsel.</p> <p>Evidence— Receipt.</p> <p>In such a case a receipt given for the goods “ in full settlement of account to date,” is not conclusive as between the parties, nor does it show a .settlement of all accounts between them.</p> <p>. Practice, G. P. — Charge of court.</p> <p>An instruction which assumes the proof of a matter of fact asserted by one of the parties and denied by the other is erroneous.</p> <p>Deceit — Damages—Erroneous instruction.</p> <p>In an action to recover damages for goods obtained by deceit it is error to charge: “In addition to the value of the goods the plaintiff would also be entitled to interest upon their value from the time of the taking; also damages for the detention, and such damages as the jury may reasonably think he deserves.”</p>

<p>Negligence — Street railways — Ordinance.</p> <p>Failure to comply with the provisions of an ordinance giving street cars running north and south a right of way over street cars running east and west is merely evidence of negligence, and not negligence per se.</p> <p>Negligence — Charge of court — Goncurrent negligence.</p> <p>A charge of the court is not open to the objection that it fails to explain to the jury the rules respecting concurrent negligence, where the judge says: “Before anybody can recover in cases of this character, you must be satisfied from the evidence that the injury was caused by the negligence of the defendant, and that the conduct of the plaintiff did not contribute to the injury. If to use the ordinary expression, both sides were at fault, you cannot give a verdict for the plaintiff. You must be satisfied, as I say, that it was the negligence of the defendant which was not contributed to by the action of the plaintiff.”</p> <p>Negligence — Measure of damages — Charge of court.</p> <p>In an action by a widow to recover damages for the death of her husband, the charge is not open to the objection that it fails to lay down any proper measure of damages, where the trial judge after referring to the fact that- at common law personal actions died with the person, and the change effected therein by statute said “the widow now has a right to bring suit for the pecuniary loss; ” and in the same connection referring to the amount said “ it ought to be a reasonable compensation; ” and then proceeded to pointedly caution the jury in regard to the danger as well as the impropriety of rendering an excessive verdict.</p> <p>Practice, G. P. — Request for instructions — Gharge of court.</p> <p>In a negligence case where the court has given instructions adequate in themselves as to concurrent negligence and the measure of damages, it is the duty of the defendant, if he desires more specific instructions, to present to the court points embodying the instructions desired.</p>

<p>Appeal, No. 141, July T., 1895, by defendants, from judgment of C. P. No. 8, Phila. Co., June T., 1880, No. 770, for want of a sufficient affidavit of defense.</p> <p>Scire facias to revive a judgment, entered originally upon a bond of Annesley N. Keithler, register of the water department of the city of Philadelphia.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was above order.</p>

Appeal, No. 155, July T., 1895, by plaintiff, from judgment, for less than claim, of C. P. No. 3, Phila. Co., June T., 1880, No. 770, for want of a sufficient affidavit of defense. Errors assigned were (1) in assessing damages at $7,942.50; (2) in not assessing damages at $19,016.35.

Appeal, No. 207, July T., 1895, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1894, No. 886, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit on three promissory notes to recover the sum of $35,000. From the pleadings it appeared that the notes in suit had been given in part payment of the purchase by defendant of the interest of plaintiff'in their joint partnership business.

<p>Appeal, No. 205, July T., 1895, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1892, No. 208, on bill in equity.</p> <p>Bill in equity for partition.</p> <p>The ease was referred to Richard C. Dale, Esq., as master, who reported in part as follows:</p> <p>The proceeding was instituted upon a bill in equity filed by James M. Robb, as plaintiff, against Thomas Robb in his own right and as trustee for Ann Eliza Cope, William Oscar Robb and Ann Eliza Cope, defendants, for the partition of certain premises in the bill described, being a tract of land containing about sixty-seven acres in the Twenty-fourth ward of the city of Philadelphia, which tract is hereinafter more particularly described.</p> <p>On November 10, 1892, Sarah T. Robb filed an intervening petition in the case, setting up that as devisee under the will of Samuel Robb she was seized in fee of an undivided one sixth part of the premises described in the bill, and asking that she might be admitted as a party to the proceedings for the protection of her rights. To this intervening petition the plaintiff filed an answer denying the interest of the intervening petitioner as stated in her petition, and upon the issue thus raised the cause was referred to the undersigned as examiner and master to take testimony and report the facts and Ms conclusions to the court.</p> <p>Samuel Robb, through whom both the plamtiff and mtervenrng petitioner claim, durmg his life was the owner in fee of an undivided one sixth part of the premises described M the bill. He died June 10, 1889. By his will, duly admitted to probate, he provided as follows:</p> <p>“ All my unimproved real estate m said city of PMladelplfia, also m the city of Gloucester, N. J., which I hold in common with others, and all my undivided mterest in a certain tract of land known as Milford tract in the county of SchuylMll, Pa., I give and devise unto my brother James M. Robb, Ms heirs and assigns forever.</p> <p>“ All the rest, residue, and remainder of my estate whatsoever and wheresoever, I give, devise, and bequeath unto my wife Sarah T. Robb, her heirs, executors, admmistrators and assigns forever, and I appoint her the executrix of tMs my last will and testament, and request that she will not file an inventory and appraisement of my estate.”</p> <p>From this preliminary statement, it appears that the question wMch the court is called upon to settle in the present case is: Are the -premises described in the bill unimproved real estate in the oily of PMladelphia, wMch Samuel Robb held in common with others, or are the premises to be regarded as improved real estate, and as such a part of the residuary real estate bequeathed to Mrs. Sarah T. Robb ?</p> <p>As the mterest of Samuel Robb in the premises was held m common with others, the sole pomt to be determmed is : Are the premises improved real estate or unimproved real estate ? If uMmproved, Samuel Robb’s interest, by the terms of his will, is vested in the plamtiff, James M. Robb; if improved, Samuel Robb’s mterest is vested m Ms widow, the MterveMng petitioner, Mrs. Sarah T. Robb.</p> <p>Much testimony was adduced before the master. There is substantially no conflict upon the naked facts of the case. The difficulty arises in drawing the conclusions from these undisputed facts. In order, however, that the court may have before it the facts of the case at length, the master will state Iris findings of fact.</p> <p>master’s bindings oe pacts.</p> <p>1. The premises concerning which this litigation arises is :</p> <p>“ All that certain tract, piece, or parcel of land, with the mansion house and other buildings and improvements thereon erected, situate in the Twenty-third ward of the city of Philadelphia, beginning at a point in the middle of Darby and Merion road, and also in Sixty-six street, a corner of this and land of John F. Gross ;”....</p> <p>This property was acquired by Charles Robb by deed dated April 1, 1872, from Robert J. Mercer and wife. The consideration mentioned in the deed was $67,387, being at the rate of $1,000 per acre. The description above given is the description given in this deed, and the tract thus conveyed was as to fifty-eight acres, part of a tract of seventy-three acres, which Albert Worrell and others by deed dated June 23,1863, had conveyed unto Robert J. Mercer, and as to nine acres, a tract which William L. Hirst and others by deed dated June 23, 1863, had conveyed. unto the said Mercer, and as to about a half-acre, a tract which William Sellers and others by deed dated October 14, 1868, had conveyed unto the said Mercer.</p> <p>2. Charles Robb was the father of James M. Robb and Samuel Robb. He died January 28, 1875. By the terms of his will he devised to each of his six children an undivided one sixth interest in the above described real estate in fee simple.</p> <p>3. The fifty-eight acres of the tract which was acquired by Mercer from Worrell, upon which is located the mansion house and other buildings and improvements referred to hi the deed from Mercer to Charles Robb, and which, with the remaining acres constituted the seventy-three acre tract conveyed by Worrell to Mercer, were the country seat of a French gentleman who early in the century had improved it with a mansion house estimated to have cost about $15,000 and built in the style of that period. There was a barn and outbuildings and two tenant houses, and appurtenant to the house was a garden and lawn of several acres laid out in the French style. The land covered by the deeds from Hirst and Sellers had no buildings upon it. Forty years ago, as shown by the testimony of William Sellers, whose birthplace was just across Cobb’s creek, the place was in fine condition. It was known as the Frenchman’s place, and then maintained in fine style. Since then it has been deteriorating, and is now in a condition in which a large expenditure would be needed to restore the place to the state in which it formerly was.</p> <p>4. In 1872, at the time of the purchase by Charles Robb, property in that portion of the city was supposed to be on the eve of improvement. For many years, upon the plans of the board of city surveyors, the streets had been plotted through this tract as they had been through the entire county, with the exception of the extreme northerly portion of the Twenty-third ward, but no streets were then or have since been opened through the property, and while some improvements had then been made within about a half mile of the property, the expectations which then existed of early improvement have not been realized, and the property is now as it was at the time of the purchase by Charles Robb, with the exception of the deterioration which time has made in the repair of the structures located upon it.</p> <p>5. After the purchase by Charles Robb, the property was placed in the care of a tenant farmer, who has occupied one of the tenant houses, and has farmed the place on shares. The nature of the crops is not clearly shown' by the evidence. The other tenant house and the mansion house have been rented to tenants, the mansion' house renting at from $15.00 to $20.00 a month. The result of the operation of the farm since 1876 is shown by a table as follows:—</p> <p>Receipts. 1’AXES AND Expenses.</p> <p>1876 I 778 06 $ 547 16</p> <p>1877 2,605 90 1,254 62</p> <p>1878 612 43 743 88</p> <p>1879 343 75 340 15</p> <p>1880 657 77 409 83</p> <p>1881 795 74 334 83</p> <p>1882 458 14 438 28</p> <p>1883 731 92 317 43</p> <p>1884 .331 74 533 43</p> <p>1885 671 42 326 43</p> <p>1886 $490 14 $436 66</p> <p>1887 497 02 303 31</p> <p>1888 528 80 418' 73</p> <p>1889 622 55 303 31</p> <p>1890 630 00 303 62</p> <p>1891 526 00 327 12</p> <p>1892 549 31 319 90</p> <p>1898 456 71 312 59</p> <p>which table shows that the returns of the farm have somewhat exceeded taxes and expenses. The three years preceding 1876, owing to large expenditures, show less favorable results.</p> <p>6. The present condition of the buildings, as shown by a visit made to them by the master in company with counsel, is that the mansion house is very much out of repair, and it is not in a condition in which a gentleman’s family would be willing to inhabit it as a country seat, but the building is a substantial one, it is not a ruin, and, considering its inaccessibility, the rental obtained shows that it is regarded as a habitable structure. The barn and other farm buildings are in poor repair, and not kept in the repair usual among the prosperous farmers of the counties adjacent to Philadelphia; at the same time they are capable of being used as farm buildings.</p> <p>7. The location of the property is immediately south of Haddington. To the west and south of the tract the adjacent properties are all farms or country seats. To the east are open fields extending to the west wall of the insane asylum property, which is about two miles to the eastward. In the intervening-space a few scattering dwellings have been erected, but the district is almost entirely an open common. A map was offered in evidence, made at or about the time of Charles Robb’s purchase, showing the courses of the streets running through the tract, and there can be no doubt that it was in the mind of Charles Robb that the property would at some time be developed and improved as city property.</p> <p>8. Charles Robb had been at various times engaged in real estate operations, purchasing outlying property, cutting it up into lots, and selling that way. The evidence shows the following transactions of this kind:</p> <p>(a) He purchased a country seat containing about twenty-five acres on the banks of the Schuylkill at Christian street, Philadelphia, and opened streets, divided it into lots, built wharves, and sold. Most of these lots had been sold at the time of Charles Robb’s death, but a number of ground rents reserved on them remained.</p> <p>(b) He purchased about one hundred acres at Gloucester, N. J., and went through the same process. Many of these lots had been sold at the time of his death, but others remained unsold.</p> <p>(e) He purchased an old country place, or part of an old country place, called Knowlton, at Woodland avenue, Philadelphia, the tract containing about twenty-two acres, and developed it. Most, not all, of these lots were sold before his death.</p> <p>(d') He purchased over three hundred acres of land at Scranton, Pa. He published a map, sold lots, and then opened a coal mine.</p> <p>9. Samuel Robb at the time of his death was seized and possessed of an undivided sixth part of the following vacant, unimproved lots of ground, producing no income, which he held in common with others, viz: those set forth in schedule No. 1 to the petition of Sarah T. Robb, filed in this case, and some lots of ground in Gloucester City, N. J., and a tract of land in Schuylkill county, Pa.</p> <p>And also the following undivided interests which he held in common with others, in the following improved real estate, having improvements thereon and producing income, to wit, one sixth interest in the lots and four story brick building thereon, No. 821 Chestnut street, Philadelphia, twenty-one by ninety feet, and Nos. 8, 4, 6 and 8 Hudson street, Philadelphia, in the rear of the above building, forty by eighty-five feet; one twenty-fourth interest in the lots and four-story brick building thereon, Nos. 14 and 16 South Seventh street, Philadelphia, thirty-four by one hundred and six feet; and one half interest in the lot and four-story store thereon, No. 110 North Third street, Philadelphia, eighteen by sixty-five feet.</p> <p>Samuel Robb was also seized in severalty at the date of his will and death, of the lot with the two-story brick store thereon, No. 945 Passyunk avenue, Philadelphia, fifteen by forty-five feet, and the lot and two-story brick dwelling thereon, No. 629 Carpenter street, Philadelphia, sixteen by fifty feet.</p> <p>Samuel Robb was also seized at the date of his will and death of an undivided one twelfth interest in a coal tract of about two hundred and twenty-four acres in Scranton, Pa., including improvements and mortgages on some lots thereof sold, and also some ground rents.</p> <p>Samuel Robb was also at the dates of his will and death seized of an undivided one half interest in common with others in a lot at the northwest corner of Second and Tasker streets, Philadelphia, the character of which, as improved and unimproved, was the subject of an action of ejectment in tins court by the said Sarah T. Robb against James M. Robb, which the verdict of the jury and judgment of the court thereon found to be improved property under said Samuel Robb’s will.</p> <p>And Samuel Robb was also seized in fee simple at the dates of his will and death of “ all that certain tract, piece, or parcel of land, with the mansion house and other improvements thereon erected, described in and the subject of the bill in equity and petition of Sarah T. Robb, filed in this cause.</p> <p>Having considered these facts, the master is of the opinion that the interest of Samuel Robb in the premises in question must be regarded as an interest in improved property, and that consequently the intervening petitioner is entitled to a one sixth interest therein. . . .</p> <p>Exceptions to the master’s report were overruled and a decree entered in favor of the intervening petitioner.</p> <p>Error assigned was above decree.</p>

Appeal, No. 83, Oct. Term, 1895, by defendant from judgment of C. P. No. 2, Allegheny Co., No. 275J, July T., 1889, on verdict for plaintiff. Assumpsit to recover commissions on sales.

<p>Promissory note — Principal and surety — Evidence—Question for jury.</p> <p>In a suit upon a promissory note against an accommodation indorser, it appeared that at the time of the indorsement the plaintiff, the holder of the note, had certain property which had been conveyed to him by the maker as security for certain obligations, including the debt for which the note was given. This conveyance had been made before the indorsement of the note in suit which was the last of a series of renewal notes, all indorsed by defendant. The plaintiff with other creditors entered into an agreement to pool the securities held by each of them, and to divide the proceeds thereof pro rata. Plaintiff claimed that defendant knew of this agreement by which the property held as security was turned over to the syndicate before he indorsed the note. The defendant denied thathe knew anything about it until the maturity of the note. The testimony tended to show that the property turned into the pool was not sufficient to pay the debt other than the note which the maker owed to plaintiff. The evidence showed that the pool retained the securities for some time, paying the taxes and interest upon a mortgage, and that subsequently a portion of the property was sold at a loss. The whole case was left to the jury, and a verdict and judgment rendered for plaintiff. Held, that the judgment should be affirmed.</p>

Appeal, No. 264, Oct. T., 1895, by plaintiff from decree of C. P. No. 1, Allegheny Co., June T., 1895, on bill in equity. Bill in equity for an account. The facts appear by the opinion of the Supreme Court. The court entered a decree dismissing the bill. Error assigned was decree of the court.

Appeal, No. 266, Oct. T., 1896, by John Schreiber et al., from decree of O. C. Allegheny Co., June T., 1895, No. 329, dismissing an appeal from the register of wills. Appeal from register of wills. . From the record it appeared that Katrina Auth and Henry Berg were married on September 5,1889. They lived together as man and wife, until Katrina’s death, at Yerona, Allegheny county, Pennsylvania, on December 2, 1893.